ABAXIS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 77-0213001
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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CLINTON S. SEVERSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER,
ABAXIS, INC.
3240 WHIPPLE ROAD
UNION CITY, CALIFORNIA 94587
(510) 441-6161
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered pursuant to a dividend or interest reinvestment plans, please check the following box: [ ]
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, other than securities offered only in connection with dividend or interest reinvestment plans, 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, please 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 Act 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 delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF SHARES AMOUNT TO AGGREGATE PRICE PER PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED BE REGISTERED(1) UNIT(2) AGGREGATE PRICE(2) REGISTRATION FEE(3)
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Common Stock (no par value)... 1,422,710 $5.94 $8,450,897.40 $2,112.72
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(1) Shares of Common Stock which may be offered pursuant to this Registration Statement consisting of 943,270 shares issuable upon conversion of 6,578 shares of issued and outstanding Series D Convertible Preferred Stock and 478,900 shares issuable upon the exercise of warrants to purchase Common Stock. In addition to the shares set forth in the table, the amount to be registered includes an indeterminate number of shares issuable upon conversion of or in respect of the Series D Convertible Preferred Stock, as such number may be adjusted as a result of stock splits, stock dividends and antidilution provisions in accordance with Rule 416.
(2) Estimated solely for the purpose of computing the registration fee and based on the average high and low sales prices of the Common Stock of Abaxis, Inc. as reported on the Nasdaq National Market on January 9, 2001.
(3) Computed pursuant to Rule 457(c) based on the average high and low sale prices of the Common Stock of Abaxis, Inc. reported on the Nasdaq National Market for January 9, 2001.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE SEC IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JANUARY 10, 2001
1,422,170 Shares
ABAXIS, INC.
Common Stock
The selling shareholders of Abaxis, Inc. listed on page 13 may offer and resell up to 1,422,170 shares of Abaxis common stock under this prospectus, for each of their own accounts. The number of shares the selling shareholders may sell includes both shares of common stock that they may receive if they either convert their shares of Series D Preferred Stock or exercise warrants to acquire shares of our common stock. We will not receive any proceeds from such sales.
We issued shares of our Series D Preferred Stock in a private transaction that closed on October 4, 2000 and November 17, 2000 to the selling shareholders. We also concurrently issued warrants to purchase 328,900 shares of our common stock to the same selling shareholders. In addition, we issued a warrant to purchase 150,000 shares of our common stock in connection with the sale of our Series D Preferred Stock.
Our common stock is quoted on the Nasdaq National Market under the symbol "ABAX." On January 9, 2001, the last sale price of our common stock was $5.94.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. PLEASE SEE
"RISK FACTORS" BEGINNING ON PAGE 2.
The shares have not been approved or disapproved by the SEC or any state securities commission, nor have these organizations determined that this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this Prospectus is January 10, 2001
TABLE OF CONTENTS
PAGE
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ABOUT ABAXIS................................................ 1
RISK FACTORS................................................ 2
WHERE YOU CAN FIND MORE INFORMATION......................... 9
FORWARD-LOOKING INFORMATION................................. 10
USE OF PROCEEDS............................................. 10
SELLING SHAREHOLDERS........................................ 10
PLAN OF DISTRIBUTION........................................ 13
LEGAL MATTERS............................................... 13
EXPERTS..................................................... 13
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ABOUT ABAXIS
Abaxis, Inc. (the "Company"), incorporated in California in 1989, develops, manufactures and markets portable blood analysis systems for use in any patient-care setting to provide clinicians with rapid blood constituent measurements. The Company's primary product is a system consisting of a compact 6.9 kilogram analyzer and a series of single-use plastic discs called reagent discs containing all the chemicals required to perform a panel of up to 12 tests. The system can be operated with minimal training and performs multiple routine tests on whole blood, serum or plasma using either venous or fingerstick samples. The system provides test results in less than 15 minutes with the precision and accuracy equivalent to a clinical laboratory analyzer. The Company currently markets this system for veterinary use under the name VetScan(R) and Vetscan HMT (DXS System) and in the human medical market under the name Piccolo(R).
