California-Sunnyvale-929 E. Arques Avenue Lease - MP Arques Inc. and Molecular Dynamics Inc.
INDUSTRIAL COMPLEX LEASE
(California)
Industrial Complex: Arques and DeGuine
Landlord: MP Arques, Inc.
Tenant: Molecular Dynamics, Inc.
Reference Date: November 30, 1999
INDEX TO LEASE
TITLE PAGE
ARTICLE 1. DEFINITIONS AND CERTAIN BASIC PROVISIONS.......................... 1
ARTICLE 2. GRANTING CLAUSE................................................... 2
ARTICLE 3. LEASEHOLD IMPROVEMENTS/DELIVERY OF DEMISED PREMISES............... 2
ARTICLE 4. RENT.............................................................. 3
ARTICLE 5. FINANCIAL REPORTS................................................. 4
ARTICLE 6. TENANT'S RESPONSIBILITY FOR TAXES, OTHER REAL ESTATE
CHARGES AND INSURANCE EXPENSES.................................... 4
ARTICLE 7. COMMON AREA....................................................... 5
ARTICLE 8. LOADING DOCK...................................................... 6
ARTICLE 9. USE AND CARE OF DEMISED PREMISES.................................. 7
ARTICLE 10. MAINTENANCE AND REPAIR OF DEMISED PREMISES....................... 7
ARTICLE 11. ALTERATIONS...................................................... 8
ARTICLE 12. LANDLORD'S RIGHT OF ACCESS....................................... 9
ARTICLE 13. SIGNS; STORE FRONTS.............................................. 9
ARTICLE 14. UTILITIES........................................................ 9
ARTICLE 15. INSURANCE COVERAGES.............................................. 10
ARTICLE 16. WAIVER OF LIABILITY; MUTUAL WAIVER OF SUBROGATION................ 11
ARTICLE 17. DAMAGES BY CASUALTY.............................................. 12
ARTICLE 18. EMINENT DOMAIN................................................... 13
ARTICLE 19. ASSIGNMENT AND SUBLETTING........................................ 13
ARTICLE 20. SUBORDINATION; ATTORNMENT; ESTOPPELS............................. 15
ARTICLE 21. TENANT'S INDEMNIFICATION......................................... 15
ARTICLE 22. DEFAULT BY TENANT AND REMEDIES................................... 16
ARTICLE 23. LANDLORD'S CONTRACTUAL SECURITY INTEREST......................... 19
ARTICLE 24. HOLDING OVER..................................................... 20
ARTICLE 25. NOTICES.......................................................... 20
ARTICLE 26. COMMISSIONS...................................................... 20
ARTICLE 27. REGULATIONS...................................................... 21
ARTICLE 28. HAZARDOUS MATERIALS.............................................. 21
ARTICLE 29. INTENTIONALLY DELETED............................................ 23
ARTICLE 30. MISCELLANEOUS.................................................... 23
EXHIBIT "A" DEMISED PREMISES
EXHIBIT "B" LEASEHOLD IMPROVEMENTS WORK LETTER
EXHIBIT "C" SUBSEQUENT IMPROVEMENTS WORK LETTER
EXHIBIT "D" TENANT CONSTRUCTION RULES AND REGULATIONS
EXHIBIT "E" RIGHT OF FIRST OPPORTUNITY
EXHIBIT "F" GUARANTY OF LEASE
EXHIBIT "G" HVAC REPAIR WORK
EXHIBIT "H" RENEWAL OPTION 2
INDUSTRIAL COMPLEX LEASE
(California)
ARTICLE 1.
DEFINITIONS AND CERTAIN BASIC PROVISIONS
1.1 The following list sets out certain defined terms and certain financial and
other information pertaining to this lease:
(a) "Landlord": MP Arques, Inc., a Delaware corporation, whose taxpayer identification
number is 33-0666682.
(b) Landlord's address: c/o GE Capital Investment Advisors, Inc., 444 Market
Street, Suite 2100, San Francisco, California 94111, Attention: Asset Management
and Legal Department.
(c) "Tenant": Molecular Dynamics, Inc., a Delaware corporation, whose taxpayer
identification number is 94-3050031.
(d) Tenant's address:
Prior to Commencement Date: 928 E. Arques Avenue
Sunnyvale, CA 94086
Upon Commencement Date: 928 E. Arques Avenue
Sunnyvale, CA 94086
(e) Tenant's trade name: Molecular Dynamics
(f) Tenant's Guarantor: Nycomed Amersham, a public limited company organized
under the laws of England, in accordance with the terms of the Guaranty of Lease
attached hereto as Exhibit "F" attached hereto.
(g) "Agent": South Bay Development Company, whose address is 511 Division
Street, Campbell, California 95008, Attention: Maureen Bowers.
(h) "Industrial Complex": Landlord's property in the City of Sunnyvale, Santa
Clara County, California, which property is commonly known as: 929 E. Arques Avenue
and 310 DeGuigne Avenue, Sunnyvale, California.
(i) "Demised Premises": that certain area in the Industrial Complex located
at 929 E. Arques Avenue, Sunnyvale, California 94086, California and being described
or shown cross-hatched on the floor plan(s) attached hereto as Exhibit "A" which
Landlord and Tenant acknowledge and agree to contain 58,688 square feet of rentable
area. Additionally, Tenant shall have the right to lease certain additional space
in the Industrial Complex, as described in, and subject to and in accordance with
the terms of Exhibit "E" attached hereto.
(j) "Commencement Date": March 1, 2000, which date may be extended in accordance
with Section 3.2 below.
(k) "Lease term": commencing on the Commencement Date and continuing for
seven (7) years and zero (0) months after the Commencement Date; provided that if
the Commencement Date is a date other than the first day of a calendar month, the
lease term shall be extended by the number of days remaining in the calendar month
in which the Commencement Date occurs.
(l) Minimum guaranteed rental: $111,507.20, which amount shall be adjusted
annually in accordance with Section 4.1 below.
(m) Prepaid rental: $111,507.20, being an estimate of the initial minimum
guaranteed rental, for the first month of the lease term, such prepaid rental being
due and payable upon execution of this lease.
(n) Security deposit: $33,145.39, such security deposit being due and payable
upon execution of this lease.
(o) Permitted use: for office, research and development, and the marketing,
warehousing, distribution, sales and light manufacturing of life science equipment
and related consumables and components, and for no other purpose whatsoever. Provided,
however, any other legal use not permitted pursuant to the foregoing sentence shall
be subject to Landlord's prior written consent, not to be unreasonably withheld.
(p) Tenant's maximum insurance deductible: $25,000.00
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(q) "Tenant's Broker": Colliers International and Cornish & Carey
Commercial
(r) "Tenant's Proportionate Share": Sixty-two and Eighty-five
Hundredths Percent (62.85%)
(s) Tenant parking: Two Hundred Twenty-Eight (228) unreserved parking
spaces.
ARTICLE 2.
GRANTING CLAUSE
2.1 Landlord leases the Demised Premises to Tenant, and Tenant leases the
Demised Premises from Landlord, upon all of the terms and conditions set forth in
this lease.
ARTICLE 3.
LEASEHOLD IMPROVEMENTS/DELIVERY OF DEMISED PREMISES
3.1.Based on preliminary plans to be submitted to Landlord by Tenant, Landlord
shall prepare plans and specifications for all initial leasehold improvements (the
"Leasehold Improvements") to be constructed or installed or other work to be performed
by Landlord in the Demised Premises, in accordance with the terms and provisions
of the Work Letter attached hereto as Exhibit "B". The Work Letter sets forth certain
dates by which plans and specifications for the Leasehold Improvements must be prepared,
reviewed and approved, allocates the costs of the Leasehold Improvements, and further
describes the circumstances, if applicable, under which the Commencement Date hereof
may be delayed. In addition, prior to the Commencement Date, landlord shall perform,
at its sole cost and expense, the repair work to the existing HVAC system serving
the Demised Premises (the "HVAC Repair Work") detailed on Exhibit "G" attached hereto.
Tenant acknowledges that the HVAC Repair Work shall only include the work detailed
on Exhibit "G" and shall in no event include any HVAC work necessitated by Tenant's
particular floor plan or Tenant's particular requirements.
3.2 If the Demised Premises are not ready for occupancy by Tenant on the Commencement
Date, Landlord shall not be liable for any costs, claims, damages, or liabilities
incurred by Tenant as a result thereof, and the lease term and the obligations of
Tenant hereunder shall nonetheless commence and continue in full force and effect;
provided, however, if the Demised Premises are not ready for occupancy on the Commencement
Date due to omission, delay, or default on the part of Landlord, the lease term
shall not commence until the Demised Premises are ready for occupancy by Tenant.
In such event, the Commencement Date shall be deemed to be postponed to the date
the Demised Premises are ready for occupancy, whereupon the lease term shall commence.
Such postponement of rent and of the Commencement Date of this Lease shall constitute
full settlement of all claims that Tenant might otherwise have against Landlord
by reason of the Demised Premises not being ready for occupancy by Tenant on the
stated Commencement Date. Should the lease term commence on a date other than that
specified in Section 1(j) above, Landlord will send Tenant a written statement of
such adjusted Commencement Date, and Tenant will, if Landlord requests, confirm
such adjusted date in writing. The Demised Premises shall be deemed to be ready
for occupancy on the first to occur of (i) the date that all work required to be
completed pursuant to the terms of the Work Letter attached hereto as Exhibit "B"
as well as the HVAC Repair Work detailed on Exhibit "G" attached hereto has been
substantially completed (except for minor finishing jobs); provided, however, that
if such work is delayed because of a default or failure, or both, of Tenant, then
the Demised Premises shall also be deemed ready for occupancy when such work would
have been substantially completed if Tenant's default or failure had not occurred;
such date shall be deemed to have occurred on the date there is delivered to Tenant
a certificate from Landlord's architect that all improvements required to be constructed
or repairs to be performed by Landlord in the Demised Premises under the terms of
this lease are substantially complete (except for minor finishing jobs, which Landlord
shall complete using due diligence, and "punchlist" items, which shall be addressed
in accordance with the terms of Paragraph 6 of Exhibit "B") (or would have been
complete but for the default or failure of Tenant), which certificate shall be binding
and conclusive upon Tenant in the absence of bad faith and collusion on the part
of or between Landlord and Landlord's architect, or (ii) the date on which Tenant
begins occupancy of the Demised Premises.
3.3 The taking of possession of the Demised Premises by Tenant shall be conclusive
evidence (a) that Tenant accepts the Demised Premises as suitable for the purposes
for which the same are leased, (b) that Tenant accepts the Industrial Complex and
each and every part and appurtenance thereof as being in a good and satisfactory
condition, and (c) that Landlord has fully complied with Landlord's obligations
contained in this Lease with respect to the construction of the Industrial Complex
and the Leasehold Improvements. A site inspection by Tenant accompanied by a representative
of Landlord shall not be deemed "the taking of possession" under the preceding sentence.
Tenant acknowledges that the Demised Premises are being leased "AS IS," with Tenant
accepting all defects, if any; and Landlord makes no warranty of any kind, express
or implied, with respect to the Demised Premises (without limitation, Landlord makes
no warranty as to the habitability, fitness or suitability of the Demised Premises
for a particular purpose nor as to the absence of any toxic or otherwise hazardous
substances). This Section 3.3 is subject to any contrary requirements under applicable
law; however, in this regard Tenant acknowledges that it has been given the opportunity
to inspect the Demised Premises and to have qualified experts inspect the Demised
Premises prior to the execution of this lease.
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3.4 Provided Tenant is not then in default under this lease and upon receipt
of a written request and preliminary plans therefor from Tenant (which notice must
be given not earlier than January 1, 2001 but prior to July 31, 2002), Landlord
shall construct certain subsequent improvements (the "Subsequent Improvements")
to the Demised Premises in accordance with the terms and provisions of the Work
Letter attached hereto as Exhibit "C". The Subsequent Improvements shall be performed
solely to what is currently the warehouse portion of the Demised Premises and are
more particularly described in the Work Letter attached hereto as Exhibit "C". The
Work Letter sets forth certain dates by which plans and specifications for the Subsequent
Improvements must be prepared, reviewed and approved and allocates the cost of the
Subsequent Improvements. Should Tenant fail to provide Landlord with a written request
and preliminary plans for the construction of the Subsequent Improvements within
the time period required by the first sentence of this Section 3.4, then in such
event this Section 3.4 shall be void and of no further force and effect.
ARTICLE 4.
RENT
4.1 The minimum guaranteed rental shall be subject to periodic increases
based upon the following schedule and which increases shall become effective automatically
and without further notice as of the first day of the specified lease month:
Lease Months Monthly Rental
------------ --------------
1-12 $111,507.20
13-24 114,852.41
25-36 118,297.98
37-48 121,846.91
49-60 125,502.31
61-72 129,267.37
73-84 133,145.39
4.2 Rental shall accrue from the Commencement Date, and shall be payable
to Landlord at Agent's address specified in Section 1.1(g) above or at such other
address as Landlord shall so notify Tenant from time to time.
4.3 Tenant shall pay to Landlord minimum guaranteed rental in monthly installments
in the amounts specified in Section 1.1(l) and Section 4.1 of this lease. The first
such monthly installment shall be due and payable on or before the Commencement
Date, and subsequent installments shall be due and payable on or before the first
day of each succeeding calendar month during the lease term; provided that if the
Commencement Date is a date other than the first day of a calendar month, there
shall be due and payable on or before such date as minimum guaranteed rental for
the balance of such calendar month a sum equal to that proportion of the rent specified
for the first full calendar month as herein provided, which the number of days from
the Commencement Date to the end of the calendar month during which the Commencement
Date shall fall bears to the total number of days in such month. Tenant agrees to
pay to Landlord, if assessed by the jurisdiction in which the Industrial Complex
is located, any sales, excise or other tax imposed, assessed or levied in connection
with Tenant's payment of rents.
4.4 It is understood that the minimum guaranteed rental is payable on or
before the first day of each calendar month (in accordance with Section 4.2 above),
without offset or deduction of any nature. In the event any rental is not received
within five (5) days after its due date for any reason whatsoever, or if any rental
payment is by check which is returned for insufficient funds, then in addition to
the past due amount Tenant shall pay to Landlord one of the following (the choice
to be at the sole option of Landlord unless one of the choices is improper under
applicable law, in which event the other alternative will automatically be deemed
to have been selected): (a) a late charge in an amount equal to eight percent (8%)
of the rental then due, in order to compensate Landlord for its administrative and
other overhead expenses; or (b) interest on the rental then due at the maximum contractual
rate which could legally be charged in the event of a loan of such rental to Tenant
(but in no event to exceed 1-1/2% per month), such interest to accrue continuously
on any unpaid balance due to Landlord by Tenant during the period commencing with
the rental due date and terminating with the date on which Tenant makes full payment
of all amounts owing to Landlord at the time of said payment. Any such late charge
or interest payment shall be payable as additional rental under this lease, shall
not be considered a waiver by Landlord of any default by Tenant hereunder, and shall
be payable immediately on demand.
4.5 If Tenant fails in two (2) consecutive months to make rental payments
within ten (10) days after it is due, Landlord, in order to reduce its administrative
costs, may require, by giving written notice to Tenant (and in addition to any late
charge or interest accruing pursuant to Section 4.4 above, as well as any other
rights and remedies accruing pursuant to Article 22 or Article 23 below, or any
other provision of this lease or at law), that minimum guaranteed rentals are to
be paid quarterly in advance instead of monthly, and that all future rental payments
are to be made on or before the due date by cash, cashier's check, or money order
and that the delivery of Tenant's personal or corporate check will no longer constitute
a payment of rental as provided in this lease. Any acceptance of a monthly rental
payment or of a personal or corporate check thereafter by Landlord shall not be
construed as a subsequent waiver of said rights.
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4.6 Tenant shall pay when due any and all sales taxes levied, imposed or
assessed by the United States of America, the State of California, or any political
subdivision thereof or other taxing authority upon the minimum guaranteed rental,
additional rent and all other sums payable hereunder.
ARTICLE 5.
FINANCIAL REPORTS
5.1 Tenant shall, when requested by Landlord from time to time, furnish a
true and accurate audited statement of its financial condition prepared in conformity
with recognized accounting principles, and in a form reasonably satisfactory to
Landlord.
ARTICLE 6.
TENANT'S RESPONSIBILITY FOR TAXES, OTHER
REAL ESTATE CHARGES AND INSURANCE EXPENSES
6.1 Tenant shall be liable for all taxes levied against personal property
and trade fixtures placed by Tenant in the Demised Premises which taxes shall be
paid when due and before any delinquency. If any such taxes are levied against Landlord
or Landlord's property and if Landlord elects to pay the same or if the assessed
value of Landlord's property is increased by inclusion of personal property and
trade fixtures placed by Tenant in the Demised Premises and Landlord elects to pay
the taxes based on such increase, Tenant shall pay to Landlord upon demand (and
upon Tenant's receipt of proof thereof) of that part of such taxes for which Tenant
is primarily liable hereunder.
6.2 Tenant shall also be liable for Tenant's Proportionate Share (as specified
in Section 1.1(r) above) of all "real estate charges" (as defined below) and "insurance
expenses" (as defined below) related to the Industrial Complex or Landlord's ownership
of the Industrial Complex. Tenant's obligations under this Section 6.2 shall be
prorated during any partial year (i.e., the first year and the last year of the
lease term). Tenant's Proportionate Share shall be adjusted as reasonably determined
by Landlord in the event that the total rentable area of the buildings in the Industrial
Complex shall change after the date hereof. "Real estate charges" shall include
ad valorem taxes, general and special assessments, parking surcharges, any tax or
charge for governmental services (such as street maintenance or fire protection)
which are attributable to the transfer or transaction directly or indirectly represented
by this Lease, by any sublease or assignment hereunder or by any document to which
Tenant is a party creating or transferring (or reflecting the creation or transfer
of) any interest or an estate in the Demised Premises and any tax or charge which
replaces or is in addition to any of such above-described "real estate charges";
real estate charges shall also include any fees, expenses or costs (including reasonable
attorneys' fees, expert fees and the like) incurred by Landlord in protesting or
contesting any assessments levied or the tax rate. "Real estate charges" shall not
be deemed to include sales tax payable by Tenant pursuant to Section 4.6 above and
any franchise, estate, inheritance or general income tax. "Insurance expenses" shall
include all premiums and other expenses incurred by Landlord for liability insurance
and fire and extended coverage property insurance (plus whatever endorsements or
special coverages which Landlord, in Landlord's sole discretion, may consider appropriate)
business interruption, and rent loss, earthquake and any other insurance policy
which may be carried by Landlord insuring the Demised Premises, the Common Area,
the Industrial Complex, or any improvements thereon.
6.3 At Landlord's sole option, Landlord and Tenant shall attempt to obtain
separate assessments for Tenant's obligations pursuant to Section 6.1 and; with
respect to Section 6.2, for such of the "real estate charges" as are readily susceptible
of separate assessment. To the extent of a separate assessment, Tenant agrees to
pay such assessment before it becomes delinquent and to keep the Demised Premises
free from any lien or attachment; moreover, as to all periods of time during the
lease term, this covenant of Tenant shall survive the termination of the lease.
With regard to the calendar year during which the lease term expires, Landlord at
its option either may bill Tenant when the charges become payable or may charge
Tenant an estimate of Tenant's pro rata share of whichever charges have been paid
directly by Tenant (based upon information available for the current year plus,
if current year information is not adequate in itself, information relating to the
immediately preceding year).
6.4 At such time as Landlord has reason to believe that at some time within
the immediately succeeding twelve (12) month period Tenant will owe Landlord any
amounts pursuant to one or more of the preceding sections of this Article 6, Landlord
may direct that Tenant prepay monthly a pro rata portion of the prospective future
payment (i.e., the prospective future payment divided by the number of months before
the prospective future payment will be due). Tenant agrees that any such prepayment
directed by Landlord shall be due and payable monthly on the same day that minimum
guaranteed rental is due.
6.5 In the event that any payment due from Tenant to Landlord is not received
within ten (10) days after its due date for any reason whatsoever, or if any such
payment is by check which is returned for insufficient funds, then in addition to
the amount then due, Tenant shall pay to Landlord interest on the amount then due
at the maximum contractual rate which could legally be charged in the event of a
loan of such amount to Tenant (but in no event to exceed 1-1/2% per month), such
interest to accrue continuously on any unpaid balance until paid.
