<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 18, 2000
REGISTRATION NO. 333-31396
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEW FOCUS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 3674 33-0404910
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
2630 WALSH AVENUE
SANTA CLARA, CALIFORNIA 95051-0905
(408) 980-8088
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
KENNETH E. WESTRICK
PRESIDENT AND CHIEF EXECUTIVE OFFICER
2630 WALSH AVENUE
SANTA CLARA, CALIFORNIA 95051-0905
(408) 980-8088
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
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<S> <C>
JUDITH M. O'BRIEN, ESQ. JOHN B. MONTGOMERY, ESQ.
ALISANDE M. ROZYNKO, ESQ. JOHN HAYES, ESQ.
MARGO M. EAKIN, ESQ. LAURA M. DE PETRA, ESQ.
EDWARD F. VERMEER, ESQ. LORA D. BLUM, ESQ.
WILSON SONSINI GOODRICH & ROSATI BROBECK PHLEGER & HARRISON LLP
PROFESSIONAL CORPORATION TWO EMBARCADERO PLACE
650 PAGE MILL ROAD 2200 GENG ROAD
PALO ALTO, CA 94304 PALO ALTO, CA 94303
(650) 493-9300 (650) 424-0160
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [X] 333-31396
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE PURSUANT TO GENERAL
INSTRUCTION V OF FORM S-1.
IN ACCORDANCE WITH THE PROVISIONS OF GENERAL INSTRUCTION V OF FORM S-1, THE
REGISTRANT HEREBY INCORPORATES BY REFERENCE THE CONTENTS OF THE REGISTRANT'S
REGISTRATION STATEMENT ON FORM S-1 (REGISTRATION NO. 333-31396) FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION ON MARCH 1, 2000, AS AMENDED BY AMENDMENT NO.
1 DATED MARCH 6, 2000, AS AMENDED BY AMENDMENT NO. 2 DATED MARCH 28, 2000, AS
AMENDED BY AMENDMENT NO. 3 DATED APRIL 4, 2000, AS AMENDED BY AMENDMENT NO. 4
DATED MARCH 26, 2000, AS AMENDED BY AMENDMENT NO. 5 DATED MARCH 28, 2000, AS
AMENDED BY AMENDMENT NO. 6 DATED MAY 12, 2000, AS AMENDED BY AMENDMENT NO. 7
DATED MAY 17, 2000, AS AMENDED BY AMENDMENT NO. 8 DATED MAY 17, 2000, BY WHICH
SUCH REGISTRATION STATEMENT WAS DECLARED EFFECTIVE ON MAY 17, 2000 AND THE FINAL
PROSPECTUS FILED UNDER RULE 424(B) DATED MAY 17, 2000.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS. All Exhibits filed with the Registration Statement on Form
S-1 (File No. 333-31396) are incorporated by reference into, and shall be deemed
part of, this Registration Statement, except the following, which are filed
herewith:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
10.20 Lease Agreement between Registrant and Lincoln -- RECP
Hellyer Opco, LLC, a Delaware Corporation
23.3 Consent of Ernst & Young, LLP, Independent Auditors
</TABLE>
II-1
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Post-Effective Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Santa Clara, State of California, on the 18th
day of May, 2000.
NEW FOCUS, INC.
By: /s/ KENNETH E. WESTRICK
------------------------------------
Kenneth E. Westrick
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment No. 1 to the Registration Statement has been
signed by the following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ KENNETH E. WESTRICK President, Chief Executive May 18, 2000
- -------------------------------------------------------- Officer and Director
Kenneth E. Westrick (Principal Executive
Officer)
* Chief Financial Officer May 18, 2000
- -------------------------------------------------------- (Principal Financial and
William L. Potts, Jr. Accounting Officer)
Director May 18, 2000
- --------------------------------------------------------
Dr. David L. Lee
* Director May 18, 2000
- --------------------------------------------------------
Dr. Milton Chang
* Director May 18, 2000
- --------------------------------------------------------
John Dexheimer
* Director May 18, 2000
- --------------------------------------------------------
Dr. Winston Fu
* Director May 18, 2000
- --------------------------------------------------------
R. Clark Harris
* Director May 18, 2000
- --------------------------------------------------------
Robert D. Pavey
*By: /s/ KENNETH E. WESTRICK
------------------------------------------------
Kenneth E. Westrick
Attorney-in-fact
</TABLE>
II-2
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
10.20 Lease Agreement between Registrant and Lincoln-RECP Hellyer
Opco, LLC, a Delaware LLC.
23.3 Consent of Ernst & Young LLP, Independent Auditors
</TABLE>
<PAGE> 1
Exhibit 10.20
LEASE AGREEMENT
BASIC LEASE INFORMATION
<TABLE>
<S> <C>
LEASE DATE: May 15, 2000
LANDLORD: LINCOLN-RECP HELLYER OPCO, L.L.C.,
a Delaware limited liability company
LANDLORD'S ADDRESS: c/o Legacy Partners Commercial, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404-1167
TENANT: NEW FOCUS, INC.,
a California corporation
TENANT'S ADDRESS: 2630 Walsh Avenue
Santa Clara, California 95051, changing to:
4747 Hellyer Avenue, San Jose, California
PREMISES: Approximately 130,436 rentable square feet as shown on Exhibit A
PREMISES ADDRESS: 4747 Hellyer Avenue
San Jose, California
BUILDING: Approximately 175,980 rentable square feet
LOT: APN 678-20-040
PARK: HELLYER OAKS TECHNOLOGY PARK: Approximately 351,960
rentable square feet
TERM: September 1, 2000 ("Commencement Date"), through August 31, 2007
("Expiration Date"), subject to adjustment pursuant to the terms
of Section 2.1 hereof
BASE RENT (P. 3): Two Hundred Sixty Thousand Eight Hundred Seventy Two and 00/100
Dollars ($260,872.00) per month commencing on the Commencement
Date through August 31, 2001
ADJUSTMENTS TO BASE RENT: Effective September 1, 2001, the Base Rent shall increase to
$271,306.88 per month ($2.08 sf)
Effective September 1, 2002, the Base Rent shall increase to $282,159.15
per month ($2.1632 sf)
Effective September 1, 2003, the Base Rent shall increase to
$293,445.52 per month ($2.25 sf)
Effective September 1, 2004, the Base Rent shall increase to
$305,183.34 per month ($2.34 sf)
Effective September 1, 2005, the Base Rent shall increase to $317,340.67
per month ($2.433 sf)
Effective September 1, 2006, the Base Rent shall increase to
$330,086.30 per month ($2.53 sf)
ADVANCE RENT (P. 3): Three Hundred Twenty Eight Thousand Four Hundred Forty-Five and
00/100 Dollars ($328,445.00)
SECURITY DEPOSIT (P. 4): Three Hundred Twenty Nine Thousand and 00/100 Dollars
($329,000.00)
</TABLE>
<TABLE>
<S> <C>
*TENANT'S SHARE OF OPERATING EXPENSES (P. 6.1): 37.06% of the Park
*TENANT'S SHARE OF TAX EXPENSES (P. 6.2): 37.06% of the Park
*TENANT'S SHARE OF COMMON AREA UTILITY COSTS (P. 7.2): 74.12% of the Building
*TENANT'S SHARE OF UTILITY EXPENSES (P. 7.1): 74.12% of the Building
</TABLE>
*The amount of Tenant's Share of the expenses as referenced above shall be
subject to modification as set forth in this Lease.
<TABLE>
<S> <C>
PERMITTED USES (P. 9): The Premises shall be used solely for
the office, R&D, and manufacturing of fibre optic
networking equipment and products and for no other
purposes without Landlord's prior written consent,
which consent shall not be unreasonably withheld or
delayed, but only to the extent permitted by the City
of San Jose and all agencies and governmental
authorities having jurisdiction thereof.
PARKING SPACES: Four hundred eighty-one (481) non-exclusive and non-designated
spaces
BROKER (P. 33): CB Richard Ellis for Tenant
Colliers International for Landlord
EXHIBITS: Exhibit A - Premises, Building, Lot and/or Park
Exhibit B - Tenant Improvements
Exhibit C - Rules and Regulations
Exhibit D - Covenants, Conditions and Restrictions
Exhibit E - Tenant's Initial Hazardous Materials Disclosure Certificate
Exhibit F - Change of Commencement Date - Example
Exhibit G - Sign Criteria
Exhibit H - Expansion Space
Exhibit I- Form of Subordination, Non-Disturbance and Attornment Agreement
ADDENDA: Addendum 1 - Option to Extend the Lease Term
Addendum 2 - Right of First Offer
</TABLE>
1
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
1. Premises................................................................3
2. Occupancy; Adjustment of Commencement Date..............................3
3. Rent....................................................................3
4. Security Deposit........................................................3
5. Condition of Premises; Tenant Improvements..............................4
6. Additional Rent.........................................................4
7. Utilities and Services..................................................6
8. Late Charges............................................................6
9. Use of Premises.........................................................6
10. Alterations; and Surrender of Premises..................................7
11. Repairs and Maintenance.................................................8
12. Insurance...............................................................9
13. Limitation of Liability and Indemnity..................................10
14. Assignment and Subleasing..............................................10
15. Subordination..........................................................12
16. Right of Entry.........................................................13
17. Estoppel Certificate...................................................13
18. Tenant's Default.......................................................13
19. Remedies for Tenant's Default..........................................13
20. Holding Over...........................................................14
21. Landlord's Default.....................................................14
22. Parking................................................................14
23. Transfer of Landlord's Interest........................................15
24. Waiver.................................................................15
25. Casualty Damage........................................................15
26. Condemnation...........................................................16
27. Environmental Matters/Hazardous Materials..............................16
28. Financial Statements...................................................18
29. General Provisions:....................................................18
30. Signs..................................................................19
31. Mortgagee Protection...................................................19
32. Warranties of Tenant...................................................19
33. Brokerage Commission...................................................20
34. Quiet Enjoyment........................................................20
35. Collateral for Performance of Lease Obligations........................20
36. Cafeteria..............................................................21
</TABLE>
2
<PAGE> 3
NNN TENANT IMPROVEMENTS
LEASE AGREEMENT
The Basic Lease Information set forth on Page 1 and this Lease are and shall be
construed as a single instrument.
1. PREMISES
Landlord hereby leases the Premises to Tenant upon the terms and conditions
contained herein. Tenant shall have the right to use, on a non-exclusive basis,
parking areas (including the parking spaces) and ancillary facilities located
within the Common Areas of the Park, subject to the terms of this Lease.
Landlord and Tenant hereby agree that for purposes of this Lease, as of the
Lease Date, the rentable square footage area of each of the Premises, the
Building, the Phase (if any) and the Park shall be deemed to be the number of
rentable square feet as set forth in the Basic Lease Information. Tenant hereby
acknowledges that the rentable square footage of the Premises may include a
proportionate share of certain areas used in common by all occupants of the
Building, the Phase (if any) and/or the Park (for example corridors, common
restrooms, an electrical room or telephone room). Tenant further agrees that the
number of rentable square feet of any of the Building, the Phase (if any) and
the Park may subsequently change after the Lease Date commensurate with any
modifications to any of the foregoing by Landlord, and Tenant's Share shall
accordingly change. The term "Project" as used herein shall mean and
collectively refer to the Building, the Common Areas, the Lot, the Phase (if
any) and the Park in the condition described in Section 5 hereof.
2. OCCUPANCY; ADJUSTMENT OF COMMENCEMENT DATE
2.1 If Landlord, for any reason whatsoever, cannot deliver possession of
the Premises to Tenant on the Commencement Date in the condition specified in
Section 5 hereof, Landlord shall not be subject to any liability nor shall the
validity of the Lease be affected; provided, the Term of this Lease and the
obligation to pay Rent shall commence on the date possession of the Premises is
actually tendered to Tenant in the condition described in Section 5 and the Work
Letter, and the Expiration Date shall be extended commensurately. If the
commencement date and/or the expiration date of this Lease is other than the
Commencement Date and Expiration Date specified in the Basic Lease Information,
Landlord and Tenant shall execute a written amendment to this Lease,
substantially in the form of Exhibit F hereto, wherein the parties shall specify
the actual commencement date, expiration date and the date on which Tenant is to
commence paying Rent. The word "Term" whenever used herein refers to the initial
term of this Lease and any valid extension(s) thereof. Notwithstanding the
above, if the Premises are not delivered to Tenant in a substantially complete
condition subject to Tenant Delays and Force Majeure Delays as defined in
Exhibit B herein, on or before January 1, 2001, then Tenant may terminate this
Lease upon providing ten (10) days' prior written notice to Landlord on or
before January 10, 2001, in which case the Advance Rent, Security Deposit,
Letter of Credit and other prepaid amounts shall be returned to Tenant.
2.2 If Landlord permits Tenant to occupy the Premises prior to the
actual Commencement Date, such occupancy shall be at Tenant's sole risk and
subject to all the provisions of this Lease. Additionally, Landlord shall have
the right to impose additional reasonable conditions on Tenant's early
occupancy.
3. RENT
On the date that Tenant executes this Lease, Tenant shall deliver to Landlord
the original executed Lease, the Advance Rent (which shall be applied against
the Rent payable for the first month(s) Tenant is required to pay Rent), the
Security Deposit, and all insurance certificates evidencing the insurance
required to be obtained by Tenant under Section 12 and Exhibit B of this Lease.
Tenant agrees to pay Landlord the Base Rent, without prior notice or demand,
abatement, offset, deduction or claim except as expressly otherwise set forth
herein, in advance at Landlord's Address on the Commencement Date and thereafter
on the first (1st) day of each month throughout the balance of the Term of the
Lease. In addition to the Base Rent, Tenant shall pay Landlord in advance on the
Commencement Date and thereafter on the first (1st) day of each month throughout
the balance of the Term of this Lease, as Additional Rent, Tenant's Share of
Operating Expenses, Tax Expenses, Common Area Utility Costs, and Utility
Expenses. The term "Rent" whenever used herein refers to the aggregate of all
these amounts. If Landlord permits Tenant to occupy the Premises without
requiring Tenant to pay rental payments for a period of time, the waiver of the
requirement to pay rental payments shall only apply to the waiver of the Base
Rent. The Rent for any fractional part of a calendar month at the commencement
or expiration or termination of the Lease Term shall be a prorated amount of the
Rent for a full calendar month based upon a thirty (30) day month. To the extent
not already paid as part of the Advance Rent any prorated Rent shall be paid on
the Commencement Date, and any prorated Rent for the final calendar month hereof
shall be paid on the first day of the calendar month in which the date of
expiration or termination occurs.
4. SECURITY DEPOSIT
Simultaneously with Tenant's execution and delivery of this Lease, Tenant shall
deliver to Landlord, as a Security Deposit for the faithful performance by
Tenant of its obligations under this Lease, the amount specified in the Basic
Lease Information. If Tenant is in default hereunder beyond any applicable
notice and cure period, Landlord may, but without obligation to do so, use all
or any portion of the Security Deposit to cure the default or to compensate
Landlord for all damages sustained by Landlord in connection therewith. Tenant
shall, immediately on demand, pay to Landlord a sum equal to the portion of the
Security Deposit so applied or used to replenish the amount of the Security
Deposit held to increase such deposit to the amount initially deposited with
Landlord. At any time after Tenant has defaulted hereunder, Landlord may require
an increase in the amount of the Security Deposit required hereunder for the
then balance of the Term and Tenant shall, immediately on demand, pay to
Landlord such additional sums. As soon as practicable after the expiration or
termination of this Lease but in no event later than sixty (60) days thereafter,
Landlord shall return the Security Deposit to Tenant, less such amounts as are
reasonably necessary, as determined by Landlord, to remedy Tenant's default(s)
hereunder or to otherwise restore the Premises to a clean and safe condition,
reasonable wear and tear excepted, casualty and condemnation and damage caused
by the gross negligence or willful misconduct of Landlord or Landlord's
Representatives excepted. If the cost to restore the Premises exceeds the amount
of the Security Deposit, Tenant shall promptly deliver to Landlord any and all
of such excess sums. Landlord shall not be required to keep the Security Deposit
separate from other funds, and, unless otherwise required by law, Tenant shall
not be entitled to interest on the Security Deposit. In no event or circumstance
shall Tenant have the right to any use of the Security Deposit and,
specifically, Tenant may not use the Security Deposit as a credit or to
otherwise offset any payments required hereunder.
3
<PAGE> 4
5. CONDITION OF PREMISES; TENANT IMPROVEMENTS
Tenant agrees to accept the Premises on the Commencement Date as then being
suitable for Tenant's intended use and in good operating order, condition and
repair in its then existing "AS IS" condition, except as otherwise set forth in
Exhibit B hereto. The Tenant Improvements (defined in Exhibit B) shall be
installed in accordance with the terms, conditions, criteria and provisions set
forth in Exhibit B. By taking possession of the Premises, Tenant shall be deemed
to have accepted the Premises in good condition and state of repair. Tenant
expressly acknowledges and agrees that neither Landlord nor any of Landlord's
agents, representatives or employees has made any representations as to the
suitability, fitness or condition of the Premises for the conduct of Tenant's
business or for any other purpose, including without limitation, any storage
incidental thereto. Any Tenant Improvements to be constructed hereunder shall be
in compliance with the requirements of the ADA (defined below), and all costs
incurred for purposes of compliance therewith shall be a part of and included in
the costs of the Tenant Improvements. In addition and prior to the Commencement
Date, Landlord, at Landlord's cost and expense, shall (i) renovate the lobby to
the Premises with new finishes and entry subject to Tenant's reasonable review
and approval and (ii) install submeters in the Premises. Such lobby shall be
exclusive to Tenant's use. Notwithstanding the foregoing, Landlord shall provide
the Premises with the operating systems of the Building, including the
electrical, plumbing, HVAC, roof membrane and parking lot, in good working
order.
6. ADDITIONAL RENT
It is intended by Landlord and Tenant that this Lease be a "triple net lease."
The costs and expenses described in this Section 6 and all other sums, charges,
costs and expenses specified in this Lease to be paid by Tenant other than Base
Rent are to be paid by Tenant to Landlord as additional rent (collectively,
"Additional Rent").
6.1 OPERATING EXPENSES:
6.1.1 DEFINITION OF OPERATING EXPENSES. Tenant shall pay to
Landlord Tenant's Share of all Operating Expenses as Additional Rent. The term
"Operating Expenses" as used herein shall mean the total amounts paid or payable
by Landlord in connection with the ownership, management, maintenance, repair
and operation of the Premises and the other portions of the Project. These
Operating Expenses may include, but are not limited to, Landlord's cost of: (i)
repairs to, and maintenance of, the roof membrane, the non-structural portions
of the roof and the non-structural elements of the perimeter exterior walls of
the Building; (ii) maintaining the outside paved area, landscaping and other
common areas of the Park. The term "Common Areas" shall mean all areas and
facilities within the Park exclusive of the Premises and the other portions of
the Park leasable exclusively to other tenants. The Common Areas include, but
are not limited to, interior lobbies, mezzanines, parking areas, access and
perimeter roads, sidewalks, rail spurs (if any), and landscaped areas; (iii)
annual insurance premium(s) insuring against personal injury and property damage
(including, if Landlord elects, "all risk" or "special purpose" coverage) and
all other insurance, including, but not limited to, earthquake (which premium
for earthquake coverage only shall not exceed $0.05 per square foot per month
compounded at a rate of three percent (3%) annually during the initial term of
the Lease) and flood for the Project, rental value insurance against loss of
Rent for a period of at least nine (9) months commencing on the date of loss,
and subject to the provisions of Section 25 below, any deductible (provided,
however, that if any deductible that is Tenant's responsibility to pay per this
Lease and will cost more than an amount equivalent to one month's Base Rent,
then, at Tenant's option, Tenant shall pay to Landlord within thirty (30) days
of receipt of an invoice therefor such amount equivalent to one month's Base
Rent, and the balance of the cost of such deductible shall be amortized on a
straight-line basis over the balance of the term of this Lease, and Tenant shall
pay to Landlord monthly, in the same time and manner as the payment of Base
Rent, the amortized portion of the cost of such deductible); (iv) (a)
modifications and/or new improvements to any portion of the Project occasioned
by any rules, laws or regulations effective subsequent to the Commencement Date;
(b) reasonably necessary replacement improvements to any portion of the Project
after the Commencement Date; and (c) new improvements to the Project that reduce
operating costs or improve life/safety conditions, all of the foregoing as
reasonably determined by Landlord, in its sole but reasonable discretion;
provided, if such costs are of a capital nature, then such costs or allocable
portions thereof shall be amortized on a straight-line basis over the estimated
useful life of the capital item or fifteen (15) years whichever is shorter, as
reasonably determined by Landlord, together with reasonable interest on the
amortized balance; (v) the management and administration of any and all portions
of the Project, including, without limitation, a property management fee (which
shall not exceed three percent (3%) of Rent), accounting, auditing, billing,
postage, salaries and benefits for clerical and supervisory employees, whether
located on the Project or off-site, payroll taxes and legal and accounting costs
and all fees, licenses and permits related to the ownership, operation and
management of the Project; (vi) preventative maintenance and repair contracts
including, but not limited to, contracts for elevator systems (if any) and
heating, ventilation and air conditioning systems, lifts for disabled persons,
if Landlord elects to so procure; (vii) security and fire protection services
for any portion of the Project, if and to the extent, in Landlord's sole
discretion, such services are provided; (viii) the creation and modification of
any licenses, easements or other similar undertakings with respect to the
Project; (ix) supplies, materials, equipment, rental equipment and other similar
items used in the operation and/or maintenance of the Project for replacement or
repair of any Common Area improvements or equipment; (x) any and all levies,
charges, fees and/or assessments payable to any applicable owner's association
or similar body; (xi) any barrier removal work or other required improvements,
alterations or work to any portion of the Project generally required under the
ADA (defined below) (the "ADA Work") (subject to the amortization schedule
designated in (iv) above); provided, if such ADA Work is required under the ADA
due to Tenant's use of the Premises or any Alteration (defined below) made to
the Premises by or on behalf of Tenant, then the cost of such ADA Work shall be
borne solely by Tenant and shall not be included as part of the Operating
Expenses; and (xii) the repairs and maintenance items set forth in Section 11.2
below, to the extent permitted by the terms of that Section.
6.1.2 OPERATING EXPENSE EXCLUSIONS. Notwithstanding anything to
the contrary contained herein, for purposes of this Lease, the term "Operating
Expenses" shall not include the following: (i) costs (including permit, license,
and inspection fees) incurred in renovating, improving, decorating, painting, or
redecorating vacant space or space for other tenants within the Project; (ii)
costs incurred because Landlord or another tenant actually violated the terms
and conditions of any lease for premises within the Project; (iii) legal and
auditing fees (other than those fees reasonably incurred in connection with the
maintenance and operation of all or any portion the Project), leasing
commissions, advertising expenses, and other costs incurred in connection with
the original leasing of the Project or future re-leasing of any portion of the
Project; (iv) depreciation of the Building or any other improvements situated
within the Project; (v) any items for which Landlord is entitled to be
reimbursed by insurance or by direct reimbursement by any other tenant of the
Project or any other third party; (vi) costs of repairs or other work
necessitated by fire, windstorm or other casualty (excluding any deductibles)
and/or costs of repair or other work necessitated by the exercise of the right
of eminent domain to the extent insurance proceeds or a condemnation award, as
applicable, is actually received by
4
<PAGE> 5
Landlord for such purposes; provided, such costs of repairs or other work shall
be paid by the parties in accordance with the provisions of Sections 25 and 26,
below; (vii) other than any interest charges for capital improvements referred
to in Section 6.1.1(iv) hereinabove, any interest or payments on any financing
for the Building, the Phase or the Project, interest and penalties incurred as a
result of Landlord's late payment of any invoice (provided that Tenant pays
Tenant's Share of Operating Expenses and Tax Expenses to Landlord when due as
set forth herein), and any bad debt loss, rent loss or reserves for same; (viii)
costs associated with the investigation and/or remediation of Hazardous
Materials (hereafter defined) present in, on or about any portion of the
Project, unless such costs and expenses are the responsibility of Tenant as
provided in Section 27 hereof, in which event such costs and expenses shall be
paid solely by Tenant in accordance with the provisions of Section 27 hereof;
(ix) Landlord's cost for the repairs and maintenance items set forth in Section
11.3, below; (x) overhead and profit increment paid to Landlord or to
subsidiaries or affiliates of Landlord for goods and/or services in the Project
to the extent the same exceeds the costs of such by unaffiliated third parties
on a competitive basis; or any costs included in Operating Expenses representing
an amount paid to a person, firm, corporation or other entity related to
Landlord which is in excess of the amount which would have been paid in the
absence of such relationship; (xi) any payments under a ground lease or master
lease; (xii) damages or repairs covered by insurance or warranties maintained by
Landlord; (xiii) damages or repairs due to Landlord's gross negligence and
willful misconduct; (xiv) Landlord's overhead not related to the Building or
Park; and (xv) costs incurred in connection with the sale, financing,
refinancing, mortgaging, selling or change of ownership of the Project or any
portion thereof, including brokerage commissions, consultants, attorneys' and
accountants' fees, closing costs, title insurance premiums, transfer taxes and
interest charges (except for real property taxes).