The Company has its primary operations and all of its employees in the United States. Approximately 82%, 84% and 71% of the Company's revenues are from the United States, 13%, 9% and 7% are from Europe, 5%, 7% and 22% are from Asia and Latin America during fiscal year 2000, 1999 and 1998 respectively. The Company offers its point-of-care blood chemistry analyzer system with a total of 19 test methods. The Company's repertoire of test methods includes albumin, amylase, alkaline phosphates (ALP), alanine aminotransferase (ALT), aspartate aminotransferase (AST), calcium, creatinine, creatine kinase (CK), glucose, glutamyl transferase (GGT), potassium, total bilirubin, total cholesterol, urea nitrogen (BUN), total protein, uric acid, thyroxine (T4), CO2 and sodium. Seventeen of these tests are marketed for both human and veterinary markets. Tests for uric acid are marketed only in the human market, and tests for T4 are marketed exclusively in the veterinary market. The Company markets its reagent products by configuring these 19 test methods in panels that are designed to meet a variety of clinical diagnostic needs. The Company currently offers 5 multi-test reagent disc products in the human medical market and 6 reagent discs in the veterinary market.
Our principal executive offices are located at 3240 Whipple Road, Union City, California 94587. Our telephone number is (510) 441-6161.
VetScan and Piccolo are registered trademarks of Abaxis, Inc. Other trademarks that we may refer to in this prospectus belong to their respective owners.
RISK FACTORS
This prospectus contains, or incorporates by reference, forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended. These statements accurately reflect our current view with respect to future events and financial performance. The future events that we describe in these risk factors involve risks and uncertainties, among them are risks and uncertainties related to:
1. the market acceptance of our products;
2. our continuing development of our products;
3. obtaining required Food and Drug Administration clearance and other federal, state and local government approvals;
4. the manufacture and distribution of our products on a commercial scale;
5. general market conditions; and
6. competition.
When used in this prospectus, or in the documents incorporated by reference herein, the words "anticipates," "believes," "expects," "intends," "plans," "future," and similar expressions identify forward-looking statements. Our actual results could differ materially from those that we project in the forward-looking statements as a result of factors that we have set forth throughout this document as well as factors of which we are currently not aware.
Your investment in the shares being offered by the selling shareholders in this prospectus involves a high degree of risk and should not be made by you if you cannot afford the loss of your entire investment. In addition to the other information in this prospectus, or incorporated in this prospectus by reference, you should consider carefully the following risk factors before investing in the common stock offered by the prospectus:
WE HAVE ONLY RECENTLY BECOME PROFITABLE AND WE HAVE LARGE CUMULATIVE NET LOSSES; WE CANNOT ASSURE THAT WE WILL REMAIN PROFITABLE
Although we were formed in 1989, we have only been profitable since the quarter ended December 31, 1999. We have incurred cumulative net losses of approximately $60 million. We expect our losses to continue through at least the first half of fiscal year 2000. Our ability to be consistently profitable will depend, in part, on our ability to increase our sales volumes of our VetScan and Piccolo products. Increasing our sales volume of our products will depend upon our ability to:
1. continue to develop our products;
2. obtain necessary government approval for our products, including for their use in the treatment of human beings;
3. increase our sales and marketing activities;
4. increase our manufacturing activities; and
5. effectively compete against current and future competitors.
We cannot assure you that we will be able to successfully increase our sales volumes of our products to achieve profitability.
A NUMBER OF FACTORS EFFECT OUR PERIODIC RESULTS AND THUS WE ARE UNABLE TO PREDICT SALES IN FUTURE QUARTERS
We are not able to accurately predict our sales in future quarters. In any
quarter, we derive a significant portion of our revenues from sales to a limited
number of distributors who resell our products to the ultimate user. While we
are better able to predict sales of our reagent discs, as we sell these discs
primarily for use with analyzers that we sold in prior periods, we generally are
unable to predict with much certainty sales of our analyzers, as we typically
sell our analyzers to new users. Accordingly, our sales in any one quarter are
not indicative of our sales in any future period. In addition, we generally
operate with limited order backlog, because we ship our products shortly after
we receive the orders from our
customers. As a result, our product sales in any quarter are generally dependent on orders that we receive and ship in that quarter. We base our expense levels, which are to a large extent fixed, in part on our expectations as to future revenues. We may be unable to reduce our spending in a timely manner to compensate for any unexpected revenue shortfall. As a result, any such shortfall would have an immediate, material and adverse impact our operating results and financial condition. In addition, we have historically experienced a decrease in our sales, especially in Europe, in our second and third quarters. Accordingly, we believe that period to period comparisons of our results of operations are not necessarily meaningful.