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ARTICLE 7.
COMMON AREA
7.1 The term "Common Area" is defined for all purposes of this lease as that
part of the Industrial Complex intended for the common use of all tenants, including
among other facilities (as such may be applicable to the Industrial Complex), parking
areas, private streets and alleys, landscaping, curbs, loading areas, side-walks,
recreation/picnic areas, malls and promenades (enclosed or otherwise), lighting
facilities, drinking fountains, meeting rooms, public toilets, and the like, but
excluding (i) space in buildings (now or hereafter existing) designated for rental
for commercial purposes, as the same may exist from time to time; (ii) streets and
alleys maintained by a public authority; (iii) areas within the Industrial Complex
which may from time to time not be owned by Landlord (unless subject to a cross-access
agreement benefiting the area which includes the Demised Premises, the existence
of which Landlord shall notify Tenant); and (iv) areas leased to a single-purpose
user where access is restricted. In addition, although the roof(s) of the building(s)
in the Industrial Complex are not literally part of the Common Area, they will be
deemed to be so included for purposes of (i) Landlord's ability to prescribe rules
and regulations regarding same, and (ii), subject to the terms of Section 7.4 below,
their inclusion for purposes of common area maintenance reimbursements. For purposes
of this lease, the building containing the Demised Premises is referred to as the
"Building". Landlord reserves the right to change from time to time the dimensions
and location of the Common Area, as well as the dimensions, identities, locations
and types of any buildings, except for the location of the Building, signs or other
improvements in the Industrial Complex. For example, and without limiting the generality
of the immediately preceding sentence, Landlord may from time to time substitute
for any parking area other areas reasonably accessible to the tenants of the Industrial
Complex, which areas may be elevated, surface or underground.
7.2 Tenant, and its employees and customers, and when duly authorized pursuant
to the provisions of this lease, its subtenants, licensees, invitees, contractors
and concessionaires, shall have the nonexclusive right to use the Common Area (excluding
(subject to Section 7.2(d) below) roofs of buildings in the Industrial Complex)
as constituted from time to time, such use to be in common with Landlord, other
tenants in the Industrial Complex and other persons permitted by Landlord to use
the same, and subject to rights of governmental authorities, easements, other restrictions
of record, and such reasonable rules and regulations governing use as Landlord may
from time to time prescribe. For example, and without limiting the generality of
Landlord's ability to establish reasonable rules and regulations governing all aspects
of the Common Area, Tenant agrees as follows:
(a) Landlord may from time to time designate specific areas within
the Industrial Complex or in reasonable proximity thereto in which
automobiles owned by Tenant, its employees, subtenants, licensees,
invitees, contractors and concessionaires shall be parked in a
non-reserved manner in common with other tenants of the Industrial
Complex; and in this regard, Tenant shall furnish to Landlord upon request
a complete list of license numbers of all automobiles operated by Tenant,
its employees, its subtenants, its licensees or its concessionaires, or
their employees; and Tenant agrees that if any automobile or other vehicle
owned by Tenant or any of its employees, its subtenants, its licensees or
its concessionaires, or their employees, shall at any time be parked in
any part of the Industrial Complex other than the specified areas
designated for employee parking, Tenant shall pay to Landlord as
additional rent upon demand an amount equal to the daily rate or charge
for such parking as established by Landlord from time to time for each
day, or part thereof, that such automobile or other vehicle is so parked.
Subject to the foregoing, during the initial lease term, provided no event
of default has occurred under this lease and is continuing beyond the
expiration of applicable notice and cure periods, if any, Landlord agrees
to make available to Tenant, at no additional charge to Tenant, on an
unreserved basis in common with the other tenants of the Industrial
Complex, the number of parking spaces set out in Section 1.1(s) above.
(b) Tenant shall not solicit business within the Common Area nor
take any action which would interfere with the rights of other persons
to use the Common Area.
(c) Landlord may temporarily close any part of the Common Area for
such periods of time as may be necessary to make repairs or alterations or
to prevent the public from obtaining prescriptive rights.
(d) With regard to the roof(s) of the building(s) in the Industrial
Complex, use of the roof(s) is reserved to Landlord, or with regard to any
tenant demonstrating to Landlord's satisfaction a need to use same, to
such tenant after receiving prior written consent from Landlord.
Notwithstanding the foregoing, subject to such reasonable restrictions as
Landlord may impose, Tenant shall have such access to the roof of the
Building as is strictly necessary to perform (i) its obligations under
this lease (e.g., the maintenance of the HVAC system); and (ii)
alterations approved in advance under the terms of Article 11 of this
lease. Tenant shall not be entitled to place any antennae or other
communications equipment on the roof of the Building until it has first
obtained Landlord's reasonable consent, which may be conditioned upon
Tenant's execution of Landlord's standard form roof access agreement. All
such access by Tenant to the roof shall be subject to all terms and
conditions of this lease, including without limitation the insurance
provisions of Article 15 and the indemnification obligations under Article
21 of this lease.
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7.3 Landlord shall be responsible for the operation, management and maintenance
of the Common Area, the manner of maintenance and the expenditures therefor to be
in the sole discretion of Landlord, but to be generally in keeping with similar
industrial centers within the same geographical area as the Industrial Complex.
Landlord shall be the sole determinant of the type and amount of security services
to be provided, if any. Landlord shall not be liable to Tenant, and Tenant hereby
waives any claim against Landlord for (i) any unauthorized or criminal entry of
third parties into the Demised Premises or Industrial Complex, (ii) any damage to
persons or property, or (iii) any loss of property in and about the Demised Premises
or Industrial Complex from any unauthorized or criminal acts of third parties, regardless
of any action, inaction, failure, breakdown or insufficiency of security.
7.4 In addition to the rentals and other charges prescribed in this lease,
Tenant shall pay to Landlord Tenant's Proportionate Share of the cost of operation
and maintenance of the Common Area which may be incurred by Landlord in its discretion,
including, among other costs, those for lighting, painting, cleaning, policing,
inspecting, repairing and replacing; Tenant's Proportionate Share of capital expenditures
and expenses incurred by Landlord to increase the operating efficiency of the Industrial
Complex or to cause the Common Area to comply with applicable Regulations (as such
term is defined in Section 27.1), it being agreed that the cost of such capital
expenditures and installation shall be amortized over the reasonable life of the
capital expenditure, with the reasonable life and amortization schedule being determined
in accordance with generally accepted accounting principles consistently applied;
Tenant's Proportionate Share of the management fee Landlord pays to the property
manager for the Industrial Complex; a reasonable allowance for Landlord's overhead
costs and the cost of any insurance for which Landlord is not reimbursed pursuant
to Section 6.2, but specifically excluding all expenses paid or reimbursed pursuant
to Article 6. In addition, although the roof(s) of the building(s) in the Industrial
Complex are not literally part of the Common Area, Landlord and Tenant agree that
roof maintenance, repair and replacement shall be included as a common area maintenance
item to the extent not specifically allocated to Tenant under this lease nor to
another tenant pursuant to its lease. Notwithstanding the foregoing, with respect
to the cost of the maintenance, repair and replacement of the roof(s) of the building(s)
in the Industrial Complex, Landlord and Tenant agree as follows: (i) Tenant shall
pay one hundred percent (100%) of the cost of the maintenance, repair and replacement
of the roof of the Building; and (ii) Common Area Costs charged to Tenant under
this lease shall not include the cost of the maintenance, repair and replacement
of the roof of the other buildings currently located in the Industrial Complex.
With regard to capital expenditures other than the capital expenditures contemplated
by the first sentence of this Section, (i) the original investment in capital improvements,
i.e., upon the initial construction of the Industrial Complex, shall not be included,
and (ii) improvements and replacements, to the extent capitalized on Landlord's
records, shall be included only to the extent of a reasonable depreciation or amortization
(including interest accruals commensurate with Landlord's interest costs). If this
lease should commence on a date other than the first day of a calendar year or terminate
on a date other than the last day of a calendar year, Tenant's reimbursement obligations
under this Section 7.4 shall be prorated based upon Landlord's expenses for the
entire calendar year. Tenant shall make such payment to Landlord on demand, at intervals
not more frequent than monthly. Landlord may, at its option, make monthly or other
periodic charges based upon the estimated annual cost of operation and maintenance
of the Common Area, payable in advance but subject to adjustment after the end of
the year on the basis of the actual cost for such year. In the event that any payment
due from Tenant to Landlord is not received within ten (10) days after its due date
for any reason whatsoever, or if any such payment is by check which is returned
for insufficient funds, then, in addition to the amount then due, Tenant shall pay
to Landlord interest on the amount then due at the maximum contractual rate which
could legally be charged in the event of a loan of such amount to Tenant (but in
no event to exceed 1-1/2% per month), such interest to accrue continuously on any
unpaid balance until paid. Any delay or failure of Landlord in delivering any estimate
or statement described in this Section 7.4 or in computing or billing Tenant's Proportionate
Share of the foregoing costs shall not constitute a waiver of Landlord's right to
require an increase in rent as provided herein or in any way impair the continuing
obligations of Tenant under this Section.
ARTICLE 8.
LOADING DOCK
8.1 Tenant shall have a license to use and occupy the loading dock(s) outside
the Demised Premises as shown on Exhibit "A" (collectively, the "Loading Dock").
Subject to the provisions of this lease, and such rules and regulations as may be
promulgated by Landlord from time to time, Tenant, its employees, agents, contractors,
licensees, guests and invitees may use the Loading Dock for loading and access to
and from the Demised Premises for the permitted use set forth in Section 1.1(o)
above. Tenant's use of the Loading Dock shall be at its sole risk, and Landlord
shall not be liable for any injury to any person or property, or for any loss or
damage to any vehicle or its contents resulting from theft, collision, vandalism
or any other cause whatsoever. Tenant shall cause its personnel and visitors to
remove their vehicles from the Loading Dock at the end of each business day. In
the event the Loading Dock is intended for use in common with other tenants in the
Industrial Complex, Tenant shall pay Landlord within ten (10) days after rendition
of a bill therefor an equitable share of the costs of maintenance and repair of
the Loading Dock as such costs are allocated by Landlord based upon the estimated
use by each of the respective tenants using the Loading Dock.
6
8
ARTICLE 9.
USE AND CARE OF DEMISED PREMISES
9.1 The Demised Premises shall be used and occupied by Tenant solely for
the permitted use specified in Section 1.1(o) above and for no other purpose. Tenant,
at its sole cost and expense, shall obtain and keep in effect during the term, all
permits, licenses and other authorizations necessary to permit Tenant to use and
occupy the Demised Premises for the permitted use. Without limiting the generality
of the foregoing, Tenant shall not use or store any gasoline or flammable or so
called "Red Label" materials in or about the Demised Premises. All equipment used
within the Demised Premises shall be subject to approval by Landlord's insurance
carriers and shall be Underwriters Laboratory or Factory Mutual approved for the
uses intended, evidence of which shall be furnished to Landlord upon request. Subject
to Section 28.2 below, Tenant shall not operate any machinery or equipment in the
Demised Premises which, in Landlord's sole discretion, shall cause any excessive
noise, vibration, damage or disturbance to the other tenants in the Industrial Complex.
9.2 Tenant shall take good care of the Demised Premises and Loading Dock
and keep the same free from waste at all times. Tenant shall not over-load the floors
in the Demised Premises, nor deface or injure the Demised Premises or Loading Dock.
Tenant shall keep the Demised Premises, Loading Dock and all side-walks, service-ways
and loading areas adjacent to the Demised Premises neat, clean and free from dirt,
rubbish, ice or snow at all times. Tenant shall store all trash and garbage within
the Demised Premises or in a trash dumpster or similar container approved by Landlord
as to type, location and screening; and Tenant shall arrange for the regular pick-up
of such trash and garbage at Tenant's expense (unless Landlord finds its necessary
to furnish such a service, in which event Tenant shall be charged an equitable portion
of the total of the charges to all tenants using the service). Receiving and delivery
of goods and merchandise and removal of garbage and trash shall be made only in
the manner and areas prescribed by Landlord. Tenant shall not operate an incinerator
or burn trash or garbage within the Industrial Complex.
ARTICLE 10.
MAINTENANCE AND REPAIR OF DEMISED PREMISES
10.1 Landlord shall, at Landlord's sole cost and expense, keep the foundation,
the exterior walls (except plate glass; windows, doors and other exterior openings;
window and door frames, molding, closure devices, locks and hardware; special store
fronts; lighting, heating, air conditioning, plumbing and other electrical, mechanical
and electromotive installation, equipment and fixtures; signs, placards, decorations
or other advertising media of any type; and interior painting or other treatment
of exterior walls) and structural elements of the roof of the Demised Premises in
good repair. Landlord, however, shall not be required to make any repairs occasioned
by the act or negligence of Tenant, its agents, contractors, employees, subtenants,
invitees, customers, licensees and concessionaires (including, but not limited to,
roof leaks resulting from Tenant's installation of air conditioning equipment or
any other roof penetration or placement); and the provisions of the previous sentence
are expressly recognized to be subject to the provisions of Article 17 and Article
18 of this lease. In the event that the Demised Premises should become in need of
repairs required to be made by Landlord hereunder, Tenant shall give immediate written
notice thereof to Landlord and Landlord shall have a reasonable time after receipt
by Landlord of such written notice in which to make such repairs. All such repairs
shall be commenced promptly and prosecuted with reasonable diligence, and Landlord
shall use good faith efforts to expedite any emergency repairs. Landlord shall not
be liable to Tenant for any interruption of Tenant's business or inconvenience caused
due to any work performed in the Demised Premises or in the Industrial Complex pursuant
to Landlord's rights and obligations under the Lease, so long as the work is performed
without gross negligence or willful misconduct. Landlord shall use commercially
reasonable and good faith efforts to minimize the disruption to and interference
with Tenant's business caused by its performance of work in the Demised Premises
pursuant to Landlord's rights and obligations under this lease.
10.2 Tenant shall keep the Demised Premises in good, clean and habitable
condition and shall at its sole cost and expense keep the Demised Premises free
of insects, rodents, vermin and other pests and make all needed repairs and replacements,
including replacement of cracked or broken glass, except for repairs and replacements
required to be made by Landlord under the provisions of Section 10.1, Article 17
and 18. Without limiting the coverage of the previous sentence, it is understood
that Tenant's responsibilities therein include the repair and replacement in accordance
with all applicable Regulations (as defined in Section 27.1 below) of all lighting,
heating, air conditioning, plumbing and other electrical, mechanical and electromotive
installation, equipment and fixtures and also include all utility repairs in ducts,
conduits, pipes and wiring, and any sewer stoppage located in, under and above the
Demised Premises, regardless of when or how the defect or other cause for repair
or replacement occurred or became apparent; provided, however, that as to the maintenance
and repair of the HVAC equipment in the Demised Premises, Landlord shall have the
option of contracting directly with an HVAC servicing company for all such work
and charging Tenant for all costs thereof. If any repairs required to be made by
Tenant hereunder are not made within ten (10) days after written notice delivered
to Tenant by Landlord, Landlord may at its option make such repairs without liability
to Tenant for any loss or damage which may result to its stock or business by reason
of such repairs and Tenant shall pay to Landlord upon demand, as additional rental
hereunder, the cost of such repairs plus interest at the maximum contractual rate
which could legally be charged in the event of a loan of such payment to Tenant
(but in no event to exceed 1-1/2% per month), such interest to accrue continuously
from the date of payment by Landlord until repayment by Tenant. At the expiration
of this lease, Tenant shall surrender
7 9 the Demised Premises in good condition,
excepting reasonable wear and tear and losses required to be restored by Landlord
in Section 10.1, Article 17 and Article 18 of this lease.
10.3 Tenant waives the right to make repairs at Landlord's expense under Sections
1941 and 1942 of the California Civil Code and all other laws now or hereafter in
effect.
ARTICLE 11.
ALTERATIONS
11.1 Tenant shall not make any alterations, additions or improvements to the
Demised Premises (collectively, the "Alterations") without the prior written consent
of Landlord, which consent shall not be unreasonably withheld or delayed, except
for (i) the installation of unattached, movable trade fixtures which may be installed
without drilling, cutting or otherwise defacing the Demised Premises, and (ii) nonstructural
Alterations in the Demised Premises which are not visible from the outside of the
Demised Premises, if the cost of such nonstructural Alterations do not exceed Fifty
Thousand Dollars ($50,000.00) in any twelve (12) month period. Even though Landlord's
consent is not required, the foregoing alterations shall be subject to all other
requirements of Article 11. Tenant shall furnish complete plans and specifications
to Landlord at the time it requests Landlord's consent to any Alterations if the
desired Alterations (i) will affect the Industrial Complex's mechanical, electrical,
plumbing or life safety systems or services, or (ii) will affect any structural
component of the Demised Premises or the Industrial Complex, or (iii) will require
the filing of plans and specifications with any governmental or quasi-governmental
agency or authority, or (iv) will cost in excess of Fifty Thousand Dollars ($50,000.00).
Subsequent to obtaining Landlord's consent and prior to commencement of the Alterations,
Tenant shall deliver to Landlord any building permit required by applicable law
and a copy of the executed construction contract(s). Tenant shall reimburse Landlord
within ten (10) days after the rendition of a bill for all of Landlord's actual
out-of-pocket costs incurred in connection with any Alterations, including, without
limitation, all reasonable management, engineering, outside consulting, and construction
fees incurred by or on behalf of Landlord for the review and approval of Tenant's
plans and specifications and for the reasonable monitoring of construction of the
Alterations. If Landlord consents to the making of any Alterations, such Alterations
shall be made by Tenant at Tenant's sole cost and expense by a contractor approved
in writing by Landlord. Tenant shall give Landlord not less than ten (10) days advance
written notice of the commencement of Tenant's Alterations to enable Landlord to
post and record notices of nonresponsibility. Tenant shall require its contractor
to maintain insurance in such commercially reasonable amounts and in such form as
Landlord may require. Any construction, alteration, maintenance, repair, replacement,
installation, removal or decoration undertaken by Tenant in connection with the
Demised Premises shall be completed in accordance with plans and specifications
which must be approved by Landlord, shall be carried out in a good, workmanlike
and prompt manner and in accordance with the provisions of Exhibit "D" attached
hereto, shall comply with all applicable Regulations of the authorities having jurisdiction
thereof, and shall be subject to supervision by Landlord or its employees, agents
or contractors. Without limiting the generality of the immediately preceding sentence,
any installation or replacement of Tenant's heating or air conditioning equipment
must be effected strictly in accordance with Landlord's instructions, the Clean
Air Act and all other applicable Regulations. Without Landlord's prior written consent,
Tenant shall not use any portion of the Common Areas either within or without the
Industrial Complex in connection with the making of any Alterations. If the Alterations
which Tenant causes to be constructed result in Landlord being required to make
any alterations and/or improvements to other portions of the Industrial Complex
in order to comply with any applicable Regulations, then Tenant shall reimburse
Landlord upon demand for all costs and expenses incurred by Landlord in making such
alterations and/or improvements. Any Alterations made by Tenant shall become the
property of Landlord upon installation and shall remain on and be surrendered with
the Demised Premises upon the expiration or sooner termination of this lease, except
Tenant shall upon demand by Landlord, at Tenant's sole cost and expense, forthwith
and with all due diligence remove all or any portion of any Alterations made by
Tenant which are designated in writing by Landlord to be removed and repair and
restore the Demised Premises in a good and workmanlike manner to their original
condition, reasonable wear and tear excepted. Notwithstanding the foregoing, Landlord
acknowledges that Tenant shall not be required to remove the Leasehold Improvements
to be constructed by Landlord in accordance with Exhibit "B" or the Subsequent Improvements
to be constructed in accordance with Exhibit "C".
11.2 All construction work done by Tenant within the Demised Premises shall
be performed in a good and workmanlike manner with new materials of first-class
quality, lien-free and in compliance with all governmental requirements and Regulations,
and in such manner as to cause a minimum of interference with other construction
in progress and with the transaction of business in the Industrial Complex. Tenant
agrees to indemnify Landlord and hold Landlord harmless against any loss, liability
or damage resulting from such work, and Tenant shall, if requested by Landlord,
furnish a bond or other security reasonably satisfactory to Landlord against any
such loss, liability or damage.