6.2 TAX EXPENSES: Tenant shall pay to Landlord Tenant's Share of all
real property taxes applicable to the Project. Prior to delinquency, Tenant
shall pay any and all taxes and assessments levied upon Tenant's Property
(defined below in Section 10) located or installed in or about the Premises by,
or on behalf of Tenant. To the extent any such taxes or assessments are not
separately assessed or billed to Tenant, then Tenant shall pay the amount
thereof as invoiced by Landlord. Tenant shall also reimburse and pay Landlord,
as Additional Rent, within ten (10) days after demand therefor, one hundred
percent (100%) of (i) any increase in real property taxes attributable to any
and all Alterations (defined below in Section 10), Tenant Improvements,
fixtures, equipment or other improvements of any kind whatsoever placed in, on
or about the Premises for the benefit of, at the request of, or by Tenant, and
(ii) taxes and assessments levied or assessed upon or with respect to the
possession, operation, use or occupancy by Tenant of the Premises or any other
portion of the Project. Any such assessment shall be paid over the maximum
permitted period. The term "Tax Expenses" shall mean and include, without
limitation, any form of tax and assessment (general, special, supplemental,
ordinary or extraordinary), commercial rental tax, payments under any
improvement bond or bonds, license fees, license tax, business license fee,
rental tax, transaction tax or levy imposed by any authority having the direct
or indirect power of tax (including any city, county, state or federal
government, or any school, agricultural, lighting, drainage or other improvement
district thereof) as against any legal or equitable interest of Landlord in the
Premises or any other portion of the Project or any other tax, fee, or excise,
however described, including, but not limited to, any value added tax, or any
tax imposed in substitution (partially or totally) of any tax previously
included within the definition of real property taxes, or any additional tax the
nature of which was previously included within the definition of real property
taxes. The term "Tax Expenses" shall not include any franchise, estate,
inheritance, net income, or excess profits tax imposed upon Landlord, or a
penalty fee imposed as a result of Landlord's failure to pay Tax Expenses when
due.
6.3 PAYMENT OF EXPENSES: Landlord shall estimate Tenant's Share of the
Operating Expenses and Tax Expenses for the calendar year in which the Lease
commences. Commencing on the Commencement Date, one-twelfth (1/12th) of this
estimated amount shall be paid by Tenant to Landlord, as Additional Rent, and
thereafter on the first (1st) day of each month throughout the remaining months
of such calendar year. Thereafter, Landlord may estimate such expenses for each
calendar year during the Term of this Lease and Tenant shall pay one-twelfth
(1/12th) of such estimated amount as Additional Rent hereunder on the first
(1st) day of each month during such calendar year and for each ensuing calendar
year throughout the Term of this Lease. Tenant's obligation to pay Tenant's
Share of Operating Expenses and Tax Expenses shall survive the expiration or
earlier termination of this Lease.
6.4 ANNUAL RECONCILIATION: By June 30th of each calendar year, or as
soon thereafter as reasonably possible, Landlord shall furnish Tenant with an
accounting of actual and accrued Operating Expenses and Tax Expenses. Within
thirty (30) days of Landlord's delivery of such accounting, Tenant shall pay to
Landlord the amount of any underpayment. Notwithstanding the foregoing, failure
by Landlord to give such accounting by such date shall not constitute a waiver
by Landlord of its right to collect any underpayment by Tenant at any time.
Landlord shall credit the amount of any overpayment by Tenant toward the next
estimated monthly installment(s) falling due, or where the Term of the Lease has
expired, refund the amount of overpayment to Tenant as soon as possible
thereafter. If the Term of the Lease expires prior to the annual reconciliation
of expenses Landlord shall have the right to reasonably estimate Tenant's Share
of such expenses, and if Landlord determines that there has been an
underpayment, Landlord may deduct such underpayment from Tenant's Security
Deposit. Failure by Landlord to accurately estimate Tenant's Share of such
expenses or to otherwise perform such reconciliation of expenses shall not
constitute a waiver of Landlord's right to collect any of Tenant's underpayment
at any time during the Term of the Lease or at any time after the expiration or
earlier termination of this Lease.
6.5 AUDIT: After delivery to Landlord of at least thirty (30) days prior
written notice, Tenant, at its sole cost and expense through any accountant
designated by it, shall have the right to examine and/or audit the books and
records evidencing such costs and expenses for the previous one (1) calendar
year, during Landlord's reasonable business hours but not more frequently than
once during any calendar year. Any such accounting firm designated by Tenant may
not be compensated on a contingency fee basis. The results of any such audit
(and any negotiations between the parties related thereto) shall be maintained
strictly confidential by Tenant and its accounting firm and shall not be
disclosed, published or otherwise disseminated to any other party other than to
Landlord and its authorized agents. Landlord and Tenant each shall use its best
efforts to cooperate in such negotiations and to promptly resolve any
discrepancies between Landlord and Tenant in the accounting of such costs and
expenses. If through such audit it is determined that there is a discrepancy of
more than seven percent (7%) of the actual Operating Expenses and Tax Expenses
for such period, then Landlord shall reimburse Tenant for the reasonable
accounting costs and expenses incurred by Tenant in performing such audit,
including Tenant's in-house or outside auditors or accountants. However, if
through such audit it is determined that there is a discrepancy of seven percent
(7%) or less, then Tenant shall reimburse Landlord for the reasonable accounting
costs and expenses associated with Landlord's in-house auditors or accounting
personnel as well as those reasonable costs and expenses incurred by Landlord
for any outside accounting firms or auditors in connection with such audit.
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7. UTILITIES AND SERVICES
Tenant shall pay the cost of all (i) water, sewer use, sewer discharge fees and
sewer connection fees, gas, electricity, telephone, telecommunications, cabling
and other utilities billed or metered separately to the Premises and (ii) refuse
pickup and janitorial service to the Premises. Utility Expenses, Common Area
Utility Costs and all other sums and charges set forth in this Section 7 are
considered part of Additional Rent.
7.1 UTILITY EXPENSES: For any such utility fees, use charges, or similar
services that are not billed or metered separately to Tenant, including without
limitation, water and sewer charges, and garbage and waste disposal
(collectively, "Utility Expenses"), Tenant shall pay to Landlord Tenant's Share
of Utility Expenses. If Landlord reasonably determines that Tenant's Share of
Utility Expenses is not commensurate with Tenant's use of such services, Tenant
shall pay to Landlord the amount which is attributable to Tenant's use of the
utilities or similar services, as reasonably estimated and determined by
Landlord, based upon factors such as size of the Premises and intensity of use
of such utilities by Tenant such that Tenant shall pay the portion of such
charges reasonably consistent with Tenant's use of such utilities and similar
services. Tenant shall also pay Tenant's Share of any assessments, charges, and
fees included within any tax bill for the Lot on which the Premises are
situated, including without limitation, entitlement fees, allocation unit fees,
sewer use fees, and any other similar fees or charges.
7.2 COMMON AREA UTILITY COSTS: Tenant shall pay to Landlord Tenant's
Share of any Common Area utility costs, fees, charges and expenses
(collectively, "Common Area Utility Costs"). Tenant shall pay to Landlord
one-twelfth (1/12th) of the estimated amount of Tenant's Share of the Common
Area Utility Costs on the Commencement Date and thereafter on the first (1st)
day of each month throughout the balance of the Term of this Lease. Any
reconciliation thereof shall be substantially in the same manner as set forth in
Section 6.4 above.
7.3 MISCELLANEOUS: Tenant acknowledges that the Premises may become
subject to the rationing of utility services or restrictions on utility use as
required by a public utility company, governmental agency or other similar
entity having jurisdiction thereof. Tenant agrees that its tenancy and occupancy
hereunder shall be subject to such rationing restrictions as may be imposed upon
Landlord, Tenant, the Premises, or other portions of the Project, and Tenant
shall in no event be excused or relieved from any covenant or obligation to be
kept or performed by Tenant by reason of any such rationing or restrictions. If
permitted by applicable Laws, Landlord shall have the right at any time and from
time to time during the Term of this Lease to either contract for service from a
different company or companies (each such company referred to as an "Alternate
Service Provider") other than the company or companies presently providing
electricity service for the Project (the "Electric Service Provider") or
continue to contract for service from the Electric Service Provider, at
Landlord's sole discretion. Tenant agrees to cooperate with Landlord, the
Electric Service Provider, and any Alternate Service Provider at all times and,
as reasonably necessary, shall allow Landlord, the Electric Service Provider,
and any Alternate Service Provider reasonable access to the Building's electric
lines, feeders, risers, wiring, and any other machinery within the Premises.
8. LATE CHARGES
Any and all sums or charges set forth in this Section 8 are considered part of
Additional Rent. Tenant acknowledges that late payment (the fifth day of each
month or any time thereafter) by Tenant to Landlord of Rent and all other sums
due hereunder, will cause Landlord to incur costs not contemplated by this
Lease. Such costs may include, without limitation, processing and accounting
charges, and late charges that may be imposed on Landlord by the terms of any
note secured by any encumbrance against the Premises, and late charges and
penalties due to the late payment of Tax Expenses on the Premises. Therefore, if
any installment of Rent or any other sum payable by Tenant is not received by
Landlord within five (5) days of when due, Tenant shall promptly pay to Landlord
a late charge, as liquidated damages, in an amount equal to six percent (6%) of
such delinquent amount. Notwithstanding the foregoing, Landlord waives the late
charge for the first (1st) instance during each 12-month period during the Term
of this Lease in which Tenant fails to timely pay Rent. If Tenant delivers to
Landlord a check for which there are not sufficient funds, Landlord may require
Tenant to replace such check with a cashier's check for the amount of such check
and all other charges payable hereunder. The parties agree that this late charge
and the other charges referenced above represent a fair and reasonable estimate
of the costs that Landlord will incur by reason of such late payment by Tenant,
excluding attorneys' fees and costs. Acceptance of any late charge or other
charges shall not constitute a waiver by Landlord of Tenant's default with
respect to the delinquent amount, nor prevent Landlord from exercising any of
the other rights and remedies available to Landlord for any other breach of
Tenant under this Lease. If a late charge becomes payable for three (3)
installments of Rent, then Landlord, at Landlord's sole option, can either
require the Rent be paid quarterly in advance or be paid monthly in advance by
cashier's check or by electronic funds transfer.
9. USE OF PREMISES
9.1 COMPLIANCE WITH LAWS, RECORDED MATTERS, AND RULES AND REGULATIONS:
The Premises are to be used solely for the purposes and uses specified in the
Basic Lease Information and for no other uses or purposes without Landlord's
prior written consent. Landlord's consent shall not be unreasonably withheld or
delayed so long as the proposed use (i) does not involve the use of Hazardous
Materials other than as expressly permitted under the provisions of Section 29
below, (ii) does not require any additional parking spaces, and (iii) is
compatible with the other uses then being made in the Project and in other
similar types of buildings in the vicinity of the Project, as reasonably
determined by Landlord. The use of the Premises by Tenant and its employees,
representatives, agents, invitees, licensees, subtenants, customers or
contractors (collectively, "Tenant's Representatives") shall be subject to, and
at all times in compliance with, (a) any and all applicable laws, rules, codes,
ordinances, statutes, orders and regulations as same exist from time to time
throughout the Term of this Lease (collectively, the "Laws"), including without
limitation, the requirements of the Americans with Disabilities Act, a federal
law codified at 42 U.S.C. 12101 et seq., including, but not limited to Title III
thereof, all regulations and guidelines related thereto and all requirements of
Title 24 of the State of California (collectively, the "ADA"), (b) any and all
documents, instruments, licenses, restrictions, easements or similar
instruments, conveyances or encumbrances which are at any time, and from time to
time, required to be made by or given by Landlord in any manner relating to the
initial development of the Project and/or the construction from time to time of
any additional buildings or other improvements in the Project, including without
limitation any Tenant Improvements (collectively, the "Development Documents"),
(c) any and all documents, easements, covenants, conditions and restrictions,
and similar instruments, together with any and all amendments and supplements
thereto made from time to time each of which has been or hereafter is recorded
in any official or public records with respect to the Premises or any other
portion of the Project (collectively, the "Recorded Matters"), and (d) any and
all rules and regulations set forth in Exhibit C hereto, any other reasonable
rules and regulations promulgated by Landlord now or
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hereafter enacted relating to parking and the operation of the Premises and/or
any other part of the Project and any and all rules, restrictions and/or
regulations imposed by any applicable owners association or similar entity or
body (collectively, the "Rules and Regulations") provided that in the event of
any conflict between the terms of such rules and regulations and the terms of
the Lease, the terms of the Lease shall prevail. Landlord reserves to itself the
right, from time to time, to grant, without the consent of Tenant, such
easements, rights and dedications that Landlord deems reasonably necessary, and
to cause the recordation of parcel or subdivision maps and/or restrictions, so
long as such easements, rights, dedications, maps and restrictions, as
applicable, do not materially and adversely interfere with Tenant's operations
in and access to the Premises. Tenant agrees to sign any documents reasonably
requested by Landlord to effectuate any such easements, rights, dedications,
maps or restrictions, without expense or liability to Tenant. Tenant shall be
solely responsible for the payment of all costs, fees and expenses associated
with any modifications, improvements or other Alterations to the Premises and/or
any other portion of the Project occasioned by the enactment of, or changes to,
any Laws arising from Tenant's particular use of the Premises or Alterations or
other improvements made to the Premises by Tenant after the Commencement Date of
this Lease, regardless of when such Laws became effective, subject to any
violations existing as of the Commencement Date, Landlord's repair obligations
as set forth in Section 11.3 hereof and Landlord's obligations as set forth in
Exhibit B hereto, and latent defects in the original construction of the
Premises or systems serving the Premises which exist as of the Commencement
Date. Tenant shall not initiate, submit an application for, or otherwise
request, any land use approvals or entitlements with respect to the Premises or
any other portion of the Project, including without limitation, any variance,
conditional use permit or rezoning, without first obtaining Landlord's prior
written consent thereto, which consent may be given or withheld in Landlord's
sole discretion. Tenant shall not be responsible for any modifications,
improvements or alterations to the Premises, Building, the Common Areas and/or
the Park occasioned by the enactment of, or changes to, any Laws applicable to
all tenants in the Building and/or the Park generally, except to the extent that
costs and expenses incurred by Landlord with respect to such modifications,
improvements or alterations may be included as Operating Expenses as permitted
under Section 6.1. Tenant shall not be required to make any structural
modifications, improvements or alterations to the Premises, Building, Common
Areas or the Park, unless such structural work is required by reason of Tenant's
particular use and/or Tenant's modifications, improvements or alterations to the
Premises. Subject to Landlord's reasonable security measures, Tenant shall have
access to the Building and the Premises for its employees and visitors 24 hours
per day, 7 days per week.
9.2 PROHIBITION ON USE: Tenant shall not use the Premises or permit
anything to be done in or about the Premises nor keep or bring anything therein
which will in any way increase the existing rate of or affect any policy of fire
or other insurance upon the Building or any of its contents, or cause a
cancellation of any insurance policy. No auctions (other than by electronic
media) may be held or otherwise conducted in, on or about any portion of the
Premises or the Project without Landlord's prior written consent thereto. Tenant
shall not do or permit anything to be done in or about the Premises which will
in any way obstruct or interfere with the rights of Landlord or other tenants or
occupants of any portion of the Project. The Premises shall not be used for any
unlawful purpose. Tenant shall not cause, maintain or permit any private or
public nuisance in, on or about any portion of the Premises or the Project,
including, but not limited to, any offensive odors, noises, fumes or vibrations.
Tenant shall not damage or deface or otherwise commit any waste in, upon or
about the Premises or any other portion of the Project. Tenant shall not place
or store, nor permit any other person or entity to place or store, any property,
equipment, materials, supplies, personal property or any other items or goods
outside of the Premises for any period of time, except (i) goods being staged
temporarily in connection with a move into or out of the Premises, (ii) tables,
chairs and benches for the use of Tenant's employees, and (iii) an emergency
generator with ancillary compressor and above ground diesel tank and equipment
associated with Tenant's light manufacturing, (subject to the limitations set
forth in Section 27.3 below), all of the foregoing being subject to the
commercially reasonable prior written review and approval, conditions and
requirements of Landlord. Tenant shall not permit any animals, including, but
not limited to, any household pets, to be brought or kept in or about the
Premises. Tenant shall not install any radio or television antenna, satellite
dish, microwave, loudspeaker or other device on the roof or exterior walls of
the Building or any other portion of the Project, without first obtaining
Landlord's written consent, which consent shall not be unreasonably withheld or
delayed. Tenant shall not interfere with radio, telecommunication, or television
broadcasting or reception from or in the Building or elsewhere. Tenant shall
place no loads upon the floors, walls, or ceilings in excess of the maximum
designed load permitted by the applicable Uniform Building Code or which may
damage the Building or outside areas within the Project. Tenant shall not place
any harmful liquids in the drainage systems or dump or store waste materials,
refuse or other such materials, or allow such materials to remain outside the
Building area, except for any non-hazardous or non-harmful materials which may
be stored in refuse dumpsters.
10. ALTERATIONS; AND SURRENDER OF PREMISES
10.1 ALTERATIONS: Tenant shall not install any signs, fixtures,
improvements, nor make or permit any other alterations or additions
(individually, an "Alteration", and collectively, the "Alterations") to the
Premises without the prior written consent of Landlord, which consent shall not
be unreasonably withheld or delayed. However, Tenant shall be permitted to hang
pictures and shelving and perform other similar minor decorating activities and
to perform non-structural alterations not exceeding an aggregate of $25,000
during any calendar year without securing Landlord's prior consent ("Permitted
Improvements"), provided that Tenant (i) complies with all pertinent building
codes and fire, safety and other such governmental regulations, (ii) does not
take any action which could in any way impact the structural, mechanical,
electrical, maintenance, HVAC or plumbing systems of the Premises and/or
exterior appearance of the Building and (iii) submits its plans for such
Alterations to Landlord at least fifteen (15) business days prior to
commencement of such Alterations (except as to minor decorative items and
installations of furniture for which plans are not required). Within ten (10)
business days following Landlord's receipt of Tenant's written notice with
respect to Tenant's performance of any Permitted Improvements and at such time
as Landlord may approve other Alterations, Landlord shall notify Tenant, in
writing, whether or not Landlord will require Tenant to remove such Permitted
Improvements and Alterations from the Premises upon the expiration or earlier
termination of this Lease. If any such Alteration is expressly permitted by
Landlord, Tenant shall deliver at least ten (10) days prior notice to Landlord,
from the date Tenant intends to commence construction, sufficient to enable
Landlord to post a Notice of Non-Responsibility. In all events, Tenant shall
obtain all permits or other governmental approvals prior to commencing any of
such work and deliver a copy of same to Landlord. All Alterations shall be at
Tenant's sole cost and expense, and shall be installed by a licensed contractor
(reasonably approved by Landlord) in compliance with all applicable Laws
(including, but not limited to, the ADA), Development Documents, Recorded
Matters, and Rules and Regulations. Tenant shall keep the Premises and the
property on which the Premises are situated free from any liens arising out of
any work performed, materials furnished or obligations incurred by or on behalf
of Tenant. Tenant shall, prior to construction of any and all Alterations, cause
its contractor(s) and/or major subcontractor(s) to provide insurance as
reasonably required by Landlord, and Tenant shall provide such assurances to
Landlord, including without limitation, waivers of lien, surety company
performance bonds as Landlord shall require to assure payment of the costs
thereof to protect Landlord and the Project from and against any loss from any
mechanic's, materialmen's or other liens.
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10.2 SURRENDER OF PREMISES: At the expiration of the Term or earlier
termination of this Lease, Tenant shall surrender the Premises to Landlord (a)
in good condition and repair (damage by acts of God, casualty, condemnation,
Landlord's gross negligence or willful misconduct and normal wear and tear
excepted), but with all interior walls cleaned, any carpets cleaned, all floors
cleaned and waxed, all non-working light bulbs and ballasts replaced and all
roll-up doors and plumbing fixtures in good condition and working order, and (b)
in accordance with the provisions of Section 27 hereof. Normal wear and tear
shall not include any damage or deterioration that would have been prevented by
proper maintenance by Tenant, or Tenant otherwise performing all of its
obligations under this Lease. On or before the expiration or earlier termination
of this Lease, (i) Tenant shall remove all of Tenant's Property (as hereinafter
defined) and Tenant's signage from the Premises and the other portions of the
Project, (ii) Landlord may, by written notice to Tenant given not later than one
hundred twenty (120) days prior to the Expiration Date (except in the event of a
termination of this Lease prior to the scheduled Expiration Date, in which event
no advance notice shall be required), require Tenant, at Tenant's expense, to
remove any or all Alterations and Tenant shall remove such requested Alterations
from the Premises, and (iii) to the extent Landlord has advised Tenant on or
about the time that the Tenant Improvements were constructed and installed in
the Premises that Tenant is to remove all or portions of the items comprising
the Tenant Improvements (the "Removable TIs"), Tenant shall remove the Removable
TIs. Tenant shall repair any damage caused by such removal of the Tenant's
Property, the requested Alterations and the Removable TIs. For purposes hereof,
the term "Tenant's Property" shall mean and refer to all equipment, trade
fixtures, computer wiring and cabling, furnishings, inventories, goods and
personal property of Tenant. Any of Tenant's Property not so removed by Tenant
as required herein shall be deemed abandoned and may be stored, removed, and
disposed of by Landlord at Tenant's expense, and Tenant waives all claims
against Landlord for any damages resulting from Landlord's retention and
disposition of such property; provided, however, Tenant shall remain liable to
Landlord for all costs incurred in storing and disposing of such abandoned
property of Tenant. All Tenant Improvements and Alterations except those which
Landlord requires Tenant to remove shall remain in the Premises as the property
of Landlord. If the Premises are not surrendered at the expiration of the Term
or earlier termination of this Lease, and in accordance with the provisions of
this Section 10 and Section 27 below, Tenant shall continue to be responsible
for the payment of Rent (as the same may be increased pursuant to Section 20
below) until the Premises are so surrendered in accordance with said provisions.
Tenant shall indemnify, defend and hold the Indemnitees (hereafter defined)
harmless from and against any and all damages, expenses, costs, losses or
liabilities arising from any delay by Tenant in so surrendering the Premises
including, without limitation, any damages, expenses, costs, losses or
liabilities arising from any claim against Landlord made by any succeeding
tenant or prospective tenant founded on or resulting from such delay and losses
and damages suffered by Landlord due to lost opportunities to lease any portion
of the Premises to any such succeeding tenant or prospective tenant, together
with, in each case, actual attorneys' fees and costs.
11. REPAIRS AND MAINTENANCE
11.1 TENANT'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for those
portions of the Building to be maintained by Landlord, as provided in Sections
11.2 and 11.3 below, Tenant shall, at its sole cost and expense, keep and
maintain all parts of the Premises and such portions of the Building and
improvements as are within the exclusive control of Tenant in good, clean and
safe condition and repair, promptly making all necessary repairs and
replacements, whether ordinary or extraordinary, with materials and workmanship
of the same character, kind and quality as the original thereof, all of the
foregoing to the reasonable satisfaction of Landlord including, but not limited
to, repairing any damage caused by Tenant or any of Tenant's Representatives and
replacing any property so damaged by Tenant or any of Tenant's Representatives.
Without limiting the generality of the foregoing, Tenant shall be solely
responsible for promptly maintaining, repairing and replacing (a) all mechanical
systems, heating, ventilation and air conditioning systems serving the Premises,
unless maintained by Landlord, (b) all plumbing work and fixtures, (c)
electrical wiring systems, fixtures and equipment exclusively serving the
Premises, (d) all interior lighting (including, without limitation, light bulbs
and/or ballasts) and exterior lighting exclusively serving the Premises or
adjacent to the Premises, (e) all glass, windows, window frames, window
casements, skylights, interior and exterior doors, door frames and door closers,
(f) all roll-up doors, ramps and dock equipment, including without limitation,
dock bumpers, dock plates, dock seals, dock levelers and dock lights, (g) all
tenant signage, (h) lifts for disabled persons serving the Premises, (i)
sprinkler systems, fire protection systems and security systems, except to the
extent maintained by Landlord, and (j) all partitions, fixtures, equipment,
interior painting, interior walls and floors, and floor coverings of the
Premises and every part thereof (including, without limitation, any demising
walls contiguous to any portion of the Premises). Additionally, Tenant shall be
solely responsible for performance of the regular removal of trash and debris.