Our periodic operating results have varied in the past. In the future, we expect our periodic operating results to vary significantly depending on, but not limited to, a number of factors, including:
1. the level of competition in the markets in which we compete;
2. the size and timing of sales orders that we receive from our customers;
3. market acceptance of our current and future products;
4. new product announcements made by us or our competitors;
5. changes in our pricing structures or the pricing structures of our competitors;
6. our ability to develop, introduce and market new products on a timely basis;
7. the costs, and possible supply constraints, of the components that we use to build our products;
8. our manufacturing capacities and our ability to increase the scale of these capacities;
9. the mix of product sales between our analyzer and our reagent disc products;
10. the different sales channels available to us;
11. the limited size of our sales force;
12. the amount we spend on research and development;
13. changes in our strategy;
14. changes in our key personnel;
15. changes in regulatory matters; and
16. general economic trends in the economy.
WE MAY NEED ADDITIONAL FUNDING IN THE FUTURE AND THESE FUNDS MAY NOT BE AVAILABLE TO US
We believe that our existing capital resources, bank and equipment financing loans and anticipated revenue from the sales of our products will be adequate to satisfy our currently planned operating and financial requirements through fiscal year 2001, although no assurances can be given. We will need additional funds, however, if we do not achieve anticipated revenue from the sale of our Piccolo and VetScan products. In addition, we expect to incur substantial additional costs to support our future operations, including:
1. further commercialization of our products and development of new test methods to allow us to further penetrate the human diagnostic market and the veterinary diagnostic market;
2. our need to acquire capital equipment for our manufacturing facilities, which includes the ongoing development and implementation of automated manufacturing lines to provide capacity for the production of commercial volumes of our products;
3. research and design costs related to the continuing development of our current and future products; and
4. additional pre-clinical testing and clinical trials for our current and future products.
To the extent that our existing resources and anticipated revenue from the sale of the Piccolo and VetScan products are insufficient to fund our activities, we will have to raise additional funds from the issuance of public or private equity or debt securities. We may not be able to raise additional funding, or if we are able to, we may not be able to raise funding on acceptable terms. We may dilute then-existing
shareholders if we raise additional funds by issuing new equity securities. Alternatively, we may have to relinquish rights to certain of our technologies, products and/or sales territories if we are required to obtain funds through arrangements with collaborative partners. If we are unable to raise needed funds, we may be required to curtail our operations significantly. This would materially adversely affect our future operating results and financial condition.
WE HAVE LIMITED MARKETING AND DISTRIBUTION EXPERIENCE AND FEW RESOURCES TO DEVOTE TO MARKETING AND DISTRIBUTION
We have been marketing our VetScan System products to the veterinary diagnostic market and our Piccolo System in the human diagnostic market for less than five years each. Accordingly, we have very limited marketing and distribution experience. Further, we have limited resources to devote to marketing and distribution. In particular, we have only fifteen full-time sales personnel involved in our sales and marketing activities. While these individuals work with our distribution partners both domestically and internationally to extend our market reach, the primary selling activities are often done by these individuals. If we are to increase our sales, we will need to increase the size of our sales force. However, we may be constrained from growing our sales force by our financial resources and the availability of qualified sales personnel. This means that we may not be able to build an effective sales and marketing organization, or we may not be able to establish an extensive and effective distribution network. We cannot assure you that:
1. we will be able to build a successful sales and marketing organization;
2. we will be able to establish effective distribution arrangements;
3. any distribution arrangements that we are able to establish will be successful in marketing our products; or
4. the costs associated with marketing and distributing our products will not be excessive.