11.3 In the event Tenant uses a general contractor to perform construction
work within the Demised Premises, Tenant shall, prior to the commencement of such
work, require said general contractor to execute and deliver to Landlord a waiver
and release of any and all claims against Landlord and liens against the Industrial
Complex to which such contractor might at any time be entitled. The delivery of
the waiver and release of lien within the time period set forth above shall be a
condition precedent to Tenant's ability to enter on and begin its construction work
at the Demised Premises and, if applicable, to any reimbursement from Landlord for
its construction work.
8 10
11.4 Nothing contained in this lease shall be construed as constituting the
consent or request of Landlord, express or implied, to or for the performance by
any contractor, laborer, materialman or vendor of any labor or services or for the
furnishing of any materials for any construction, alteration, addition, repair or
demolition of or to the Demised Premises or any part thereof. All materialmen, contractors,
artisans, mechanics, laborers and any other persons now or hereafter furnishing
any labor, services, materials, supplies or equipment to Tenant with respect to
any portion of the Demised Premises are hereby charged with notice that they must
look exclusively to Tenant to obtain payment for same. Tenant and any subtenants
shall have no power to do any act or make any contract which may create or be the
foundation of any lien, mortgage or other encumbrance upon the reversionary or other
estate of Landlord, or any interest of Landlord in the Demised Premises. NOTICE
IS HEREBY GIVEN THAT LANDLORD IS NOT AND SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES
OR MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT OR TO ANYONE HOLDING THE DEMISED
PREMISES OR ANY PART THEREOF, AND THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH
LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD
IN AND TO THE DEMISED PREMISES.
11.5 In the event that Landlord elects to remodel all or any portion of the
Industrial Complex, Tenant will cooperate with such remodeling, including Tenant's
tolerating temporary inconveniences (and even the temporary removal of Tenant's
signs in order to facilitate such remodeling, as it may relate to the exterior of
the Demised Premises).
ARTICLE 12.
LANDLORD'S RIGHT OF ACCESS
12.1 Landlord and Landlord's agents and representatives shall have the right
to enter the Demised Premises at any time in case of an emergency, and at all other
reasonable times upon prior reasonable notice (which notice shall not be required
in event of emergency) for any purpose permitted pursuant to the terms of this lease,
including, but not limited to, examining the Demised Premises; making such repairs
or alterations therein as may be necessary or appropriate in Landlord's sole judgment
for the safety and preservation thereof; erecting, installing, maintaining, repairing
or replacing wires, cables, conduits, vents, ducts, risers, pipes, HVAC equipment
or plumbing equipment running in, to or through the Demised Premises; showing the
Demised Premises to prospective purchasers or mortgagees and during the last year
of this lease, prospective tenants; and posting notices of nonresponsibility.
12.2 If requested in writing by Landlord, Tenant shall give Landlord a key
for all of the doors for the Demised Premises, excluding Tenant's vaults, safes,
files and private offices of Tenant's executives. Landlord shall have the right
to use any and all means to open the doors to the Demised Premises in an emergency
in order to obtain entry thereto without liability to Tenant therefor, except for
Landlord's willful misconduct. Any entry to the Demised Premises by Landlord by
any of the foregoing means, or otherwise, shall not be construed or deemed to be
a forcible or unlawful entry into or a detainer of the Demised Premises, or an eviction,
partial eviction or constructive eviction of Tenant from the Demised Premises or
any portion thereof, and shall not relieve Tenant of its obligations hereunder.
ARTICLE 13.
SIGNS; STORE FRONTS
13.1 Tenant shall not place or permit to be placed any signs upon (i) the
roof, facade or windows of the Demised Premises, or (ii) the Common Areas or any
exterior area of the Industrial Complex without Landlord's prior written approval
which approval shall not be unreasonably withheld or delayed provided any proposed
sign is placed only in those locations as may be designated by Landlord, and complies
with the sign criteria promulgated by Landlord from time to time. Upon request of
Landlord, Tenant shall immediately remove any sign, advertising material or lettering
which Tenant has placed or permitted to be placed upon the exterior or interior
surface of any door or window or at any point inside the Demised Premises, on the
exterior of the Industrial Complex if reasonably required in connection with any
cleaning, maintenance or repairs to the Industrial Complex or which, in Landlord's
reasonable opinion, is of such a nature as to not be in keeping with the standards
of the Industrial Complex and if Tenant fails to do so, Landlord may without liability
remove the same at Tenant's expense. Tenant shall comply with such reasonable regulations
as may from time to time be promulgated by Landlord governing signs, advertising
material or lettering of all tenants in the Industrial Complex.
ARTICLE 14.
UTILITIES
14.1 Tenant shall obtain all water, electricity, sewerage, gas, telephone
and other utilities directly from the public utility company furnishing same. Any
meters required in connection therewith shall be installed at Tenant's sole cost.
Tenant shall pay all utility deposits and fees, and all monthly service charges
for water, electricity, sewage, gas, telephone and any other utility services furnished
to the Demised Premises during the term of this lease. In the event any such utilities
are not separately metered on the Commencement Date, then until such time as such
services are separately metered, Tenant shall pay Landlord Tenant's equitable share
of the cost of such services, as determined by Landlord. If for any reason the use
of any utility is measured on a meter(s) indicating the usage of Tenant
9 11 and other tenants of the Industrial
Complex, Tenant and such other tenants shall allocate the cost of such utility amongst
themselves and shall each be responsible for the payment of its allocable share.
Landlord shall furnish and install all piping, feeders, risers and other connections
necessary to bring utilities to the perimeter walls of the Demised Premises. Anything
to the contrary notwithstanding, Tenant shall remain obligated for the payment of
Tenant's pro-rata share of any heating costs and/or other utilities or services
furnished to the Common Areas pursuant to Section 7.4.
14.2 Tenant shall have the right to use the existing heating, air conditioning
and ventilation equipment in the Demised Premises, if any. All such equipment shall
be maintained, repaired and replaced, as necessary, by Tenant at its sole expense
and shall be surrendered by Tenant to Landlord at the end of the term of this lease
together with the Demised Premises. Landlord makes no representation or warranty
as to the condition or capacity of such equipment. Landlord shall have no obligation
whatsoever to provide the Demised Premises with any additional heat, air conditioning,
ventilation or hot water.
14.3 Landlord shall not be liable for any interruption whatsoever, nor shall
Tenant be entitled to an abatement or reduction of rent on account thereof, in utility
services not furnished by Landlord, nor for interruptions in utility services furnished
by Landlord which are due to fire, accident, strike, acts of God or other causes
beyond the control of Landlord or which are necessary or useful in connection with
making any alterations, repairs or improvements. Notwithstanding anything to the
contrary contained in this lease, if any utility services to the Demised Premises
are interrupted due to the act or omission of Landlord, its authorized agents, or
employees, and such utility is not substantially restored within five (5) business
days, then the rent payable hereunder shall thereafter abate in proportion to the
extent of the actual interference with Tenant's use of the Demised Premises, until
such time as the affected utility has been restored.
14.4 Tenant shall not install any equipment which exceeds or overloads the
capacity of the utility facilities serving the Demised Premises.
ARTICLE 15.
INSURANCE COVERAGES
15.1 Landlord shall procure and maintain throughout the term of this lease
a policy or policies of insurance, at its sole cost and expense (but subject to
Article 6 above), causing the Industrial Complex to be insured under standard fire
and extended coverage insurance (excluding hurricane and storm insurance unless
readily obtainable at commercially reasonable rates) and liability insurance (plus
whatever endorsements or special coverages Landlord, in its sole but reasonable
discretion, may consider appropriate), to the extent necessary to comply with Landlord's
obligations pursuant to other provisions of this lease. All payments for losses
thereunder shall be made solely to Landlord. If the annual premiums charged to Landlord
shall exceed the standard rates because Tenant's operations, the contents of the
Demised Premises, or improvements made to the Demised Premises beyond standard improvements
result in extra-hazardous exposure, Tenant shall pay the excess amount of the premium
upon demand therefor by Landlord.
15.2 Tenant shall procure and maintain throughout the term of this lease,
at its sole cost and expense, all of the following insurance coverages:
(a) Commercial General Liability Insurance, providing coverage for
bodily injury (including death), property damage and products liability
insurance (where such exposure exists). This policy shall contain a broad
form contractual liability endorsement under which the insurer agrees to
insure Tenant's obligations under Section 16.2 and Article 21 hereof. Such
insurance shall have a combined single limit of not less than Three Million
Dollars ($3,000,000) per occurrence, or such greater amount as Landlord may
from time to time require. If Tenant uses vehicles, owned and non-owned, in
any way to carry out business on or about the Industrial Complex, Tenant
shall also maintain Motor Vehicle Liability Insurance; such insurance shall
have a combined single limit of not less than One Million Dollars
($1,000,000) for bodily injury and property damage.
(b) Fire and extended coverage insurance covering Tenant's personal
property, fixtures, improvements, wall coverings, floor coverings, window
coverings, signs, alterations, furniture, furnishings, equipment, lighting,
ceilings, heating, ventilation and air conditioning equipment and interior
plumbing against loss or damage by fire, flood, windstorms, hail,
earthquakes, explosion, riot, damage from aircraft and vehicles, smoke
damage, vandalism and malicious mischief and such other risks as are from
time to time covered under "extended coverage" endorsements and special
extended coverage endorsements commonly known as "all risks" endorsements,
containing the waiver of subrogation required in Section 16.3 of this lease
and in an amount equal to the greater of the full replacement value or the
amount required by the holder of any mortgage from time to time placed upon
the Industrial Complex or a portion of the Industrial Complex containing
the Demised Premises, with business interruption insurance covering the
Demised Premises. Replacement value is understood to mean the cost to
replace without deduction for depreciation.
(c) State Worker's Compensation Insurance in the statutorily
mandated limits.
10 12
(d) Employer's Liability insurance with limits of not less than
One Hundred Thousand Dollars ($100,000) for bodily injury per accident and
each disease, per employee, and a total combined limit for bodily injury in
amounts not less than One Hundred Thousand ($100,000) per accident and Five
Hundred ($500,000) per each disease, or such greater amount as Landlord may
from time to time require.
(e) Plate Glass Insurance.
It is expressly understood and agreed that the foregoing minimum limits of insurance
coverage shall not limit the liability of Tenant for its acts or omissions as provided
in this lease. All of the foregoing insurance policies (with the exception of Workers'
Compensation Insurance to the extent not available under applicable law) shall name
Landlord, GE Capital Investment Advisors, Inc., the Agent identified in Section
1.1(g), any mortgagee, the managing agent for the Industrial Complex, and such other
parties as Landlord shall from time to time designate, as additional insureds as
their respective interests may appear, through an ISO Additional Insured Endorsement
CG20281185 or equivalent, and shall provide that any loss shall be payable to Landlord
and such other additional insured parties as their respective interests may appear.
All insurance required hereunder shall be placed with companies which are rated
AVII or better by Best's Insurance Guide (or such other comparable publication if
Best's is no longer published) and which are licensed to do business in the State
of California. All such policies shall be written as primary policies with deductibles
not to exceed the amount specified in Section 1.1(p) above; provided, however, that
the deductible for the Plate Glass Insurance shall not exceed Two Hundred Fifty
Dollars ($250). Any other policies, including Landlord's policy, will serve as excess
coverage. Tenant shall deliver duplicate original copies of all such policies and
all endorsements thereto (or certificates evidencing that the required insurance
coverages and endorsements, including waiver of subrogation, are in full force and
effect) to Landlord, prior to the Commencement Date, or, in the case of renewals
thereto, fifteen (15) days prior to the expiration of the prior insurance policy,
together with evidence that (1) such policies are fully paid for, and (2) no cancellation,
material change or non-renewal thereof shall be effective except upon thirty (30)
days' prior written notice by registered mail from the insurer to Landlord, as well
as to Landlord's managing agent (at the address for the payment of rent set forth
in Section 4.2 above). Whenever, in Landlord's reasonable judgment, good business
practice or change in conditions indicate a need for additional or different types
of insurance. Tenant shall, within fifteen (15) days of receipt of Landlord's request
therefor, obtain the insurance at its own expense. If Tenant should fail to comply
with the foregoing requirements relating to insurance, Landlord may obtain such
insurance and Tenant shall pay to Landlord on demand as additional rental hereunder
the premium cost thereof plus interest at the maximum contractual rate (but in no
event to exceed 1-1/2% per month) from the date of payment by Landlord until repaid
by Tenant.
15.3 In addition to the foregoing, Tenant shall obtain certificates of insurance
evidencing Commercial General Liability insurance, including Completed Operations,
Motor Vehicle Liability Insurance, Worker's Compensation Insurance and Employer's
Liability Insurance in the amounts required above from any contractor or subcontractor
engaged by Tenant for repairs or maintenance during the lease term.
ARTICLE 16.
WAIVER OF LIABILITY; MUTUAL WAIVER OF SUBROGATION
16.1 Landlord and Landlord's agents and employees shall not be liable to Tenant,
nor to Tenant's employees, agents, contractors, subcontractors, invitees, subtenants,
or licensees, nor to any other person whomsoever, for any injury to person or damage
to property caused by the Demised Premises or other portions of the Industrial
Complex becoming out of repair or by defect or failure of any structural element
of the Demised Premises or of any equipment, pipes or wiring, or broken glass, or
by the backing up of drains, or by gas, water, storms, electricity, or off leaking,
escaping or flowing into the Demised Premises (except where due to Landlord's (1)
willful failure to make repairs required to be made by Landlord hereunder, after
the expiration of a reasonable time after written notice to Landlord of the need
for such repairs; or (2) gross negligence), nor shall Landlord be liable to Tenant,
nor to Tenant's employees, agents, contractors, subcontractors, invitees, subtenants
or licensees, nor to any other persons whomsoever, (or any loss or damage that may
be occasioned by or through the acts or omissions of other tenants of the Industrial
Complex or of any other persons whomsoever, excepting only duly authorized employees
and agents of Landlord. Landlord shall not be held responsible in any way on account
of any construction, repair or reconstruction (including widening) of any private
or public roadways, walkways or utility lines.
16.2 Landlord shall not be liable to Tenant or to Tenant's employees, agents,
contractors, subcontractors, invitees, subtenants or licensees, or to any other
person whomsoever, for any injury to person or damage to property on or about the
Demised Premises or the Common Area caused by the negligence or misconduct of Tenant,
it employees, agents, contractors, subcontractors, invitees, subtenants or licensees,
or of any other person entering the Industrial Complex under express or implied
invitation of Tenant (with exception of invitees in the Common Area), or arising
out of the use of the Demised Premises by Tenant and the conduct of its business
therein, or arising out of any breach or default by Tenant in the performance of
its obligations under this lease; and Tenant hereby agrees to indemnify, defend
and hold Landlord harmless from any loss, expense or claims arising out of such
damage or injury. Furthermore, Tenant agrees to indemnify, defend and hold Landlord
harmless from damage or injury. Furthermore, Tenant agrees to indemnify, defend
and hold Landlord harmless from and against any and all liability, claims, demands,
causes of action of any kind and nature arising or
13 growing out of or in any way connected with Tenant's use, occupancy, management
or control of the Demised Premises and Tenant's operations or activities in the
Industrial Complex. Upon notice from Landlord, Tenant shall defend any such claim,
demand, cause of action or suit referenced hereinabove at Tenant's expense by counsel
reasonably satisfactory to Landlord in its sole discretion.
16.3 Landlord and Tenant each hereby release the other from any and all liability
or responsibility to the other, or to any other party claiming through or under
them by way of subrogation or otherwise, for any loss or damage to property caused
by a casualty which is insurable under standard fire and extended coverage insurance;
provided, however, that this mutual waiver shall be applicable only with respect
to a loss or damage occurring during the time when property insurance policies,
which are readily available in the marketplace, contain a clause or permit an endorsement
to the effect that any such release shall not adversely affect or impair the policy
or the right of the insured party to receive proceeds under the policy; provided,
further, that this release shall not be applicable to the portion of any damage
which is not reimbursed by the damaged party's insurer because of the "deductible"
in the damaged party's insurance coverage. The release specified in this Section
16.3 is cumulative with any releases or exculpations which may be contained in other
provisions of this lease. Landlord and Tenant agree that all policies of insurance
obtained by them pursuant to the terms of this lease shall contain provisions or
endorsements thereto waiving the insurer's rights of subrogation with respect to
claims against the other, and, unless the policies permit waiver of subrogation
without notice to the Insurer, each shall immediately notify its insurance companies
of the existence of the waiver and indemnity provisions set forth in this lease.
ARTICLE 17.
DAMAGES BY CASUALTY
17.1 Tenant shall give immediate written notice to Landlord of any damage
caused to the Demised Premises by fire or other casualty.
17.2 In the event that the Demised Premises shall be damaged or destroyed
by fire or other casualty insurable under standard fire and extended coverage insurance
and Landlord does not elect to terminate this lease as hereinafter provided, Landlord
shall proceed with reasonable diligence and at its sole cost and expense to rebuild
and repair the Demised Premises; provided, however, in the event that such repair
and rebuilding shall reasonably be expected to require more than two hundred and
ten (210) days, Tenant shall have the right to terminate this lease upon written
notice to Landlord delivered to Landlord within thirty (30) days of Tenant's receipt
of Landlord's Election Notice (as defined below). In the event (a) the building
in which the Demised Premises are located is destroyed or substantially damaged
by a casualty not covered by Landlord's insurance, or (b) such building is destroyed
or rendered untenantable to an extent in excess of fifty percent (50%) of the first
floor area by a casualty covered by Landlord's insurance, or (c) the holder of a
mortgage, deed of trust or other lien on such building at the time of the casualty
elects, pursuant to such mortgage, deed of trust or other lien, to require the use
of all or part of Landlord's insurance proceeds in satisfaction of all or part of
the indebtedness secured by the mortgage, deed of trust or other lien, or (d) the
Demised Premises shall be damaged to the extent of fifty percent (50%) or more of
the cost or replacement, then Landlord may elect either to terminate this lease
or to proceed to rebuild and repair the Demised Premises. Landlord shall give written
notice to Tenant ("Landlord's Election Notice") of such election within sixty (60)
days after the occurrence of such casualty and, if it elects to rebuild and repair,
shall proceed to do so with reasonable diligence and at its sole cost and expense;
provided, however, in the event that such repair and rebuilding shall reasonably
be expected to require more than two hundred and ten (210) days, Tenant shall have
the right to terminate this lease upon written notice to Landlord delivered to Landlord
within thirty (30) days of tenant's receipt of Landlord's Election Notice. Provided,
further, in the event (i) of a fire or other casualty to the Demised Premises where
Landlord has elected to rebuild the Demised Premises and Tenant has not terminated
the lease pursuant to a termination right contained in this Section 17.2, and (ii)
the Demised premises are not materially rebuilt by Landlord in accordance with Section
17.3 below within two hundred and ten days (210) from the date of the casualty,
then Tenant may provide Landlord with not less than thirty (30) days' prior written
notice of its intent to terminate this lease ("Tenant's Termination Notice"). Provided,
however, Tenant's right to terminate the lease shall be voided if the Demised Premises
are materially rebuilt prior to the termination date set out in Tenant's Termination
notice. In addition to the foregoing, Tenant shall have the right to terminate this
lease upon written notice to Landlord in the event that a casualty to the building
containing the Demised Premises during the last twelve (12) months of the lease
term destroys or renders the Demised Premises untenantable to an extent in excess
of thirty percent (30%) of the floor area thereof.
17.3 Landlord's obligation to rebuild and repair under this Article 17 shall
in any event be limited to restoring Landlord's Work, as described in the applicable
exhibit attached to this lease (if such an exhibit is attached), to substantially
the same condition in which the same existed prior to the casualty. Tenant agrees
that promptly after completion of such work by Landlord, Tenant will proceed with
reasonable diligence and at Tenant's sole cost and expense to restore, repair and
replace all alterations, additions, improvements, fixtures, signs and equipment
installed by Tenant, and, if an exhibit describing Tenant's Work is attached hereto,
all items of Tenant's Work as described in such exhibit.