Tenant shall have no right of access to or right to install any device on the
roof of the Building nor make any penetrations of the roof of the Building
without the express prior written consent of Landlord. Notwithstanding the
above, Tenant's maintenance obligations shall not include (i) damage or repair
covered under any insurance policy covered by Landlord, (ii) conditions covered
under warranties of Landlord's contractor, or (iii) repairs performed by
Landlord and charged to Tenant as Operating Expenses.
11.2 MAINTENANCE BY LANDLORD: Subject to the provisions of Section 11.1,
and further subject to Tenant's obligation under Section 6 to reimburse
Landlord, in the form of Additional Rent, for Tenant's Share of the cost and
expense of the following described items, Landlord agrees to repair and maintain
the following items: fire protection services; the roof and roof coverings
(provided that Tenant installs no additional air conditioning or other equipment
on the roof that damages the roof coverings, in which event Tenant shall pay all
costs relating to the presence of such additional equipment); the plumbing and
mechanical systems serving the Building, excluding the plumbing, mechanical and
electrical systems exclusively serving the Premises; any rail spur and rail
crossing; exterior painting of the Building; and the parking areas, pavement,
landscaping, sprinkler systems, sidewalks, driveways, curbs, and lighting
systems in the Common Areas. Notwithstanding anything in this Section 11 to the
contrary, Landlord shall have the right to either repair or to require Tenant to
repair any damage to any portion of the Premises and any other portion of the
Project caused by or created due to any act, omission, negligence or willful
misconduct of Tenant or any of Tenant Representatives and to restore the
Premises and the other affected portions of the Project, as applicable, to the
condition existing prior to the occurrence of such damage. If Landlord elects to
perform such repair and restoration work, Tenant shall reimburse Landlord upon
demand for all costs and expenses incurred by Landlord in connection therewith.
Tenant shall promptly report, in writing, to Landlord any defective condition
known to it which Landlord is required to repair, and failure to so report any
such defect shall make Tenant responsible to Landlord for any liability incurred
by Landlord by reason of such condition.
11.3 LANDLORD'S REPAIRS AND MAINTENANCE OBLIGATIONS: Subject to the
provisions of Sections 11.1, 25 and 26, and except for repairs rendered
necessary by the intentional or negligent acts or omissions of Tenant or any of
Tenant's Representatives, unless such costs thereof are covered by insurance
requirement to be maintained herein, Landlord agrees, at Landlord's sole cost
and expense, to (a) keep in good repair the structural portions of the floors,
foundations and exterior perimeter walls of the Building (exclusive of glass and
exterior doors), below-ground plumbing and sewage facilities, and load-bearing
columns, and (b) replace the structural portions of the roof of the Building
(excluding the roof membrane).
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11.4 TENANT'S FAILURE TO PERFORM REPAIRS AND MAINTENANCE OBLIGATIONS: If
Tenant refuses or neglects to repair and maintain the Premises and the other
areas properly as required herein within the applicable notice and cure period
and to the reasonable satisfaction of Landlord, Landlord may, but without
obligation to do so, at any time make such repairs or maintenance without
Landlord having any liability to Tenant for any loss or damage that may accrue
to Tenant's Property or to Tenant's business by reason thereof, except to the
extent any damage is caused by the willful misconduct or gross negligence of
Landlord or its authorized agents and representatives. If Landlord makes such
repairs or maintenance, upon completion thereof Tenant shall pay to Landlord, as
Additional Rent, Landlord's costs and expenses incurred therefor. The
obligations of Tenant hereunder shall survive the expiration of the Term of this
Lease or the earlier termination thereof. Tenant hereby waives any right to
repair at the expense of Landlord under any applicable Laws now or hereafter in
effect with respect to the Premises.
12. INSURANCE
12.1 TYPES OF INSURANCE: Tenant shall maintain in full force and effect
at all times during the Term of this Lease, at Tenant's sole cost and expense,
for the protection of Tenant and Landlord, as their interests may appear,
policies of insurance issued by a carrier or carriers reasonably acceptable to
Landlord and its lender (which afford the following coverages: (i) worker's
compensation and employer's liability, as required by law; (ii) commercial
general liability insurance (occurrence form) providing coverage against any and
all claims for bodily injury and property damage occurring in, on or about the
Premises arising out of Tenant's and Tenant's Representatives' use or occupancy
of the Premises. Such insurance shall include coverage for blanket contractual
liability, fire damage, premises, personal injury, completed operations and
products liability. Such insurance shall have a combined single limit of not
less than Two Million Dollars ($2,000,000) per occurrence with a Three Million
Dollar ($3,000,000) aggregate limit and excess/umbrella insurance in the amount
of Three Million Dollars ($3,000,000). If Tenant has other locations which it
owns or leases, the policy shall include an aggregate limit per location
endorsement; (iii) comprehensive automobile liability insurance with a combined
single limit of at least $1,000,000 per occurrence for claims arising out of any
company owned automobiles; (iv) "all risk" or "special purpose" property
insurance, including without limitation, sprinkler leakage, covering damage to
or loss of any of Tenant's Property and the Tenant Improvements located in, on
or about the Premises, and in addition, coverage for business interruption of
Tenant, together with, if the property of any of Tenant's invitees, vendors or
customers is to be kept in the Premises, warehouser's legal liability or bailee
customers insurance for the full replacement cost of the property belonging to
such parties and located in the Premises. Such insurance shall be written on a
replacement cost basis (without deduction for depreciation) in an amount equal
to one hundred percent (100%) of the full replacement value of the aggregate of
the items referred to in this clause (iv); and (v) such other insurance or
higher limits of liability as is then customarily required for similar types of
buildings within the general vicinity of the Project or as may be reasonably
required by any of Landlord's lenders.
12.2 INSURANCE POLICIES: Insurance required to be maintained by Tenant
shall be written by companies (i) licensed to do business in the State of
California, (ii) domiciled in the United States of America, and (iii) having a
"General Policyholders Rating" of at least A:X (or such higher rating as may be
required by a lender having a lien on the Premises) as set forth in the most
current issue of "A.M. Best's Rating Guides." Any deductible amounts under any
of the insurance policies required hereunder shall not exceed Five Thousand
Dollars ($5,000). Tenant shall deliver to Landlord certificates of insurance and
true and complete copies of any and all endorsements required herein for all
insurance required to be maintained by Tenant hereunder at the time of execution
of this Lease by Tenant. Tenant shall, at least fifteen (15) days prior to
expiration of each policy, furnish Landlord with certificates of renewal or
"binders" thereof. Each certificate shall expressly provide that such policies
shall not be cancelable or otherwise subject to material modification except
after thirty (30) days prior written notice to the parties named as additional
insureds as required in this Lease (except for cancellation for nonpayment of
premium, in which event cancellation shall not take effect until at least ten
(10) days' notice has been given to Landlord). Tenant shall have the right to
provide insurance coverage which it is obligated to carry pursuant to the terms
of this Lease under a blanket insurance policy, provided such blanket policy
expressly affords coverage for the Premises and for Landlord as required by this
Lease.
12.3 ADDITIONAL INSUREDS AND COVERAGE: Each of Landlord, Landlord's
property management company or agent, and Landlord's lender(s) having a lien
against the Premises or any other portion of the Project shall be named as
additional insureds or loss payees (as applicable) under all of the policies
required in Section 12.1(ii) and, with respect to the Tenant Improvements, in
Section 12.1(iv) hereof. Additionally, all of such policies shall provide for
severability of interest. All insurance to be maintained by Tenant shall, except
for workers' compensation and employer's liability insurance, be primary,
without right of contribution from insurance maintained by Landlord. Any
umbrella/excess liability policy (which shall be in "following form") shall
provide that if the underlying aggregate is exhausted, the excess coverage will
drop down as primary insurance. The limits of insurance maintained by Tenant
shall not limit Tenant's liability under this Lease. It is the parties'
intention that the insurance to be procured and maintained by Tenant as required
herein shall provide coverage for any and all damage or injury arising from or
related to Tenant's operations of its business and/or Tenant's or Tenant's
Representatives' use of the Premises and any of the areas within the Project.
Notwithstanding anything to the contrary contained herein, to the extent
Landlord's cost of maintaining insurance with respect to the Building and/or any
other buildings within the Project is increased as a result of Tenant's acts,
omissions, Alterations, improvements, use or occupancy of the Premises, Tenant
shall pay one hundred percent (100%) of, and for, each such increase as
Additional Rent.
12.4 FAILURE OF TENANT TO PURCHASE AND MAINTAIN INSURANCE: If Tenant
fails to obtain and maintain the insurance required herein throughout the Term
of this Lease, Landlord may, but without obligation to do so, purchase the
necessary insurance and pay the premiums therefor. If Landlord so elects to
purchase such insurance, Tenant shall promptly pay to Landlord as Additional
Rent, the amount so paid by Landlord, upon Landlord's demand therefor. In
addition, Landlord may recover from Tenant and Tenant agrees to pay, as
Additional Rent, any and all losses, damages, expenses and costs which Landlord
may sustain or incur by reason of Tenant's failure to obtain and maintain such
insurance.
12.5 WAIVER OF SUBROGATION: Landlord and Tenant hereby mutually waive
their respective rights of recovery against each other for any loss of, or
damage to, either parties' property to the extent that such loss or damage is
insured by an insurance policy required to be in effect at the time of such loss
or damage. Each party shall obtain any special endorsements, if required by its
insurer, whereby the insurer waives its rights of subrogation against the other
party. This provision is intended to waive fully, and for the benefit of the
parties hereto, any rights and/or claims which might give rise to a right of
subrogation in favor of any insurance carrier.
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12.6 LANDLORD'S INSURANCE: Landlord shall maintain in full force and
effect during the Term of this Lease, subject to reimbursement as provided in
Section 6, policies of insurance which afford such coverages as are commercially
reasonable and as is consistent with other properties in Landlord's portfolio.
Notwithstanding the foregoing, Landlord shall obtain and keep in force during
the Term of this Lease, as an item of Operating Expenses, a policy or policies
in the name of Landlord, with loss payable to Landlord and to the holders of any
mortgages, deeds of trust or ground leases on the Premises ("Lender(s)"),
insuring loss or damage to the Building, including all improvements, fixtures
(other than trade fixtures) and permanent additions. However, all of the
Tenant's Property shall be insured by Tenant rather than by Landlord. The amount
of such insurance procured by Landlord shall be equal to at least eighty percent
(80%) of the full replacement cost of the Building, including all improvements
and permanent additions as the same shall exist from time to time, or the amount
required by Lenders. Such policy or policies shall insure against all risks of
direct physical loss or damage (including, without limitation, the perils of
flood and earthquake), including coverage for any additional costs resulting
from debris removal and reasonable amounts of coverage for the enforcement of
any ordinance or law regulating the reconstruction or replacement of any
undamaged sections of the Building required to be demolished or removed by
reason of the enforcement of any building, zoning, safety or land use laws as
the result of a covered cause of loss. If any such insurance coverage procured
by Landlord has a deductible clause, the deductible shall not exceed
commercially reasonable amounts, and in the event of any casualty, the amount of
such deductible shall be an item of Operating Expenses as so limited.
Notwithstanding anything to the contrary contained herein, to the extent the
cost of maintaining insurance with respect to the Premises is increased as a
result of Tenant's acts, omissions, use or occupancy of the Premises, Tenant
shall pay one hundred percent (100%) of, and for, such increase(s) as Additional
Rent. Insurance required to be maintained by Landlord shall be written by
companies (i) licensed to do business in the State of California, (ii) domiciled
in the United States of America, and (iii) having a "General Policyholders
Rating" of A:X or, only with respect to the Landlord named herein as of the
Lease Date, at least A-:VIII, or in either case, such higher rating as may be
required by a lender having a lien on the Premises, as such ratings are set
forth in the most current issue of "A.M. Best's Rating Guides." Any deductible
amounts under any of the insurance policies required hereunder shall not exceed
commercially reasonable amounts. Landlord shall have the right to provide
insurance coverage which it is obligated to carry pursuant to the terms of this
Lease under a blanket insurance policy, provided such blanket policy expressly
affords coverage as required by this Lease. Additionally, all of such policies
shall provide for severability of interest. The limits of insurance maintained
by Landlord shall not limit Landlord's liability under this Lease.
13. LIMITATION OF LIABILITY AND INDEMNITY
Except to the extent of damage resulting from the gross negligence or willful
misconduct of Landlord or its authorized representatives, Tenant agrees to
protect, defend (with counsel acceptable to Landlord) and hold Landlord and
Landlord's lenders, partners, members, property management company (if other
than Landlord), agents, directors, officers, employees, representatives,
contractors, successors and assigns and each of their respective partners,
members, directors, heirs, employees, representatives, agents, contractors,
heirs, successors and assigns (collectively, the "Indemnitees") harmless and
indemnify the Indemnitees from and against all liabilities, damages, demands,
penalties, costs, claims, losses, judgments, charges and expenses (including
reasonable attorneys' fees, costs of court and expenses necessary in the
prosecution or defense of any litigation including the enforcement of this
provision) (collectively, "Claims") arising from or in any way related to,
directly or indirectly, (i) Tenant's or Tenant's Representatives' use of the
Premises and other portions of the Project, (ii) the conduct of Tenant's
business, (iii) from any activity, work or thing done, permitted or suffered by
Tenant in or about the Premises, (iv) in any way connected with the Premises,
the Alterations or with the Tenant's Property therein, including, but not
limited to, any liability for injury to person or property of Tenant, Tenant's
Representatives or third party persons, and/or (v) Tenant's failure to perform
any covenant or obligation of Tenant under this Lease. Tenant agrees that the
obligations of Tenant herein shall survive the expiration or earlier termination
of this Lease.
Except to the extent of damage resulting from the gross negligence or willful
misconduct of Landlord or its authorized representatives, to the fullest extent
permitted by law, Tenant agrees that neither Landlord nor any of the Indemnitees
shall at any time or to any extent whatsoever be liable, responsible or in any
way accountable for any loss, liability, injury, death or damage to persons or
property which at any time may be suffered or sustained by Tenant or by any
person(s) whomsoever who may at any time be using, occupying or visiting the
Premises or any other portion of the Project, including, but not limited to, any
acts, errors or omissions of any other tenants or occupants of the Project.
Tenant shall not, in any event or circumstance, be permitted to offset or
otherwise credit against any payments of Rent required herein for matters for
which Landlord may be liable hereunder. Landlord and its authorized
representatives shall not be liable for any interference with light or air, or
for any latent defect in the Premises or the Building.
14. ASSIGNMENT AND SUBLEASING
14.1 PROHIBITION: Tenant shall not, without the prior written consent of
Landlord, assign, mortgage, hypothecate, encumber, grant any license or
concession, pledge or otherwise transfer this Lease or any interest herein,
permit any assignment or other such transfer of this Lease or any interest
hereunder by operation of law, sublet the Premises or any part thereof, or
permit the use of the Premises by any persons other than Tenant and Tenant's
Representatives or any Affiliate (as defined in Section 14.8 below) (all of the
foregoing are sometimes referred to collectively as "Transfers" and any person
to whom any Transfer is made or sought to be made is sometimes referred to as a
"Transferee"). No consent to any Transfer shall constitute a waiver of the
provisions of this Section 14, and all subsequent Transfers may be made only
with the prior written consent of Landlord, which consent shall not be
unreasonably withheld, but which consent shall be subject to the provisions of
this Section 14.
14.2 REQUEST FOR CONSENT: If Tenant seeks to make a Transfer, Tenant
shall notify Landlord, in writing, and deliver to Landlord at least thirty (30)
days (but not more than one hundred eighty (180) days) prior to the proposed
commencement date of the Transfer (the "Proposed Effective Date") the following
information and documents (the "Tenant's Notice"): (i) a description of the
portion of the Premises to be transferred (the "Subject Space"); (ii) all of the
terms of the proposed Transfer including without limitation, the Proposed
Effective Date, the name and address of the proposed Transferee, and a copy of
the existing or proposed assignment, sublease or other agreement governing the
proposed Transfer; (iii) current financial statements of the proposed Transferee
certified by an officer, member, partner or owner thereof, and any such other
information as Landlord may then reasonably require, including without
limitation, audited financial statements for the previous three (3) most recent
consecutive fiscal years, if available; (iv) the Plans and Specifications
(defined below), if any; and (v) such other information as Landlord may then
reasonably require. Tenant shall give Landlord the Tenant's Notice by as
provided for in Section 29.9 below, addressed to Landlord at Landlord's Address
specified in the Basic Lease Information. Within twenty (20) days after
Landlord's receipt of the Tenant's Notice (the "Landlord Response Period")
Landlord shall notify Tenant, in writing, of its determination with respect to
such
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requested proposed Transfer and the election to recapture as set forth in
Section 14.5 below, if applicable. If Landlord does not elect to recapture
pursuant to the provisions of Section 14.5 hereof and Landlord does consent to
the requested proposed Transfer, Tenant may thereafter assign its interests in
and to this Lease or sublease all or a portion of the Premises to the same party
and on the same terms as set forth in the Tenant's Notice. If Landlord fails to
respond to Tenant's Notice within Landlord's Response Period, then, after Tenant
delivers to Landlord ten (10) days' written notice (the "Second Response
Period") and Landlord fails to respond thereto prior to the end of the Second
Response Period, the proposed Transfer shall then be deemed approved by
Landlord.
14.3 CRITERIA FOR CONSENT: Tenant acknowledges and agrees that, among
other circumstances for which Landlord could reasonably withhold consent to a
proposed Transfer, it shall be reasonable for Landlord to withhold its consent
where (a) Tenant is or has been in default of its obligations under this Lease
beyond applicable notice and cure periods, (b) the use to be made of the
Premises by the proposed Transferee is prohibited under this Lease or differs
from the uses permitted under this Lease, (c) the proposed Transferee or its
business is subject to compliance with additional requirements of the ADA beyond
those requirements which are applicable to Tenant, unless the proposed
Transferee shall (1) first deliver plans and specifications for complying with
such additional requirements (the "Plans and Specifications") and obtain
Landlord's written consent thereto, and (2) comply with all Landlord's
reasonable conditions contained in such consent, (d) the proposed Transferee
does not intend to occupy the majority of the Premises assigned or sublet to it,
(e) Landlord reasonably disapproves of the proposed Transferee's business
operating ability or history, reputation or creditworthiness or the character of
the business to be conducted by the proposed Transferee at the Premises, (f) the
proposed Transferee is a governmental agency or unit or an existing tenant in
the Project (unless Landlord has no comparable space for Lease), (g) the
proposed Transfer would violate any "exclusive" rights of any occupants in the
Project or cause Landlord to violate another agreement or obligation to which
Landlord is a party or otherwise subject, (h) Landlord or Landlord's agent has
shown space in the Project to the proposed Transferee or responded to any
inquiries from the proposed Transferee or the proposed Transferee's agent
concerning availability of space in the Project, at any time within the
preceding six (6) months, (i) Landlord otherwise determines that the proposed
Transfer would have the effect of decreasing the value of the Building or the
Project, or increasing the expenses associated with operating, maintaining and
repairing the Project, (j) the proposed Transferee (i) occupies space in the
Building at the time of the request for consent, (ii) is in active negotiations
with Landlord to lease space in the Building at such time, or (iii) has
negotiated with Landlord during the 6 month period immediately preceding the
Tenant's Notice for available space, (k) the rent proposed to be charged by
Tenant to the proposed Transferee during the term of such Transfer, calculated
using a present value analysis, is less than ninety-five percent (95%) of the
rent then being negotiated by Landlord, at the proposed time of such Transfer,
for comparable space in the Building or any other Building in the Project for a
comparable term, calculated using a present value system, or (l) the proposed
Transferee will use, store or handle Hazardous Materials (defined below) in or
about the Premises of a type, nature or quantity not then reasonably acceptable
to Landlord.
14.4 EFFECTIVENESS OF TRANSFER AND CONTINUING OBLIGATIONS: Prior to the
date on which any permitted Transfer becomes effective, Tenant shall deliver to
Landlord (i) a counterpart of the fully executed Transfer document, (ii) an
executed Hazardous Materials Disclosure Certificate substantially in the form of
Exhibit E hereto (the "Transferee HazMat Certificate"), and (iii) Landlord's
standard form of Consent to Assignment or Consent to Sublease, as applicable,
executed by Tenant and the Transferee in which each of Tenant and the Transferee
confirms its obligations pursuant to this Lease. Failure or refusal of a
Transferee to execute any such consent instrument shall not release or discharge
the Transferee from its obligation to do so or from any liability as provided
herein. The voluntary, involuntary or other surrender of this Lease by Tenant,
or a mutual cancellation by Landlord and Tenant, shall not work a merger, and
any such surrender or cancellation shall, at the option of Landlord, either
terminate all or any existing subleases or operate as an assignment to Landlord
of any or all of such subleases. Each permitted Transferee shall, to the extent
of the obligations of such Transferee under its assignment or subleasing
documents, assume and be deemed to assume this Lease and shall be and remain
liable jointly and severally with Tenant for payment of Rent and for the due
performance of, and compliance with all the terms, covenants, conditions and
agreements herein contained on Tenant's part to be performed or complied with,
for the Term of this Lease. No Transfer shall affect the continuing primary
liability of Tenant (which, following assignment, shall be joint and several
with the assignee), and Tenant shall not be released from performing any of the
terms, covenants and conditions of this Lease. An assignee of Tenant shall
become directly liable to Landlord for all obligations of Tenant hereunder, but
no Transfer by Tenant shall relieve Tenant of any obligations or liability under
this Lease whether occurring before or after such consent, assignment,
subletting or other Transfer. The acceptance of any or all of the Rent by
Landlord from any other person (whether or not such person is an occupant of the
Premises) shall not be deemed to be a waiver by Landlord of any provision of
this Lease or to be a consent to any Transfer. For purposes hereof, if Tenant is
a business entity, direct or indirect transfer of fifty percent (50%) or more of
the ownership interest of the entity (whether in a single transaction or in the
aggregate through more than one transaction) shall be deemed a Transfer and
shall be subject to all the provisions hereof. Any and all options, first rights
of refusal, tenant improvement allowances and other similar rights granted to
Tenant in this Lease, if any, shall not be assignable by Tenant unless expressly
authorized in writing by Landlord. Any transfer made without Landlord's prior
written consent, shall, at Landlord's option, be null, void and of no effect,
and shall, at Landlord's option, constitute a material default by Tenant of this
Lease. As Additional Rent hereunder, Tenant shall pay to Landlord, a fee in the
amount of five hundred dollars ($500) plus Tenant shall promptly reimburse
Landlord for actual legal and other expenses incurred by Landlord in connection
with any actual or proposed Transfer.
14.5 RECAPTURE: Except for a transfer to an Affiliate (as defined in
Section 14.8 below), if the Transfer (i) by itself or taken together with then
existing or pending Transfers covers or totals, as the case may be, more than
fifty percent (50%) of the rentable square feet of the Premises, and (ii) is for
a term which by itself or taken together with then existing or pending Transfers
is for the period then remaining in the Term of this Lease as of the time of the
Proposed Effective Date, then Landlord shall have the right, to be exercised by
giving written notice to Tenant, to recapture the Subject Space described in the
Tenant's Notice. If such recapture notice is given, it shall serve to terminate
this Lease with respect to the proposed Subject Space, or, if the proposed
Subject Space covers all the Premises, it shall serve to terminate the entire
Term of this Lease, in either case, as of the Proposed Effective Date. However,
no termination of this Lease with respect to part or all of the Premises shall
become effective without the prior written consent, where necessary, of the
holder of each deed of trust encumbering the Premises or any other portion of
the Project. If this Lease is terminated pursuant to the foregoing provisions
with respect to less than the entire Premises, the Rent shall be adjusted on the
basis of the proportion of rentable square feet retained by Tenant to the
rentable square feet originally demised, Tenant's Share shall be decreased
accordingly, the amount of the Security Deposit and Letter of Credit shall be
equitably reduced and Tenant shall thereafter be relieved of all liabilities for
the recapture space, and this Lease as so amended shall continue thereafter in
full force and effect.
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14.6 TRANSFER PREMIUM: If Landlord consents to a Transfer, as a
condition thereto which the Tenant hereby agrees is reasonable, Tenant shall pay
to Landlord, as Additional Rent any "Transfer Premium" received by Tenant from
such Transferee. The term "Transfer Premium" shall mean all rent, additional
rent and other consideration payable by such Transferee which either initially
or over the term of the Transfer exceeds the Rent or pro rata portion of the
Rent, as the case may be, for such space reserved in the Lease. Tenant shall pay
the Landlord monthly, as Additional Rent, at the same time as the monthly
installments of Rent are payable hereunder, seventy-five percent (75%) of the
Transfer Premium after deduction of actual reasonable commission costs only.
14.7 WAIVER: Notwithstanding any Transfer, or any indulgences, waivers
or extensions of time granted by Landlord to any Transferee, or failure by
Landlord to take action against any Transferee, Tenant agrees that Landlord may,
at its option, proceed against Tenant without having taken action against or
joined such Transferee, except that Tenant shall have the benefit of any
indulgences, waivers and extensions of time granted to any such Transferee.