WE NEED TO DEVELOP ADDITIONAL REAGENT DISCS FOR THE HUMAN DIAGNOSTIC MARKET IF WE ARE TO COMPETE IN THAT MARKET
We have developed a blood analysis system that consists of a portable blood analyzer and single-use reagent discs. Each reagent disc performs a series of standard blood tests. We believe that it is necessary to develop additional series of reagent discs with various tests for use with the Piccolo and VetScan systems. Currently, we have primarily developed reagent discs suitable for the veterinary diagnostic market. In order to be competitive in the more lucrative human diagnostic market, we need to develop additional reagent discs that include certain standard tests for which the medical community receives reimbursements from third party payors such as HMOs and Medicare. The tests that we need to develop to compete in the human diagnostic market are the standard electrolyte test for chloride, which is currently in clinical testing, and a test for lipids, which is currently under development. We may not be able to develop these new reagent discs on a timely and cost effective basis. Also, we may not be able to obtain regulatory clearance for these new reagent discs. Further, even if we gain regulatory approval, we may not be able to successfully manufacture or market the reagent discs. Our failure to meet one or more of these challenges will materially adversely effect our operating results and financial condition.
WE RELY ON SOLE DISTRIBUTOR ARRANGEMENTS IN A NUMBER OF COUNTRIES AND WE HAVE EXPERIENCED A HIGH DEGREE OF DISTRIBUTOR TURNOVER INTERNATIONALLY
We have limited experience and resources in marketing and distributing our products in international markets. We currently have exclusive distribution agreements in the following countries: Argentina, Australia, Austria, France, Germany, Greece, Hong Kong, Italy, Japan, Korea, Mexico, New Zealand, Norway, Portugal, Spain, Switzerland, Turkey; and the United Kingdom.
Our distributor in each of these countries is responsible for obtaining the necessary approvals to sell our products. These distributors may not be successful in obtaining proper approvals for our products in their respective countries, and they may not be successful in marketing our products. We plan to enter into additional distribution agreements to expand our international distribution base and solidify our
international presence. However, we may not be successful in entering into additional distributor agreements. Our distributors may, and have in the past, terminate their relationship with us at any time. If that happens, we may not be able to negotiate acceptable alternative distribution relationships. Moreover, we have experienced a high degree of turnover among our international distributors which makes it difficult for us to establish a steady distribution network overseas. Should we be unable to establish such a reliable overseas distribution network for any of these reasons, we will not be successful in marketing our Piccolo and VetScan products internationally and our operating results will be materially and adversely affected.
WE MAY BE UNSUCCESSFUL IN EXPANDING OUR LIMITED MANUFACTURING CAPACITY
We have limited manufacturing capacity and we recently relocated our corporate headquarters and manufacturing facility from Sunnyvale, California to a new facility in Union City, California. Because our products are highly complex, it is difficult for us to manufacture them through an assembly line process. Furthermore, we will need to obtain government approval for our new facility and are subject to periodic regulatory inspections. While we believe that the autoline assembly system that we are installing will be adequate for our current needs, we may not be able to increase the scale of the autoline system to handle either (1) larger volume production or (2) the production of new or varied products. Further, all aspects of such a scale-up must comply with applicable governmental regulations. We may encounter significant delays or incur unforeseen costs in expanding our manufacturing capacity because of the complexities described above. In addition, we will need to continue to develop the infrastructure that we require to effectively manage our manufacturing operations. The process of manufacturing sufficient quantities of our products can be expensive, time-consuming and complex. We may not be able to obtain necessary regulatory approval for our new facility in a timely fashion or on an ongoing basis. Furthermore, we may not be able to successfully add technical and non-technical personnel that we need to meet the additional staffing requirements that any increase in production would require. If we are unable to develop such increased manufacturing capabilities and infrastructure with appropriate quality, at acceptable costs and on a timely basis, our business or future financial condition will be materially adversely affected.