17.4 Tenant agrees that during any period of reconstruction or repair of
the Demised Premises, it will continue the operation of its business within the
Demised Premises to the extent practicable. During the period from the occurrence
of the casualty until Landlord's repairs are completed,
12 14 the minimum guaranteed rental,
Real Estate Charges, Insurance Expenses and Common Area operation and maintenance
costs shall be reduced to such extent as may be fair and reasonable under the circumstances.
17.5 Tenant hereby waives the provisions of California Civil Code Sections
1932(2) and 1933(4) and the provisions of any successor or other law of like import.
ARTICLE 18.
EMINENT DOMAIN
18.1 If more than thirty percent (30%) of the floor area of the Demised Premises
should be taken for any public or quasi-public use under any governmental law, ordinance
or regulation or by right of eminent domain or by private purchase in lieu thereof,
this lease shall terminate and the rent shall be abated during the unexpired portion
of this lease, effective on the date physical possession is taken by the condemning
authority.
18.2 If less than thirty percent (30%) of the floor area of the Demised Premises
should be taken as aforesaid, this lease shall not terminate; however, the minimum
guaranteed rental payable hereunder during the unexpired portion of this lease shall
be reduced in proportion to the area taken, effective on the date physical possession
is taken by the condemning authority. Following such partial taking, Landlord shall
make all necessary repairs or alterations to the remaining premises or, if an exhibit
describing Landlord's Work is attached to this lease, all necessary repairs within
the scope of Landlord's Work as described in such exhibit, as the case may be, required
to make the remaining portions of the Demised Premises an architectural whole, but
in no event shall Landlord be required to expend an amount greater than the award
actually received by Landlord in connection with such taking.
18.3 If any part of the Common Area should be taken as aforesaid, this lease
shall not terminate, nor shall the rent payable hereunder be reduced, except that
either Landlord or Tenant may terminate this lease if the area of the Common Area
remaining following such taking plus any additional parking area provided by Landlord
in reasonable proximity to the Industrial Complex shall be less than seventy percent
(70%) of the area of the Common Area immediately prior to the taking. Any election
to terminate this lease in accordance with this provision shall be evidenced by
written notice of termination delivered to the other party within thirty (30) days
after the date physical possession is taken by the condemning authority.
18.4 All compensation awarded for any taking (or the proceeds of private sale
in lieu thereof) of the Demised Premises or Common Area shall be the property of
Landlord, and Tenant hereby assigns its interest in any such award to Landlord;
provided, however, Landlord shall have no interest in any award made to Tenant for
Tenant's moving and relocation expenses or for the loss of Tenant's fixtures and
other tangible personal property if a separate award for such items is made to Tenant
as long as such separate award does not reduce the amount that would otherwise be
awarded to Landlord.
18.5 The rights contained in this Article 18 shall be Tenant's sole and exclusive
remedy in the event of a taking or condemnation. Each party waives the provisions
of Section 1265.130 and 1265.150 of the California Code of Civil Procedure and the
provisions of any successor or other law of like import.
18.6 Notwithstanding anything to the contrary, Landlord may terminate this
lease with no further liability to Tenant if (i) fifty percent (50%) or more of
the gross leasable area of the Industrial Complex is taken or (ii) if following
any taking, Landlord's mortgagee elects to require Landlord to apply all or a portion
of such award to the outstanding indebtedness.
ARTICLE 19.
ASSIGNMENT AND SUBLETTING
19.1 Tenant shall not assign or in any manner transfer this lease or any estate
or interest therein, or sublet the Demised Premises or any part thereof, or grant
any license, concession or other right of occupancy of any portion of the Demised
Premises without the prior written consent of Landlord. Landlord agrees that it
will not withhold, delay or condition its consent in an unreasonable manner (as
further explained in Section 30.4 of this lease); however, in determining whether
or not to grant its consent, Landlord shall be entitled to take into consideration
factors such as Landlord's desired tenant mix, the reputation and net worth of the
proposed transferee, and the then current market conditions (including market rentals).
In addition, Landlord shall also be entitled to charge Tenant a reasonable fee for
processing Tenant's request. Consent by Landlord to one or more assignments or sublettings
shall not operate as a waiver of Landlord's rights as to any subsequent assignments
or sublettings. In all events, Landlord can refuse to consent to an assignment or
sublease if there shall exist any uncured event of default of Tenant or a matter
which will become a default with the passage of time. Notwithstanding the foregoing,
Tenant may, without Landlord's prior written consent but otherwise subject to all
of the provision of this Article 19 (except for Section 19.7), upon concurrent written
notice to Landlord sublet the Demised Premises or assign this lease to the following
parties (singularly, a "Permitted Assignee", collectively, "Permitted Assignees"):
(i) a subsidiary, affiliate or corporation controlling, controlled by or under common
control with Tenant, (II) a successor corporation related to
13
15 Tenant by merger, consolidation, nonbankruptcy reorganization, or government
action, or (iii) a purchaser of substantially all of Tenant's assets, provided that
in the case of a transfer set out in Items (ii) or (iii) above, the net worth of
the surviving entity is equal to or greater than that of Tenant prior to the date
of the transfer. Upon Landlords request, Tenant shall provide Landlord with such
information as Landlord may reasonably require to confirm that Tenant's assertion
as to a Permitted Assignee is in fact correct.
19.2 If Tenant is a corporation, partnership or other entity and if at any
time during the term of this lease the person or persons who own a majority of either
the outstanding voting rights or the outstanding ownership interests of Tenant at
the time of the execution of this lease cease to own a majority of such voting rights
or ownership interests (except as a result of transfers by devise or descent), the
loss of a majority of such voting rights or ownership interests shall be deemed
an assignment of this lease by Tenant and, therefore, subject in all respects to
the provisions of Section 19.1 above. The previous sentence shall not apply, however,
if at the time of the execution of this lease, Tenant is a corporation and the outstanding
voting shares of capital stock of Tenant are listed on a recognized security exchange
or over-the-counter market.
19.3 Notwithstanding anything to the contrary contained herein, and without
prejudice to Landlord's right to require a written assumption from each assignee,
any person or entity to whom this lease is assigned including, without limitation,
assignees pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Paragraph
101, et seq. (the "Bankruptcy Code"), shall automatically be deemed, by acceptance
of such assignment or sublease or by taking actual or constructive possession of
the Demised Premises, to have assumed all obligations of Tenant arising under this
lease effective as of the earlier of the date of such assignment or sublease or
the date on which the assignee or sublessee obtains possession of the Demised Premises.
In the event this lease is assigned to any person or entity pursuant to the provisions
of the Bankruptcy Code, any and all monies or other consideration payable or otherwise
to be delivered in connection with such assignment shall be paid or delivered to
Landlord and shall remain the exclusive property of Landlord and not constitute
the property of Tenant or Tenant's estate within the meaning of the Bankruptcy Code.
All such money or other consideration not paid or delivered to Landlord shall be
held in trust for the benefit of Landlord and shall be promptly paid or delivered
to Landlord.
19.4 Notwithstanding any assignment or subletting, Tenant and any guarantor
of Tenant's obligations under this lease shall at all times remain fully responsible
and liable for the payment of the rent herein specified and for compliance with
all of its other obligations under this lease (even if future assignments and sublettings
occur subsequent to the assignment or subletting by Tenant, and regardless of whether
or not Tenant's approval has been obtained for such future assignments and sublettings).
Moreover, in the event that the rental due and payable by a sublessee (or a combination
of the rental payable under such sublease plus any bonus or other consideration
therefor or incidental thereto) exceeds the minimum guaranteed rental payable hereunder
by Tenant, after deducting reasonable leasing commissions paid by Tenant in connection
with such subletting, then fifty percent (50%) of such excess rent and other consideration
shall be deemed additional rent owed by Tenant to Landlord, and shall be payable
to Landlord by Tenant in the same manner and on the same terms as installments of
minimum guaranteed rental are payable by Tenant hereunder (or upon Tenant's receipt
thereof, whichever is earlier). If, with respect to a permitted assignment, permitted
license or other transfer by Tenant permitted by Landlord, the rental due and payable
by the assignee, licensee or other transferee (or a combination of the rental payable
under such sublease plus any bonus or other consideration therefor or incidental
thereto) exceeds the minimum guaranteed rental payable hereunder by Tenant, then
all of such excess rent and other consideration shall be deemed additional rent
owed by Tenant to Landlord, and shall be payable to Landlord by Tenant in the same
manner and on the same terms as installments of minimum guaranteed rental are payable
by Tenant hereunder (or upon Tenant's receipt thereof, whichever is earlier). Finally,
in the event of an assignment or subletting, it is understood and agreed that all
rentals paid to Tenant by an assignee or sublessee shall be received by Tenant in
trust for Landlord, to be forwarded immediately to Landlord without offset or reduction
of any kind; and upon election by Landlord such rentals shall be paid directly to
Landlord as specified in Section 4.2 of this lease (to be applied as a credit and
offset to Tenant's rental obligation).
19.5 Tenant shall not mortgage, pledge or otherwise encumber its interest
in this lease or in the Demised Premises.
19.6 In the event of the transfer and assignment by Landlord of its interest
in this lease and in the building containing the Demised Premises to a person expressly
assuming Landlord's obligations under this lease, Landlord shall thereby be released
from any further obligations hereunder, and Tenant agrees to look solely to such
successor in interest of the Landlord for performance of such obligations. Any security
given by Tenant to secure performance of Tenant's obligations hereunder may be assigned
and transferred by Landlord to such successor in interest and Landlord shall thereby
be discharged of any further obligation relating thereto.
19.7 Notwithstanding anything to the contrary contained herein, Landlord
shall have the option, in its sole discretion, in the event of any proposed subletting
or assignment, to terminate this lease, or in the case of a proposed subletting
of less than the entire Demised Premises for substantially all of the remaining
term of this lease, to recapture the portion of the Demised Premises to be sublet,
as of the date the subletting or assignment is to be effective. The option shall
be exercised by Landlord giving Tenant written notice within twenty (20) days following
Landlord's receipt of Tenant's written notice as required above. If this lease shall
be terminated with respect to the entire Demised Premises, the term
14
16 shall end on the date stated in Tenant's notice as the effective date of
the sublease or assignment as if that date had been originally fixed in this lease
for the expiration of the term. If Landlord recaptures only a portion of the Demised
Premises, the minimum guaranteed rental during the unexpired term shall abate, proportionately,
based on the minimum guaranteed rental due as of the date immediately prior to such
recapture.
19.8 Tenant hereby waives any suretyship defenses it may now or hereafter
have to an action brought by Landlord including those contained in Sections 2787
through 2856, inclusive, 2899 and 3433 of the California Civil Code, as now or hereafter
amended, or similar laws of like import.
19.9 Landlord and Tenant expressly agree that Tenant shall be permitted, upon
written notice to Landlord, to sublet the warehouse portion of the Demised Premises
(not to exceed 12,960 rentable square feet or a term running beyond April 30, 2002)
to Nanometrics, Inc. ("Nanometrics"), another tenant of the Industrial Complex,
subject to the following: If the rental or other consideration payable by Nanometrics
to Tenant exceeds the minimum guaranteed rental payable hereunder by Tenant, after
deducting reasonable leasing commissions paid by Tenant, then fifty percent (50%)
of all such excess rent and other consideration shall be deemed additional rent
owed by Tenant to Landlord and shall be payable to Landlord by Tenant in the same
manner and on the same terms as installments of minimum guaranteed rental are payable
by Tenant hereunder (or upon Tenant's receipt thereof, whichever is earlier).
ARTICLE 20.
SUBORDINATION; ATTORNMENT; ESTOPPELS
20.1 Tenant accepts this lease subject and subordinate to any mortgage, deed
of trust or other lien presently existing or hereafter placed upon the Industrial
Complex or any portion of the Industrial Complex which includes the Demised Premises,
and to any renewals, modifications and extensions thereof and this subordination
shall be self operative and no further instrument of subordination is needed. Tenant
agrees that any mortgagee shall have the right at any time to subordinate its mortgage,
deed of trust or other lien to this lease; provided, however, notwithstanding that
this lease may be (or is made to be) superior to a mortgage, deed of trust or other
lien, the mortgagee shall not be liable for prepaid rentals, security deposits and
claims accruing during or with respect to Landlord's ownership, any amendment or
modification made to this lease without its prior written consent or any offsets
or claims against Landlord; further provided that the provisions of a mortgage,
deed of trust or other lien relative to the right of the mortgagee with respect
to proceeds arising from an eminent domain taking (including a voluntary conveyance
by Landlord) and provisions relative to proceeds arising from insurance payable
by reason of damage to or destruction of the Demised Premises shall be prior and
superior to any contrary provisions contained in this instrument with respect to
the payment or usage thereof. Landlord is hereby irrevocably vested with full power
and authority to subordinate this lease to any mortgage, deed of trust or other
lien hereafter placed upon the Demised Premises or the Industrial Complex as a whole,
and Tenant agrees upon demand to execute such further instruments subordinating
this lease as Landlord may request. If the holder of any mortgage, indenture or
deed of trust or similar instrument (each a "Mortgagee") succeeds to Landlord's
interest in the Demised Premises, Tenant shall, upon request of any such Mortgagee,
automatically become the tenant of and attorn to and recognize such Mortgagee as
the landlord under this lease and will pay to it all rents and other amounts payable
by Tenant under this lease, in accordance with the applicable terms of this lease.
Notwithstanding that the foregoing provisions of this Section are self-operative,
upon request of Landlord or any Mortgagee, Tenant shall execute and deliver to Landlord
and to such Mortgagee a subordination and attornment agreement in recordable form
confirming the foregoing and otherwise in form and substance acceptable to Landlord
and such Mortgagee.
20.2 Tenant may not exercise any remedies for default by Landlord hereunder
unless and until Landlord and the holder(s) of any indebtedness secured by mortgage,
deed of trust or other lien on the Demised Premises shall have received written
notice of such default and a reasonable time (not less than 90 days) shall thereafter
have elapsed without the default having been cured.
20.3 Tenant agrees that it will from time to time upon request by Landlord
execute and deliver to Landlord a written statement addressed to Landlord (and to
a party[ies] designated by Landlord), which statement shall identify Tenant and
this lease, shall certify 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 so modified), shall confirm that Landlord is not in default as to any obligations
of Landlord under this Lease (or if Landlord is in default, specifying any default),
shall confirm Tenant's agreements contained above in this Article 20, and shall
contain such other information or confirmations as Landlord may reasonably require.
Landlord is hereby irrevocably appointed and authorized as the agent and attorney-in-fact
of Tenant to execute and deliver any such written statement on Tenant's behalf if
Tenant fails to do so within seven (7) days after the delivery of a written request
from Landlord to Tenant.
ARTICLES 21.
TENANT'S INDEMNIFICATION
21.1 Except to the extent such claims or liabilities arise out of the gross
negligence or willful misconduct of Landlord or any of the Indemnitees, Tenant shall
indemnify, defend and hold harmless Landlord, Landlord's asset manager, Landlord's
subasset manager, Landlord's partners, any subsidiary or
15 17 affiliate of Landlord and the officers,
directors, shareholders, partners, employees, managers, independent contractors,
attorneys and agents of any of the foregoing (collectively, the "Indemnitees") from
and against any and all claims, demands, causes of action, judgments, costs and
expenses, and all losses and damages (including consequential and punitive damages)
arising from Tenant's use of the Demised Premises or from the conduct of its business
or from any activity, work, or other acts or things done, permitted or suffered
by Tenant in or about the Demised Premises, and shall further indemnify, defend
and hold harmless the Indemnitees from and against any and all claims arising from
any breach or default in the performance of any obligation on Tenant's part to be
performed under the terms of this lease, or arising from any act, omission or negligence
or willful or criminal misconduct of Tenant, or any officer, agent, employee, independent
contractor, guest, or invitee thereof, and from all costs, reasonable attorneys'
fees and disbursements, and liabilities incurred in the defense of any such claim
or any action or proceeding which may be brought against, out of or in any way related
to this lease. Upon notice from Landlord, Tenant shall defend any such claim, demand,
cause of action or suit at Tenant's expense by counsel satisfactory to Landlord
in its sole discretion. As a material part of the consideration to Landlord for
this lease, Tenant hereby assumes all risk of damage to property or injury to persons
in, upon or about the Demised Premises from any cause, and Tenant hereby waives
all claims with respect thereto against Landlord except to the extent resulting
from Landlord's gross negligence or willful misconduct. Tenant shall give immediate
notice to Landlord in case of casualty or accidents in the Demised Premises. The
provisions of this Article 21 shall survive the expiration or sooner termination
of this lease.
21.2 All personal property of Tenant, including goods, wares, merchandise,
inventory, trade fixtures and other personal property of Tenant, shall be stored
at the sole risk of Tenant. Landlord or its agents shall not be liable for any loss
or damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water or rain which may leak from any part of the Industrial
Complex or from the pipes, appliances or plumbing works therein or from the roof,
street or subsurface or from any other places resulting from dampness or any other
cause whatsoever, or from the act or negligence of any other tenant or any officer,
agent, employee, contractor or guest of any such tenant, except personal injury
or property damage caused by or due to the gross negligence or willful misconduct
of Landlord. Landlord or its agents shall not be liable for interference with the
electrical service, ventilation, or for any latent defect (subject to Landlord's
repair obligation contained in Paragraph 6 of Exhibit "B") in the Demised Premises.
21.3 The parties hereto acknowledge that all or a part of the Demised Premises
may be used for the storage and shipment of goods not owned by Tenant, and Landlord
is not willing to enter into this lease unless Tenant indemnifies the Indemnitees
to Landlord's satisfaction from any liability on the part of the Indemnitees to
the owner(s) of such goods for damage to the same arising out of any acts or omissions
of the Indemnitees. As a material inducement to Landlord to enter into this lease,
except to the extent such claims or liabilities arise out of the gross negligence
or willful misconduct of Landlord or any of the Indemnitees, Tenant agrees to defend,
indemnify and hold the Indemnitees harmless from and against any and all losses,
claims, liabilities, obligations and damages imposed upon or incurred or asserted
against the Indemnitees by reason of damage to goods of persons storing such goods
with Tenant, notwithstanding the fact that such losses, claims, liabilities, obligations
or damages may have been caused by the acts or omissions of Landlord. Tenant agrees
that at all times during which it shall store goods not owned by it in the Demised
Premises, it shall insure the Indemnity described under this Section 21.3 in a manner
reasonably satisfactory to Landlord. Landlord shall not be deemed a bailee, consignee,
or warehouseman (or responsible for the standard of care incidental thereto) with
respect to any goods stored or shipped to or from the Demised Premises for consignment
or bailment and Tenant shall insert a clause to that effect in all warehouse receipts
or consignment agreements for the storage or shipment of goods to or from the Demised
Premises.
ARTICLE 22.
DEFAULT BY TENANT AND REMEDIES
22.1 The continuance beyond expiration of any applicable notice and cure periods
(as set out below) of the following events shall be deemed to be events of default
by Tenant under this lease:
(a) Tenant shall fail to pay any installment of rental or any other
obligation under this lease involving the payment of money on the date such
payment shall become due and payable.
(b) Tenant shall fail to comply with any provision of this lease,
other than as described in subsection (a) above, and Tenant shall either
(i) not cure such failure within fifteen (15) days after written notice
thereof to Tenant (or, where such default is not capable of being cured
within such fifteen (15) day period, Tenant shall fail to commence said
cure within such fifteen (15) day period and, using best efforts,
diligently bring such cure to completion; provided, however, in no event
shall Tenant have more than ninety (90) days to cure any such default); or
(ii) cure that particular failure but shall again fail to comply with the
same provision of this lease within three (3) months after Landlord's
written notice; provided, however, that any such notice where prepared and
delivered in accordance with Section 1161, et seq., of the California Code
of Civil Procedure shall be in lieu of, and not in addition to, any notice
required under Section 1161, et seq., of the California Code of Civil
Procedure.
16 18
(c) Tenant or any guarantor of Tenant's obligations under this lease
shall become insolvent, or shall make a transfer in fraud of creditors, or
shall make an assignment for the benefit of creditors.
(d) Tenant or any guarantor of Tenant's obligations under this lease
shall file a petition under any section or chapter of the federal
Bankruptcy Code, as amended, or under any similar law or statute of the
United States or any state thereof; or Tenant or any guarantor of Tenant's
obligations under this lease shall be adjudged bankrupt or insolvent in
proceedings filed against Tenant or any guarantor of Tenant's obligations
under this lease thereunder.