14.8 AFFILIATED COMPANIES/RESTRUCTURING OF BUSINESS ORGANIZATION: The
assignment or subletting by Tenant of all or any portion of this Lease or the
Premises to (i) a parent or subsidiary of Tenant, or (ii) any person or entity
which controls, is controlled by or under the common control with Tenant, or
(iii) any entity which purchases all or substantially all of the assets of
Tenant, or (iv) any entity into which Tenant is merged or consolidated (all such
persons or entities described in clauses (i), (ii), (iii) and (iv) being
sometimes herein referred to as "Affiliates") shall not be deemed a Transfer
under the Section 14 (hence, the aforesaid events shall not be subject to
obtaining Landlord's prior consent; Landlord shall not have any right to receive
any Transfer Premium in connection therewith; and Landlord shall not have the
recapture rights described in Section 14.5 above), provided in all instances
that:
14.8.1 any such Affiliate was not formed as a subterfuge to avoid
the obligations of this Section 14;
14.8.2 Tenant shall give Landlord prior notice of any such
assignment or sublease to an Affiliate;
14.8.3 the successor of Tenant has as of the effective date of
any such assignment or sublease a tangible net worth and net assets, in the
aggregate, computed in accordance with generally accepted accounting principles
(but excluding goodwill as an asset), which is sufficient to meet the
obligations of Tenant under this Lease, as reasonably determined by Landlord;
14.8.4 any such assignment or sublease shall be subject to all of
the terms and provisions of this Lease, and such assignee or sublessee (i.e. any
such Affiliate), other than in the case of an Affiliate resulting from a merger
or consolidation as described in Section 14.8(iv) above, shall assume, in a
written document reasonably satisfactory to Landlord and delivered to Landlord
upon or prior to the effective date of such assignment or sublease, all the
obligations of Tenant under this Lease; and
14.8.5 Tenant and any guarantor shall remain fully liable for all
obligations to be performed by Tenant under this Lease, except in the case of an
Affiliate resulting from the acquisition of all or substantially all of the
assets of Tenant described in Section 14.8(iii) or from a merger or
consolidation as described in Section 14.8(iv) above.
15. SUBORDINATION
To the fullest extent permitted by law, this Lease, the rights of Tenant under
this Lease and Tenant's leasehold interest shall be subject and subordinate at
all times to: (i) all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building, the Lot, or any other portion of
the Project, and (ii) the lien of any mortgage or deed of trust which may now or
hereafter exist for which the Building, the Lot, ground leases or underlying
leases, any other portion of the Project or Landlord's interest or estate in any
of said items is specified as security. Tenant hereby acknowledges that as of
the date on which Landlord and Tenant execute this Lease there is a deed of
trust encumbering, and in force against, the Premises (i.e. the Building) in
favor of U.S. Bank National Association (the "Current Lender"). If Tenant so
requests, within a reasonable period after the parties execute this Lease but in
no event later than forty-five (45) days after such request, Landlord shall
cause the Current Lender to execute a subordination, non-disturbance and
attornment agreement substantially in the form of Exhibit I attached hereto,
entitled "Subordination, Non-Disturbance and Attornment Agreement." If Landlord
at any time during the Term of the Lease causes the Premises and the Building to
be encumbered by a new deed of trust or mortgage pursuant to which the
beneficiary of such deed of trust or mortgage is a party or entity other than
the Current Lender, the parties acknowledge and agree that the form of any
non-disturbance and attornment agreement that may be requested to be executed
and delivered by Tenant in connection therewith will not be the "Non-Disturbance
and Attornment Agreement" attached to the Lease as Exhibit I, but such agreement
will be a commercially reasonable form which will not adversely affect Tenant's
rights hereunder. Notwithstanding the foregoing, Landlord or any such ground
lessor, mortgagee, or any beneficiary shall have the right to require this Lease
be superior to any such ground leases or underlying leases or any such liens,
mortgage or deed of trust. If any ground lease or underlying lease terminates
for any reason or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason, Tenant shall attorn to and become
the Tenant of the successor in interest to Landlord, provided such successor in
interest will not disturb Tenant's use, occupancy or quiet enjoyment of the
Premises if Tenant is not in material default of the terms and provisions of
this Lease beyond any applicable notice and cure period. The successor in
interest to Landlord following foreclosure, sale or deed in lieu thereof shall
not be: (a) liable for any act or omission of any prior lessor or with respect
to events occurring prior to acquisition of ownership; (b) subject to any
offsets or defenses which Tenant might have against any prior lessor; (c) bound
by prepayment of more than one (1) month's Rent, except in those instances when
Tenant pays Rent quarterly in advance pursuant to Section 8 hereof, then not
more than three months' Rent; or (d) liable to Tenant for any Security Deposit
not actually received by such successor in interest to the extent any portion or
all of such Security Deposit has not already been forfeited by, or refunded to,
Tenant. Landlord shall be liable to Tenant for all or any portion of the
Security Deposit not forfeited by, or refunded to Tenant, until and unless
Landlord transfers such Security Deposit to the successor in interest. Tenant
covenants and agrees to execute (and acknowledge if required by Landlord, any
lender or ground lessor) and deliver, within ten (10) days of a demand or
request by Landlord and in the form reasonably requested by Landlord, ground
lessor, mortgagee or beneficiary, any additional documents evidencing the
priority or subordination of this Lease with respect to any such ground leases
or underlying leases or the lien of any such mortgage or deed of trust.
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16. RIGHT OF ENTRY
Landlord and its agents shall have the right to enter the Premises at all
reasonable times, upon reasonable prior notice, for purposes of inspection,
exhibition, posting of notices, investigation, replacements, repair, maintenance
and alteration. It is further agreed that Landlord shall have the right to use
any and all means Landlord deems necessary to enter the Premises in an
emergency. Landlord shall have the right to place "for rent" or "for lease"
signs on the outside of the Premises, the Building and in the Common Areas
during the last twelve (12) months of the Lease only. Landlord shall also have
the right to place "for sale" signs on the outside of the Building and in the
Common Areas. Tenant hereby waives any Claim from damages or for any injury or
inconvenience to or interference with Tenant's business, or any other loss
occasioned thereby except for any Claim for any of the foregoing arising out of
the gross negligence or willful misconduct of Landlord or its authorized
representatives.
17. ESTOPPEL CERTIFICATE
Tenant shall execute (and acknowledge if required by any lender or ground
lessor) and deliver to Landlord, within ten (10) days after Landlord provides
such to Tenant, a statement in writing certifying that this Lease is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification), the date to which the Rent and other charges are paid in advance,
if any, acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder or specifying such defaults as are
claimed, and such other matters as Landlord may reasonably require. Any such
statement may be conclusively relied upon by Landlord and any prospective
purchaser or encumbrancer of the Building or other portions of the Project.
Tenant's failure to deliver such statement within such time shall be conclusive
upon the Tenant that (a) this Lease is in full force and effect, without
modification except as may be represented by Landlord; (b) there are no uncured
defaults in Landlord's performance; and (c) not more than one month's Rent has
been paid in advance, except in those instances when Tenant pays Rent quarterly
in advance pursuant to Section 8 hereof, then not more than three months' Rent
has been paid in advance.
18. TENANT'S DEFAULT
The occurrence of any one or more of the following events shall, at Landlord's
option, constitute a material default by Tenant of the provisions of this Lease:
18.1 The abandonment of the Premises by Tenant or the vacation of the
Premises by Tenant which would cause any insurance policy to be invalidated or
otherwise lapse;
18.2 The failure by Tenant to make any payment of Rent, Additional Rent
or any other payment required hereunder, or to fulfill any obligation under this
Lease which endangers or threatens imminent damage or injury to life or
property, within five (5) business days of receipt of written notice that such
amount is past due or of such failure to fulfill any obligation;
18.3 The failure by Tenant to observe, perform or comply with any of the
conditions, covenants or provisions of this Lease (except failure to make any
payment of Rent and/or Additional Rent) and such failure is not cured within (i)
thirty (30) days of the date on which Landlord delivers written notice of such
failure to Tenant for all failures other than with respect to (a) Hazardous
Materials (defined in Section 27 hereof), (b) Tenant making the repairs,
maintenance and replacements required under the provisions of Section 11.1
hereof, which endangers or threatens imminent damage or injury to life or
property, or (c) the timely delivery by Tenant of a subordination,
non-disturbance and attornment agreement (an "SNDA"), a counterpart of a fully
executed Transfer document and a consent thereto (collectively, the "Transfer
Documents"), an estoppel certificate and insurance certificates, (ii) ten (10)
days of the date on which Landlord delivers written notice of such failure to
Tenant for all failures in any way related to Hazardous Materials or Tenant
failing to timely make the repairs, maintenance or replacements required by
Section 11.1 which endangers or threatens imminent damage or injury to life or
property, and (iii) the time period, if any, specified in the applicable
sections of this Lease with respect to subordination, assignment and sublease,
estoppel certificates and insurance. However, Tenant shall not be in default of
its obligations hereunder if such failure (other than any failure of Tenant to
timely and properly make the repairs, maintenance, or replacements required by
Section 11.1 which endangers or threatens imminent damage or injury to life or
property, or timely deliver an SNDA, the Transfer Documents, an estoppel
certificate or insurance certificates, for which no additional cure period shall
be given to Tenant) cannot reasonably be cured within such thirty (30) or ten
(10) day period, as applicable, and Tenant promptly commences, and thereafter
diligently proceeds with same to completion, all actions necessary to cure such
failure as soon as is reasonably possible, but in no event shall the completion
of such cure be later than ninety (90) days after the date on which Landlord
delivers to Tenant written notice of such failure, unless Landlord, acting
reasonably and in good faith, otherwise expressly agrees in writing to a longer
period of time based upon the circumstances relating to such failure as well as
the nature of the failure and the nature of the actions necessary to cure such
failure; or
18.4 The making of a general assignment by Tenant for the benefit of
creditors, the filing of a voluntary petition by Tenant or the filing of an
involuntary petition by any of Tenant's creditors seeking the rehabilitation,
liquidation, or reorganization of Tenant under any law relating to bankruptcy,
insolvency or other relief of debtors and, in the case of an involuntary action,
the failure to remove or discharge the same within sixty (60) days of such
filing, the appointment of a receiver or other custodian to take possession of
substantially all of Tenant's assets or this leasehold, Tenant's insolvency or
inability to pay Tenant's debts or failure generally to pay Tenant's debts when
due, any court entering a decree or order directing the winding up or
liquidation of Tenant or of substantially all of Tenant's assets, Tenant taking
any action toward the dissolution or winding up of Tenant's affairs, the
cessation or suspension of Tenant's use of the Premises, or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets or
this leasehold.
19. REMEDIES FOR TENANT'S DEFAULT
19.1 LANDLORD'S RIGHTS: In the event of Tenant's material default under
this Lease, Landlord may terminate Tenant's right to possession of the Premises
by any lawful means in which case upon delivery of written notice by Landlord
this Lease shall terminate on the date specified by Landlord in such notice and
Tenant shall immediately surrender possession of the Premises to Landlord. In
addition, the Landlord shall have the immediate right of re-entry whether or not
this Lease is terminated, and if this right of re-entry is exercised following
abandonment of the Premises by Tenant, Landlord may consider any of Tenant's
Property left on the Premises to also have been abandoned. No re-entry or taking
possession of the Premises by Landlord pursuant to this Section 19 shall be
construed as an election to
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terminate this Lease unless a written notice of such intention is given to
Tenant. If Landlord relets the Premises or any portion thereof, Tenant shall be
liable immediately to Landlord for all costs Landlord incurs in reletting the
Premises or any part thereof, including, without limitation, broker's
commissions, expenses of cleaning, redecorating, and further improving the
Premises and other similar costs (collectively, the "Reletting Costs"). Any and
all of the Reletting Costs shall be fully chargeable to Tenant and shall not be
prorated or otherwise amortized in relation to any new lease for the Premises or
any portion thereof. Reletting may be for a period shorter or longer than the
remaining term of this Lease. In no event shall Tenant be entitled to any excess
rent received by Landlord. No act by Landlord other than giving written notice
to Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the
Premises or the appointment of a receiver on Landlord's initiative to protect
Landlord's interest under this Lease shall not constitute a termination of
Tenant's right to possession. So long as this Lease is not terminated, Landlord
shall have the right to remedy any default of Tenant, to maintain or improve the
Premises, to cause a receiver to be appointed to administer the Premises and new
or existing subleases and to add to the Rent payable hereunder all of Landlord's
reasonable costs in so doing, with interest at the maximum rate permitted by law
from the date of such expenditure.
19.2 DAMAGES RECOVERABLE: If Tenant breaches this Lease and abandons the
Premises before the end of the Term, or if Tenant's right to possession is
terminated by Landlord because of a breach or default under this Lease, then in
either such case, Landlord may recover from Tenant all damages suffered by
Landlord as a result of Tenant's failure to perform its obligations hereunder,
including without limitation, the unamortized cost of any Tenant Improvements
constructed by or on behalf of Tenant pursuant to Exhibit B hereto to the extent
Landlord has paid for such improvements, the unamortized portion of any broker's
or leasing agent's commission incurred with respect to the leasing of the
Premises to Tenant for the balance of the Term of the Lease remaining after the
date on which Tenant is in default of its obligations hereunder, and all
Reletting Costs, and the worth at the time of the award (computed in accordance
with paragraph (3) of Subdivision (a) of Section 1951.2 of the California Civil
Code) of the amount by which the Rent then unpaid hereunder for the balance of
the Lease Term exceeds the amount of such loss of Rent for the same period which
Tenant proves could be reasonably avoided by Landlord and in such case, Landlord
prior to the award, may relet the Premises for the purpose of mitigating damages
suffered by Landlord because of Tenant's failure to perform its obligations
hereunder; provided, however, that even though Tenant has abandoned the Premises
following such breach, this Lease shall nevertheless continue in full force and
effect for as long as Landlord does not terminate Tenant's right of possession,
and until such termination, Landlord shall have the remedy described in Section
1951.4 of the California Civil Code (Landlord may continue this 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, subject only to reasonable
limitations) and may enforce all its rights and remedies under this Lease,
including the right to recover the Rent from Tenant as it becomes due hereunder.
The "worth at the time of the award" within the meaning of Subparagraphs (a)(1)
and (a)(2) of Section 1951.2 of the California Civil Code shall be computed by
allowing interest at the rate of ten percent (10%) per annum. Tenant waives
redemption or relief from forfeiture under California Code of Civil Procedure
Sections 1174 and 1179 (or any successor or substitute statute), or under any
other present or future law, in the event Tenant is evicted or Landlord takes
possession of the Premises by reason of any default of Tenant hereunder. Tenant
hereby waives for Tenant and for all those claiming under Tenant all rights 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 Premises after any
termination of this Lease.
19.3 RIGHTS AND REMEDIES CUMULATIVE: The foregoing rights and remedies
of Landlord are not exclusive; they are cumulative in addition to any rights and
remedies now or hereafter existing at law, in equity by statute or otherwise, or
to any equitable remedies Landlord may have, and to any remedies Landlord may
have under bankruptcy laws or laws affecting creditors' rights generally. In
addition to all remedies set forth above, if Tenant materially defaults under
this Lease, all options granted to Tenant hereunder shall automatically
terminate, unless otherwise expressly agreed to in writing by Landlord.
20. HOLDING OVER
If Tenant holds over after the expiration of the Lease Term hereof, with or
without the express or implied consent of Landlord, such tenancy shall be from
month-to-month only, and shall not constitute a renewal hereof or an extension
for any further term, and in such case Base Rent shall be payable at a monthly
rate equal to (a) for the first month of any such holding over, one hundred
fifty percent (150%), and (b) for any subsequent such holding over, two hundred
percent (200%), in either case, of the greater of (i) the Base Rent applicable
during the last rental period of the Lease Term under this Lease or (ii) the
fair market rental rate for the Premises as of the commencement of such holdover
period. Such month-to-month tenancy shall be subject to every other term,
covenant and agreement contained herein. Landlord hereby expressly reserves the
right to require Tenant to surrender possession of the Premises to Landlord as
provided in this Lease upon the expiration or other termination of this Lease.
The provisions of this Section 20 shall not be deemed to limit or constitute a
waiver of any other rights or remedies of Landlord provided herein or at law. If
Tenant fails to surrender the Premises upon the termination or expiration of
this Lease, in addition to any other liabilities to Landlord accruing therefrom,
Tenant shall protect, defend, indemnify and hold Landlord harmless from all
Claims resulting from such failure.
21. LANDLORD'S DEFAULT
Landlord shall not be considered in default of this Lease unless Landlord fails
within a reasonable time to perform an obligation required to be performed by
Landlord hereunder. For purposes hereof, a reasonable time shall not be less
than thirty (30) days after receipt by Landlord of written notice specifying the
nature of the obligation Landlord has not performed; provided, however, that if
the nature of Landlord's obligation is such that more than thirty (30) days,
after receipt of written notice, is reasonably necessary for its performance,
then Landlord shall not be in default of this Lease if performance of such
obligation is commenced within such thirty (30) day period and thereafter
diligently pursued to completion.
22. PARKING
Tenant may use the number of non-designated and non-exclusive parking spaces
specified in the Basic Lease Information. Landlord shall exercise reasonable
efforts to ensure that such spaces are available to Tenant for its use, but
Landlord shall not be required to enforce Tenant's right to use the same. In no
event shall Tenant or any of Tenant's Representatives park or permit any parking
of vehicles overnight.
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23. TRANSFER OF LANDLORD'S INTEREST
If there is any sale or other transfer of the Premises or any other portion of
the Project by Landlord or any of Landlord's interest therein, Landlord shall
automatically be entirely released from all liability under this Lease and
Tenant agrees to look solely to such transferee for the performance of
Landlord's obligations hereunder after the date of such transfer provided such
transferee agrees in writing to perform the obligations of Landlord hereunder
from and after the date of such transfer. A ground lease or similar long term
lease by Landlord of the entire Building or Lot, of which the Premises are a
part, shall be deemed a sale within the meaning of this Section 23. Tenant
agrees to attorn to such new owner provided such new owner does not disturb
Tenant's use, occupancy or quiet enjoyment of the Premises so long as Tenant is
not in material default of any of the provisions of this Lease.
24. WAIVER
No delay or omission in the exercise of any right or remedy of either party on
any default by the other party shall impair such a right or remedy or be
construed as a waiver. The subsequent acceptance of Rent by Landlord after
default by Tenant of this Lease shall not be deemed a waiver of such default,
other than a waiver of timely payment for the particular Rent payment involved,
and shall not prevent Landlord from maintaining an unlawful detainer or other
action based on such breach. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly Rent and other sums due hereunder shall be deemed
to be other than on account of the earliest Rent or other sums due, nor shall
any endorsement or statement on any check or accompanying any check or payment
be deemed an accord and satisfaction; and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
Rent or other sum or pursue any other remedy provided in this Lease. No failure,
partial exercise or delay on the part of the Landlord in exercising any right,
power or privilege hereunder shall operate as a waiver thereof.
25. CASUALTY DAMAGE
25.1 CASUALTY. If the Premises or any part [excluding any of Tenant's
Property, any Tenant Improvements and any Alterations installed by or for the
benefit of Tenant (collectively, the "Tenant's FF&E")] shall be damaged or
destroyed by fire or other casualty, Tenant shall give immediate written notice
thereof to Landlord. Within forty-five (45) days after receipt by Landlord of
such notice, Landlord shall notify Tenant, in writing, whether the necessary
repairs can reasonably be made, as reasonably determined by Landlord: (a) within
one hundred eighty (180) days; (b) in more than one hundred eighty (180) days
but in less than two hundred seventy (270) days; or (c) in more than two hundred
seventy (270) days, from the date of such notice.
25.1.1 MINOR INSURED DAMAGE. If the Premises (other than the
Tenant's FF&E) are damaged only to such extent that repairs, rebuilding and/or
restoration can be reasonably completed within one hundred eighty (180) days,
this Lease shall not terminate and, provided that insurance proceeds are
available and paid to Landlord to fully repair the damage and/or Tenant
otherwise voluntarily contributes any shortfall thereof to Landlord, Landlord
shall repair the Premises to substantially the same condition that existed prior
to the occurrence of such casualty, except Landlord shall not be required to
rebuild, repair, or replace any of Tenant's FF&E. The Rent payable hereunder
shall be abated proportionately from the date of such damage until any and all
repairs required herein to be made by Landlord are substantially completed but
such abatement shall only be to the extent of the portion of the Premises which
is actually rendered unusable and unfit for occupancy and only during the time
Tenant is not actually using same for Tenant's customary operations.
25.1.2 INSURED DAMAGE REQUIRING MORE THAN 180 DAYS TO REPAIR. If
the Premises (other than the Tenant's FF&E) are damaged only to such extent that
repairs, rebuilding and/or restoration can be reasonably completed, as
reasonably determined by Landlord, in more than one hundred eighty (180) days
but in less than two hundred seventy (270) days, then Landlord shall have the
option of: (a) terminating the Lease effective upon making the determination of
the extent of such damage, in which event the Rent shall be abated from the date
of the occurrence of such damage, provided Tenant diligently proceeds to and
expeditiously vacates the Premises (but, in all events Tenant shall diligently
proceed to expeditiously vacate the Premises); or (b) electing to repair the
Premises to substantially the same condition that existed prior to the
occurrence of such casualty, provided insurance proceeds are available and paid
to Landlord and Tenant otherwise voluntarily contributes any shortfall thereof
to Landlord to fully repair the damage (except that Landlord shall not be
required to rebuild, repair, or replace any of Tenant's FF&E). The Rent payable
hereunder shall be abated proportionately from the date of such damage until any
and all repairs required herein to be made by Landlord are substantially
completed but such abatement shall only be to the extent of the portion of the
Premises which is actually rendered unusable and unfit for occupancy and only
during the time Tenant is not actually using same for Tenant's customary
operations. If Landlord fails to substantially complete such repairs within two
hundred seventy (270) days after the date on which Landlord is notified by
Tenant of the occurrence of such casualty [such 270-day period to be extended
for delays caused by Tenant or any of Tenant's Representatives ("Tenant Delays")
or any force majeure events, which events shall include, but not be limited to,
acts or events beyond Landlord's and/or its contractors' control, acts of God,
earthquakes, strikes, lockouts, riots, boycotts, casualties not caused by
Landlord or Tenant, discontinuance of any utility or other service required for
performance of the work, moratoriums, governmental delays in issuing permits,
governmental agencies and weather, and the lack of availability or shortage of
materials ("Force Majeure Delays")], Tenant may within ten (10) business days
after expiration of such two hundred seventy (270) day period (as same may be
extended), terminate this Lease by delivering written notice to Landlord as
Tenant's exclusive remedy, whereupon all rights of Tenant hereunder shall cease
and terminate ten (10) business days after Landlord's receipt of such notice,
and Tenant shall diligently proceed to expeditiously vacate the Premises.
25.1.3 MAJOR INSURED DAMAGE. If the Premises (other than the
Tenant's FF&E) are damaged to such extent that repairs, rebuilding and/or
restoration cannot be reasonably completed, as reasonably determined by
Landlord, within two hundred seventy (270) days, then either Landlord or Tenant
may terminate this Lease by giving written notice within twenty (20) days after
notice from Landlord regarding the time period of repair. If either party
notifies the other of its intention to so terminate the Lease, then this Lease
shall terminate and the Rent shall be abated from the date of the occurrence of
such damage, and Tenant shall diligently proceed to expeditiously vacate the
Premises. If neither party elects to terminate this Lease, Landlord shall
promptly commence and diligently prosecute to completion the repairs to the
Premises, provided insurance proceeds are available and paid to Landlord to
fully repair the damage or Tenant voluntarily contributes any shortfall thereof
to Landlord (except that Landlord shall not be required to rebuild, repair, or
replace any of Tenant's FF&E). During the time when Landlord is prosecuting such
repairs to substantial completion, the Rent payable hereunder shall be abated
proportionately from the date of such damage until any and all repairs required
herein to be made by Landlord are substantially completed but such abatement
shall only be to the extent of the portion of the Premises which is actually
rendered unusable and unfit for occupancy and only during
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the time Tenant is not actually using same for Tenant's customary operations. If
Landlord fails to substantially complete such repairs within twelve (12) months
after the date on which Landlord is notified by Tenant of the occurrence of such
casualty [such 12-month period to be extended for Tenant Delays or any Force
Majeure Delays], Tenant may within ten (10) business days after expiration of
such 12-month period (as same may be extended), terminate this Lease by
delivering written notice to Landlord as Tenant's exclusive remedy, whereupon
all rights of Tenant hereunder shall cease and terminate ten (10) business days
after Landlord's receipt of such notice and Tenant shall diligently proceed to
expeditiously vacate the Premises.