WE DEPEND ON SOLE SUPPLIERS FOR SEVERAL KEY COMPONENTS TO OUR PRODUCTS
We use several components that are currently available from limited or sole sources. A single injection molding manufacturer currently makes the molded plastic discs which, when loaded with reagents and welded together, form our reagent disc products. We believe that only a few manufacturers are capable of producing these discs to the narrow tolerances that we require; to date, we have only qualified one manufacturer to manufacture the molded plastic discs. Moreover, we currently depend on a single vendor for some of the chemicals that we use to produce the dry reagent chemistry beads. Further, our analyzer products use several technologically advanced components that are each available only from single vendors. Because we are dependent on a limited number of suppliers and manufacturers for critical components to our products, we are particularly susceptible to any interruption in the supply of these products or the viability of our assembly arrangements. The loss of one of these suppliers or a disruption in our manufacturing arrangements would materially adversely affect our business and future financial condition.
COMPETITION FROM LARGER, BETTER ESTABLISHED ENTITIES SUCH AS HOSPITALS AND COMMERCIAL LABORATORIES
Blood analysis is a well established field in which there are a number of competitors that have substantially greater financial resources and larger, more established marketing, sales and service organizations than we do. We compete with the following organizations:
1. commercial clinical laboratories;
2. hospitals clinical laboratories; and
3. manufacturers of bench top multi-test blood analyzers and other testing systems that health care providers can use "on-site."
We may not be able to compete with these organizations or their products or with future organizations or future products.
Historically, hospitals and commercial laboratories perform the most human medical testing, and commercial laboratories perform the most veterinary medical testing. Our products compete with the commercial and hospital laboratories with respect to:
1. range of tests offered;
2. the immediacy of results;
3. cost effectiveness;
4. ease of use; and
5. reliability of results.
We believe that we compete effectively on each of these factors except for the range of tests offered. Clinical laboratories are effective at processing large panels of tests using skilled technicians and complex equipment. While our current offering of reagent discs cannot provide the same range of tests, we believe that our products provide a sufficient breadth of test menus to compete successfully with clinical laboratories, in certain limited markets, on the basis of the other four factors. However, we cannot assure a potential investor that we will continue to be able to compete effectively on (1) cost effectiveness, (2) ease of use, (3) immediacy of results or (4) reliability of results. We also cannot assure a potential investor that we will ever be able to compete effectively on the basis of range of tests offered.
Competition in the human and veterinary diagnostic markets is intense. Most of our competitors have significantly greater financial and other resources than we do. In particular, many of our competitors have large sales forces and well-established distribution channels. Consequently, we must develop our distribution channels and improve our direct sales force in order to compete in these markets.
CHANGES IN THIRD PARTY PAYOR REIMBURSEMENT REGULATIONS CAN NEGATIVELY EFFECT OUR
BUSINESS
By regulating the maximum amount of reimbursement they will provide for blood testing services, third party payors, such as HMOs, pay-per-service insurance plans, Medicare and Medicaid, can indirectly affect the pricing or the relative attractiveness of our human testing products. For example, the Health Care Financing Administration sets the level of reimbursement of fees for blood testing services for Medicare beneficiaries. If third party payors decrease the reimbursement amounts for blood testing services, it may decrease the amount that physicians and hospitals are able to charge patients for such services. Consequently, we will need to charge less for our products. If the government and third party payors do not provide for adequate coverage and reimbursement levels to allow health care providers to use our products, the demand for our products will decrease.
WE ARE SUBJECT TO NUMEROUS GOVERNMENTAL REGULATIONS
Need for FDA certification for our Medical Device Products.
Our Piccolo products are regulated under the 1976 Medical Device Amendments to the Food, Drug and Cosmetic Act, which is administered by the United States Food and Drug Administration (the "FDA"). The FDA classified our initial Piccolo products as "Class II" devices. Class II devices require us to submit to the FDA a pre-market notification form or 510(k). The FDA uses the 510(k) to substantiate product claims that are made by medical device manufacturers prior to marketing. In our 510(k) notification, we must, among other things, establish that the product we plan to market is "substantially equivalent" to (1) a product that was on the market prior to the adoption of the 1976 Medical Device Amendment or (2) to a product that the FDA has previously cleared under the 510(k) process. The FDA review process of a 510(k) notification can last anywhere from three months to over year, and the FDA must issue a written order finding "substantial equivalence" before a company can market a medical device. To date, we have received market clearance from the FDA for our Piccolo System and 16 reagents tests that we have on four reagent discs. We are currently developing additional tests that the FDA will have to clear through the 510(k) notification procedures. These new test products are crucial for our
success in the human diagnostic market. If we do not receive 510(k) clearance for a particular product, we will not be able to sell that product in the United States.