(e) A receiver or Trustee shall be appointed for the Demised Premises
or for all or substantially all of the assets of Tenant or any guarantor of
Tenant's obligations under this lease.
(f) Tenant shall desert or vacate or shall commence to desert or
vacate the Demised Premises or any substantial portion of the Demised
Premises or at any time prior to the last month of the lease term shall
remove or attempt to remove, without the prior written consent of Landlord,
all or a substantial amount of Tenant's goods, wares, equipment, fixtures,
furniture, or other personal property.
(g) Tenant shall do or permit to be done anything which creates a lien
upon the Demised Premises or upon all or any part of the Industrial
Complex.
(h) Any transfer of a substantial portion of the assets of Tenant, or
any incurrence of a material obligation by Tenant, unless such transfer or
obligation is undertaken or incurred in the ordinary course of Tenant's
business or in good faith for equivalent consideration, or with Landlord's
consent.
(i) The default of any guarantors of Tenant's obligations hereunder
under any guaranty of this Lease, or the attempted repudiation or
revocation of any such guaranty.
22.2 Upon the occurrence of any such event of default, Landlord shall have
the option to pursue any one or more of the following remedies to the extent permitted
by law:
(a) Without any further notice or demand whatsoever, Tenant shall be
obligated to reimburse Landlord for the damages suffered by Landlord as a
result of the event of default, plus interest on such amount at the maximum
contractual rate which could legally be charged in the event of a loan of
such amount to Tenant (but in no event to exceed 1-1/2% per month); and
Landlord may pursue a monetary recovery from Tenant.
(b) Without any further notice or demand whatsoever, Landlord may take
any one or more of the actions permissible at law to insure performance by
Tenant of Tenant's covenants and obligations under this lease. In this
regard, and without limiting the generality of the immediately preceding
sentence, it is agreed that if Tenant fails to open for business as
required in this lease or, having opened for business, deserts or vacates
the Demised Premises, Landlord may enter upon and take possession of such
premises in order to protect them from deterioration and continue to demand
from Tenant the monthly rentals and other charges provided in this lease,
without any obligation to relet; however, if Landlord does, at its sole
discretion, elect to relet the Demised Premises, such action by Landlord
shall not be deemed an acceptance of Tenant's surrender of the Demised
Premises unless Landlord expressly notifies Tenant of such acceptance in
writing pursuant to this subsection (b), Tenant hereby acknowledging that
Landlord shall otherwise be reletting as Tenant's agent and Tenant
furthermore hereby agreeing to pay to Landlord on demand any deficiency
that may arise between the monthly rentals and other charges provided in
this lease and that actually collected by Landlord. In the event that
Landlord shall elect to relet, then rentals received by Landlord from such
reletting shall be applied: first, to the payment of any indebtedness
(other than rent) due hereunder from Tenant to Landlord; second, to the
payment of any cost of such reletting (including brokerage commissions);
third, to the payment of the cost of any alterations and repairs to the
Demised Premises; fourth, to the payment of rent due and unpaid hereunder;
and the residue, if any, shall be held by Landlord and applied in payment
of future rent as the same may become due and payable hereunder. Should
reletting, during any month to which such rent is applied, result in the
actual payment of rentals at less than the rent payable during that month
by Tenant hereunder, then Tenant shall pay such deficiency to Landlord
immediately upon demand therefor by Landlord. Such deficiency shall be
calculated and paid monthly. Tenant shall also pay to Landlord as soon as
ascertained, any costs and expenses incurred by Landlord in such reletting
or in making such alterations and repairs not covered by the rentals
received from such reletting. Finally, it is agreed that in the event of
any default described in subsection (g) of Section 22.1 of this lease,
Landlord may pay or bond around such lien, whether or not contested by
Tenant; and in such event Tenant agrees to reimburse Landlord on demand for
all costs and expenses incurred in connection with any such action, with
Tenant further agreeing that Landlord shall in no event be liable for any
damages or claims resulting from such action. No action or inaction by
Landlord including, without limitation, the re-entry or taking of
possession of the Demised Premises by Landlord pursuant to this Section
22.2(b) shall be construed as an election to terminate this lease or as
interference with Tenant's rights of possession, assignment or subletting
unless a written notice of such election shall be given to Tenant or unless
the termination thereof be decreed by a court of competent
17 19
jurisdiction. Notwithstanding any reletting without termination by
Landlord, Landlord may, at any time after such reletting, elect to
terminate this lease for any such default.
(c) Landlord may terminate this lease by written notice to Tenant, in
which event Tenant shall immediately surrender the Demised Premises to
Landlord. In the event that Landlord shall elect to so terminate this
lease, then Landlord may recover from Tenant:
(i) The worth at the time of award of any unpaid rent which
had been earned at the time of such termination; plus
(ii) The worth at the time of award of the amount by which
the unpaid rent which would have been earned after termination until
the time of award exceeds the amount of such rental loss Tenant proves
reasonably could have been avoided; plus
(iii) The worth at the time of award of the amount by which
the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss that Tenant proves reasonably
could be avoided; plus
(iv) Any other amount necessary to compensate Landlord for
all detriment proximately caused by Tenant's failure to perform its
obligations under this lease or which in the ordinary course would be
likely to result therefrom, plus
(v) At Landlord's election, such other amounts in addition
to or in lieu of the foregoing as may be permitted from time to time
by applicable California law.
As used in subparagraphs (i) and (ii) above, the "worth at the time of
award" is computed by allowing interest at the maximum rate permitted
by law. As used in subparagraph (iii) above, the "worth at the time of
award" is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award plus
one percent (1%).
Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default. Tenant hereby waives for Tenant and
for all those claiming under Tenant all right now or hereafter existing to
redeem by order or judgment of any court or by any legal process or writ,
Tenant's right of occupancy of the Demised Premises after any termination
of this lease.
(d) In addition to all other rights and remedies provided Landlord in
this lease and by law, Landlord shall have the remedy described in
California Civil Code Section 1951.4 (Landlord may continue the lease in
effect after Tenant's breach and abandonment and recover rent as it becomes
due if Tenant has the right to sublet or assign the lease, subject to
reasonable limitations).
22.3 It is expressly agreed that in determining "the unpaid rent" as that
term is used throughout subsections 22.2(c)(i) and 22.2(c)(ii) above, there shall
be added to the minimum guaranteed rental (as specified in Sections 1.1(i) and 4.1
of this lease) a sum equal to the unpaid and in default charges for maintenance
of the Common Area charges (as specified in Section 7.4 of this lease), and the
payments for taxes, charges and insurance (as specified in Article 6 of this lease).
22.4 It is further agreed that, in addition to payments required pursuant
to subsections 22.2(b) and 22.2(c) above, Tenant shall compensate Landlord for all
expenses incurred by Landlord in repossession (including, among other expenses,
any increase in insurance premiums caused by the vacancy of the Demised Premises),
all expenses incurred by Landlord in reletting (including, among other expenses,
repairs, remodeling, replacements, advertisements and brokerage fees), all concessions
granted to a new tenant upon reletting (including, among other concessions, renewal
options), all losses incurred by Landlord as a direct or indirect result of Tenant's
default (including, among other losses, any adverse reaction by Landlord's mortgagee
or by other tenants or potential tenants of the industrial Complex) and a reasonable
allowance for Landlord's administrative efforts, salaries and overhead attributable
directly or indirectly to Tenant's default and Landlord's pursuing the rights and
remedies provided herein and under applicable law.
22.5 Landlord may restrain or enjoin any breach or threatened breach of any
covenant, duty or obligation of Tenant herein contained without the necessity of
proving the inadequacy of any legal remedy or irreparable harm. The remedies of
Landlord hereunder shall be deemed cumulative and not exclusive of each other.
22.6 If on account of any breach or default by Tenant in its obligations hereunder,
Landlord shall employ an attorney to present, enforce or defend any of Landlord's
rights or remedies hereunder, Tenant agrees to pay any reasonable attorneys' fees
incurred by Landlord in such connection.
22.7 Tenant acknowledges its obligation to deposit with Landlord the sum stated
in Section 1.1(n) above, to be held by Landlord without interest as security for
the performance by Tenant of Tenant's covenants and obligations under this lease.
Tenant agrees that such deposit may be commingled with Landlord's other funds and
that such security deposit is not an advance payment of
18 20 rental or a measure of Landlord's
damages in case of default by Tenant. Upon the occurrence of any event of default
by Tenant, Landlord may, from time to time, without prejudice to any other remedy
provided herein or provided by law, use such funds to the extent necessary to make
good any arrears of rentals and any other damage, injury, expense or liability caused
to Landlord by such event of default, and Tenant shall pay to Landlord on demand
the amount so applied in order to restore the security deposit to its original amount.
If Tenant is not then in default hereunder, any remaining balance of such security
deposit shall be returned by Landlord to Tenant upon termination of this lease (subject
to the provisions of Section 19.5 above).
22.8 (a) In the event of any default described in subsection (d) of
Section 22.1 of this lease, any assumption and assignment must conform with
the requirements of the Bankruptcy Code and, in order to provide Landlord
with the assurances contemplated by the Bankruptcy Code, Tenant must
fulfill the following obligations, in addition to any other reasonable
obligations that Landlord may require, before any assumption of this lease
is effective: (i) all defaults under subsection (a) of Section 22.1 of this
lease must be cured within ten (10) days after the date of assumption; (ii)
all other defaults under Section 22.1 of this lease other than under
subsection (d) of Section 22.1 must be cured within fifteen (15) days after
the date of assumption; (iii) all actual monetary losses incurred by
Landlord (including, but not limited to, reasonable attorneys' fees) must
be paid to Landlord within ten (10) days after the date of assumption; and
(iv) Landlord must receive within ten (10) days after the date of
assumption a security deposit in the amount of six (6) months minimum
guaranteed rent (using the minimum guaranteed rent in effect for the first
full month immediately following the assumption) and an advance prepayment
of minimum guaranteed rent in the amount of three (3) months minimum
guaranteed rent (using the minimum guaranteed rent in effect for the first
full month following the assumption), both sums to be held by Landlord in
accordance with Section 22.7 above and deemed to be rent under this lease
for the purposes of the Bankruptcy Code as amended and from time to time in
effect.
(b) In the event this lease is assumed in accordance with the
requirements of the Bankruptcy Code and this lease, and is subsequently
assigned, then, in addition to any other reasonable obligations that
Landlord may require and in order to provide Landlord with the assurances
contemplated by the Bankruptcy Code, Landlord shall be provided with (i) a
financial statement of the proposed assignee prepared in accordance with
generally accepted accounting principles consistently applied, though on a
cash basis, which reveals a net worth in an amount sufficient, in
Landlord's reasonable judgment, to assure the future performance by the
proposed assignee of Tenant's obligations under this lease; or (ii) a
written guaranty by one or more guarantors with financial ability
sufficient to assure the future performance of Tenant's obligations under
this lease, such guaranty to be in form and content satisfactory to
Landlord and to cover the performance of all of Tenant's obligations under
this lease.
ARTICLE 23.
LANDLORD'S CONTRACTUAL SECURITY INTEREST
23.1 In addition to the statutory Landlord's lien, Landlord shall have at
all times a valid security interest to secure payment of all rentals and other sums
of money becoming due hereunder from Tenant, and to secure payment of any damages
or loss which Landlord may suffer by reason of the breach by Tenant of any covenant,
agreement or condition contained herein, upon all goods, wares, equipment, fixtures,
furniture, improvements and other personal property of Tenant presently, or which
may hereafter be, situated on the Demised Premises, and all proceeds therefrom,
and such property shall not be removed without the consent of Landlord until all
arrearages in rent as well as any and all other undisputed sums of money then due
to Landlord or to become due to Landlord hereunder shall first have been paid and
discharged and all the covenants, agreements and conditions hereof have been fully
complied with and performed by Tenant. Upon the occurrence of an event of default
by Tenant, Landlord may, in addition to any other remedies provided herein, enter
upon the Demised Premises and take possession of any and all goods, wares, equipment,
fixtures, furniture, improvements and other personal property of Tenant situated
on the Demised Premises, without liability for trespass or conversion, and sell
the same at public or private sale, with or without having such property at the
sale, after giving Tenant reasonable notice of the time and place of any public
sale or of the time after which any private sale is to be made, at which sale Landlord
or its assigns may purchase unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other manner of giving Tenant
reasonable notice, the requirement of reasonable notice shall be met if such notice
is given in the manner prescribed in this lease at least five (5) days before the
time of sale. Any sale made pursuant to the provisions of this Section shall be
deemed to have been a public sale conducted in a commercially reasonable manner
if held in the Demised Premises or where the property is located after the time,
place and method of sale and a general description of the types of property to be
sold have been advertised in a daily newspaper published in the county in which
the property is located, for five (5) consecutive days before the date of the sale.
The proceeds from any such disposition, less any and all expenses connected with
the taking of possession, holding and selling of the property (including reasonable
attorneys' fees and legal expenses), shall be applied as a credit against the indebtedness
secured by the security interest granted in this Section. Any surplus shall be paid
to Tenant or as otherwise required by law; Tenant shall pay any deficiencies forthwith.
Tenant hereby agrees that a carbon, photographic or other reproduction of this lease
shall be sufficient to constitute a financing statement. Tenant nevertheless agrees
that upon request by Landlord, Tenant will execute and deliver to Landlord a financing
statement in form sufficient to perfect the security interest of Landlord in the
aforementioned
19 21 property and proceeds thereof under
the provisions of the California Uniform Commercial Code, as well as any other state
the laws of which Landlord may at any time consider to be applicable; moreover,
Landlord is hereby irrevocably vested with a power of attorney from Tenant to execute
any and all such financing statements on behalf of Tenant.
23.2 Notwithstanding Section 23.1, Landlord agrees that it will subordinate
its security interest and landlord's lien to the security interest of Tenant's supplier
or institutional financial source for as long as the rental account of Tenant under
this lease is current (or is brought current), provided that Landlord approves the
transaction as being reasonably necessary to Tenant's operations at the Demised
Premises, and further provided that the subordination must be limited to a specified
transaction and specified items of the fixtures, equipment or inventory involved
in the transaction.
ARTICLE 24.
HOLDING OVER
24.1 In the event Tenant remains in possession of the Demised Premises after
the expiration of this lease and without the execution of a new lease or an amendment
hereto, it shall be deemed to be occupying said premises as a tenant from month
to month at a rental equal to the rental herein provided plus one hundred percent
(100%) of such amount and otherwise subject to all the conditions, provisions and
obligations of this lease insofar as the same are applicable to a month-to-month
tenancy. Neither any provision hereof nor acceptance by Landlord of rent after such
expiration or earlier termination shall be deemed a consent to a holdover hereunder
or result in a renewal of this lease or an extension of the term. Notwithstanding
any provision to the contrary contained herein, (i) Landlord expressly reserves
the right to require Tenant to surrender possession of the Demised Premises upon
the expiration of the term of this lease or upon the earlier termination hereof,
the right to reenter the Demised Premises, and the right to assert any remedy at
law or in equity to evict Tenant and collect damages in connection with any such
holding over, and (ii) Tenant shall indemnify, defend and hold Landlord harmless
from and against any and all claims, demands, actions, losses, damages, obligations,
costs and expenses, including, without limitation, attorneys' fees incurred or suffered
by Landlord by reason of Tenant's failure to surrender the Demised Premises on the
expiration or earlier termination of this Lease in accordance with the provisions
of this lease.
ARTICLE 25.
NOTICES
25.1 Wherever any notice is required or permitted hereunder, such notice shall
be in writing. Any notice or document required or permitted to be delivered hereunder
shall be deemed to be delivered when actually received by the designated addressee
or, if earlier and regardless of whether actually received or not, when deposited
in the United States mail, postage prepaid, certified mail, return receipt requested,
addressed to the parties hereto at the respective addresses set out in Section 1.1
above (or at Landlord's option, to Tenant at the Demised Premises), or at such other
addresses as they have theretofore specified by written notice.
25.2 If and when included within the term "Landlord" as used in this instrument
there are more than one person, firm or corporation, all shall jointly arrange among
themselves for their joint execution of such a notice specifying some individual
at some specific address for the receipt of notices and payments to Landlord; if
and when included within the term "Tenant" as used in this instrument there are
more than one person, firm or corporation, all shall jointly arrange among themselves
for their joint execution of such a notice specifying some individual at some specific
address for the receipt of notices and payments to Tenant. All parties included
within the terms "Landlord" and "Tenant," respectively, shall be bound by notice
and payments given in accordance with the provisions of this Article to the same
effect as if each had received such notice or payment. In addition, Tenant agrees
that actions by Landlord and notices to Tenant hereunder may be taken or given by
Agent, Landlord's attorney, or any other property manager or agent.
25.3 A copy of any notice or document required or permitted to be delivered
hereunder to Landlord shall simultaneously be delivered to Agent.
ARTICLE 26.
COMMISSIONS
26.1 Tenant and Landlord warrant that they have had no dealings with any broker
or agent in connection with this lease, other than Agent and Tenant's Brokers. Landlord
and Tenant covenant to pay, hold harmless and indemnify each other from and against
any and all cost, expense or liability for any compensation, commissions or charges
claimed by any other broker or agent utilized by the indemnitor with respect to
this lease or the negotiation hereof. Landlord shall pay the commissions of Agent
and Tenant's Brokers in connection with this lease in accordance with the terms
of separate agreements to be entered into between such parties with respect thereto.
20
22
ARTICLE 27.
REGULATIONS
27.1 Landlord and Tenant acknowledge that there are now in effect and
may hereafter be enacted or go into effect federal, state, county and municipal
laws, orders, rules, directives and regulations relating to or affecting the Demised
Premises or the Industrial Complex, concerning the impact on the environment of
construction, land use, maintenance and operation of structures, toxic or otherwise
hazardous substances, and the conduct of business, including, without limitation,
the Americans With Disabilities Act of 1990 and the Clean Air Act and regulations
issued thereunder (all of the foregoing, as amended from time to time, being herein
called the "Regulations"). Tenant will not cause or permit to be caused, any act
or practice, by negligence, omission or otherwise, that would adversely affect the
environment or do anything or permit anything to be done that would violate any
of said Regulations. Moreover, Tenant shall have no claim against Landlord by reason
of any changes Landlord may make in the Industrial Complex or the Demised Premises
pursuant to said Regulations or any charges imposed upon Tenant, Tenant's customers
or other invitees pursuant to same.
27.2 If, by reason of any Regulations, the payment to, or collection
by, Landlord of any rental or other charge (collectively referred to hereinafter
as "Lease Payments") payable by Tenant to Landlord pursuant to the provisions of
this lease is in excess of the amount (the "Maximum Charge") permitted by the Regulations,
then Tenant, during the period (the "Freeze Period") when the Regulations shall
be in force and effect shall not be required to pay, nor shall Landlord be permitted
to collect, any sum in excess of the Maximum Charge. Upon the earlier of (i) the
expiration of the Freeze Period, or (ii) the issuance of a final order or judgment
of a court of competent jurisdiction declaring the Regulations to be invalid or
not applicable to the provisions of this lease, Tenant, to the extent not then proscribed
by law, and commencing with the first day of the month immediately following, shall
pay to Landlord as additional rental, in equal monthly installments during the balance
of the term of this lease, a sum equal to the cumulative difference between the
Maximum Charges and the Lease Payments during the Freeze Period. If any provisions
of this Section, or the application thereof, shall to any extent be declared to
be invalid and unenforceable, the same shall not be deemed to affect any of the
other provisions of this Section or of this lease, all of which shall be deemed
valid and enforceable to the fullest extent permitted by law.
27.3 Tenant acknowledges that it will be wholly responsible for any accommodations
or alterations which need to be made to the Demised Premises to accommodate disabled
employees and customers of Tenant, including without limitation, the requirements
under the Americans With Disabilities Act of 1990, as amended from time to time
("ADA") and any equivalent California law. Any alterations made to the Demised Premises
in order to comply with either statute must be made solely at Tenant's expense and
in compliance with all terms and requirements of this lease. Notwithstanding the
foregoing, Landlord shall be responsible for alterations to the restrooms of the
Demised Premises required by ADA to the extent such alterations are triggered by
the Leasehold Improvements to be constructed by Landlord pursuant to Exhibit "B".