25.1.4 DAMAGE NEAR END OF TERM. Notwithstanding anything to the
contrary contained in this Lease except for the provisions of Section 25.3
below, if the Premises are substantially damaged or destroyed during the last
year of then applicable term of this Lease, either Landlord or Tenant may, at
their option, cancel and terminate this Lease by giving written notice to the
other party of its election to do so within thirty (30) days after receipt by
Landlord of notice from Tenant of the occurrence of such casualty, unless Tenant
renews the Lease, in which case Landlord shall not have the right to terminate.
If either party so elects to terminate this Lease, all rights of Tenant
hereunder shall cease and terminate ten (10) days after Tenant's receipt or
delivery of such notice, as applicable, and Tenant shall immediately vacate the
Premises and surrender possession thereof to Landlord.
25.2 DEDUCTIBLE AND UNINSURED CASUALTY. Tenant shall be responsible for
and shall pay to Landlord, as Additional Rent, the deductible amounts under the
insurance policies obtained by Landlord and Tenant under this Lease if the
proceeds of which are used to repair the Premises as contemplated in this
Section 25. Notwithstanding the foregoing, if other portions of the Building are
also damaged by said casualty and insurance proceeds are payable therefor, then
Tenant shall only pay Tenant's proportionate share of the deductible as
reasonably determined by Landlord. If any portion of the Premises is damaged and
is not fully covered by the aggregate of insurance proceeds received by Landlord
and any applicable deductible, and Tenant does not voluntarily contribute any
shortfall thereof to Landlord, or if the holder of any indebtedness secured by
the Premises requires that the insurance proceeds be applied to such
indebtedness, then Landlord or Tenant shall have the right to terminate this
Lease by delivering written notice of termination to the other party within
thirty (30) days after the date of notice to Tenant of any such event, whereupon
all rights and obligations of Tenant shall cease and terminate hereunder, except
for those obligations expressly provided for in this Lease to survive such
termination of the Lease.
25.3 TENANT'S FAULT AND LENDER'S RIGHTS. Notwithstanding anything to the
contrary contained herein, but subject to the provisions of Section 12.5 above,
if the Premises (other than Tenant's FF&E) or any other portion of the Building
be damaged by fire or other casualty resulting from the intentional or negligent
acts or omissions of Tenant or any of Tenant's Representatives, (i) the Rent
shall not be diminished during the repair of such damage, (ii) Tenant shall not
have any right to terminate this Lease due to the occurrence of such casualty or
damage, and (iii) Tenant shall be liable to Landlord for the cost and expense of
the repair and restoration of all or any portion of the Building caused thereby
(including, without limitation, any deductible) to the extent such cost and
expense is not covered by insurance proceeds. Notwithstanding anything to the
contrary contained herein, if the holder of any indebtedness secured by the
Premises or any other portion of the Project requires that the insurance
proceeds be applied to such indebtedness, then either Tenant or Landlord shall
have the right to terminate this Lease by delivering written notice of
termination to Tenant within thirty (30) days after the date of written notice
to the other of any such event, whereupon all rights and obligations of the
other shall cease and terminate hereunder, except for those obligations
expressly provided for in this Lease to survive such termination of the Lease.
25.4 TENANT'S WAIVER. Landlord shall not be liable for any inconvenience
or annoyance to Tenant, injury to the business of Tenant, loss of use of any
part of the Premises by Tenant or loss of Tenant's Property, resulting in any
way from such damage, destruction or the repair thereof, except that, Landlord
shall allow Tenant a fair diminution of Rent during the time and to the extent
the Premises are actually unusable and unfit for occupancy as specifically
provided above in this Section 25. With respect to any damage or destruction
which Landlord is obligated to repair or may elect to repair, Tenant hereby
waives all rights to terminate this Lease or offset any amounts against Rent
pursuant to rights accorded Tenant by any law currently existing or hereafter
enacted, including but not limited to, all rights pursuant to the provisions of
Sections 1932(2.), 1933(4.), 1941 and 1942 of the California Civil Code, as the
same may be amended or supplemented from time to time.
26. CONDEMNATION
If a substantial portion of the Premises is condemned by eminent domain,
inversely condemned or sold in lieu of condemnation for any public or
quasi-public use or purpose ("Condemned") such that Tenant reasonably determines
that it cannot use the remainder portion for the conduct of its business such
that it was prior to the event, then Tenant or Landlord may terminate this Lease
as of the date when physical possession of the Premises is taken and title vests
in such condemning authority, and Rent shall be adjusted to the date of
termination. Tenant shall not because of such condemnation assert any claim
against Landlord or the condemning authority for any compensation because of
such condemnation, and Landlord shall be entitled to receive the entire amount
of any award without deduction for any estate of interest or other interest of
Tenant; provided, however, the foregoing provisions shall not preclude Tenant,
at Tenant's sole cost and expense, from obtaining any separate award to Tenant
for loss of or damage to Tenant's Property or for damages for cessation or
interruption of Tenant's business provided such award is separate from
Landlord's award and provided further such separate award does not diminish nor
otherwise impair the award otherwise payable to Landlord. In addition to the
foregoing, Tenant shall be entitled to seek compensation for the relocation
costs recoverable by Tenant pursuant to the provisions of California Government
Code Section 7262. If neither party elects to terminate this Lease, Landlord
shall, if necessary, promptly proceed to restore the Premises or the Building,
as applicable, to substantially its same condition prior to such partial
condemnation, allowing for the reasonable effects of such partial condemnation,
and a proportionate allowance shall be made to Tenant, as solely determined by
Landlord, for the Rent corresponding to the time during which, and to the part
of the Premises of which, Tenant is deprived on account of such partial
condemnation and restoration. Landlord shall not be required to spend funds for
restoration in excess of the amount received by Landlord as compensation
awarded.
27. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS
27.1 HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE: Prior to executing this
Lease, Tenant has delivered to Landlord Tenant's executed initial Hazardous
Materials Disclosure Certificate (the "Initial HazMat Certificate"), a copy of
which is attached hereto as Exhibit E. Tenant covenants, represents and warrants
to Landlord that the information in the Initial HazMat Certificate is true and
correct and accurately describes the use(s) of Hazardous Materials which will be
made and/or used on the Premises by Tenant. Tenant shall, commencing with the
date which is one year from the
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Commencement Date and continuing every year thereafter, deliver to Landlord, an
executed Hazardous Materials Disclosure Certificate ("the "HazMat Certificate")
describing Tenant's then present use of Hazardous Materials on the Premises, and
any other reasonably necessary documents as requested by Landlord. The HazMat
Certificates required hereunder shall be in substantially the form attached
hereto as Exhibit E.
27.2 DEFINITION OF HAZARDOUS MATERIALS: As used in this Lease, the term
Hazardous Materials shall mean and include (a) any hazardous or toxic wastes,
materials or substances, and other pollutants or contaminants, which are or
become regulated by any Environmental Laws; (b) petroleum, petroleum by
products, gasoline, diesel fuel, crude oil or any fraction thereof; (c) asbestos
and asbestos containing material, in any form, whether friable or non-friable;
(d) polychlorinated biphenyls; (e) radioactive materials; (f) lead and
lead-containing materials; (g) any other material, waste or substance displaying
toxic, reactive, ignitable or corrosive characteristics, as all such terms are
used in their broadest sense, and are defined or become defined by any
Environmental Law (defined below); or (h) any materials which cause or threatens
to cause a nuisance upon or waste to any portion of the Project or any
surrounding property; or poses or threatens to pose a hazard to the health and
safety of persons on the Premises, any other portion of the Project or any
surrounding property. For purposes of this Lease, the term "Hazardous Materials"
shall not include nominal amounts of ordinary household cleaners, office
supplies and janitorial supplies which are not actionable under any
Environmental Laws.
27.3 PROHIBITION; ENVIRONMENTAL LAWS: Tenant shall not be entitled to
use or store any Hazardous Materials on, in, or about any portion of the
Premises and the Project without, in each instance, obtaining Landlord's prior
written consent thereto. If Landlord, in its sole discretion, consents to any
such usage or storage, then Tenant shall be permitted to use and/or store only
those Hazardous Materials that are necessary for Tenant's business and to the
extent disclosed in the HazMat Certificate and as expressly approved by Landlord
in writing. Any such usage and storage may only be to the extent of the
quantities of Hazardous Materials as specified in the then applicable HazMat
Certificate as expressly approved by Landlord. In all events such usage and
storage must at all times be in full compliance with any and all local, state
and federal environmental, health and/or safety-related laws, statutes, orders,
standards, courts' decisions, ordinances, rules and regulations (as interpreted
by judicial and administrative decisions), decrees, directives, guidelines,
permits or permit conditions, currently existing and as amended, enacted, issued
or adopted in the future which are or become applicable to Tenant or all or any
portion of the Premises (collectively, the "Environmental Laws"). Tenant agrees
that any changes to the type and/or quantities of Hazardous Materials specified
in the most recent HazMat Certificate may be implemented only with the prior
written consent of Landlord, which consent may be given or withheld in
Landlord's sole discretion. Tenant shall not be entitled nor permitted to
install any tanks under, on or about the Premises for the storage of Hazardous
Materials without the express written consent of Landlord, which may be given or
withheld in Landlord's sole discretion; provided, however, that Landlord hereby
approves of Tenant constructing and maintaining outdoors immediately adjacent to
the Premises, in a location to be approved by Landlord, such approval not to be
unreasonably withheld, an approximately 1000-gallon diesel fuel above-ground
storage tank for fueling of Tenant's emergency generator, such tank to be
constructed, maintained and used strictly in accordance with all terms and
provisions of this Lease and in compliance with all applicable Environmental
Laws. Landlord shall have the right at all times during the Term of this Lease
to (i) inspect the Premises, (ii) conduct tests and investigations to determine
whether Tenant is in compliance with the provisions of this Section 27 or to
determine if Hazardous Materials are present in, on or about the Project, and
(iii) request lists of all Hazardous Materials used, stored or otherwise located
on, under or about any portion of the Premises and/or the Common Areas. The cost
of all such inspections, tests and investigations shall be borne by Tenant, if
Landlord reasonably determines that Tenant or any of Tenant's Representatives
are directly or indirectly responsible in any manner for any contamination
revealed by such inspections, tests and investigations. The aforementioned
rights granted herein to Landlord and its representatives shall not create (a) a
duty on Landlord's part to inspect, test, investigate, monitor or otherwise
observe the Premises or the activities of Tenant and Tenant's Representatives
with respect to Hazardous Materials, including without limitation, Tenant's
operation, use and any remediation related thereto, or (b) liability on the part
of Landlord and its representatives for Tenant's use, storage, disposal or
remediation of Hazardous Materials, it being understood that Tenant shall be
solely responsible for all liability in connection therewith.
27.4 TENANT'S ENVIRONMENTAL OBLIGATIONS: Tenant shall give to Landlord
immediate verbal and follow-up written notice of any spills, releases,
discharges, disposals, emissions, migrations, removals or transportation of
Hazardous Materials on, under or about any portion of the Premises or in any
Common Areas; provided that Tenant has actual, implied or constructive knowledge
of such event(s). Tenant, at its sole cost and expense, covenants and warrants
to promptly investigate, clean up, remove, restore and otherwise remediate
(including, without limitation, preparation of any feasibility studies or
reports and the performance of any and all closures) any spill, release,
discharge, disposal, emission, migration or transportation of Hazardous
Materials arising from or related to the intentional or negligent acts or
omissions of Tenant or Tenant's Representatives such that the affected portions
of the Project and any adjacent property are returned to the condition existing
prior to the appearance of such Hazardous Materials. Any such investigation,
clean up, removal, restoration and other remediation shall only be performed
after Tenant has obtained Landlord's prior written consent, which consent shall
not be unreasonably withheld so long as such actions would not potentially have
a material adverse long-term or short-term effect on any portion of the Project.
Notwithstanding the foregoing, Tenant shall be entitled to respond immediately
to an emergency without first obtaining Landlord's prior written consent.
Tenant, at its sole cost and expense, shall conduct and perform, or cause to be
conducted and performed, all closures as required by any Environmental Laws or
any agencies or other governmental authorities having jurisdiction thereof. If
Tenant fails to so promptly investigate, clean up, remove, restore, provide
closure or otherwise so remediate, Landlord may, but without obligation to do
so, take any and all steps necessary to rectify the same and Tenant shall
promptly reimburse Landlord, upon demand, for all costs and expenses to Landlord
of performing investigation, clean up, removal, restoration, closure and
remediation work. All such work undertaken by Tenant, as required herein, shall
be performed in such a manner so as to enable Landlord to make full economic use
of the Premises and the other portions of the Project after the satisfactory
completion of such work.
27.5 ENVIRONMENTAL INDEMNITY: In addition to Tenant's obligations as set
forth hereinabove, Tenant agrees to, and shall, protect, indemnify, defend (with
counsel reasonably acceptable to Landlord) and hold Landlord and the other
Indemnitees harmless from and against any and all Claims (including, without
limitation, diminution in value of any portion of the Premises or the Project,
damages for the loss of or restriction on the use of rentable or usable space,
and from any adverse impact of Landlord's marketing of any space within the
Project) arising at any time during or after the Term of this Lease in
connection with or related to, directly or indirectly, the use, presence,
transportation, storage, disposal, migration, removal, spill, release or
discharge of Hazardous Materials on, in or about any portion of the Project as a
result (directly or indirectly) of the intentional or negligent acts or
omissions of Tenant or any of Tenant's Representatives. Neither the written
consent of Landlord to the presence, use or storage of Hazardous Materials in,
on, under or about any portion of the Project nor the strict compliance by
Tenant with all Environmental Laws shall excuse
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Tenant from its obligations of indemnification pursuant hereto. Tenant shall not
be relieved of its indemnification obligations under the provisions of this
Section 27.5 due to Landlord's status as either an "owner" or "operator" under
any Environmental Laws.
27.6 SURVIVAL: Tenant's obligations and liabilities pursuant to the
provisions of this Section 27 shall survive the expiration or earlier
termination of this Lease.
28. FINANCIAL STATEMENTS
Tenant and any permitted Transferee, for the reliance of Landlord, any lender
holding or anticipated to acquire a lien upon any portion of the Project or any
prospective purchaser of any portion of the Project within ten (10) business
days after Landlord's request therefor, but not more often than once annually so
long as Tenant is not in material default of this Lease, shall deliver to
Landlord the then current audited financial statements of Tenant (including
interim periods following the end of the last fiscal year for which annual
statements are available). If audited financial statements have not been
prepared, Tenant and any permitted Transferee shall provide Landlord with
unaudited financial statements and such other information, the type and form of
which are acceptable to Landlord in Landlord's reasonable discretion, which
reflects the financial condition of Tenant and any permitted Transferee.
29. GENERAL PROVISIONS:
29.1 TIME. Time is of the essence in this Lease and with respect to each
and all of its provisions in which performance is a factor.
29.2 SUCCESSORS AND ASSIGNS. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
29.3 RECORDATION. Tenant shall not record this Lease or a short form
memorandum hereof.
29.4 LANDLORD EXCULPATION. The liability of Landlord to Tenant for any
default by Landlord under the terms of this Lease shall be limited to the actual
interest of Landlord and its present or future partners or members in the
Building, and Tenant agrees to look solely to Landlord's interest in the
Building for satisfaction of any liability and shall not look to other assets of
Landlord nor seek any recourse against the assets of the individual partners,
members, directors, officers, shareholders, agents or employees of Landlord,
including without limitation, any property management company of Landlord
(collectively, the "Landlord Parties"). It is the parties' intention that
Landlord and the Landlord Parties shall not in any event or circumstance be
personally liable, in any manner whatsoever, for any judgment or deficiency
hereunder or with respect to this Lease. The liability of Landlord under this
Lease is limited to its actual period of ownership of title to the Building.
29.5 SEVERABILITY AND GOVERNING LAW. Any provisions of this Lease which
shall prove to be invalid, void or illegal shall in no way affect, impair or
invalidate any other provisions hereof and such other provision shall remain in
full force and effect. This Lease shall be governed by, and construed in
accordance with, the laws of the State of California.
29.6 ATTORNEYS' FEES. In the event any dispute between the parties
results in litigation or other proceeding, the prevailing party shall be
reimbursed by the party not prevailing for all reasonable costs and expenses,
including, without limitation, reasonable attorneys' and experts' fees and costs
incurred by the prevailing party in connection with such litigation or other
proceeding, and any appeal thereof. Such costs, expenses and fees shall be
included in and made a part of the judgment recovered by the prevailing party,
if any.
29.7 ENTIRE AGREEMENT. It is understood and acknowledged that there are
no oral agreements between the parties hereto affecting this Lease and this
Lease supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements and understandings, if any, between the parties hereto or
displayed by Landlord to Tenant with respect to the subject matter thereof, and
none thereof shall be used to interpret or construe this Lease. This Lease and
any side letter or separate agreement executed by Landlord and Tenant in
connection with this Lease and dated of even date herewith contain all of the
terms, covenants, conditions, warranties and agreements of the parties relating
in any manner to the rental, use and occupancy of the Premises, shall be
considered to be the only agreement between the parties hereto and their
representatives and agents, and none of the terms, covenants, conditions or
provisions of this Lease can be modified, deleted or added to except in writing
signed by the parties hereto. All negotiations and oral agreements acceptable to
both parties have been merged into and are included herein. There are no other
representations or warranties between the parties, and all reliance with respect
to representations is based totally upon the representations and agreements
contained in this Lease. The parties acknowledge that (i) each party and/or its
counsel have reviewed and revised this Lease, and (ii) no rule of construction
to the effect that any ambiguities are to be resolved against the drafting party
shall be employed in the interpretation or enforcement of this Lease or any
amendments or exhibits to this Lease or any document executed and delivered by
either party in connection with this Lease.
29.8 WARRANTY OF AUTHORITY. Tenant shall deliver to Landlord an original
certificate of status for Tenant issued by the California Secretary of State or
statement of partnership for Tenant recorded in the county in which the Premises
are located, as applicable, and such other documents as Landlord may reasonably
request with regard to the lawful existence of Tenant. Each person executing
this Lease on behalf of a party represents and warrants that (1) such person is
duly and validly authorized to do so on behalf of the entity it purports to so
bind, and (2) if such party is a partnership, corporation or trustee, that such
partnership, corporation or trustee has full right and authority to enter into
this Lease and perform all of its obligations hereunder. Landlord and Tenant
each hereby warrants that this Lease is legal, valid and binding upon it and
enforceable against it in accordance with its terms.
29.9 NOTICES. All notices, demands, statements or communications
(collectively, "Notices") given or required to be given by either party to the
other hereunder shall be in writing, shall be sent by United States certified or
registered mail, postage prepaid, return receipt requested, national overnight
courier service, or delivered personally (i) to Tenant at the Tenant's Address
set forth in the Basic Lease Information, or to such other place as Tenant may
from time to time designate in a Notice to Landlord; or (ii) to Landlord at
Landlord's Address set forth in the Basic Lease Information, or to such other
firm or to such other place as Landlord may from time to time designate in a
Notice to Tenant. Any Notice will be deemed given on the date it is delivered or
delivery is rejected.
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29.10 JOINT AND SEVERAL; COVENANTS AND CONDITIONS. If Tenant consists of
more than one person or entity, the obligations of all such persons or entities
shall be joint and several. Each provision to be performed by Tenant hereunder
shall be deemed to be both a covenant and a condition.
29.11 CONFIDENTIALITY. Tenant acknowledges that the content of this
Lease and any related documents are confidential information. Tenant shall keep
and maintain such confidential information strictly confidential and shall not
disclose such confidential information to any person or entity other than
Tenant's broker and financial, legal and space planning consultants.
29.12 LANDLORD RENOVATIONS. Tenant acknowledges that Landlord may from
time to time, at Landlord's sole option, renovate, improve, develop, alter, or
modify (collectively, the "Renovations") portions of the Building, Premises,
Common Areas and the Project, including without limitation, systems and
equipment, roof, and structural portions of the same. In connection with such
Renovations, Landlord may, among other things, erect scaffolding or other
necessary structures in the Building, limit or eliminate access to portions of
the Project, including portions of the Common Areas, or perform work in the
Building, which work may create noise, dust or leave debris in the Building.
Tenant hereby agrees that such Renovations and Landlord's actions in connection
with such Renovations shall in no way constitute a constructive eviction of
Tenant nor entitle Tenant to any abatement of Rent. Landlord shall have no
responsibility, or for any reason be liable to Tenant, for any direct or
indirect injury to or interference with Tenant's business arising from the
Renovations, nor shall Tenant be entitled to any compensation or damages from
Landlord for loss of the use of the whole or any part of the Premises or of
Tenant's Property, Alterations or improvements resulting from the Renovations or
Landlord's actions in connection with such Renovations, or for any inconvenience
or annoyance occasioned by such Renovations or Landlord's actions in connection
with such Renovations, except to the extent caused by the gross negligence and
willful misconduct of Landlord or Landlord's representatives. Landlord shall use
commercially reasonable efforts to minimize interference with Tenant's use of
the Premises during such renovations.
29.13 SUBMISSION OF LEASE. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of or an option for
lease, and it is not effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.
30. SIGNS
All signs and graphics of every kind visible in or from public view or corridors
or the exterior of the Premises shall be subject to Landlord's prior written
approval and shall be subject to and in compliance with all applicable Laws,
Development Documents, Recorded Matters, Rules and Regulations, and Landlord's
sign criteria as same may exist from time to time or as set forth in Exhibit G
hereto. Tenant shall remove all such signs and graphics prior to the expiration
or earlier termination of this Lease. Such installations and removals shall be
made in a manner as to avoid damage or defacement of the Premises. Tenant shall
repair any damage or defacement, including without limitation, discoloration
caused by such installation or removal. Landlord shall have the right, at its
option, to deduct from the Security Deposit such sums as are reasonably
necessary to remove such signs and make any repairs necessitated by such
removal. Notwithstanding the foregoing, in no event shall any: (a) neon,
flashing or moving sign(s) or (b) sign(s) which are likely to interfere with the
visibility of any sign, canopy, advertising matter, or decoration of any kind of
any other business or occupant of the Building or the other portions of the
Project be permitted hereunder. Tenant further agrees to maintain each such sign
and graphics, as may be approved, in good condition and repair at all times. Any
exterior signage planned by Tenant is subject to the prior written approval by
Landlord and approval by the City of San Jose or the applicable governmental
agency. Any approved exterior signage must be installed by a State of California
licensed contractor that adequately meets Landlord's bonding and insurance
requirements. Landlord's consent to Tenant's exterior signage consistent with
Landlord's signage program for the Project and meeting the foregoing
requirements shall not be unreasonably withheld.
31. MORTGAGEE PROTECTION
Upon any default on the part of Landlord, Tenant will give written Notice by
registered or certified mail to any beneficiary of a deed of trust or mortgagee
of a mortgage covering the Premises who has provided Tenant with notice of their
interest together with an address for receiving Notice, and shall offer such
beneficiary or mortgagee a reasonable opportunity to cure the default, including
time to obtain possession of the Premises by power of sale or a judicial
foreclosure, if such should prove necessary to effect a cure. If such default
cannot be cured within such time period, then such additional time as may be
necessary will be given to such beneficiary or mortgagee to effect such cure so
long as such beneficiary or mortgagee has commenced the cure within the original
time period and thereafter diligently pursues such cure to completion, in which
event this Lease shall not be terminated while such cure is being diligently
pursued. Tenant agrees that each lender to whom this Lease has been assigned by
Landlord is an express third party beneficiary hereof. Tenant shall not make any
prepayment of Rent more than one (1) month in advance without the prior written
consent of each such lender, except if Tenant is required to make quarterly
payments of Rent in advance pursuant to the provisions of Section 8 above.
Tenant waives the collection of any deposit from such lender(s) or any purchaser
at a foreclosure sale of such lender(s)' deed of trust unless the lender(s) or
such purchaser shall have actually received and not refunded the deposit. Tenant
agrees to make all payments under this Lease to the lender with the most senior
encumbrance upon receiving a direction, in writing, to pay said amounts to such
lender. Tenant shall comply with such written direction to pay without
determining whether an event of default exists under such lender's loan to
Landlord, and Landlord hereby releases Tenant from any claims for having done
so. If, in connection with obtaining financing for the Premises or any other
portion of the Project, Landlord's lender shall request reasonable
modification(s) to this Lease as a condition to such financing, Tenant shall not
unreasonably withhold, delay or defer its consent thereto, provided such
modifications do not materially and adversely affect Tenant's rights hereunder
or the use, occupancy or quiet enjoyment of Tenant hereunder.