Need to Comply with Manufacturing Regulations
The 1976 Medical Device Amendment also requires us to manufacture our Piccolo products in accordance with Good Manufacturing Practices guidelines. Current Good Manufacturing Practice requirements are set forth in the quality system regulation. These requirements regulate the methods used in, and the facilities and controls used for, the design, manufacture, packaging, storage, installation and servicing of our medical devices intended for human use. Our manufacturing facility is subject to periodic audits. In addition, various state regulatory agencies may regulate the manufacture of our products. For example, we have obtained a license from the State of California to manufacture our products. In September 1996, the FDA granted our Sunnyvale, California manufacturing facility "in compliance" status, based on the regulations for Good Manufacturing Practices for medical devices. We are scheduled for inspection by the FDA and the State of California on a routine basis, typically once every 24 months. We cannot assure an investor that we will successfully pass an inspection by the FDA or the State of California of our new facility in Union City, California. In addition, we cannot assure an investor that we can comply with all current or future government manufacturing requirements and regulations. If we are unable to comply with the regulations, or if we do not pass routine inspections, our business and future results of operations will be materially adversely effected.
Effects of the Clinical Laboratory Improvement Amendments on our Products.
Our Piccolo products are affected by the Clinical Laboratory Improvement Amendments of 1988. The Clinical Laboratory Improvement Amendments are intended to insure the quality and reliability of all medical testing in the United States regardless of where tests are performed. The current Clinical Laboratory Improvement Amendments divide laboratory tests into three categories: "simple," "moderately complex" and "highly complex." Tests performed using the Piccolo system are in the "moderately complex" category. This category requires that any location in which testing is performed be certified as a laboratory. Hence, we can only sell our Piccolo products to customers who meet the standards of a laboratory. To receive "laboratory" certification, a testing facility must be certified by the Health Care Financing Administration. After the testing facility receives a "laboratory" certification, it must then meet the Clinical Laboratory Improvement Amendments regulations. Because we can only sell our Piccolo products to testing facilities that are certified "laboratories," the market for our products is correspondingly constrained. In an effort to expand the market for our Piccolo products, we have filed an application to have our Piccolo products exempted from the Clinical Laboratory Improvement Amendments. If our exemption request is denied, we will continue to be subject to the Clinical Laboratory Improvement Amendments. Consequently, the market for our Piccolo products will be confined to those testing facilities that are certified as "laboratories" and our growth will be limited accordingly.
We are subject to various federal, state and local regulations.
Federal and state regulations regarding the manufacture and sale of health care products and diagnostic devices may change. We cannot predict what impact, if any, such changes would have on our business. In addition, as we continue to sell in foreign markets, we may have to obtain additional governmental clearances in those markets. We may not be able to obtain regulatory clearances for our products in the United States or in foreign markets, and the failure to obtain these regulatory clearances will materially adversely affect our business and results of operations.
Although we believe that we will be able to comply with all applicable regulations of the Food and Drug Administration and of the State of California, including Quality System Regulations, current regulations depend on administrative interpretations. Future interpretations made by the Food and Drug Administration, the Health Care Finance Administration or other regulatory bodies may adversely affect our business.