Landlord agrees to make reasonable efforts to ensure that the Common Area is in
compliance with the applicable disability access laws as of the date hereof. If
a complaint is received by Landlord from either a private or government source regarding
disability access to the Common Area of the Industrial Complex, Landlord reserves
the right to mediate, contest, comply with or otherwise respond to such complaint
as Landlord deems to be reasonably prudent under the circumstances. If Landlord
decides to make alterations to the Common Area of the Industrial Complex in response
to any such complaints or in response to legal requirements Landlord considers to
be applicable to the Common Area of the Industrial Complex, the cost of such alterations
shall be included in the Common Area maintenance charge under this lease. Landlord
and Tenant agree that so long as the governmental entity or entities charged with
enforcing such statutes have not expressly required Landlord to take specific action
to effectuate compliance with such statutes, Landlord shall be conclusively deemed
to be in compliance with such statutes. Tenant agrees to provide Landlord with written
notice should Tenant become aware of a violation of such statutes with respect to
the Common Area. In the event Landlord is required to take action to effectuate
compliance with such statutes, Landlord shall have a reasonable period of time to
make the improvements and alterations necessary to effectuate such compliance, which
period of time shall be extended by any time necessary to cause any necessary improvements
and alterations to be made.
ARTICLE 28.
HAZARDOUS MATERIALS
28.1 During the term of this lease, Tenant shall comply with all Environmental
Laws and Environmental Permits (each as defined in Section 28.7 hereof) applicable
to the operation or use of the Demised Premises, will cause all other persons occupying
or using the Demised Premises to comply with all such Environmental Laws and Environmental
Permits, will immediately pay or cause to be paid all costs and expenses incurred
by reason of such compliance, and will obtain and renew all Environmental Permits
required for the operation or use of the Demised Premises.
28.2 Tenant shall not generate, use, treat, store, handle, release or
dispose of, or permit the generation, use, treatment, storage, handling, release
or disposal of Hazardous Materials (as defined in Section 28.7 hereof) on the Demised
Premises, or the Industrial Complex, or transport or permit the transportation of
Hazardous Materials to or from the Demised Premises or the Industrial Complex except
for limited quantities used or stored at the Demised Premises and required in connection
with the routine
21 23 operation and maintenance of the
Demised Premises, and then only upon the written consent of Landlord and in compliance
with all applicable Environmental Laws and Environmental Permits.
28.3 At any time and from time to time during the term of this lease, Landlord
may perform, at Tenant's sole cost and expense where landlord has good faith reason
to believe that tenant has violated article 28, an environmental site assessment
report concerning the Demised Premises, prepared by an environmental consulting
firm chosen by Landlord, indicating the presence or absence of Hazardous Materials
caused or permitted by Tenant and the potential cost of any compliance, removal
or remedial action in connection with any such Hazardous Materials on the Demised
Premises. Tenant shall grant and hereby grants to Landlord and its agents access
to the Demised Premises and specifically grants Landlord an irrevocable non-exclusive
license to undertake such an assessment; and the cost of such assessment shall be
immediately due and payable on demand.
28.4 Tenant will immediately advise Landlord in writing of any of the following:
(1) any pending or threatened Environmental Claim (as defined in Section 28.7 hereof)
against Tenant relating to the Demised Premises or the Industrial Complex; (2) any
condition or occurrence on the Demised Premises or the Industrial Complex that (a)
results in noncompliance by Tenant with any applicable Environmental Law, or (b)
could reasonably be anticipated to form the basis of an Environmental Claim against
Tenant or Landlord or the Demised Premises; (3) any condition or occurrence on the
Demised Premised or any property adjoining the Demised Premises that could reasonably
be anticipated to cause the Demised Premises to be subject to any restrictions on
the ownership, occupancy, use or transferability of the Demised Premises under any
Environmental Law; and (4) the actual or anticipated taking of any removal or remedial
action by Tenant in response to the actual or alleged presence of any Hazardous
Material on the Demised Premises or the Industrial Complex. All such notices shall
describe in reasonable detail the nature of the claim, investigation, condition,
occurrence or removal or remedial action and Tenant's response thereto. In addition,
Tenant will provide Landlord with copies of all communications regarding the Demised
Premises with any government or governmental agency relating to Environmental Laws,
all such communications with any person relating to Environmental Claims, and such
detailed reports of any such Environmental Claim as may reasonably be requested
by Landlord.
28.5 Tenant will not change or permit to be changed the present use of the
Demised Premises unless Tenant shall have notified Landlord thereof in writing and
Landlord shall have determined, in its sole and absolute discretion, that such change
will not result in the presence of Hazardous Materials on the Demised Premises except
for those described in Section 28.2 above.
28.6 (a) Tenant agrees to defend, indemnify and hold harmless the
indemnitees (as defined in Section 21.1) from and against all obligations
(including removal and remedial actions), losses, claims, suits,
judgments, liabilities, penalties, damages (including consequential and
punitive damages), costs and expenses (including attorneys' and
consultants' fees and expenses) of any kind or nature whatsoever that may
at any time be incurred by, imposed on or asserted against such
indemnitees directly or indirectly based on, or arising or resulting from
(a) the actual or alleged presence of Hazardous Materials on the
Industrial Complex which is caused or permitted by Tenant and (b) any
Environmental Claim relating in any way to Tenant's operation or use of
the Demised Premises (the "Hazardous Materials Indemnified Matters"). The
provisions of this Article 28 shall survive the expiration or sooner
termination of this lease.
(b) To the extent that the undertaking in the preceding paragraph
may be unenforceable because it is violative of any law or public policy,
Tenant will contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all
Hazardous Materials Indemnified Matters incurred by the indemnitees.
(c) All sums paid and costs incurred by Landlord with respect to
any Hazardous Materials Indemnified Matter shall bear interest at the
lesser of (i) eighteen (18%) percent per annum, or (ii) the maximum legal
rate of interest allowed in the State of California, from the date so paid
or incurred until reimbursed by Tenant, and all such sums and costs shall
be immediately due and payable on demand.
28.7 (a) "Hazardous Materials" means (i) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, and radon gas; (ii) any substances defined as
or included in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "extremely hazardous wastes," "restricted hazardous wastes," "toxic
substances," "toxic pollutants," "contaminants" or "pollutants," or words of similar
import, under any applicable Environmental Law; and (iii) any other substance exposure
to which is regulated by any governmental authority; (b) "Environmental Law" means
any federal, state or local statute, law, rule, regulation, ordinance, code, policy
or rule of common law now or hereafter in effect and in each case as amended, and
any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment, health,
safety or Hazardous Materials, including without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U.S.C. sub-section 9601 et
seq.; the Resource Conservation and Recovery Act, 42 U.S.C. sub-section 6901 et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. sub-section 1801 et
seq.; the Clean Water Act, 33 U.S.C. sub-section 1251 et seq.; the Toxic Substances
Control Act, 15 U.S.C. sub-section 2601 et seq.; the Clean Air Act, 42 U.S.C. sub-section
7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. sub-section 300f et seq.; the
Atomic Energy Act, 42 U.S.C. sub-section 2011 et seq.; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. sub-section 136 et seq.; and the Occupational
Safety and Health Act, 29 U.S.C. sub-section 651 et seq.; (c) "Environmental Claims"
means any and all administrative, regulatory or judicial actions, suits, demands,
demand letters,
22 24 claims, liens, notices of non-compliance
or violation, investigations, proceedings, consent orders or consent agreements
relating in any way to any Environmental Law or any Environmental Permit, including
without limitation (i) any and all Environmental Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or other actions
or damages pursuant to any applicable Environmental Law and (ii) any and all Environmental
Claims by any third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment; and
(d) "Environmental Permits" means all permits, approvals, identification numbers,
licenses and other authorizations required under any applicable Environmental Law.
ARTICLE 29.
INTENTIONALLY DELETED
ARTICLE 30.
MISCELLANEOUS
30.1 Nothing in this lease shall be deemed or construed by the parties hereto,
nor by any third party, as creating the relationship of principal and agent or of
partnership or of joint venture between the parties hereto, it being understood
and agreed that neither the method of computation of rent, nor any other provision
contained herein, nor any acts of the parties hereto, shall be deemed to create
any relationship between the parties hereto other than the relationship of landlord
and tenant.
30.2 Tenant shall not for any reason withhold or reduce Tenant's required
payments of rentals and other charges provided in this lease, it being agreed that
the obligations of Landlord under this lease are independent of Tenant's obligations
except as may be otherwise expressly provided. The immediately preceding sentence
shall not be deemed to deny Tenant the ability of pursuing all rights granted it
under this lease or at law; however, at the direction of Landlord, Tenant's claims
in this regard shall be litigated in proceedings different from any litigation involving
rental claims or other claims by Landlord against Tenant (i.e., each party may proceed
to a separate judgment without consideration, counterclaim or offset as to the claims
asserted by the other party).
30.3 The liability of Landlord, any agent of Landlord, or any of their respective
officers, directors, shareholders, or employees to Tenant for or in respect of any
default by Landlord under the terms of this lease or in respect of any other claim
or cause of action shall be limited to the interest of Landlord in the Industrial
Complex, and Tenant agrees to look solely to Landlord's interest in the Industrial
Complex for the recovery and satisfaction of any judgment against Landlord, any
agent of Landlord, or any of their respective officers, directors, shareholders,
and employees.
30.4 In all circumstances under this lease where the prior consent of one
party (the "consenting party"), whether it be Landlord or Tenant, is required before
the other party (the "requesting party") is authorized to take any particular type
of action, such consent shall not be withheld in a wholly unreasonable and arbitrary
manner; however, the requesting party agrees that its exclusive remedy if it believes
that consent has been withheld improperly (including, but not limited to, consent
required from Landlord pursuant to Section 19.1) shall be to institute litigation
either for a declaratory judgment or for a mandatory injunction requiring that such
consent be given (with the requesting party hereby waiving any claim for damages,
attorneys' fees or any other remedy unless the consenting party refuses to comply
with a court order or judgment requiring it to grant its consent).
30.5 Whenever a period of time is herein prescribed for action to be taken
by Landlord, Landlord shall not be liable or responsible for, and there shall be
excluded from the computation of any such period of time, any delays due to strikes,
riots, acts of God, shortages of labor or materials, war, governmental laws, regulations
or restrictions or any other causes of any kind whatsoever which are beyond the
reasonable control of Landlord.
30.6 If any provision of this lease should be held to be invalid or unenforceable,
the validity and enforceability of the remaining provisions of this lease shall
not be affected thereby.
30.7 Intentionally Deleted.
30.8 The laws of the State of California shall govern the interpretation,
validity, performance and enforcement of this lease. Venue for any action under
this lease shall be the county in which rentals are due pursuant to Section 4.2
and Section 1.1 of this lease.
30.9 The captions used herein are for convenience only and do not limit
or amplify the provisions hereof.
30.10 Whenever herein the singular number is used, the same shall include
the plural, and words of any gender shall include each other gender.
30.11 All covenants and obligations contained within this lease shall bind
and inure to the benefit of Landlord, its successors and assigns, and shall be binding
upon and inure to the benefit of Tenant, its permitted successors and assigns. If
either party is a corporation (including any form of professional association),
then each individual executing or attesting this lease on behalf of such corporation
covenants, warrants and represents that he is duly authorized to execute or attest
and deliver
23 25 this lease on behalf of such corporation.
If either party is a partnership (general or limited) or limited liability company,
then each individual executing this lease on behalf of the partnership or company
hereby covenants, warrants and represents that he is duly authorized to execute
and deliver this lease on behalf of the partnership or company in accordance with
the partnership agreement or membership agreement, as the case may be, or an amendment
thereto, now in effect.
30.12 This lease contains the entire agreement between the parties, and
no rights are created in favor of either party other than as specified or expressly
contemplated in this lease. No brochure, rendering, information or correspondence
shall be deemed to be a part of this agreement unless specifically incorporated
herein by reference. In addition, no agreement shall be effective to change, modify
or terminate this lease in whole or in part unless such is in writing and duly signed
by the party against whom enforcement of such change, modification or termination
is sought.
30.13 LANDLORD AND TENANT HEREBY ACKNOWLEDGE THAT THEY ARE NOT RELYING
UPON ANY BROCHURE, RENDERING, INFORMATION, REPRESENTATION OR PROMISE OF THE OTHER,
OR OF THE AGENT, EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS LEASE.
30.14 No waiver of any of the terms, covenants, provisions, conditions,
rules and regulations imposed by this lease, and no waiver of any legal or equitable
relief or remedy, shall be implied by the failure of Landlord to assert any rights,
declare any forfeiture, or for any other reason. No waiver of any of the terms,
provisions, covenants, conditions, rules and regulations shall be valid unless it
shall be in writing signed by Landlord. No waiver by Landlord or forgiveness of
performance by Landlord for one or more tenants shall constitute a waiver or forgiveness
of performance in respect to Tenant. Landlord's consent to or approval of any act
by Tenant requiring Landlord's consent or approval under this lease shall not be
deemed to render unnecessary the obtaining of Landlord's consent to or approval
of any subsequent act of Tenant. No act or thing done by Landlord or Landlord's
agents during the term of this lease shall be deemed an acceptance of a surrender
of the Demised Premises, unless in writing signed by Landlord. The delivery of the
keys to any employee or agent of Landlord shall not operate as a termination of
this lease or a surrender of the Demised Premises. The acceptance of any rent by
Landlord following a breach of this lease by Tenant shall not constitute a waiver
by Landlord of such breach or any other breach unless such waiver is expressly stated
in a writing signed by Landlord.
30.15 Tenant shall deliver and surrender to Landlord possession of the
Demised Premises (including all of Tenant's permanent work upon and to the Demised
Premises, all replacements and all fixtures permanently attached to the Demised
Premises) immediately upon the expiration of the term or the termination of this
lease in as good condition and repair as the same were on the delivery date (loss
by any insured casualty and ordinary wear and tear only excepted) and deliver the
keys at the office of Landlord or Landlord's agent; provided, however, that upon
Landlord's request made at least thirty (30) days prior to the end of the term,
or the date Tenant is otherwise required to vacate the Demised Premises, Tenant
shall remove all fixtures and equipment affixed to the Demised Premises by Tenant,
and repair and restore the Demised Premises to their condition on the delivery date
(loss by an insured casualty and ordinary wear and tear only excepted), at Tenant's
sole expense. The removal shall be performed prior to the earlier of the end of
the term or the date Tenant is required to vacate the Demised Premises.
30.16 Tenant shall not record this lease. Without the prior written consent
of Landlord, Tenant shall not record any memorandum of this lease, short form or
other reference to this lease.
30.17 The submission of this lease for examination does not constitute
a reservation of or option for the Demised Premises or any other space in the Industrial
Complex, and shall not vest any right in Tenant. This lease shall become effective
as a lease only upon its execution and delivery by the parties.
30.18 LANDLORD AND TENANT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE OR ANY DOCUMENTS CONTEMPLATED TO
BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER PARTY ARISING OUT OF OR
RELATED IN ANY MANNER WITH THE DEMISED PREMISES INCLUDING WITHOUT LIMITATION, ANY
ACTION TO RESCIND OR CANCEL THIS LEASE OR ANY CLAIMS OR DEFENSES ASSERTING THAT
THIS LEASE WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER
IS A MATERIAL INDUCEMENT FOR LANDLORD TO ENTER INTO AND ACCEPT THIS LEASE.
24 26
30.19 This lease consists of thirty Articles and Exhibits "A" through "H".
With the exception of Article 7, in the event any provision of an exhibit shall
be inconsistent with a provision in the body of the lease, the provision as set
forth in the exhibit shall be deemed to control.
EXECUTED as of the latest date accompanying a signature by Landlord or Tenant
below.
LANDLORD: MP ARQUES, INC.,
a Delaware corporation
By: GE CAPITAL INVESTMENT ADVISORS, INC., its agent
By: /s/ John F. Donahue
Name: John F. Donahue
Title: Vice President
Date of Signature: 12/28/99
Taxpayer Identification No.: 33-0666682
TENANT: MOLECULAR DYNAMICS, Inc.,
a Delaware corporation
By: /s/ Peter B. Coggins
Name: Peter B. Coggins
Title: President
By: /s/ Bruce K. Leisz
Name: Bruce K. Leisz
Title: V.P. Operations
Date of Signature: 12/23/99
Taxpayer Identification No.: 943050031 27
EXHIBIT "A"
DEMISED PREMISES
----------------
[CAD DRAWING OF PROPERTY]
28
EXHIBIT "B"
WORK LETTER FOR LEASEHOLD IMPROVEMENTS
It is agreed that Landlord will complete construction of the initial Demised
Premises in accordance with the following terms and provisions:
1. Within ten (10) days of full execution and delivery of this lease by
Landlord and Tenant, Tenant shall submit to Landlord for Landlord's approval preliminary
space plans (the "Preliminary Space Plans") Based on the Preliminary Space Plans,
Landlord shall cause to be constructed in the Demised Premises certain leasehold
improvements (the "Leasehold Improvements") in accordance with detailed plans and
specifications (the "Plans") approved by Tenant and Landlord (the "Plans"), which
approvals shall not be unreasonably withheld, conditioned or delayed by either party.
Landlord shall cause the Plans to be prepared, at Tenant's cost, by a registered
professional architect and mechanical and electrical engineer(s) to be selected
by Landlord and approved by Tenant (such approval to not be unreasonably withheld).
Landlord shall furnish the initial draft of the Plans to Tenant for Tenant's review
and approval. Within five (5) days following Tenant's receipt of the Plans, Tenant
shall either provide comments to such Plans or approve the same. If Tenant fails
to provide such approval or comments within such time period, the Plans shall be
deemed approved by Tenant. If Tenant timely provides comments to the initial draft
of the Plans, Landlord shall promptly provide revised Plans to Tenant incorporating
Tenant's comments. Within five (5) days of receipt of such revised Plans, Tenant
shall again either provide comments to such Plans or approve the same. The process
described above shall be repeated, if necessary, until the Plans have been finally
approved by Tenant.
2. Following the approval in writing by Landlord and Tenant of the Plans,
Landlord shall construct the Leasehold Improvements in accordance with the Plans.
At such time, Landlord shall also provide to Tenant a non-binding good faith estimate
of the cost of the Leasehold Improvements (including architect's and contractor's
fees). The cost of the Leasehold Improvements for the purpose of billing shall equal
the cost to Landlord of designing and constructing such Leasehold Improvements (including
any architect's fee, any contractor's fee and the cost of supervision and coordination).
3. All costs and expenses incurred in the construction of the Leasehold
Improvements shall be borne by Tenant (and are hereinafter referred to as "Tenant's
Costs"); provided, however, that Landlord shall advance to Tenant an amount up to
Five Hundred Forty-eight Thousand Seven Hundred Thirty-six Dollars ($548,736.00)
(the "Tenant Improvement Allowance") toward the costs incurred for the construction
of the Leasehold Improvements. Any excess ("Excess") of Tenant's Costs over the
Allowance shall be payable as follows:
(a) Tenant shall pay, within five (5) days from delivery of
Landlord's invoice to Tenant therefor, to Landlord prior to the
commencement of construction of the Leasehold Improvements, an amount equal
to fifty percent (50%) of such Excess (as then estimated by Landlord);
(b) After substantial completion of the Leasehold Improvements, but
prior to occupancy of the Premises by Tenant, Tenant shall pay to Landlord,
within five (5) days from delivery of Landlord's invoice to Tenant
therefor, an amount equal to eighty percent (80%) of the Excess as then
estimated by Landlord, less payments received by Landlord according to (a)
above;
(c) As soon as the final accounting can be prepared and submitted to
Tenant, Tenant shall pay to Landlord, within five (5) days from delivery of
Landlord's invoice to Tenant therefor, the entire unpaid balance of the
actual Excess based on the final costs to Landlord as described in
Paragraph 2 hereof.
The amounts payable hereunder shall constitute rent due pursuant to this ease at
the times specified herein and failure to make any such payments when due shall
constitute an event of default under this Lease, entitling Landlord to all of its
remedies hereunder as well as all remedies otherwise available to Landlord.