32. WARRANTIES OF TENANT
Tenant hereby warrants and represents to Landlord, for the express benefit of
Landlord, that Tenant has undertaken a complete and independent evaluation of
the risks inherent in the execution of this Lease and the operation of the
Premises for the use permitted hereby, and that, based upon said independent
evaluation, Tenant has elected to enter into this Lease and hereby assumes all
risks with respect thereto. Tenant hereby further warrants and represents to
Landlord, for the express benefit of Landlord, that in entering into this Lease,
Tenant has not relied upon any statement, fact, promise or representation
(whether express or implied, written or oral) not specifically set forth herein
in writing and that any statement, fact, promise or representation (whether
express or implied, written or oral) made at any time to Tenant, which is not
expressly incorporated herein in writing, is hereby waived by Tenant.
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33. BROKERAGE COMMISSION
Landlord and Tenant each represents and warrants for the benefit of the other
that it has had no dealings with any real estate broker, agent or finder in
connection with the Premises and/or the negotiation of this Lease, except for
the Broker(s) specified in the Basic Lease Information, and that it knows of no
other real estate broker, agent or finder who is or might be entitled to a real
estate brokerage commission or finder's fee in connection with this Lease or
otherwise based upon contacts between the claimant and Tenant. Each party shall
indemnify and hold harmless the other from and against any and all liabilities
or expenses arising out of claims made for a fee or commission by any real
estate broker, agent or finder in connection with the Premises and this Lease
other than Broker(s), if any, resulting from the actions of the indemnifying
party. Unless expressly agreed to in writing by Landlord and Broker(s), no real
estate brokerage commission or finder's fee shall be owed to, or otherwise
payable to, the Broker(s) for any renewals or other extensions of the initial
Term of this Lease or for any additional space leased by Tenant other than the
Premises as same exists as of the Lease Date. Tenant further represents and
warrants to Landlord that Tenant will not receive (i) any portion of any
brokerage commission or finder's fee payable to the Broker(s) in connection with
this Lease or (ii) any other form of compensation or incentive from the
Broker(s) with respect to this Lease.
34. QUIET ENJOYMENT
Landlord covenants with Tenant, upon the paying of Rent and observing and
keeping the covenants, agreements and conditions of this Lease on its part to be
kept, and during the periods that Tenant is not otherwise in default of any of
the terms or provisions of this Lease beyond any applicable notice and cure
periods, and subject to the rights of any of Landlord's lenders, (i) that Tenant
shall and may peaceably and quietly have, hold, occupy and enjoy the Premises
and the Common Areas during the Term of this Lease, and (ii) neither Landlord,
nor any successor or assign of Landlord, shall disturb Tenant's occupancy or
enjoyment of the Premises and the Common Areas. The foregoing covenant is in
lieu of any other covenant express or implied.
35. COLLATERAL FOR PERFORMANCE OF LEASE OBLIGATIONS
Simultaneously with Tenant's delivery to Landlord of this Lease and the first
month's Base Rent in accordance with the provisions of Section 3 above, Tenant
shall deliver to Landlord, as collateral for the full and faithful performance
by Tenant of all of its obligations under this Lease and for all losses and
damages Landlord may suffer as a result of any default by Tenant under this
Lease, an irrevocable and unconditional negotiable letter of credit, in the form
and containing the terms required herein, payable in the City of Foster City,
California (or in addition you may state "payable in the County of San Mateo")
running in favor of Landlord issued by a solvent nationally recognized bank with
a long term rating of BBB- or higher, under the supervision of the
Superintendent of Banks of the State of California, or a National Banking
Association, in the amount of Four Million and 00/100 Dollars ($4,000,000.00)
(the "Letter of Credit"). The Letter of Credit shall be (a) at sight and
irrevocable and unconditional, (b) maintained in effect, whether through
replacement, renewal or extension, for the entire Lease Term (the "Letter of
Credit Expiration Date") and Tenant shall deliver a new Letter of Credit or
certificate of renewal or extension to Landlord at least thirty (30) days prior
to the expiration of the Letter of Credit, without any action whatsoever on the
part of Landlord, (c) subject to the Uniform Customs and Practices for
Documentary Credits (1993-Rev) International Chamber of Commerce Publication
#500, (d) acceptable to Landlord in its sole discretion, and (e) fully
assignable by Landlord and permit partial draws. In addition to the foregoing,
the form and terms of the Letter of Credit (and the bank issuing the same) shall
be acceptable to Landlord, in Landlord's sole discretion, and shall provide,
among other things, in effect that: (1) Landlord, or its then managing agent,
shall have the right to draw down an amount up to the face amount of the Letter
of Credit upon the presentation to the issuing bank of Landlord's (or Landlord's
then managing agent's) statement that such amount is due to Landlord under the
terms and conditions of this Lease, it being understood that if Landlord or its
managing agent be a limited liability company, corporation, partnership or other
entity, then such statement shall be signed by a managing member (if a limited
liability company) an officer (if a corporation), a general partner (if a
partnership), or any authorized party (if another entity); (2) the Letter of
Credit will be honored by the issuing bank without inquiry as to the accuracy
thereof and regardless of whether the Tenant disputes the content of such
statement; and (3) in the event of a transfer of Landlord's interest in the
Building, Landlord shall transfer the Letter of Credit, in whole or in part (or
cause a substitute letter of credit to be delivered, as applicable), to the
transferee and thereupon the Landlord shall, without any further agreement
between the parties, be released by Tenant from all liability therefor, and it
is agreed that the provisions hereof shall apply to every transfer or assignment
of the whole or any portion of said Letter of Credit to a new Landlord. Tenant
hereby acknowledges and agrees that Landlord is entering into this Lease in
material reliance upon the ability of Landlord to draw upon the Letter of Credit
upon the occurrence of any default on the part of Tenant hereunder which
continues beyond any applicable notice and cure periods. Tenant further
acknowledges and agrees that if Landlord cannot draw upon the Letter of Credit
within the times and in the manner as anticipated by Landlord herein, Landlord
shall suffer irreparable damage, harm and injury. From time to time during the
Term of this Lease it is anticipated by the parties that the Letter of Credit
will need to be amended, modified and, possibly reissued. Landlord and Tenant
hereby covenant and agree to cooperate with one another to promptly effectuate
any such amendments, modifications and new issuances, including without
limitation, executing and submitting to the Issuer any and all documents or
instruments as may be reasonably required to effectuate same. Each and every
time during the Term of this Lease there is a change in the identity or address
of the parties, including without limitation, any change in the identity of
Landlord due to the sale, transfer or other conveyance by Landlord of its rights
and interests in, to and under this Lease to any other party, person or entity,
the Letter of Credit shall immediately be amended or reissued to reflect such
changes and the parties hereby agree to execute and submit to the Issuer such
further applications, documents and instruments as may be necessary to
effectuate same. It is the intention of the parties that each and every
successor and assign of both Landlord and Tenant be bound by and subject to the
terms and provisions of this Section 35. Landlord may, at any time and without
notice to Tenant and without first obtaining Tenant's consent thereto, assign
all or any portion of its interest in and to the Letter of Credit to another
party, person or entity, regardless of whether or not such assignment is
separate from or as a part of the assignment by Landlord of its rights and
interests in and to this Lease. If, as a result of any such application of all
or any part of the Letter of Credit, the amount of the Letter of Credit shall be
less than Four Million and 00/100 Dollars ($4,000,000.00), Tenant shall within
five (5) days thereafter provide Landlord with additional letter(s) of credit in
an amount equal to the deficiency (or a replacement letter of credit in the
total amount of Four Million and 00/100 Dollars ($4,000,000.00) and each such
additional (or replacement) letter of credit shall comply with all of the
provisions of this Section 35, and if Tenant fails to do so, notwithstanding
anything to the contrary contained in Section 18 (reference the Tenant Default
Section of the Lease) hereof, the same shall constitute an incurable default by
Tenant. Tenant further covenants and warrants that it will neither assign nor
encumber the Letter of Credit or any part thereof and that neither Landlord nor
its successors or assigns will be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance. Without limiting the generality
of the foregoing, if the Letter of Credit expires earlier than the Letter of
Credit Expiration Date, Landlord will accept a renewal thereof or substitute
letter of credit (such renewal or
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substitute letter of credit to be in effect not later than thirty (30) days
prior to the expiration thereof), which shall be irrevocable and automatically
renewable as above provided through the Letter of Credit Expiration Date upon
the same terms as the expiring letter of credit or such other terms as may be
acceptable to Landlord in its sole discretion. However, if the Letter of Credit
is not timely renewed or a substitute letter of credit is not timely received,
or if Tenant fails to maintain the Letter of Credit in the amount and terms set
forth in this Section 35, Landlord shall have the right to present such Letter
of Credit to the bank in accordance with the terms of this Section 35, and the
entire sum evidenced thereby shall be paid to and held by Landlord as collateral
for performance of all of Tenant's obligations under this Lease and for all
losses and damages Landlord may suffer as a result of any default by Tenant
under this Lease. If there shall occur a default under this Lease as set forth
in Section 18 (reference Tenant Default Section of the Lease) of this Lease,
Landlord may, but without obligation to do so, draw upon the Letter of Credit,
in part or in whole, to cure any default of Tenant and/or to compensate Landlord
for any and all damages of any kind or nature sustained or which may be
sustained by Landlord resulting from Tenant's default. Tenant agrees not to
interfere in any way with payment to Landlord of the proceeds of the Letter of
Credit, either prior to or following a "draw" by Landlord of any portion of the
Letter of Credit, regardless of whether any dispute exists between Tenant and
Landlord as to Landlord's right to draw from the Letter of Credit. No condition
or term of this Lease shall be deemed to render the Letter of Credit conditional
to justify the issuer of the Letter of Credit in failing to honor a drawing upon
such Letter of Credit in a timely manner. Landlord and Tenant acknowledge and
agree that in no event or circumstance shall the Letter of Credit or any renewal
thereof or substitute therefor be (i) deemed to be or treated as a "security
deposit" within the meaning of California Civil Code Section 1950.7 (as
supplemented, amended, replaced and substituted from time to time), (ii) subject
to the terms of such Section 1950.7 (as supplemented, amended, replaced and
substituted from time to time), or (iii) intended to serve as a "security
deposit" within the meaning of such Section 1950.7 (as supplemented, amended,
replaced and substituted from time to time). The parties hereto recite that with
respect to the Letter of Credit, (x) the Letter of Credit is not intended to
serve as a security deposit and such Section 1950.7 (as supplemented, amended,
replaced and substituted from time to time), and any and all other laws, rules
and regulations applicable to security deposits in the commercial context
("Security Deposit Laws") shall have no applicability or relevancy to the Letter
of Credit and (y) Tenant waives any and all rights, duties and obligations it
may now or, in the future, will have relating to or arising from the Security
Deposit Laws. Notwithstanding the above, such Letter of Credit shall be subject
to termination, however in no event earlier than the end of the thirty-sixth
(36th) month of the Lease, upon Tenant achieving a tangible net worth of One
Hundred Million and 00/100 Dollars ($100,000,000.00) and upon Tenant achieving a
net profit of at least Five Million and 00/100 Dollars ($5,000,000.00) for two
(2) consecutive quarters. However, such Letter of Credit may be reduced to
$2,000,000.00 if Tenant achieves and maintains a tangible net worth of
$100,000,000.00 and achieves a net profit of at least $5,000,000.00 for two (2)
consecutive quarters at any point prior to the end of the thirty sixth (36th)
month of the Lease Term so long as Tenant maintains such net worth through the
end of the thirty sixth (36th) month of the Lease Term. For purposes herein, the
net worth measurement shall not include non-cash charges such as deferred
compensation and acquisition charges.
36. CAFETERIA
So long as Landlord shall maintain and operate in the Park a cafeteria for the
use of the tenants of the Park and their employees and invitees, Tenant and its
employees and invitees shall have the right, in common with the other tenants of
the Park and their employees and invitees, to use the same during its normal
hours of operation.
IN WITNESS WHEREOF, this Lease is executed by the parties as of the
Lease Date referenced on Page 1 of this Lease.
TENANT:
NEW FOCUS, INC.,
a California corporation
By:
-------------------------------------
Its:
------------------------------------
Date:
-----------------------------------
By:
-------------------------------------
Its:
------------------------------------
Date:
-----------------------------------
LANDLORD:
LINCOLN-RECP HELLYER OPCO, L.L.C.,
a Delaware limited liability company
By: LEGACY PARTNERS COMMERCIAL, INC.,
as manager and agent for Lincoln-RECP Hellyer OPCO, L.L.C.
By:
-----------------------------------
Senior Vice President
Date:
---------------------------------
If Tenant is a CORPORATION, the authorized officers must sign on behalf of the
corporation and indicate the capacity in which they are signing. The Lease must
be executed by the president or vice-president and the secretary or assistant
secretary, unless the bylaws or a resolution of the board of directors shall
otherwise provide, in which event, the bylaws or a certified copy of the
resolution, as the case may be, must be attached to this Lease.
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EXHIBIT A
PREMISES
This exhibit, entitled "Premises", is and shall constitute Exhibit A to that
certain Lease Agreement dated May 15, 2000 (the "Lease"), by and between
LINCOLN-RECP HELLYER OPCO, L.L.C., a Delaware limited liability company
("Landlord") and NEW FOCUS, INC., a California corporation ("Tenant") for the
leasing of certain premises located in the Hellyer Oaks Technology Park at 4747
Hellyer Avenue, San Jose, California (the "Premises").
The Premises consist of the rentable square footage of space specified in the
Basic Lease Information and has the address specified in the Basic Lease
Information. The Premises are a part of and are contained in the Building
specified in the Basic Lease Information. The cross-hatched area depicts the
Premises within the Building:
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EXHIBIT B TO LEASE AGREEMENT
TENANT IMPROVEMENTS
This exhibit, entitled "Tenant Improvements", is and shall constitute EXHIBIT B
to that certain Lease Agreement dated May 15, 2000 (the "Lease"), by and between
LINCOLN-RECP HELLYER OPCO, L.L.C., a Delaware limited liability company
("Landlord") and NEW FOCUS, INC., a California corporation ("Tenant") for the
leasing of certain premises located in the Hellyer Oaks Technology Park at 4747
Hellyer Avenue, San Jose, California (the "Premises"). The terms, conditions and
provisions of this EXHIBIT B are hereby incorporated into and are made a part of
the Lease. Any capitalized terms used herein and not otherwise defined herein
shall have the meaning ascribed to such terms as set forth in the Lease.
1. TENANT IMPROVEMENTS. Subject to the conditions set forth below, Landlord
agrees to construct and install certain improvements ("Tenant Improvements") in
the Building of which the Premises are a part in accordance with the Approved
Final Drawings (defined below) and pursuant to the terms of this EXHIBIT B.
2. DEFINITION. "Tenant Improvements" as used in this Lease shall include only
those interior improvements to be made to the Premises as specified in the
Approved Final Drawings (defined below) and agreed to by Tenant and Landlord in
accordance with the provisions hereof. "Tenant Improvements" shall specifically
not include (i) any alterations, additions or improvements installed or
constructed by Tenant, (ii) any of Tenant's trade fixtures, racking, security
equipment, equipment, furniture, furnishings, telephone and/or data equipment,
telephone and/or data lines or other personal property, and (iii) any
supplemental fire protection improvements or equipment, including without
limitation, in-rack fire sprinklers, hose racks, reels, smoke vents, and draft
curtains (collectively, "Tenant's Installations").
3. TENANT'S INITIAL PLANS; THE WORK. Tenant desires Landlord to perform certain
Tenant Improvements in the Premises. The Tenant Improvements shall be in
substantial accordance with the plan(s) and scope of work (collectively, the
"Initial Plans") which will be prepared by Landlord's architect after the
parties meet and confer to agree upon a scope of work immediately after
execution of this Lease. Within fifteen (15) business days from the date
Landlord and Tenant meet to discuss the scope of work, Landlord shall deliver to
Tenant the Initial Plans. A copy of the Initial Plans shall be attached hereto
as Schedule 1, as soon as practicable thereafter. Such work, as shown in the
Initial Plans and as more fully detailed in the Approved Final Drawings (as
defined and described in Section 4 below), shall be hereinafter referred to as
the "Work". Tenant or Tenant's Representatives shall furnish to Landlord such
additional plans, drawings, specifications and finish details as Landlord may
reasonably request to enable Landlord's architects and engineers, as applicable,
to prepare mechanical, electrical and plumbing plans and to prepare the Final
Drawings, including, but not limited to, a final telephone layout and special
electrical connections, if any, as such plans, drawings, specifications and
details are made available, but not later than thirty (30) days after the
Initial Plans are prepared and delivered to Tenant. All plans, drawings,
specifications and other details describing the Work which have been, or are
hereafter, furnished by or on behalf of Tenant shall be subject to Landlord's
approval, which approval shall not be unreasonably withheld. Landlord shall not
be deemed to have acted unreasonably if it withholds its approval of any plans,
specifications, drawings or other details or of any Change Request (hereafter
defined in Section 11 below) because, in Landlord's reasonable opinion, the work
as described in any such item, or any Change Request, as the case may be: (a) is
likely to adversely affect Building systems, the structure of the Building or
the safety of the Building or its occupants; (b) might impair Landlord's ability
to furnish services to Tenant (unless Tenant waives such requirement or pays for
the increased cost thereof) or other tenants in the Building; (c) would increase
the cost of operating the Building or the Park (unless Tenant pays the increased
cost thereof) ; (d) would violate any applicable governmental, administrative
body's or agencies' laws, rules, regulations, ordinances, codes or similar
requirements (or interpretations thereof); (e) contains or uses Hazardous
Materials in violation of law; (f) would adversely affect the appearance of the
Building or the Park; (g) might adversely affect another tenant's premises or
such other tenant's use and enjoyment of such premises; (h) is prohibited by any
ground lease affecting the Building, the Lot and/or the Park, any Recorded
Matters or any mortgage, trust deed or other instrument encumbering the
Building, the Lot and/or the Park; (i) is likely to be substantially delayed
because of unavailability or shortage of labor or materials necessary to perform
such work (beyond the current state of the materials and labor market) or the
difficult or unusual nature of such work; (j) is not, at a minimum, in
accordance with Landlord's Building Standards (defined below); or (k) would
increase the Tenant Improvement Costs (defined in Section 9 below) by more than
ten percent (10%) from the cost originally estimated and anticipated by the
parties unless Tenant agrees to pay for such increased cost to the extent it
exceeds the Allowance. The foregoing reasons, however, shall not be the only
reasons for which Landlord may reasonably withhold its approval, whether or not
such other reasons are similar or dissimilar to the foregoing. Neither the
approval by Landlord of the Work or the Initial Plans or any other plans,
specifications, drawings or other items associated with the Work nor Landlord's
performance, supervision or monitoring of the Work shall constitute any warranty
or covenant by Landlord to Tenant of the adequacy of the design for Tenant's
intended use of the Premises. Tenant agrees to, and does hereby, assume full and
complete responsibility to ensure that the Work and the Approved Final Drawings
are adequate to fully meet the needs and requirements of Tenant's intended
operations of its business within the Premises and Tenant's use of the Premises.
However, Landlord shall assume responsibility for the workmanship of such work.
4. FINAL DRAWINGS AND APPROVED FINAL DRAWINGS. If necessary for the performance
of the Work, and to the extent not already included as part of the Initial Plans
attached hereto, Landlord shall prepare or cause to be prepared final working
drawings and specifications for the Work (the "Final Drawings") based on and
consistent with the Initial Plans and the other plans, specifications, drawings,
finish details or other information furnished by Tenant or Tenant's
Representatives to Landlord and approved by Landlord pursuant to Section 3
above. Tenant shall cooperate diligently with Landlord and Landlord's architect,
engineer and other representatives and Tenant shall furnish within five (5)
business days after any request therefor, all information required by Landlord
or Landlord's architect, engineer or other representatives for completion of the
Final Drawings. So long as the Final Drawings are substantially consistent with
the Initial Plans and all other information provided by Tenant and its
Representatives, Tenant shall approve the Final Drawings within five (5)
business days after receipt of same from Landlord. If Tenant reasonably
disapproves of any matters included in the Final Drawings because such items are
not substantially consistent with the Initial Plans and all other information
provided by Tenant and its Representatives, Tenant shall, within the
aforementioned five (5) business day period, deliver to Landlord written notice
of its disapproval and Tenant shall specify in such written notice, in
sufficient detail as Landlord may reasonably require, the matters disapproved,
the reasons for such disapproval, and the specific changes or revisions
necessary to be made to the Final Drawings to cause such drawings to
substantially conform to the Initial Plans. Any additional costs associated with
such requested changes or revisions shall be included as part of
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the Tenant Improvement Costs (defined below). The foregoing procedure shall be
followed by the parties until the Final Drawings are acceptable to both Landlord
and Tenant. Landlord and Tenant shall indicate their approval of the Final
Drawings by initialing each sheet of the Final Drawings and delivering to one
another a true and complete copy of such initialed Final Drawings (the "Approved
Final Drawings"). A true and complete copy of the Approved Final Drawings shall
be attached to the Lease as Exhibit B-1 and shall be made a part thereof. Any
changes or revisions to the Approved Final Drawings requested by Tenant must
first be approved by Landlord, which approval shall not be unreasonably
withheld, subject to the provisions of Section 3 above. If Landlord approves
such requested changes or revisions, Landlord shall cause the Approved Final
Drawings to be revised accordingly and Landlord and Tenant shall initial each
sheet of the Approved Final Drawings as revised and replace and attach a true
and complete copy thereof to the Lease as Exhibit B-1. Landlord and Tenant
hereby covenant to each other to cooperate with each other and to act reasonably
in the preparation and approval of the Final Drawings and the Approved Final
Drawings.
5. PERFORMANCE OF WORK. As soon as practicable after Tenant and Landlord initial
and attach to the Lease as EXHIBIT B-1 a true and complete copy of the Approved
Final Drawings, Landlord shall submit the Approved Final Drawings to the
governmental authorities having rights of approval over the Work and shall apply
for the necessary approvals and building permits. Subject to the satisfaction of
all conditions precedent and subsequent to its obligations under this EXHIBIT B,
and further subject to the provisions of Section 10 hereof, as soon as
practicable after Landlord or its representatives have received all necessary
approvals and building permits, Landlord will put the Approved Final Drawings
out for bid to at least three (3) licensed, bonded and insured mutually
acceptable general contractors. The Tenant Improvements shall be constructed by
a general contractor selected by Landlord (the "General Contractor"). In lieu of
the foregoing, Tenant may agree to negotiate with one general contractor and
such contractor shall bid all trades to at least three (3) mutually approved
subcontractors. Landlord shall commence construction, or cause the commencement
of construction by the General Contractor, of the Tenant Improvements, as soon
as practicable after selection of the General Contractor. Except as hereinafter
expressly provided to the contrary, Landlord shall cause the performance of the
Work using (except as may be stated or otherwise shown in the Approved Final
Drawings) building standard materials, quantities and procedures then in use by
Landlord ("Building Standards"). Tenant shall be permitted to receive copies of
all bids and the schedule of values.
6. SUBSTANTIAL COMPLETION. Landlord and Tenant shall cause the General
Contractor to Substantially Complete (defined below) the Tenant Improvements in
accordance with the Approved Final Drawings by the Commencement Date of the
Lease as set forth in Section 2 of the Lease (the "Completion Date"), subject to
delays due to (a) acts or events beyond its control including, but not limited
to, acts of God, earthquakes, strikes, lockouts, boycotts, casualties,
discontinuance of any utility or other service required for performance of the
Work, moratoriums, governmental agencies, delays on the part of governmental
agencies and weather, (b) the lack of availability or shortage of specialized
materials used in the construction of the Tenant Improvements, (c) any matters
beyond the control of Landlord, the General Contractor or any subcontractors,
(d) any changes required by the fire department, building and/or planning
department, building inspectors or any other agency having jurisdiction over the
Building, the Work and/or the Tenant Improvements (except to the extent such
changes are Tenant Delays, as defined in Section 7 below) (the events and
matters set forth in Subsections (a), (b), (c) and (d) are collectively referred
to as "Force Majeure Delays"), or (e) any Tenant Delays (defined in Section 7
below). The Tenant Improvements shall be deemed substantially complete on the
date that (i) the General Contractor issues to Landlord a notice of substantial
completion stating that the Tenant Improvements and all work required to be done
by Landlord are complete, including, but not limited to, the submetering and the
lobby, or (ii) the date that the building officials of the applicable
governmental agency(s) issues its final approval of the construction of the
Tenant Improvements whether in the form of the issuance of a final permit,
certificate of occupancy or the written approval evidencing its final inspection
on the building permit(s), or (iii) the date on which Tenant first takes
occupancy of the Premises for the conduct of business, whichever first occurs,
provided that in any case the Building systems serving the Premises are
operational to the extent necessary for the conduct of Tenant's business
("Substantial Completion", or "Substantially Completed", or "Substantially
Complete"). Tenant hereby acknowledges and agrees that the term "Substantial
Completion" of the Tenant Improvements as used herein will not include the
completion of any work associated with Tenant's Installations, including without
limitation, Tenant's high-pile storage requirements, Tenant's racking systems,
and work related to any requirements of governmental and regulatory agencies
with respect to any of Tenant's Installations. If the Work is not deemed to be
Substantially Completed on or before the scheduled Completion Date, (i) Landlord
agrees to use reasonable efforts to Substantially Complete the Work as soon as
practicable thereafter, (ii) the Lease shall remain in full force and effect,
(iii) Landlord shall not be deemed to be in breach or default of the Lease or
this EXHIBIT B as a result thereof and Landlord shall have no liability to
Tenant as a result of any delay in occupancy (whether for damages, abatement of
all or any portion of the Rent, or otherwise), and (iv) except in the event of
any Tenant Delays, which will not affect the Commencement Date but will extend
the Completion Date without any penalty or liability to Landlord, and
notwithstanding anything to the contrary contained in the Lease, the
Commencement Date and the Expiration Date of the term of the Lease (as defined
in Section 2 of the Lease) shall be extended commensurately by the amount of
time attributable to such Force Majeure Delays, and Landlord and Tenant shall
execute a written amendment to the Lease evidencing such extensions of time,
substantially in the form of Exhibit F to the Lease. Subject to the provisions
of Section 10.2 of the Lease, the Tenant Improvements shall belong to Landlord
and shall be deemed to be incorporated into the Premises for all purposes of the
Lease, unless Landlord, in writing, indicates otherwise to Tenant provided,
however, Tenant shall be entitled to the tax depreciation benefits accruing
thereto during the term of the Lease to the extent of Tenant's cost therein.