WE RELY ON PATENTS AND OTHER PROPRIETARY INFORMATION, THE LOSS OF ANY OF WHICH WOULD NEGATIVELY AFFECT OUR BUSINESS
As of November 1, 2000, we have filed twenty-two patent applications in the United States and have been issued twenty patents. Additionally, we have filed several international patent applications covering the same subject matter as our domestic applications. The patent position of any medical device manufacturer, including Abaxis, is uncertain and may involve complex legal and factual issues. Consequently, we may not be issued any additional patents, either domestically or internationally. Furthermore, our patents may not provide significant proprietary protection because there is a chance that they will be circumvented or invalidated. We cannot be certain that we were the first creator of the inventions covered by our issued patents or pending patent applications, or that we were the first to file patent applications for these inventions, because (1) the United States Patent and Trademark Office maintains all patent applications in secrecy until it issues the patents and (2) publications of discoveries in the scientific or patent literature tend to lag behind actual discoveries by several months.
In addition, we may need to license or circumvent certain patents to produce our products. Moreover, we may have to participate in interference proceedings, which are proceeding in front of the U.S. Patent and Trademark Office, to determine who will be issued a patent. These proceedings could be costly and could be decided against us.
Although we have not had infringement claims filed against us to date, we may in the future be sued by third parties who claim that our products violate their intellectual property rights. We may not be successful in defending ourselves against such claims. Even if we are successful, the defense of such claims would be expensive and would divert management's focus away from running our business. Consequently, any infringement claim, even if without merit, could adversely affect our business.
We also rely upon copyrights, trademarks and unpatented trade secrets. Others may independently develop substantially equivalent proprietary information and techniques that would undermine our proprietary technologies. Further, others may gain access to our trade secrets or disclose such technology. Any of these events would negatively impact our business.
WE DEPEND ON KEY MEMBERS OF OUR MANAGEMENT AND SCIENTIFIC STAFF, AND WE MUST RETAIN AND RECRUIT QUALIFIED INDIVIDUALS IF WE ARE TO BE COMPETITIVE
We are highly dependent on the principal members of our management and scientific staff. The loss of any of these key personnel might impede the achievement of our business objectives. We currently do not maintain key man life insurance on any of our employees. Furthermore, in order to be successful, we must recruit and retain additional qualified marketing, sales and manufacturing personnel. Although we believe that we will be successful both in retaining our current management and scientific staff and attracting and retaining skilled and experienced marketing, sales and manufacturing personnel, we may not be able to employ such personnel on acceptable terms because numerous medical products and other high technology companies compete for the services of these qualified individuals.
WE ARE SUBJECT TO PRODUCT LIABILITY CLAIMS AND WE MAY NOT HAVE SUFFICIENT PRODUCT LIABILITY INSURANCE
Our business exposes us to potential product liability risks which are inherent in the testing, manufacturing and marketing of human medical products. We currently maintain product liability insurance. We believe that this insurance is adequate for our needs, taking into account the risks involved and cost of coverage. However, our product liability insurance may be insufficient to cover potential liabilities. Furthermore, in the future the coverage that we require may be unavailable on commercially reasonable terms, if at all. Even with our current insurance coverage, a product liability claim or recall could materially adversely affect our business or our financial condition.
WE MUST COMPLY WITH STRICT AND COSTLY ENVIRONMENTAL REGULATIONS
We are subject to stringent federal, state and local laws, rules, regulations and policies that govern the use, generation, manufacture, storage, air emission, effluent discharge, handling and disposal of certain
materials and wastes. In particular, we are subject to laws, rules and regulations governing the handling and disposal of biohazardous materials used in the development and testing of our products. Although we believe that we have complied with these laws and regulations in all material respects and have not been required to take any action to correct any noncompliance, we may have to incur significant costs to comply with environmental regulations if our manufacturing to commercial levels continues to increase. In addition, if a government agency determines that we have not complied with these laws, rules and regulations, we may have to pay significant fines and/or take remedial action that would be expensive.
OUR STOCK PRICE IS HIGHLY VOLATILE AND INVESTING IN OUR STOCK INVOLVES A HIGH DEGREE OF RISK
The market price of our common stock, like the securities of many other medical products companies, fluctuates over a wide range, and will likely continue to be highly volatile in the future. The following factors may affect the market price of our common stock:
1. fluctuation in our operating results;
2. announcements of technological innovations or new commercial products by us or our competitors;
3. changes in governmental regulation;
4. prospects and proposals for health care reform;
5. governmental or third party payors' controls on prices that our customers may pay for our products;
6. developments or disputes concerning patent or our other proprietary rights;
7. public concern as to the safety of our devices or similar devices developed by our competitors; and
8. general market conditions.