4. If Tenant requests any changes in the Leasehold Improvements, Tenant
shall present Landlord with revised drawings and specifications for Landlord's approval,
which approval will not be unreasonably withheld. If Landlord approves such changes,
Landlord shall incorporate such changes in the Leasehold Improvements following
Landlord's receipt of a change order therefor executed by Tenant. Landlord, however,
may require, prior to proceeding with any changes, additional cash advances against
the Excess in the event Landlord determines that Tenant's proposed changes will
increase the amount of the Excess.
5. Should Landlord be delayed in substantially completing the work to be
performed hereunder as a result of (i) Tenant's failure to approve the Plans as
provided in Paragraph 1 hereof or (ii) Tenant's requests for changes in the Plans
which delay said work or (iii) the performance of any work contemplated herein by
a contractor or agent employed by Tenant (any such contractor or agent being subject
to the prior written approval of Landlord) or (iv) any other delay caused by Tenant,
its agents or employees, then Tenant's obligation to pay rent under the lease shall
nevertheless commence on the date specified in Section 1(j) of this lease and the
Commencement Date under this Lease shall not be delayed pursuant to Article 3 of
this lease, unless such delays for which Tenant is responsible are in addition to
delays for which Landlord is responsible, in which case the Commencement Date and
rental
1 29 commencement date under this lease
shall be extended for the period of delays for which Landlord was responsible.
6. Landlord hereby agrees that to the extent it acts as contractor hereunder,
Landlord will commence or cause the commencement of the construction of the Leasehold
Improvements as promptly as is reasonably possible and will proceed with due diligence
to perform or cause such work to be performed in a good and workmanlike manner.
Landlord warrants to Tenant that all materials and equipment furnished in constructing
the portion of the Leasehold improvements constructed by Landlord will be of good
quality, free from faults and defects; provided, however, Tenant's sole remedy for
any breach of the above warranty shall be that Landlord, for a period of twelve
(12) months after substantial completion of such work, at its sole cost and expense,
will make all necessary repairs, replacements, and corrections of any nature or
description as may become necessary by reason of faulty construction, labor or materials
in the portion of the Leasehold Improvements constructed by Landlord. Upon substantial
completion of the Leasehold Improvements for the Demised Premises, at Tenant's request
Landlord and Tenant shall conduct a walkthrough of the Demised Premises and prepare
a "punchlist" of items to be repaired finished or touched-up by Landlord under this
Paragraph 6. Landlord will repair any punchlist items identified within the first
forty-five (45) days following the Commencement Date.
7. For the purposes of this Work Letter, the term "substantial completion"
of the Leasehold Improvements or of the work of constructing such Leasehold Improvements
shall mean completion of such Leasehold Improvements in all material respects excepting
only minor finish and touch-up work which does not interfere with the occupancy
of the Demised Premises by Tenant, as reasonably determined by the Landlord's architect,
whose determination shall be binding upon Landlord and Tenant. To the extent substantial
completion is delayed by any act or omission of Tenant or its employees, agents
or contractors, the date of substantial completion shall be the date reasonably
determined by Landlord's space planner or architect when substantial completion
would have been achieved if such Tenant delay had not taken place.
2 30
EXHIBIT "C"
WORK LETTER FOR SUBSEQUENT IMPROVEMENTS
It is agreed that Landlord will complete construction of the Subsequent Improvements
to the Demised Premises in accordance with the following terms and provisions:
1. No earlier than January 1, 2001 and no later than July 31, 2002, Tenant
shall submit to Landlord for Landlord's approval Tenant's written request and preliminary
plans (the "Subsequent Space Plans") for the construction of the Subsequent improvements.
Tenant acknowledges that the Subsequent Improvements shall consist of the following
improvements to the current warehouse portion of the Demised Premises: a buildout
of all of said warehouse space as either office or production space, including without
limitation sheetrocking, floor coverings, ceiling finishes, unfinished perimeter
walls and HVAC. Should Tenant fail to request and submit the Subsequent Space Plans
for the Subsequent Improvements by July 31, 2002, or should Tenant have prior to
such date have been in default of its obligations under this lease beyond any applicable
notice and cure periods. Tenant's rights (and Landlord's obligations) under this
Exhibit "C" shall be void and of no further force and effect. Should Landlord reasonably
disapprove Tenant's Subsequent Space Plans, Tenant shall make such revisions as
reasonably required thereto by Landlord and resubmit such revised preliminary plans
to Landlord within five (5) days of Tenant's receipt of the reasons for Landlord's
disapproval. Tenant's failure to timely resubmit such preliminary plans shall be
deemed a waiver by Tenant of its rights under this Exhibit "C".
2. Landlord shall cause the plans for the Subsequent Improvements (the "Subsequent
Plans") to be prepared based upon the Subsequent Space Plans submitted by Tenant
pursuant to Paragraph 1 above, at Tenant's cost, by a registered professional architect
and mechanical and electrical engineer(s) to be selected by Landlord. Landlord shall
furnish the initial draft of the Subsequent Plans to Tenant for Tenant's review
and approval. Within five (5) days following Tenant's receipt of the Subsequent
Plans, Tenant shall either provide comments to such Subsequent Plans or approve
the same. If Tenant fails to provide such approval or comments within such time
period, the Subsequent Plans shall be deemed approved by the Tenant. If Tenant timely
provides comments to the initial draft of the Subsequent Plans, Landlord shall promptly
provide revised Subsequent Plans to Tenant incorporating Tenant's comments. Within
five (5) days of receipt of such revised Subsequent Plans, Tenant shall again either
provide comments to such plans or approve the same. The process described above
shall be repeated, if necessary, until the Subsequent Plans have been finally approved
by Tenant.
3. Following the approval in writing by Landlord and Tenant of the Subsequent
Plans, Landlord shall construct the Subsequent Improvements in accordance with the
Subsequent Plans. At such time, Landlord shall also provide to Tenant a non-binding
good faith estimate of the cost of the Subsequent Improvements (including architect's
and contractor's fees). The cost of the Subsequent Improvements for the purpose
of billing shall equal the cost to Landlord of designing and constructing such Subsequent
Improvements (including any architect's fee, any contractor's fee and the cost of
supervision and coordination).
4. All costs and expenses incurred in the design and construction of the Subsequent
Improvements shall be borne by Tenant; provided, however, that Landlord shall contribute
an amount not to exceed One Hundred Fifty-Five Thousand Five Hundred and Twenty
Dollars ($155,520.00) (the "Subsequent Improvement Allowance") toward the costs
incurred for the construction of the Subsequent Improvements.
5. If Tenant requests any changes in the Subsequent Plans following their
initial approval, Landlord shall present Tenant with revised drawings and specifications
for Tenant's approval, which approval will not be unreasonably withheld. If Tenant
approves such changes, Landlord shall incorporate such changes in the Subsequent
Improvements following Landlord's receipt of a change order therefor executed by
Tenant; provided, however, that if such changes increase the cost of the Subsequent
Improvements, Tenant shall pay such additional cost (the "Excess") as follows:
(a) Tenant shall pay, within five (5) days from delivery of Landlord's
invoice to Tenant therefor, to Landlord prior to the commencement of construction
of the Subsequent Improvements, an amount equal to one hundred percent (100%) of
such Excess (as then estimated by Landlord);
(b) As soon as the final accounting can be prepared and submitted to Tenant,
Tenant shall pay to Landlord, within five (5) days from delivery of Landlord's invoice
to Tenant therefor, the entire unpaid balance of the actual Excess based on the
final costs to Landlord as described in Paragraph 3 hereof.
The amounts payable hereunder shall constitute additional rent due pursuant
to this lease at the times specified herein and failure to make any such payments
when due shall constitute an event of default under this Lease, entitling Landlord
to all of the remedies hereunder as well as all remedies otherwise available to
Landlord.
6. Landlord hereby agrees that to the extent it acts as contractor hereunder,
Landlord will commence or cause the commencement of the construction of the Subsequent
Improvements as promptly as is reasonably possible and will proceed with due diligence
to perform or cause such work to be performed in a good and workmanlike manner.
Landlord warrants to Tenant that all materials and
1 31 equipment furnished in constructing
the portion of the Subsequent Improvements constructed by Landlord will be of good
quality, free from faults and defects; provided, however, Tenant's sole remedy for
any breach of the above warranty shall be that Landlord, for a period of twelve
(12) months after substantial completion of such work, at its sole cost and expense,
will make all necessary repairs, replacements, and corrections of any nature or
description as may become necessary by reason of faulty construction, labor or materials
in the portion of the Subsequent Improvements constructed by Landlord. Tenant acknowledges
that the Subsequent Improvements will be performed during the lease term and that
in no event shall Tenant be entitled to any abatement of rent or any claim for constructive
eviction or otherwise should the performance of the Subsequent Improvements interfere
with Tenant's operations in the Demised Premises.
2
32
INDUSTRIAL COMPLEX LEASE
(California)
Industrial Complex: Arques and DeGuine
Landlord: MP Arques, Inc.
Tenant: Molecular Dynamics, Inc.
Reference Date: November 30, 1999
INDEX TO LEASE
TITLE PAGE
ARTICLE
1. DEFINITIONS AND CERTAIN BASIC PROVISIONS..................... 1
ARTICLE 2. GRANTING CLAUSE.............................................. 2
ARTICLE 3. LEASEHOLD IMPROVEMENTS/DELIVERY OF DEMISED PREMISES.......... 2
ARTICLE 4. RENT......................................................... 3
ARTICLE 5. FINANCIAL REPORTS............................................ 4
ARTICLE 6. TENANT'S RESPONSIBILITY FOR TAXES, OTHER REAL ESTATE
CHARGES AND INSURANCE EXPENSES............................... 4
ARTICLE 7. COMMON AREA.................................................. 5
ARTICLE 8. LOADING DOCK................................................. 6
ARTICLE 9. USE AND CARE OF DEMISED PREMISES............................. 7
ARTICLE 10. MAINTENANCE AND REPAIR OF DEMISED PREMISES................... 7
ARTICLE 11. ALTERATIONS.................................................. 8
ARTICLE 12. LANDLORD'S RIGHT OF ACCESS................................... 9
ARTICLE 13. SIGNS; STORE FRONTS.......................................... 9
ARTICLE 14. UTILITIES.................................................... 9
ARTICLE 15. INSURANCE COVERAGES.......................................... 10
ARTICLE 16. WAIVER OF LIABILITY; MUTUAL WAIVER OF SUBROGATION............ 11
ARTICLE 17. DAMAGES BY CASUALTY.......................................... 12
ARTICLE 18. EMINENT DOMAIN............................................... 13
ARTICLE 19. ASSIGNMENT AND SUBLETTING.................................... 13
ARTICLE 20. SUBORDINATION; ATTORNMENT; ESTOPPELS......................... 15
ARTICLE 21. TENANT'S INDEMNIFICATION..................................... 15
ARTICLE 22. DEFAULT BY TENANT AND REMEDIES............................... 16
ARTICLE 23. LANDLORD'S CONTRACTUAL SECURITY INTEREST..................... 19
ARTICLE 24. HOLDING OVER................................................. 20
ARTICLE 25. NOTICES...................................................... 20
ARTICLE 26. COMMISSIONS.................................................. 20
ARTICLE 27. REGULATIONS.................................................. 21
ARTICLE 28. HAZARDOUS MATERIALS.......................................... 21
ARTICLE 29. INTENTIONALLY DELETED........................................ 23
ARTICLE 30. MISCELLANEOUS................................................ 23
EXHIBIT "A" DEMISED PREMISES EXHIBIT "B" LEASEHOLD IMPROVEMENTS WORK LETTER
EXHIBIT "C" SUBSEQUENT IMPROVEMENTS WORK LETTER EXHIBIT "D" TENANT CONSTRUCTION
RULES AND REGULATIONS EXHIBIT "E" RIGHT OF FIRST OPPORTUNITY EXHIBIT "F" GUARANTY
OF LEASE EXHIBIT "G" HVAC REPAIR WORK EXHIBIT "H" RENEWAL OPTION
33
EXHIBIT "D"
TENANT CONSTRUCTION RULES AND REGULATIONS
1. All demolition, removals and other categories of work that may inconvenience
other tenants or disturb building operations must be scheduled and performed
before or after normal working hours, and the property manager for the
industrial Complex (the "Property Manager") shall be provided with at least
twenty-four (24) hours notice prior to proceeding with such work.
2. All structural and floor loading requirements shall be subject to the prior
approval of the industrial Complex's structural engineer. Approval shall be
obtained by Tenant and any fees shall be at Tenant's sole expense.
3. All mechanical (HVAC, plumbing and sprinkler) and electrical requirements
shall be subject to the prior approval of Landlord's mechanical and
electrical engineers. When necessary, Property Manager will require
engineering and shop drawings, which drawings must be approved by Property
Manager before the work is started. Drawings shall be prepared by Tenant and
all approvals shall be obtained by Tenant.
4. If the shutdown of risers and mains for electrical, HVAC, sprinkler and/or
plumbing work is required, such work shall be supervised by a representative
of Landlord at Tenant's sole expense at a time approved in advance by
Property Manager.
5. Tenant's general contractor is responsible to do all of the following:
(a) Properly supervise construction at the Demised Premises at all times.
(b) Police the work at all times, continually keeping the affected
space(s) safe and orderly.
(c) Maintain the cleanliness and protection of all affected areas.
(d) Avoid and prevent the disturbance of other tenants.
6. If Tenant's general contractor is negligent in any of its responsibilities,
Tenant shall be charged for the corrective work done by Landlord's
personnel.
7. No electrical cords are to be stretched across any walkways or public areas
in any manner that would cause any safety hazard.
8. Radios may not be played if the sound can be heard in the Common Area or in
other tenant suites.
9. Electrical rooms may not be used to store any materials, fixtures, etc.
10. All sprinkler shut downs, draining or filling shall be scheduled and
coordinated with the Landlord's chief engineer or his delegate.
11. Bracing, soldering or welding shall be scheduled in advance with Property
Manager.
12. Dust shall be kept at a minimum to avoid smoke detector activation.
13. If requested by Tenant, Property Manager shall provide space in the parking
lot at a location to be determined by Landlord for a trash and debris bin
during construction of the tenant improvements.
14. Damage to any pre-installed fixtures (e.g., water fountains, sinks, lights,
commodes, signage, etc.) shall be repaired at Tenant's sole expense.
15. Tenant's general contractor shall coordinate the keying schedule, Tenant's
key requirements and cylinder installation with Landlord's designated
locksmith.
16. Where appropriate, Tenant shall submit to Property Manager a final
"as-built" set of drawings showing all items of work in full detail.
"As-builts" shall be sepias or vellums.
1 34
17. Throughout the construction period and upon conclusion of the work, Tenant's
general contractor shall cause the work areas and all other affected areas
to be clean and free of debris.
2
35
EXHIBIT "E"
RIGHT OF FIRST OPPORTUNITY
Tenant shall have the one time right of first offer ("Right of First Offer")
to lease all, but not less than all, of the adjacent building at the Industrial
Complex having a street address of 310 DeGuine, Sunnyvale, California and containing
approximately 34,697 rentable square feet of space (the "First Offer Space"), at
such time as the First Offer Space becomes "available for lease" (as defined below)
during the lease term provided that (i) Tenant is not, and has not been, in default
hereunder beyond any applicable notice and cure periods, and (ii) there remains
not less than eighteen (18) months in the lease term (inclusive of any exercised
extension period). In the event that Landlord proposes in good faith to negotiate
with a prospective tenant in leasing the First Offer Space, the First Offer Space
shall be deemed "available for lease" and, at such time, Landlord shall give written
notice thereof to Tenant ("Landlord's Notice"). If Tenant in response to a Landlord's
Notice elects to lease the First Offer Space, Tenant shall so notify Landlord in
writing (the "Election Notice"). If Tenant does not deliver to Landlord the Election
Notice within ten (10) days of Landlord's delivery of the Landlord's Notice, Landlord
shall be relieved of its obligation to make available for lease to Tenant the First
Offer Space and the provisions of this paragraph shall be of no further force and
effect. Without limiting the foregoing, upon the non-delivery of the Election Notice
by Tenant, Landlord shall be entitled to grant options and rights free and clear
of Tenant's Right of First Offer under this paragraph to other tenants or prospective
tenants of the Industrial Complex. Upon Tenant's timely delivery of the Election
Notice with respect to the First Offer Space, Landlord and Tenant shall promptly
enter into an amendment of this Lease adding the First Offer Space to the Demised
Premises on all the terms and conditions set forth in this Lease as to the Demised
Premises, except that (i) the term of the lease to Tenant of the First Offer Space
shall commence upon the actual availability date of the First Offer Space ("Availability
Date") and shall continue coterminously with the remaining lease term for the Demised
Premises, (ii) Tenant shall take the First Offer Space in its then "as-is" condition
(subject, however, to the First Offer Space being vacant and broom clean condition).
Landlord shall neither provide nor pay for any interior improvement work or services
related to the First Offer Space, (iii) the minimum guaranteed rental per rentable
square foot payable by Tenant for the First Offer Space shall be equal to the Market
Rent (as defined below) for the First Offer Space but in no event shall the minimum
guaranteed rental for the First Offer Space be less than the minimum guaranteed
rental payable by Tenant under the Lease for the original Demised Premises, and
(iv) Tenant's Proportionate Share shall be increased to reflect the addition of
the First Offer Space to the Demised Premises. As used herein, the term "Market
Rent" shall mean one hundred percent (100%) of the projected prevailing market rate
of rent for comparable space with comparable finish-out in comparable space within
Sunnyvale, California (as determined by Landlord and confirmed by written statement
to Tenant by a representative of Landlord).
1
36
EXHIBIT "F"
GUARANTY OF LEASE
FOR VALUE RECEIVED, and in consideration for, and as an inducement to MP Arques,
Inc., a Delaware corporation, to enter into a lease dated as of November 30, 1999
("the Lease"), as "Landlord" with Molecular Dynamics, Inc., a Delaware corporation,
as "Tenant," the undersigned, whether one or more, jointly and severally do hereby
unconditionally guarantee to Landlord (i) the punctual and full payment of all rents
of every kind, additional rents and all other charges to be paid by Tenant under
the Lease and (ii) the full and timely performance and observance of all the covenants,
conditions, and agreements to be performed and observed by Tenant under the Lease.
The undersigned shall indemnify, defend and hold harmless Landlord and its affiliates
from any loss, damages or costs (including, without limitation, the reasonable fees
of Landlord's attorneys and court costs) arising out of any failure to pay the aforesaid
rents and other charges or the failure to perform any of the aforesaid covenants,
conditions and agreements under the Lease. The undersigned further expressly agree
that the validity of this Guaranty of Lease and the obligations of the undersigned
hereunder shall in no way be terminated, affected or impaired by reason of any forbearances,
settlements or compromises between Landlord and Tenant or the invalidity or unenforceability
of the Lease for any reason whatsoever or by the relief of Tenant from any of Tenant's
obligations under the Lease by operation of law or otherwise, including, without
limitation of the generality of the foregoing, the rejection or assignment of the
Lease in connection with proceedings under any present or future provision of the
federal Bankruptcy Act, or any similar law or statute of the United States or any
state thereof.
The undersigned further covenant and agree that this Guaranty of Lease shall
be and remain in full force and effect as to any renewal, modification or extension
of the Lease, whether or not known to or approved by the undersigned, and that no
subletting, assignment or other transfer of the Lease, or any interest therein,
or any such renewal, modification, or extension, shall operate to extinguish or
diminish the liability of the undersigned hereunder. In the event of any termination
of the Lease by Landlord, the undersigned's liability hereunder shall not be terminated,
but the undersigned shall be and remain fully liable for all damages, costs, expenses
and other claims which may arise under or in connection with the Lease. If the undersigned
shall, directly or indirectly, advance any sums to Tenant, such sums and indebtedness
shall be subordinate in all respects to the amounts then and thereafter due and
owing by Tenant under the Lease.