7. TENANT DELAYS. There shall be no extension of the scheduled Commencement Date
or Expiration Date of the term of the Lease (as otherwise permissibly extended
in accordance with the provisions of Section 6 above) if the Work has not been
Substantially Completed by the scheduled Commencement Date due to any delay
attributable to Tenant and/or any of Tenant's Representatives or Tenant's
intended use of the Premises (collectively, "Tenant Delays"), including, but not
limited to, any of the following described events or occurrences that delay the
scheduled Commencement Date: (a) delays related to changes made or requested by
Tenant to the Work and/or the Approved Final Drawings; (b) the failure of Tenant
to furnish all or any plans, drawings, specifications, finish details or other
information required under Sections 3 and 4 above; (c) the failure of Tenant to
comply with the requirements of Section 10 below; (d) Tenant's requirements for
special work or materials, finishes, or installations other than the Building
Standards (unless such materials are regularly used in construction) or Tenant's
requirements for special construction or phasing (and Tenant is so notified by
Landlord that such will delay the scheduled Commencement Date); (e) any changes
required by the fire department, building or planning department, building
inspectors or any other agency having jurisdiction over the Building, the Work
and/or the Tenant Improvements if such changes are directly attributable to
Tenant's use or Tenant's specialized tenant improvements; (f) the completion of
any work associated with Tenant's Installations, including without limitation,
Tenant's high-pile storage requirements, Tenant's racking systems, and work
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related to any requirements of governmental and regulatory agencies with respect
to any of Tenant's Installations; (g) the performance of any additional work
pursuant to a Change Request that is requested by Tenant; (h) the performance of
work in or about the Premises by any person, firm or corporation employed by or
on behalf of Tenant, including, without limitation, any failure to complete or
any delay in the completion of such work; and/or (i) any and all delays caused
by or arising from acts or omissions of Tenant and/or Tenant's Representatives,
in any manner whatsoever, including, but not limited to, any and all revisions
to the Approved Final Drawings. Any delays in the construction of the Tenant
Improvements due to any of the events described above, shall in no way extend or
affect the date on which Tenant is required to commence paying Rent under the
terms of the Lease. It is the intention of the parties that all of such delays
will be considered Tenant Delays for which Tenant shall be wholly and completely
responsible for any and all consequences related to such delays, including,
without limitation, any costs and expenses attributable to increases in labor or
materials.
8. TENANT IMPROVEMENT ALLOWANCE. Landlord shall provide an allowance for the
planning and construction of the Tenant Improvements for the Work to be
performed in the Premises, as described in the Initial Plans and the Approved
Final Drawings, in the amount of One Million Three Hundred Four Thousand Three
Hundred Sixty and 00/100 Dollars ($1,304,360.00) (the "Tenant Improvement
Allowance") based upon an allowance of Ten and 00/100 Dollars ($10.00) per
rentable square foot for 130,436 rentable square feet of the Premises to be
improved, as described in the Initial Plans and the Approved Final Drawings.
Tenant shall not be entitled to any credit, abatement or payment from Landlord
in the event that the amount of the Tenant Improvement Allowance specified above
exceeds the actual Tenant Improvement Costs. The Tenant Improvement Allowance
shall only be used for tenant improvements typically installed by Landlord in
research and development buildings. The Tenant Improvement Allowance shall be
the maximum contribution by Landlord for the Tenant Improvement Costs and shall
be subject to the provisions of Section 10 below.
9. TENANT IMPROVEMENT COSTS. The Tenant Improvements' cost (the "Tenant
Improvement Costs") shall mean and include any and all costs and expenses of the
Work, including, without limitation, all of the following:
(a) All costs of preliminary space planning and final architectural and
engineering plans and specifications (including, without limitation, the scope
of work, all plans and specifications, the Initial Plans, the Final Drawings and
the Approved Final Drawings) for the Tenant Improvements, and architectural
fees, engineering costs and fees, and other costs associated with completion of
said plans;
(b) All costs of obtaining building permits and other necessary
authorizations and approvals from the City of San Jose and other applicable
agencies and jurisdictions;
(c) All costs of interior design and finish schedule plans and
specifications including as-built drawings;
(d) All direct and indirect costs of procuring, constructing and
installing the Tenant Improvements in the Premises, including, but not limited
to, the construction fee for overhead and profit, the cost of all on-site
supervisory and administrative staff, office, equipment and temporary services
rendered by Landlord's consultants and the General Contractor in connection with
construction of the Tenant Improvements, and all labor (including overtime) and
materials constituting the Work;
(e) All fees payable to the General Contractor, architect and Landlord's
engineering firm if they are required by Tenant to redesign any portion of the
Tenant Improvements following Tenant's approval of the Approved Final Drawings;
and
(f) A construction management fee payable to Landlord in the amount of
five percent (5%) of the Tenant Improvement Allowance not to exceed $65,000.00
of all direct and indirect costs of procuring, constructing and installing the
Tenant Improvements in the Premises and the Building. Such fee shall be based
upon Tenant also providing construction supervision services in addition to
Landlord to complete the Tenant Improvements.
10. EXCESS TENANT IMPROVEMENT COSTS. The term "Excess Tenant Improvement Costs"
as used herein shall mean and refer to the aggregate of (i) all costs related to
any and all Change Requests/Change Orders, and (ii) the amount by which the
actual Tenant Improvement Costs (exclusive of all costs referred to in item (i)
above) (the "Actual TI Costs") exceed the Tenant Improvement Allowance, subject
to the remaining provisions of this Section 10. Tenant shall pay to Landlord the
Excess Tenant Improvement Costs within ten (10) days of Landlord's delivery to
Tenant of a written demand therefor together with a reconciliation of such
costs. No Work shall be commenced until Tenant has fully complied with the
preceding provisions of this Section 10. If Tenant fails to remit the sums so
demanded by Landlord pursuant to this Section 10 within the time period
required, Landlord may, at its option, declare Tenant in default under the
Lease.
11. CHANGE REQUESTS. No changes or revisions to the Approved Final Drawings
shall be made by either Landlord or Tenant unless approved in writing by both
parties. Upon Tenant's request and submission by Tenant (at Tenant's sole cost
and expense) of the necessary information and/or plans and specifications for
any changes or revisions to the Approved Final Drawings and/or for any work
other than the Work described in the Approved Final Drawings ("Change Requests")
and the approval by Landlord of such Change Request(s), which approval Landlord
agrees shall not be unreasonably withheld, Landlord shall perform the additional
work associated with the approved Change Request(s), at Tenant's sole cost and
expense (to the extent the Allowance has been used in full), subject, however,
to the following provisions of this Section 11. Prior to commencing any
additional work related to the approved Change Request(s), Landlord shall submit
to Tenant a written statement of the cost of such additional work and a proposed
tenant change order therefor ("Change Order") in the standard form then in use
by Landlord. Tenant shall execute and deliver to Landlord such Change Order and
shall pay the entire cost of such additional work in the following described
manner. Any costs related to such approved Change Request(s), Change Order and
any delays associated therewith, shall be added to the Tenant Improvement Costs
and shall be paid for by Tenant as and with any Excess Tenant Improvement Costs
as set forth in Section 10 above. The billing for such additional costs to
Tenant shall be accompanied by evidence of the amounts billed as is customarily
used in the business. Costs related to approved Change Requests and Change
Orders shall include without limitation, any architectural or design fees,
Landlord's construction fee for overhead and profit, the cost of all on-site
supervisory and administrative staff, office, equipment and temporary services
rendered by Landlord and/or Landlord's consultants, and the General Contractor's
price for effecting the change. If Tenant fails to execute or
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deliver such Change Order, or to pay the costs related thereto, then Landlord
shall not be obligated to do any additional work related to such approved Change
Request(s) and/or Change Orders, and Landlord may proceed to perform only the
Work, as specified in the Approved Final Drawings. Landlord shall equitably
adjust the amount of the Tenant Improvement Costs for any deletions in the scope
of the Work.
12. TERMINATION. If the Lease is terminated prior to the Completion Date, for
any reason due to the default of Tenant hereunder, in addition to any other
remedies available to Landlord under the Lease, Tenant shall pay to Landlord as
Additional Rent under the Lease, within five (5) days of receipt of a statement
therefor, any and all costs incurred by Landlord and not reimbursed or otherwise
paid by Tenant through the date of termination in connection with the Tenant
Improvements to the extent planned, installed and/or constructed as of such date
of termination, including, but not limited to, any costs related to the removal
of all or any portion of the Tenant Improvements and restoration costs related
thereto. Subject to the provisions of Section 10.2 of the Lease, upon the
expiration or earlier termination of the Lease, Tenant shall not be required to
remove the Tenant Improvements it being the intention of the parties that the
Tenant Improvements are to be considered incorporated into the Building.
Notwithstanding anything to the contrary contained herein, Landlord shall have
the right to terminate the Lease, upon written notice to Tenant, if Landlord is
unable to obtain a building permit for the Tenant Improvements within two
hundred seventy (270) days from the date the Lease is signed by Tenant.
13. TENANT ACCESS. Landlord hereby grants Tenant a license to have access to the
Premises prior to the Completion Date to allow Tenant to do other work required
by Tenant to make the Premises ready for Tenant's use and (the "Tenant's
Pre-Occupancy Work"). It shall be a condition to the grant by Landlord and
continued effectiveness of such license that:
(a) Tenant shall give to Landlord a written request to have such access
not less than five (5) business days prior to the date on which such proposed
access will commence (the "Access Notice"). The Access Notice shall contain or
be accompanied by each of the following items, all in form and substance
reasonably acceptable to Landlord: (i) a detailed description of and schedule
for Tenant's Pre-Occupancy Work; (ii) the names and addresses of all
contractors, subcontractors and material suppliers and all other representatives
of Tenant who or which will be entering the Premises on behalf of Tenant to
perform Tenant's Pre-Occupancy Work or will be supplying materials for such
work, and the approximate number of individuals, itemized by trade, who will be
present in the Premises; (iii) copies of all contracts, subcontracts, material
purchase orders, plans and specifications pertaining to Tenant's Pre-Occupancy
Work; (iv) copies of all licenses and permits required in connection with the
performance of Tenant's Pre-Occupancy Work; (v) certificates of insurance (in
amounts reasonably satisfactory to Landlord and with the parties identified in,
or required by, the Lease named as additional insureds) and instruments of
indemnification against all claims, costs, expenses, penalties, fines, and
damages which may arise in connection with Tenant's Pre-Occupancy Work; and (vi)
if requested by Landlord, assurances of the ability of Tenant to pay for all of
Tenant's Pre-Occupancy Work and/or a letter of credit or other security deemed
appropriate by Landlord securing Tenant's lien-free completion of Tenant's
Pre-Occupancy Work.
(b) Such pre-term access by Tenant and Tenant's employees, agents,
contractors, consultants, workmen, mechanics, suppliers and invitees shall be
subject to scheduling by Landlord.
(c) Tenant's employees, agents, contractors, consultants, workmen,
mechanics, suppliers and invitees shall fully cooperate, work in harmony and
not, in any manner, interfere with Landlord or Landlord's agents or
representatives in performing the Work and any additional work pursuant to
approved Change Orders, Landlord's work in other areas of the Building or the
Park, or the general operation of the Building. If at any time any such person
representing Tenant shall not be cooperative or shall otherwise cause or
threaten to cause any such disharmony or interference, including, without
limitation, labor disharmony, and Tenant fails to immediately institute and
maintain corrective actions as directed by Landlord, then Landlord may revoke
such license upon twenty-four (24) hours' prior written notice to Tenant.
(d) Any such entry into and occupancy of the Premises or any portion
thereof by Tenant or any person or entity working for or on behalf of Tenant
shall be deemed to be subject to all of the terms, covenants, conditions and
provisions of the Lease, excluding only the covenant to pay Rent. Landlord shall
not be liable for any injury, loss or damage that may occur to any of Tenant's
Pre-Occupancy Work made in or about the Premises or to any property placed
therein prior to the commencement of the term of the Lease, the same being at
Tenant's sole risk and liability. Tenant shall be liable to Landlord for any
damage to any portion of the Premises, the Work or the additional work related
to any approved Change Orders caused by Tenant or any of Tenant's employees,
agents, contractors, consultants, workmen, mechanics, suppliers and invitees. In
the event that the performance of Tenant's Pre-Occupancy Work causes extra costs
to be incurred by Landlord or requires the use of other Building services,
Tenant shall promptly reimburse Landlord for such extra costs and/or shall pay
Landlord for such other Building services at Landlord's standard rates then in
effect.
14. LEASE PROVISIONS; CONFLICT. The terms and provisions of the Lease, insofar
as they are applicable, in whole or in part, to this EXHIBIT B, are hereby
incorporated herein by reference, and specifically including all of the
provisions of Section 29 of the Lease. In the event of any conflict between the
terms of the Lease and this EXHIBIT B, the terms of this EXHIBIT B shall
prevail. Any amounts payable by Tenant to Landlord hereunder shall be deemed to
be Additional Rent under the Lease and, upon any default in the payment of same,
Landlord shall have all rights and remedies available to it as provided for in
the Lease.
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<PAGE> 27
EXHIBIT C TO LEASE AGREEMENT
RULES & REGULATIONS
This exhibit, entitled "Rules & Regulations", is and shall constitute Exhibit C
to that certain Lease Agreement dated May 15, 2000 (the "Lease"), by and between
LINCOLN-RECP HELLYER OPCO, L.L.C., a Delaware limited liability company
("Landlord") and NEW FOCUS, INC., a California corporation ("Tenant") for the
leasing of certain premises located in the Hellyer Oaks Technology Park at 4747
Hellyer Avenue, San Jose, California (the "Premises"). The terms, conditions and
provisions of this Exhibit C are hereby incorporated into and are made a part of
the Lease. Any capitalized terms used herein and not otherwise defined herein
shall have the meaning ascribed to such terms as set forth in the Lease:
1. No advertisement, picture or sign of any sort shall be displayed on or
outside the Premises or the Building without the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed. Landlord
shall have the right to remove any such unapproved item without notice and at
Tenant's expense.
2. Tenant shall not regularly park motor vehicles in designated parking areas
after the conclusion of Tenant's normal business activity.
3. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord without the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed.
4. All window coverings installed by Tenant and visible from the outside of the
Building require the prior written approval of Landlord.
5. Subject to approved items on the HazMat list, Tenant shall not use, keep or
permit to be used or kept any foul or noxious gas or substance or any flammable
or combustible materials on or around the Premises, the Building or the Park.
6. Tenant shall not alter any lock or install any new locks or bolts on any door
at the Premises without the prior consent of Landlord, which consent shall not
be unreasonably withheld or delayed.
7. Tenant agrees not to make any duplicate keys without the prior consent of
Landlord, which consent shall not be unreasonably withheld or delayed.
8. Tenant shall park motor vehicles in those general parking areas as designated
by Landlord except for loading and unloading. During those periods of loading
and unloading, Tenant shall not unreasonably interfere with traffic flow within
the Park and loading and unloading areas of other Tenants.
9. Tenant shall not disturb, solicit or canvas any occupant of the Building or
Park and shall cooperate to prevent same.
10. No person shall go on the roof without Landlord's permission.
11. Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the Building, to
such a degree as to be objectionable to Landlord or other Tenants, shall be
placed and maintained by Tenant, at Tenant's expense, on vibration eliminators
or other devices sufficient to eliminate noise or vibration.
12. All goods, including material used to store goods, delivered to the Premises
of Tenant shall be immediately moved into the Premises and shall not be left in
parking or receiving areas overnight.
13. Tractor trailers which must be unhooked or parked with dolly wheels beyond
the concrete loading areas must use steel plates or wood blocks under the dolly
wheels to prevent damage to the asphalt paving surfaces. No parking or storing
of such trailers will be permitted in the auto parking areas of the Park or on
streets adjacent thereto.
14. Forklifts which operate on asphalt paving areas shall not have solid rubber
tires and shall only use tires that do not damage the asphalt.
15. Tenant is responsible for the storage and removal of all trash and refuse.
All such trash and refuse shall be contained in suitable receptacles stored
behind screened enclosures at locations approved by Landlord.
16. Tenant shall not store or permit the storage or placement of goods, or
merchandise or pallets or equipment of any sort outside of the Premises nor in
or around the Building, the Park or any of the Common Areas of the foregoing. No
displays or sales of merchandise shall be allowed in the parking lots or other
Common Areas.
17. Tenant shall not permit any animals, including, but not limited to, any
household pets, to be brought or kept in or about the Premises, the Building,
the Park or any of the Common Areas of the foregoing.
18. Tenant shall not permit any motor vehicles to be washed on any portion of
the Premises or in the Common Areas of the Park, nor shall Tenant permit
mechanical work or maintenance of motor vehicles to be performed on any portion
of the Premises or in the Common Areas of the Park.
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<PAGE> 28
EXHIBIT E
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Landlord (identified below) to evaluate and finalize a lease agreement
with you as Tenant. After a lease agreement is signed by you and the Landlord
(the "Lease Agreement"), on an annual basis in accordance with the provisions of
Section 29 of the signed Lease Agreement, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Landlord subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchaser(s) of all or any portion of the property on which the
Premises are located, (iii) Landlord to defend itself or its lenders, partners
or representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders, decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which are
not otherwise defined herein, shall have the same meaning ascribed to such term
in the signed Lease Agreement. Any questions regarding this certificate should
be directed to, and when completed, the certificate should be delivered to:
Landlord: ______________________________________________________________________
______________________________________________________________________
c/o Legacy Partners Commercial, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404
Attn: __________________________________
Phone: (650) 571-2200
Name of (Prospective) Tenant: __________________________________________________
Mailing Address: _______________________________________________________________
________________________________________________________________________________
Contact Person, Title and Telephone Number(s): _________________________________
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):
________________________________________________________________________________
________________________________________________________________________________
Address of (Prospective) Premises: _____________________________________________
Length of (Prospective) Initial Term: __________________________________________
________________________________________________________________________________
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or about
the Premises, including, without limitation, principal products
processed, manufactured or assembled services and activities to be
provided or otherwise conducted. Existing Tenants should describe any
proposed changes to on-going operations.
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated, stored or
disposed of in, on or about the Premises? Existing Tenants should
describe any Hazardous Materials which continue to be used,
generated, stored or disposed of in, on or about the Premises.
Wastes Yes [ ] No [ ]
Chemical Products Yes [ ] No [ ]
Other Yes [ ] No [ ]
If Yes is marked, please explain: _______________________________
_________________________________________________________________
_________________________________________________________________
2.2 If Yes is marked in Section 2.1, attach a list of any Hazardous
Materials to be used, generated, stored or disposed of in, on or
about the Premises, including the applicable hazard class and an
estimate of the quantities of such Hazardous Materials at any
given time; estimated annual throughput; the proposed location(s)
and method of storage (excluding nominal amounts of ordinary
household cleaners and janitorial supplies which are not
regulated by any Environmental Laws); and the proposed
location(s) and method of disposal for each Hazardous Material,
including, the estimated frequency, and the proposed contractors
or subcontractors. Existing Tenants should attach a list setting
forth the information requested above and such list should
include actual data from on-going operations and the
identification of any variations in such information from the
prior year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps
proposed in, on or about the Premises? Existing Tenants should
describe any such actual or proposed activities.
Yes [ ] No [ ]
If yes, please explain: _________________________________________
_________________________________________________________________
_________________________________________________________________
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<PAGE> 29
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number? Existing Tenants should describe any additional
identification numbers issued since the previous certificate.
Yes [ ] No [ ]
4.2 Has your company filed a biennial or quarterly reports as a
hazardous waste generator? Existing Tenants should describe any
new reports filed.
Yes [ ] No [ ]
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
________ storm drain? _________ sewer?
________ surface water? _________ no wastewater or other wastes
discharged.
Existing Tenants should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
5.2 Will any such wastewater or waste be treated before discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to be conducted.
Existing Tenants should describe the actual treatment conducted.
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be used
in your company's operations in, on or about the Premises that
will discharge into the air; and will such air emissions be
monitored? Existing Tenants should indicate whether or not there
are any such air filtration systems or stacks in use in, on or
about the Premises which discharge into the air and whether such
air emissions are being monitored.
Yes [ ] No [ ]
If yes, please describe: ________________________________________
_________________________________________________________________
_________________________________________________________________
6.2 Do you propose to operate any of the following types of
equipment, or any other equipment requiring an air emissions
permit? Existing Tenants should specify any such equipment being
operated in, on or about the Premises.
________ Spray booth(s) _________ Incinerator(s)
________ Dip tank(s) _________ Other (Please describe)
________ Drying oven(s) _________ No Equipment Requiring Air
Permits
If yes, please describe: ________________________________________
_________________________________________________________________
_________________________________________________________________
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("Management Plan") pursuant
to Fire Department or other governmental or regulatory agencies'
requirements? Existing Tenants should indicate whether or not a
Management Plan is required and has been prepared.
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing Tenants
should attach a copy of any required updates to the Management
Plan.
7.2 Are any of the Hazardous Materials, and in particular chemicals,
proposed to be used in your operations in, on or about the
Premises regulated under Proposition 65? Existing Tenants should
indicate whether or not there are any new Hazardous Materials
being so used which are regulated under Proposition 65.
Yes [ ] No [ ]
If yes, please describe: ________________________________________
_________________________________________________________________
_________________________________________________________________
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<PAGE> 30
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has
your company ever been subject to any agency enforcement actions,
administrative orders, or consent decrees or has your company
received requests for information, notice or demand letters, or
any other inquiries regarding its operations? Existing Tenants
should indicate whether or not any such actions, orders or
decrees have been, or are in the process of being, undertaken or
if any such requests have been received.
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any
continuing compliance obligations imposed as a result of these
actions, orders or decrees and also describe any requests,
notices or demands, and attach a copy of all such documents.
Existing Tenants should describe and attach a copy of any new
actions, orders, decrees, requests, notices or demands not
already delivered to Landlord pursuant to the provisions of
Section 29 of the signed Lease Agreement.
_________________________________________________________________
_________________________________________________________________
8.2 Have there ever been, or are there now pending, any lawsuits
against your company regarding any environmental or health and
safety concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other
documents related thereto as requested by Landlord. Existing
Tenants should describe and attach a copy of any new
complaint(s), cross-complaint(s), pleadings and other related
documents not already delivered to Landlord pursuant to the
provisions of Section 29 of the signed Lease Agreement.
8.3 Have there been any problems or complaints from adjacent Tenants,
owners or other neighbors at your company's current facility with
regard to environmental or health and safety concerns? Existing
Tenants should indicate whether or not there have been any such
problems or complaints from adjacent Tenants, owners or other
neighbors at, about or near the Premises.
Yes [ ] No [ ]
If yes, please describe. Existing Tenants should describe any
such problems or complaints not already disclosed to Landlord
under the provisions of the signed Lease Agreement.
_________________________________________________________________
_________________________________________________________________
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
including a Transporter Permit number issued to your company with
respect to its proposed operations in, on or about the Premises,
including, without limitation, any wastewater discharge permits,
air emissions permits, and use permits or approvals. Existing
Tenants should attach copies of any new permits and licenses as
well as any renewals of permits or licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Landlord in connection with the evaluation and finalization of a Lease
Agreement and will be attached thereto as an exhibit; (B) that this Hazardous
Materials Disclosure Certificate is being delivered in accordance with, and as
required by, the provisions of Section 29 of the Lease Agreement; and (C) that
Tenant shall have and retain full and complete responsibility and liability with
respect to any of the Hazardous Materials disclosed in the HazMat Certificate
notwithstanding Landlord's/Tenant's receipt and/or approval of such certificate.
Tenant further agrees that none of the following described acts or events shall
be construed or otherwise interpreted as either (a) excusing, diminishing or
otherwise limiting Tenant from the requirement to fully and faithfully perform
its obligations under the Lease with respect to Hazardous Materials, including,
without limitation, Tenant's indemnification of the Indemnitees and compliance
with all Environmental Laws, or (b) imposing upon Landlord, directly or
indirectly, any duty or liability with respect to any such Hazardous Materials,
including, without limitation, any duty on Landlord to investigate or otherwise
verify the accuracy of the representations and statements made therein or to
ensure that Tenant is in compliance with all Environmental Laws; (i) the
delivery of such certificate to Landlord and/or Landlord's acceptance of such
certificate, (ii) Landlord's review and approval of such certificate, (iii)
Landlord's failure to obtain such certificate from Tenant at any time, or (iv)
Landlord's actual or constructive knowledge of the types and quantities of
Hazardous Materials being used, stored, generated, disposed of or transported on
or about the Premises by Tenant or Tenant's Representatives. Notwithstanding the
foregoing or anything to the contrary contained herein, the undersigned
acknowledges and agrees that Landlord and its partners, lenders and
representatives may, and will, rely upon the statements, representations,
warranties, and certifications made herein and the truthfulness thereof in
entering into the Lease Agreement and the continuance thereof throughout the
term, and any renewals thereof, of the Lease Agreement.
I (print name)______________, acting with full authority to bind the (proposed)
Tenant and on behalf of the (proposed) Tenant, certify, represent and warrant
that the information contained in this certificate is true and correct.
(PROSPECTIVE) TENANT:
By: ___________________________________
Title: ________________________________
Date: _________________________________
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<PAGE> 31
EXHIBIT F
FIRST AMENDMENT TO LEASE AGREEMENT
CHANGE OF COMMENCEMENT DATE
This First Amendment to Lease Agreement (the "Amendment") is made and entered
into to be effective as of _________________________, by and between
_____________________________ ("Landlord"), and ________________________
("Tenant"), with reference to the following facts:
RECITALS
A. Landlord and Tenant have entered into that certain Lease Agreement dated
___________ (the "Lease"), for the leasing of certain premises containing
approximately __________ rentable square feet of space located at
____________________________, California (the "Premises") as such Premises are
more fully described in the Lease.
B. Landlord and Tenant wish to amend the Commencement Date of the Lease.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Recitals: Landlord and Tenant agree that the above recitals are true
and correct.
2. The Commencement Date of the Lease shall be ________________________.
3. The last day of the Term of the Lease (the "Expiration Date") shall
be ______________.
4. The dates on which the Base Rent will be adjusted are:
<TABLE>
<S> <C>
for the period ________ to _______ the monthly Base Rent shall be $___________;
for the period ________ to _______ the monthly Base Rent shall be $__________; and
for the period ________ to _______ the monthly Base Rent shall be $___________.
</TABLE>
5. Effect of Amendment: Except as modified herein, the terms and
conditions of the Lease shall remain unmodified and continue in full force and
effect. In the event of any conflict between the terms and conditions of the
Lease and this Amendment, the terms and conditions of this Amendment shall
prevail.
6. Definitions: Unless otherwise defined in this Amendment, all terms
not defined in this Amendment shall have the meaning set forth in the Lease.
7. Authority: Subject to the provisions of the Lease, this Amendment
shall be binding upon and inure to the benefit of the parties hereto, their
respective heirs, legal representatives, successors and assigns. Each party
hereto and the persons signing below warrant that the person signing below on
such party's behalf is authorized to do so and to bind such party to the terms
of this Amendment.
8. The terms and provisions of the Lease are hereby incorporated in this
Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first above written.
[PROPERTY MANAGER: Please provide Tenant information and Word Processing will
complete the signature block]
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<PAGE> 32
EXHIBIT I
FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
When recorded mail to:
U. S. Bank National Association
2890 North Main Street
Walnut Creek, CA 94596
ATTN:
Date: *
From: *
("Tenant")
*
("Landlord")
To: U.S. BANK NATIONAL ASSOCIATION ("Lender")
Commercial Real Estate Loan Administration
* (Address)
* (City, State, Zip)
Attn:*
Lease Dated: *
Lease Term: *
W I T N E S S E T H:
WHEREAS, the Tenant has entered into a lease dated *, 199 (the "Lease")
, whose interest is held by Landlord, covering premises (the "Premises")
described in Exhibit "A" attached hereto and incorporated herein by reference;
and
WHEREAS, the Lender has agreed to make a loan of * ($*) to the Landlord
secured by a Deed of Trust, hereinafter referred to as "mortgage" (which
mortgage also secures any future advances made by Lender); provided, however,
that said Lease is subordinate to the lien of the mortgage; and
WHEREAS, Lender has been requested by Tenant and by Landlord to enter
into a non-disturbance agreement with Tenant;
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties hereto mutually covenant and agree as
follows:
1. The Lease and any extensions, renewals, replacements or modifications
thereof, and all of the right, title and interest of the Tenant in and to said
Premises, including but not limited to any option or right of first refusal to
purchase Premises, or any acquisition of title to the Premises by Tenant during
the term of the mortgage, are and shall be subject and subordinate to the
mortgage and to all of the terms and conditions contained herein, and to any
renewals, modifications, replacements, consolidations and extensions thereof.
2. Lender consents to the Lease and, in the event of foreclosure of said
mortgage, or in the event Lender comes into possession or acquires title to the
premises as a result of the enforcement or foreclosure of the mortgage or
mortgage note, or as a result of any other means, Lender agrees to recognize
Tenant and further agrees that Tenant shall not be disturbed in its possession
of the Premises for any reason other than one which would entitle the Landlord
to terminate the Lease under its terms or would cause, without further action by
such Landlord, the termination of the Lease or would entitle such Landlord to
dispossess the Tenant from the Premises.
3. Tenant agrees with Lender that if the interest of Landlord in the
Premises shall be transferred to and owned by Lender by reason of foreclosure or
other proceedings brought by it, or by any other manner, Tenant shall be bound
to Lender under all of the terms, covenants and conditions of the Lease for the
balance of the term thereof remaining and any extensions or renewals thereof
which may be affected in accordance with any option therefor in the Lease, with
the same force and effect as if Lender were the Landlord under the Lease, and
Tenant does hereby attorn to Lender as its Landlord, said attornment to be
effective and self-operative without the execution of any further instruments on
the part of any of the parties hereto immediately upon Lender succeeding to the
interest of the Landlord in the Premises. Tenant agrees, however, upon the
election of and written demand by Lender after Lender receives title to the
Premises, to promptly execute an instrument in confirmation of the foregoing
provisions, satisfactory to Lender, in which Tenant shall acknowledge such
attornment and shall set forth the terms and conditions of its tenancy.
4. Tenant agrees with Lender that if Lender shall succeed to the
interest of Landlord under the Lease, Lender shall not be (a) liable for any
action or omission of any prior landlord under the Lease, or (b) subject to any
offsets or defenses which Tenant might have against any prior landlord, or (c)
bound by any rent or additional rent which Tenant might have paid for more than
the current month to any prior landlord, or (d) bound by any security deposit
which Tenant may have paid to any prior landlord, unless such deposit is in an
escrow fund available to Lender, or (e) bound by any amendment or modification
of the Lease made without Lender's consent, or (f) bound by any provision in the
Lease which obligates the Landlord to erect or complete any building or to
perform any construction work or to make
1
<PAGE> 33
any improvements to the Premises. Tenant further agrees with Lender that Tenant
will not voluntarily subordinate the Lease to any lien or encumbrance without
Lender's consent.
5. Tenant shall provide Lender with a copy of any written notice that
Tenant sends to or receives from Landlord no later than 10 days after
transmission or receipt. In the event that the Landlord shall default in the
performance or observance of any of the terms, conditions or agreements in the
Lease, Tenant shall give written notice thereof to the Lender and the Lender
shall have the right (but not the obligation) to cure such default. Tenant shall
not take any action with respect to such default under the Lease, including and
without limitation, any action in order to terminate, rescind or void the Lease
or to withhold any rental thereunder for a period of ten (10) days after receipt
of such written notice thereof by the Lender with respect to any such default
capable of being cured by the payment of money and for a period of thirty (30)
days after receipt of such written notice thereof by the Lender with respect to
any other such default (provided, that in the case of any default which cannot
be cured by the payment of money and cannot with diligence by cured within such
thirty (30) day period because of the nature of such default or because Lender
requires time to obtain possession of the Premises in order to cure the default,
if Lender shall proceed promptly to attempt to obtain possession of the
Premises, where possession is required, and to cure the same and thereafter
shall prosecute the curing of such default with diligence and continuity, then
the time within which such default may be cured shall be extended for such
period as may be necessary to complete the curing of the same with diligence and
continuity).
6. Tenant agrees with Lender that Tenant's estate in the Premises shall
not be conveyed or encumbered without the written consent of the Lender so long
as the Lease is in effect.
7. This Agreement shall bind and inure to the benefit of all parties
hereto, their successors and assigns. As used herein the term "Tenant" shall
include the Tenant, its successors and assigns; the words "foreclosure and
"foreclosure sale: as used herein shall be deemed to include the acquisition of
Landlords' estate in the Premises by voluntary deed (or assignment) in lieu of
foreclosure, and the word "Lender" shall include the Lender herein specifically
named and any of its successors and assigns, including anyone who shall succeed
to Landlord' interest in the Premises by, through or under foreclosure of the
mortgage.
8. This Agreement shall not be modified or amended except in writing
signed by the parties hereto.
9. The use of the neuter gender in this Agreement shall be deemed to
include any other gender, and words in the singular number shall be held to
include the plural, when the sense requires.
10. Notwithstanding any of the other provisions hereof, this Agreement
is not intended to create and shall not be deemed to create any personal
liability on the part of tenant for repayment of the loan secured by the
mortgage.
IN WITNESS WHEREOF the parties hereto have placed their hands and seals
the day and year first above written.
LANDLORD: TENANT:
* *
- ------------------------------------ ------------------------------------
By: * By: *
--------------------------------- ---------------------------------
Its: * Its: *
-------------------------------- --------------------------------
By: By:
--------------------------------- ---------------------------------
Its: Its:
-------------------------------- --------------------------------
LENDER:
U.S. BANK NATIONAL ASSOCIATION
By: *
---------------------------------
Its: *
--------------------------------
2
<PAGE> 34
State of California )
) ss.
County of Contra Costa )
On ___________, before me,_______________________________ , personally appeared,
personally known to me - OR - proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
SIGNATURE OF NOTARY
State of California )
) ss.
County of Contra Costa )
On ___________, before me, _____________________________________ , personally
appeared, personally known to me - OR - proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
SIGNATURE OF NOTARY
State of California )
) ss.
County of Contra Costa )
On ___________, before me, _______________________________________ , personally
appeared, personally known to me - OR - proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
SIGNATURE OF NOTARY
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<PAGE> 35
ADDENDUM 1
OPTION TO EXTEND THE LEASE TERM
This Addendum 1 ("Addendum 1") is incorporated as a part of that certain Lease
Agreement dated May 15, 2000 (the "Lease"), by and between NEW FOCUS, INC., a
California corporation ("Tenant"), and LINCOLN-RECP HELLYER OPCO, L.L.C., a
Delaware limited liability company ("Landlord"), for the leasing of those
certain premises located at 4747 Hellyer Avenue, San Jose, California as more
particularly described in Exhibit A to the Lease (the "Premises"). Any
capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms as set forth in the Lease.
1. GRANT OF EXTENSION OPTION. Subject to the provisions, limitations and
conditions set forth in Paragraph 5 below, Tenant shall have an Option
("Option") to extend the initial term of the Lease for five (5) years (the
"Extended Term").
2. TENANT'S OPTION NOTICE. Tenant shall have the right to deliver written notice
to Landlord of its intent to exercise this Option (the "Option Notice"). If
Landlord does not receive the Option Notice from Tenant on a date which is
neither more than three hundred sixty-five (365) days nor less than two hundred
seventy (270) days prior to the end of the initial term of the Lease, all rights
under this Option shall automatically terminate and shall be of no further force
or effect. Upon the proper exercise of this Option, subject to the provisions,
limitations and conditions set forth in Paragraph 5 below, the initial term of
the Lease shall be extended for the Extended Term.
3. ESTABLISHING THE INITIAL MONTHLY BASE RENT FOR THE EXTENDED TERM.
(a) The initial monthly Base Rent for the Extended Term shall be the
then current market rent for the highest and best use for similar space within
the competitive market area of the Premises (the "Fair Rental Value"). "Fair
Rental Value" of the Premises means the current market rental value of the
Premises as of the commencement of the Extended Term, taking into consideration
all relevant factors, including length of term, the uses permitted under the
Lease, the quality, size, design and location of the Premises, including the
condition and value of existing tenant improvements, and the monthly base rent
paid by tenants for premises comparable to the Premises, and located within the
competitive market area of the Premises, as reasonably determined by Landlord.
(b) Neither Landlord nor Tenant shall have the right to have a court or
any other third party entity establish the Fair Rental Value. If Landlord and
Tenant are unable to agree on the Fair Rental Value for the Extended Term within
ten (10) days of receipt by Landlord of the Option Notice, such Base Rent shall
be determined by appraisal in the manner provided in subsection (c) below.
(c) If Landlord and Tenant are unable to agree upon the amount of Base
Rent payable during the Extended Term, as provided above, they each shall, not
later than ten (10) days after the end of the period for attempting to agree
upon Base Rent, appoint an independent broker who shall have at least ten (10)
years' experience in the commercial real estate market in which the Premises is
located and shall be familiar with the valuation of comparable property in such
area and otherwise qualified to act as an expert witness over objection to give
opinion testimony addressed to the issue in a court of competent jurisdiction.
Within said ten (10) day period, each party shall notify the other party in
writing of the name, address, telephone number and qualifications of its broker
so appointed. If either party shall fail to notify the other party of its named
broker within said ten (10) day period, the determination of Base Rent by the
single broker appointed shall be conclusive and binding upon both Landlord and
Tenant.
(i) The brokers appointed pursuant to this subsection (c) shall
determine the "Fair Rental Value" for the Premises as of the date of calculation
thereof.
(ii) The brokers shall, not later than two (2) months prior to
the expiration of the Term, report in writing to the party appointing him/her
their opinion as to the Fair Rental Value. Each party shall, promptly upon
receipt of the valuation report from its broker, provide the other party with a
copy thereof. Not later than one and one-half (1 _) months prior to the
expiration of the Term, Landlord and Tenant shall meet at such times as they
shall mutually agree and endeavor in good faith to agree upon the Base Rent
based upon the reports of the brokers. If Landlord and Tenant are unable to
agree on the Base Rent within the time specified above, the brokers shall
appoint a third broker, qualified as aforesaid, who shall, not later than one
(1) month prior to the expiration of the Term, determine the Fair Rental Value
on the basis of the two valuation reports previously prepared and consultation
with such brokers and/or other experts and competent authorities as such third
broker shall deem relevant or appropriate in his/her discretion. So long as it
is not inconsistent with any of the express provisions of this Lease and is not
arbitrary and capricious, the written report and determination of Fair Rental
Value by the third broker shall be accepted by Landlord and Tenant as the Base
Rent, which determination shall be final and binding and enforceable in a court
of competent jurisdiction with the same force and effect as if the same were a
judgment duly entered by such court. In the event that the two originally
appointed brokers cannot for any reason agree on a third broker, then either
Landlord or Tenant, on behalf on both, may request appointment of such third
broker by the then Chief Judge of the United States District Court having
jurisdiction over the Premises, and neither party shall raise any question as to
such Judge's full power and jurisdiction to entertain the application for and
make such appointment hereunder.
(iii) In the use of brokers hereunder, each party shall pay the
fees and expenses of its own broker and shall share equally the fees and
expenses of any third broker appointed hereunder.
(d) Upon determination of the initial monthly Base Rent for the Extended
Term pursuant to the terms outlined above, Landlord and Tenant shall immediately
execute an amendment to the Lease. Such amendment shall set forth among other
things, the initial monthly Base Rent for the Extended Term. Tenant shall have
no other right to further extend the term of the Lease under this Addendum 1
unless Landlord and Tenant otherwise agree in writing. In no event shall the
monthly Base Rent for any period of the Extended Term be less than the highest
monthly Base Rent charged during the initial term of the Lease. Upon
determination of the initial monthly Base Rent for the Extended Term in
accordance with the terms outlined above, Landlord and Tenant shall immediately
execute, at Landlord's sole option, either the standard lease agreement then in
use by Landlord, or an amendment to this Lease. Such new lease
1
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agreement or amendment, as the case may be, shall set forth among other things,
the initial monthly Base Rent for the Extended Term and the actual commencement
date and expiration date of the Extended Term. Tenant shall have no other right
to extend the term of the Lease under this Addendum 1 unless Landlord and Tenant
otherwise agree in writing.
4. CONDITION OF PREMISES AND BROKERAGE COMMISSIONS FOR THE EXTENDED TERM. If
Tenant timely and properly exercises this Option, in strict accordance with the
terms contained herein: (1) Tenant shall accept the Premises in its then "As-Is"
condition and, accordingly, Landlord shall not be required to perform any
additional improvements to the Premises; and (2) Tenant hereby agrees that it
will be solely responsible for any and all brokerage commissions and finder's
fees payable to any broker now or hereafter procured or hired by Tenant or who
otherwise claims a commission based on any act or statement of Tenant ("Tenant's
Broker") in connection with the Option. Tenant hereby further agrees that
Landlord shall in no event or circumstance be responsible for the payment of any
such commissions and fees to Tenant's Broker.
5. LIMITATIONS ON, AND CONDITIONS TO, EXTENSION OPTION. This Option is personal
to Tenant and may not be assigned, voluntarily or involuntarily, separate from
or as part of the Lease, except for permitted transfers to Affiliates. At
Landlord's option, all rights of Tenant under this Option shall terminate and be
of no force or effect if any of the following individual events occur or any
combination thereof occur: (1) Tenant is in default of any provision of the
Lease on the date Landlord receives the Option Notice; and/or (2) Tenant has
assigned its rights and obligations under all or part of the Lease or Tenant has
subleased all or part of the Premises; and/or (3) Tenant's financial condition
is unacceptable to Landlord at the time the Option Notice is delivered to
Landlord; and/or (4) Tenant has failed to exercise properly this Option in a
timely manner in strict accordance with the provisions of this Addendum 1;
and/or (5) Tenant no longer has possession of all or any part of the Premises
under the Lease, or if the Lease has been terminated earlier, pursuant to the
terms and provisions of the Lease.
6. TIME IS OF THE ESSENCE. Time is of the essence with respect to each and every
time period described in this Addendum 1.
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ADDENDUM 2
RIGHT OF FIRST OFFER
This Addendum 2 ("Addendum 2") is incorporated as a part of that certain Lease
Agreement dated May 15, 2000 (the "Lease"), by and between NEW FOCUS, INC., a
California corporation ("Tenant"), and LINCOLN-RECP HELLYER OPCO, L.L.C., a
Delaware limited liability company ("Landlord"), for the leasing of those
certain premises located at 4747 Hellyer Avenue, San Jose, California as more
particularly described in Exhibit A to the Lease (the "Premises"). Any
capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms as set forth in the Lease.
During only the initial term of the Lease, Tenant shall have a one-time (not
continuing) right to make a first offer to lease (the "Right of First Offer")
from Landlord all of the contiguous 25,000 square foot premises immediately
adjoining the Premises, as such expansion space is specified in Exhibit H
attached hereto and made a part hereof (the "Expansion Space"). Tenant's Right
of First Offer, as granted herein, is subject to the following conditions:
i. The Right of First Offer for the Expansion Space shall be subject to
the rights and options of the existing tenant of the Expansion Space (together
with their successors and assigns) presently occupying said Expansion Space
pursuant to the terms and provisions of such existing tenant' lease, as such
lease may be later modified, amended or extended;
ii. The Right of First Offer for the Expansion Space shall be void if
Tenant has been more than twice during the twelve (12) month period immediately
preceding the date of Landlord's Availability Notice (defined below), or at the
time of exercise of the Right of First Offer, is then presently in default in
the performance of any of its obligations under the Lease beyond any applicable
cure periods; and
iii. The Right of First Offer for the Expansion Space shall be subject
to Landlord's review and approval of Tenant's then current financial condition
[which financial condition shall be deemed to be acceptable to Landlord so long
as (a) Tenant, at the time of exercise of the Right of First Offer and for the
prior twelve month period of time prior to Tenant's exercise of this Right of
First Offer, has a tangible net worth of One Hundred Million and 00/100 Dollars
($100,000,000.00) and has achieved a net profit of at least Five Million and
00/100 Dollars ($5,000,000.00) for two (2) consecutive quarters, or (b) the
Letter of Credit shall still be in effect in the amount required by Section 35
of the Lease, and in the possession of and available for use by Landlord,
provided that the amount of such Letter of Credit shall, prior to the delivery
of possession of the Expansion Premises to Tenant, be increased such that the
proportion of the increased Letter of Credit to the prior amount of the Letter
of Credit is the same as the proportion of the area of the entire Premises,
including the Expansion Premises, to the prior area of the Premises].
Provided the foregoing conditions are satisfied when the Expansion Space becomes
available, then if the Expansion Space becomes vacant, and Landlord desires to
lease the Expansion Space, Landlord shall give Tenant written notice, by
facsimile and by mail, describing the estimated date upon which Landlord can
deliver the Expansion Space to Tenant, and the terms and conditions upon which
Landlord is willing to lease the Expansion Space (a "Landlord's Availability
Notice"). Tenant shall notify Landlord within three (3) business days following
receipt of Landlord's Availability Notice of Tenant's election to lease the
Expansion Space upon all of the terms specified in the Landlord's Availability
Notice by written acceptance delivered to Landlord without any deviation in such
offered terms (an "Election Notice"). If Tenant fails to notify Landlord of
Tenant's election to lease the Expansion Space within the time specified herein,
it shall be deemed that: (a) Tenant has elected not to lease said Expansion
Space; (b) Landlord may thereafter enter into a lease agreement with a third
party for the Expansion Space; and (c) all rights under this Right of First
Offer with respect to the Expansion Space shall terminate and be of no further
force or effect. Time is of the essence herein.
If Tenant duly and timely exercises this Right of First Offer as herein provided
with respect to the Expansion Space, Tenant shall deliver to Landlord a
refundable deposit of Fifty Thousand Dollars ($50,000.00) for the Expansion
Space. The parties shall have ten (10) business days after Landlord receives the
Election Notice for the Expansion Space and the non-refundable deposit therefor
from Tenant in which to execute an amendment to the Lease setting forth the
agreed-upon terms for such Expansion Space. Upon full execution of an amendment
for the Expansion Space, the non-refundable deposit shall be credited toward the
first month's Base Rent for the Expansion Space, as agreed between the parties.
This Right of First Offer shall terminate and be of no force or effect if the
Premises are being subleased to a party other than an Affiliate or party who
occupies more than 50% of the Premises for the remaining Term of the Lease at
the time that this Right of First Offer for the Expansion Space is offered to
Tenant.
Except to an Affiliate in accordance with the provisions of Section 14.8 of the
Lease, this Right of First Offer is personal to Tenant and may not be assigned,
voluntarily or involuntarily, separate from or as a part of the Lease. If Tenant
duly and timely exercises this Right of First Offer for the Expansion Space,
Landlord and Tenant shall execute an amendment to this Lease, adding the
Expansion Space to the Premises and adjusting the Base Rent and Tenant's
proportionate share of the items set forth in Sections 6 and 7 of this Lease. If
Tenant does not elect to exercise the Right of First Offer granted herein for
the Expansion Space (or it is deemed that Tenant has not elected to exercise
this Right of First Offer due to the lapse of time or any other failure of
Tenant to strictly comply with the provisions of this Addendum 2), based upon
the material terms proposed by Landlord in the applicable Landlord's
Availability Notice, all rights of Tenant under, in or to this Right of First
Offer for the Expansion Space shall terminate and be of no further force or
effect.
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Exhibit 23.3
Consent of Independent Auditors
We consent to the incorporation by reference, in Post-Effective Amendment No. 1
to Form S-1 of New Focus, Inc. dated May 18, 2000, of our report dated February
25, 2000 (except as to Note 12, as to which the date is May 8, 2000) with
respect to the consolidated financial statements and schedule of New Focus, Inc.
included in Amendment No. 7 to the Registration Statement (Form S-1 No.
333-31396) and related Prospectus of New Focus, Inc. dated May 17, 2000.
/s/ Ernst & Young LLP
San Jose, California
May 17, 2000