Wherever reference is made to the liability of Tenant in the Lease, such reference
shall be deemed likewise to refer to the undersigned, jointly and severally, with
Tenant. The liability of the undersigned for the obligations of Tenant under the
Lease shall be primary, absolute and unconditional. In any right of action which
shall accrue to Landlord under the Lease, Landlord may, at Landlord's option, proceed
against any one or more of the undersigned and/or Tenant, jointly or severally,
and may proceed against any one or more of the undersigned without having demanded
performance of, commenced any action against or having obtained any judgment against
Tenant. The undersigned hereby waive any obligation on the part of Landlord to enforce
or seek to enforce the terms of the Lease against Tenant as a condition to Landlord's
right to proceed against the undersigned hereunder. The undersigned hereby expressly
waive: (i) notice of acceptance of this Guaranty of Lease and of presentment, demand
and protest; (ii) notice of any default hereunder or under the Lease and all indulgences;
(iii) demand for observance, performance or enforcement of any terms or provisions
of this Guaranty of Lease or of the Lease; and (iv) all other notices and demands
otherwise required by law which the undersigned may lawfully waive. This Guaranty
of Lease is a guaranty of payment and not a guaranty of collection. The undersigned
agree that in the event this Guaranty of Lease shall be enforced by suit or otherwise,
the non-prevailing party will reimburse the prevailing party, upon demand, for all
expenses incurred in connection therewith, including, without limitation, reasonable
attorneys' fees.
The undersigned hereby waive, to the maximum extent permitted by law, all
defenses available to a guarantor or surety, whether the waiver is specifically
herein enumerated or not, including, without limitation, any statute of limitations
affecting the enforcement of this Guaranty of Lease, and any right of set-off or
compensation against amounts due under this Guaranty of Lease.
The undersigned hereby knowingly, voluntarily and intentionally waive the
right to a trial by jury in respect of any litigation based hereon, arising out
of, under or in connection with this Guaranty of Lease or any documents contemplated
to be executed in connection herewith or any course of conduct, course of dealings,
statements (whether oral or written) or actions of any party arising out of or related
in any manner with the premises described in the Lease (including without limitation,
any action to rescind or cancel this Guaranty of Lease or any claims or defenses
asserting that this Guaranty of Lease was fraudulently induced or is otherwise void
or voidable). This waiver is a material inducement for Landlord to enter into and
accept the Lease and this Guaranty of Lease.
The undersigned hereby assign to Landlord any rights the undersigned may have
to file a claim and proof of claim in any bankruptcy or similar proceeding of Tenant
and any awards or payments thereon to which the undersigned would otherwise be entitled.
If is further agreed that all of the terms and provisions hereof shall inure
to the benefit of and may be enforced by the respective heirs, executors, successors
and assigns of Landlord and the holder of any mortgage to which the Lease may be
subject and subordinate from time to time, and shall be binding
1 37 upon the respective heirs, executors,
successors and assigns of the undersigned. Landlord may, without notice, assign
this Guaranty of Lease, and no such assignment shall diminish the undersigned's
liability under this Guaranty of Lease.
In the event more than one person or entity executes this Guaranty of Lease,
the liability of such signatories hereunder shall be joint and several. In the event
only one person or entity executes this Guaranty of Lease, all provisions hereof
which refer to more than one guarantor shall be automatically modified to refer
to only one guarantor, and otherwise this Guaranty of Lease shall remain unmodified
and in full force and effect.
It is understood that other agreements similar to this Guaranty of Lease may,
at Landlord's safe option and discretion, be executed by other persons with respect
to the Lease. This Guaranty of Lease shall be cumulative of any such agreements
and the liabilities and obligations of the undersigned hereunder shall in no event
be affected or diminished by reason of such other agreements. Moreover, in the event
Landlord obtains the signature of more than one guarantor on this Guaranty of Lease
or obtains additional guarantee agreements, or both, the undersigned agree that
Landlord, in Landlord's sole discretion, may (i) compound or settle with any one
or more of the guarantors for such consideration as Landlord may deem proper, and
(ii) release one or more of the guarantors from liability. The undersigned further
agree that no such action shall impair the rights of Landlord to enforce the Lease
against any remaining guarantor or guarantors, including the undersigned.
The undersigned agree to execute and deliver to Landlord, from time to time,
upon ten (10) days notice from Landlord, a certificate addressed to Landlord, any
mortgagee or prospective mortgagee, or any prospective purchaser, certifying (i)
that this Guaranty of Lease is unmodified and in full force and effect and (ii)
to such other matters as Landlord may reasonably request. The undersigned further
agree that upon request by Landlord from time to time, the undersigned shall furnish
Landlord, within five (5) days of receipt of such request, with a copy of the undersigned's
financial statements, in form and substance reasonably satisfactory to Landlord,
reflecting the undersigned's current financial condition. The undersigned represents
and warrants that all financial statements, records and information furnished by
the undersigned to Landlord in connection with this Guaranty of Lease are true,
correct and complete in all respects.
If any provision of this Guaranty of Lease or the application thereof to any
person or circumstance shall, for any reason and to any extent, be invalid or unenforceable,
the remainder of this Guaranty of Lease and the application of that provision to
other provisions or circumstances shall not be affected but rather shall be enforced
to the fullest extent permitted by law.
If the undersigned is a corporation (including any form of professional association),
then each individual executing or attesting this Guaranty of Lease on behalf of
such corporation covenants, warrants and represents that he or she is duly authorized
to execute or attest and deliver this Guaranty of Lease on behalf of such corporation.
If the undersigned is a partnership (general or limited) or limited liability company,
then each individual executing this Guaranty of Lease on behalf of the partnership
or company hereby covenants, warrants and represents that he or she is duly authorized
to execute and deliver this Guaranty of Lease on behalf of the partnership or company
in accordance with the partnership agreement or membership agreement, as the case
may be, or an amendment thereto, now in effect.
As a material inducement to Landlord to enter into the Lease and accept this
Guaranty of Lease, the undersigned specifically and irrevocably acknowledge and
agree as follows:
a. This Guaranty of Lease shall be governed by, construed and
enforced in accordance with the laws of the State of California without
regard to principles of conflicts of law.
b. As determined by Landlord in its sole and absolute discretion,
all actions or proceedings to enforce this Guaranty of Lease or in any way
arising out of or related to this Guaranty of Lease shall be filed,
litigated and maintained in the state or federal courts located in Santa
Clara or San Francisco Counties, State of California, U.S.A. (the
"Specified Courts"); the undersigned waive, release and relinquish any and
all rights or privileges now or hereafter available to the undersigned to
cause such actions or proceedings to be filed, litigated, maintained or
removed to any other state, federal or international court.
c. The undersigned consent to and submit to the jurisdiction of the
Specified Courts with respect to this Guaranty of Lease only and waive,
release and relinquish any all defenses or claims based upon or in any way
relating to jurisdictional issues in connection therewith.
2
38
d. The undersigned waive personal service of any and all
process upon the undersigned and agree that all such service of
process may be made by United States registered or certified
mail or international express courier service (e.g., DHL, Federal
Express) addressed to the undersigned at the address specified
below, and such service of process shall be deemed effective
upon the earlier of actual receipt or three (3) days after
posting.
EXECUTED as of the ____ day of December, 1999.
GUARANTOR: NYCOMED AMERSHAM,
a public company organized under the
laws of England
By:_________________________________
Name:_______________________________
Title:______________________________
GUARANTOR'S ADDRESS
____________________________________
____________________________________
Employer Identification Number:
____________________________________
3 39
EXHIBIT "G"
HVAC REPAIR WORK
The Landlord shall provide the following upgrades to the existing A/C equipment,
including all labor, materials, supervisor, engineering, and permits:
1. Utilize all existing HVAC equipment 2. Re-duct air handlers #3, 4 & 5 3.
Air and water balance 4. Relocate existing air compressor to equipment pad 5.
Rezone air handlers #1, 2 & 3 6. Provide and install up to 22 VAV Boxes, and
up to 51 new diffusers
(excludes existing office area) 7. Provide and install (3) powered exhaust
fans 8. Provide and install (7) variable frequency drives on existing air handlers
9. Rigging 10. Insulation 11. R/A ducting from air handlers #3 & 5 12. Design
drawing 13. Equipment repairs as follows:
a) A/H #6: Change filters, belt and calibrate pneumatics
b) A/H #1: Clean coil, change filters, belts and calibrate pneumatics
c) A/H #2: Change filters, belts and calibrate pneumatics
d) A/H #3: Change bag filters, belts and calibrate pneumatics
e) A/H #4: Change bag filters, belts and calibrate pneumatics
f) C/H #1: Clean condenser coil, replace suction gaskets and replace
condenser fan relay
g) C/H #2: Clean condenser coils, replace suction service valve
gaskets and straighten out condenser fan wiring
h) A/H #5: Change filters, belts and calibrate pneumatics
i) Boiler #1: Clean boiler tubes and tune up
j) Boiler #2: Clean boiler tubes and tune up
k) C/H #2: (Pump): Replace bearing assembly and align
l) C/H #1: (Pump): Replace bearing assembly and align
m) P #3: Replace bearing assembly and re-align
40
EXHIBIT "H"
RENEWAL OPTION
Tenant shall have the right to renew the term of this lease for one (1) seven
(7)-year term upon prior written notice ("Tenant's Election Notice") to Landlord
given not sooner than nine (9) months nor later than six (6) months prior to the
expiration of the initial lease term; provided that at the time Tenant gives such
notice to Landlord and for the remainder of the initial term of this lease (i) this
least has not been assigned and Tenant continues to occupy at least seventy-five
percent (75%) of the floor area of the Demised Premises and (ii) Tenant is not in
default hereunder. During the renewal term, the provisions of this lease, as it
may be amended in writing prior to the date of the commencement of such renewal
term, shall continue in full force and effect except that Tenant shall occupy the
Demised Property in its then "AS IS" condition and there shall be no abatement of
rent, nor shall there be credit or allowances given to Tenant for Improvements to
the Demised Premises, and the minimum guaranteed rental will be an amount equal
to whatever monthly rental (plus whatever periodic adjustments) Landlord is then
quoting to prospective tenants for new leases of comparable space in the Industrial
Complex for a comparable term (as confirmed by written statement to Tenant by a
representative of Landlord), or if no comparable space exists in the Industrial
Complex, then one hundred percent (100%) of the projected prevailing market rate
of rent for comparable space with comparable finish-out in comparable buildings
within the City of Sunnyvale, California, as of the expiration of the initial lease
term (as determined by Landlord and confirmed by written statement to Tenant by
a representative of Landlord). It is understood and agreed that Tenant's submittal
of Tenant's Election Notice shall bind Tenant to a seven (7)-year extension of this
lease.
1
41
GUARANTY OF LEASE
FOR VALUE RECEIVED, and in consideration for, and as an inducement to MP Arques,
Inc., a Delaware corporation, to enter into a lease dated as of November 30, 1999
(the "Lease"), as "Landlord" with Molecular Dynamics, Inc., a Delaware corporation,
as "Tenant," the undersigned, whether one or more, jointly and severally do hereby
unconditionally guarantee to Landlord (i) the punctual and full payment of all rents
of every kind, additional rents and all other charges to be paid by Tenant under
the Lease and (ii) the full and timely performance and observance of all the covenants,
conditions, and agreements to be performed and observed by Tenant under the Lease.
The undersigned shall indemnify, defend and hold harmless Landlord and its affiliates
from any loss, damages or costs (including, without limitation, the reasonable fees
of Landlord's attorneys and court costs) arising out of any failure to pay the aforesaid
rents and other charges or the failure to perform any of the aforesaid covenants,
conditions and agreements under the Lease. The undersigned further expressly agree
that the validity of this Guaranty of Lease and the obligations of the undersigned
hereunder shall in no way be terminated, affected or impaired by reason of any forbearances,
settlements or compromises between Landlord and Tenant or the invalidity or unenforceability
of the Lease for any reason whatsoever or by the relief of Tenant from any of Tenant's
obligations under the Lease by operation of law or otherwise, including, without
limitation of the generality of the foregoing, the rejection or assignment of the
Lease in connection with proceedings under any present or future provision of the
federal Bankruptcy Act, or any similar law or statute of the United States or any
state thereof.
The undersigned further covenant and agree that this Guaranty of Lease shall
be and remain in full force and effect as to any renewal, modification or extension
of the Lease, whether or not known to or approved by the undersigned, and that no
subletting, assignment or other transfer of the Lease, or any interest therein,
or any such renewal, modification, or extension, shall operate to extinguish or
diminish the liability of the undersigned hereunder. In the event of any termination
of the Lease by Landlord, the undersigned's liability hereunder shall not be terminated,
but the undersigned shall be and remain fully liable for all damages, costs, expenses
and other claims which may arise under or in connection with the Lease. If the undersigned
shall, directly or indirectly, advance any sums to Tenant, such sums and indebtedness
shall be subordinate in all respects to the amounts then and thereafter due and
owing by Tenant under the Lease.
Wherever reference is made to the liability of Tenant in the Lease, such reference
shall be deemed likewise to refer to the undersigned, jointly and severally, with
Tenant. The liability of the undersigned for the obligations of Tenant under the
Lease shall be primary, absolute and unconditional. In any right of action which
shall accrue to Landlord under the Lease, Landlord may, at Landlord's option, proceed
against any one or more of the undersigned and/or Tenant, jointly or severally,
and may proceed against any one or more of the undersigned without having demanded
performance of, commenced any action against or having obtained any judgment against
Tenant. The undersigned hereby waive any obligation on the part of Landlord to enforce
or seek to enforce the terms of the Lease against Tenant as a condition to Landlord's
right to proceed against the undersigned hereunder. The undersigned hereby expressly
waive: (i) notice of acceptance of this Guaranty of Lease and of presentment, demand
and protest; (ii) notice of any default hereunder or under the Lease and all indulgences;
(iii) demand for observance, performance or enforcement of any terms or provisions
of this Guaranty of Lease or of the Lease; and (iv) all other notices and demands
otherwise required by law which the undersigned may lawfully waive. This Guaranty
of Lease is a guaranty of payment and not a guaranty of collection. The undersigned
agree that in the event this Guaranty of Lease shall be enforced by suit or otherwise,
the non-prevailing party will reimburse the prevailing party, upon demand, for all
expenses incurred in connection therewith, including, without limitation, reasonable
attorneys' fees.
42
The undersigned hereby waive, to the maximum extent permitted by law, all
defenses available to a guarantor or surety, whether the waiver is specifically
herein enumerated or not, including, without limitation, any statute of limitations
affecting the enforcement of this Guaranty of Lease, and any right of set-off or
compensation against amounts due under this Guaranty of Lease.
The undersigned hereby knowingly, voluntarily and intentionally waive the
right to a trial by jury in respect of any litigation based hereon, arising out
of, under or in connection with this Guaranty of Lease or any documents contemplated
to be executed in connection herewith or any course of conduct, course of dealings,
statements (whether oral or written) or actions of any party arising out of or related
in any manner with the premises described in the Lease (including without limitation,
any action to rescind or cancel this Guaranty of Lease or any claims or defenses
asserting that this Guaranty of Lease was fraudulently induced or is otherwise void
or voidable). This waiver is a material inducement for Landlord to enter into and
accept the Lease and this Guaranty of Lease.
The undersigned hereby assign to Landlord any rights the undersigned may have
to file a claim and proof of claim in any bankruptcy or similar proceeding of Tenant
and any awards or payments thereon to which the undersigned would otherwise be entitled.
It is further agreed that all of the terms and provisions hereof shall inure
to the benefit of and may be enforced by the respective heirs, executors, successors
and assigns of Landlord and the holder of any mortgage to which the Lease may be
subject and subordinate from time to time, and shall be binding upon the respective
heirs, executors, successors and assigns of the undersigned. Landlord may, without
notice, assign this Guaranty of Lease, and no such assignment shall diminish the
undersigned's liability under this Guaranty of Lease.
In the event more than one person or entity executes this Guaranty of Lease,
the liability of such signatories hereunder shall be joint and several. In the event
only one person or entity executes this Guaranty of Lease, all provisions hereof
which refer to more than one guarantor shall be automatically modified to refer
to only one guarantor, and otherwise this Guaranty of Lease shall remain unmodified
and in full force and effect.
It is understood that other agreements similar to this Guaranty of Lease may,
at Landlord's sole option and discretion, be executed by other persons with respect
to the Lease. This Guaranty of Lease shall be cumulative of any such agreements
and the liabilities and obligations of the undersigned hereunder shall in no event
be affected or diminished by reason of such other agreements. Moreover, in the event
Landlord obtains the signature of more than one guarantor on this Guaranty of Lease
or obtains additional guarantee agreements, or both, the undersigned agree that
Landlord, in Landlord's sole discretion, may (i) compound or settle with any one
or more of the guarantors for such consideration as Landlord may deem proper, and
(ii) release one or more of the guarantors from liability. The undersigned further
agree that no such action shall impair the rights of Landlord to enforce the Lease
against any remaining guarantor or guarantors, including the undersigned.
The undersigned agree to execute and deliver to Landlord, from time to time,
upon ten (10) days notice from Landlord, a certificate addressed to Landlord, any
mortgagee or prospective mortgagee, or any prospective purchaser, certifying (i)
that this Guaranty of Lease is unmodified and in full force and effect and (ii)
to such other matters as Landlord may reasonably request. The undersigned further
agree that upon request by Landlord from time to time, the undersigned shall furnish
Landlord, within five (5) days of receipt of such request, with a copy of the undersigned's
most recently audited financial statements, in form and substance reasonably satisfactory
to Landlord, reflecting the undersigned's then current financial condition. The
undersigned represents and warrants that all financial statements, records and information
furnished by the undersigned to Landlord in connection with this Guaranty of Lease
give a true and fair view of the state of affairs of the undersigned.
43
If any provision of this Guaranty of Lease or the application thereof to any
person or circumstance shall, for any reason and to any extent, be invalid or unenforceable,
the remainder of this Guaranty of Lease and the application of that provision to
other provisions or circumstances shall not be affected but rather shall be enforced
to the fullest extent permitted by law.
If the undersigned is a corporation (including any form of professional association),
then each individual executing or attesting this Guaranty of Lease on behalf of
such corporation covenants, warrants and represents that he or she is duly authorized
to execute or attest and deliver this Guaranty of Lease on behalf of such corporation.
If the undersigned is a partnership (general or limited) or limited liability company,
then each individual executing this Guaranty of Lease on behalf of the partnership
or company hereby covenants warrants and represents that he or she is duly authorized
to execute and deliver this Guaranty of Lease on behalf of the partnership or company
in accordance with the partnership agreement or membership agreement, as the case
may be, or an amendment thereto, now in effect.
As a material inducement to Landlord to enter into the Lease and accept this
Guaranty of Lease, the undersigned specifically and irrevocably acknowledge and
agree as follows:
a. This Guaranty of Lease shall be governed by, construed and enforced in
accordance with the laws of the State of California without regard to
principles of conflicts of law.
b. As determined by Landlord in its sole and absolute discretion, all
actions or proceedings to enforce this Guaranty of Lease or in any way
arising out of or related to this Guaranty of Lease shall be filed,
litigated and maintained in the state or federal courts located in
Santa Clara or San Francisco Counties, State of California, U.S.A.
(the "Specified Courts"); the undersigned waive, release and
relinquish any and all rights or privileges now or hereafter
available to the undersigned to cause such actions or proceedings to
be filed, litigated, maintained or removed to any other state, federal
or international court.
c. This undersigned consent to and submit to the jurisdiction of the
Specified Courts with respect to this Guaranty of Lease only and
waive, release and relinquish any an all defenses or claims based upon
or in any way relating to jurisdictional issues in connection
herewith. 44 d. The undersigned waive personal service of any and
all process upon the
undersigned and agree that all such service of process may be made by
United States registered or certified mail or international express courier
service (e.g., DHL, Federal Express) addressed to the undersigned at the
address specified below, and such service of process shall be deemed
effective upon the earlier of actual receipt or three (3) days after
posting.
EXECUTED as of the 22 day of December, 1999.
GUARANTOR: NYCOMED AMERSHAM,
a public company organized under the laws of
England & Wales
By: /s/ GFB Kerr /s/ R.E.B. Allnutt
----------------------------------------
Name: GFB Kerr R.E.B. Allnutt [SEAL]
----------------------------------------
Title: Finance Director Company Secretary
----------------------------------------
GUARANTOR'S ADDRESS:
AMERSHAM PLACE, LITTLE CHALFONT,
----------------------------------------
BUCKINGHAMSHIRE, ENGLAND
----------------------------------------
Employer Identification Number: N/A
--------