Because our stock price is so volatile, investing in our common stock is highly risky. A potential investor must be able to withstand the loss of his entire investment in our common stock.
OUR PREFERRED STOCK MAY HAVE THE EFFECT OF PREVENTING OR DELAYING A CHANGE OF CONTROL OF ABAXIS
Our Board of Directors, without shareholder approval, can issue preferred stock. The issuance of one or more series of preferred stock can (1) adversely effect the rights of the holders of our common stock, (2) can delay or prevent a change of control or (3) make it more difficult for our current shareholders to remove management. Without approval from our shareholders, in September 1996 we issued shares of Series A Preferred Stock; in July 1997 we issued shares of Series B Preferred Stock; in November 1998 we issued shares of Series C Preferred Stock; and in October 2000 we issued shares of Series D Preferred Stock.
WE DO NOT PAY DIVIDENDS
We have never paid cash dividends, and we do not anticipate paying cash dividends in the future.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any document we file at the public reference facilities of the SEC in Washington, D.C., Chicago, Illinois and New York, New York. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC filings are also available to the public from the SEC's web site at http:\\www.sec.gov.
The SEC allows us to "incorporate by reference" the information we have filed with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus and any later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any additional documents we file with the SEC until the offering
of the common stock is terminated. This prospectus is part of a registration statement on Form S-3 that we filed with the SEC. The documents that we incorporate by reference are:
(1) The description of our common stock contained in our Registration Statement on Form 8-A filed on December 11, 1991.
(2) Our Annual Report on Form 10-K for the fiscal year ended March 31, 2000, as amended.
(3) Our Quarterly Reports on Form 10-Q for the quarters ended June 30, 2000 and September 30, 2000.
(4) Our Definitive Proxy Statement for our annual meeting of shareholders filed on September 13, 2000.
(5) Our Current Report on Form 8-K filed on October 19, 2000.
(6) Our Amended Current Report on Form 8-K/A filed on January 5, 2001.
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address:
Shareholder Services Abaxis, Inc. 3240 Whipple Road Union City, California 94587 (510) 441-6161
FORWARD-LOOKING INFORMATION
This prospectus and the documents that we are incorporating by reference contain forward-looking statements. We base these statements on our current expectations, estimates and projections about our industry. Either the beliefs of our management, or the assumptions that they make, form the basis for those expectations, estimates and projections. The safe harbor created by Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 generally protects Abaxis and the selling shareholders from liability for these statements. You can often recognize such forward-looking statements by words such as "anticipates," "expects," "intends," "plans," "believes," "seeks," "estimates," and variations of such words and similar expressions.
These forward-looking statements do not guarantee future performance and are subject to risks, uncertainties and assumptions that are difficult to predict. The "Risk Factor" section starting on page two of this prospectus sets forth some of such risks and uncertainties. The documents that we have incorporated by reference in this prospectus may also set forth risks and uncertainties. These risks and uncertainties could cause actual results to differ materially and adversely from those that we have discussed in the forward-looking statements. We do not undertake an obligation to publicly update any of these forward-looking statements to reflect new information or future events.
USE OF PROCEEDS
We will not receive any proceeds from the sale of common stock by any of the selling shareholders.
SELLING SHAREHOLDERS
The selling shareholders will hold shares of common stock that are issuable upon conversion of the Series D Preferred Stock and upon the exercise of warrants to acquire shares of common stock.
SERIES D PREFERRED STOCK
We sold an aggregate of 6,578 shares of our Series D Convertible Preferred Stock to certain non-U.S. purchasers on October 4, 2000 and November 23, 2000. The 6,578 shares of Series D Preferred Stock may convert into 943,270 shares of our common stock based upon an initial conversion rate determined by multiplying the number of Series D Preferred Stock shares sold by $1,000 and dividing the resultant number by $7.00, the original conversion price for the Series D Preferred Stock. The conversion price may
be adjusted to reflect any stock dividends, stock splits, stock combinations, recapitalizations or similar events. The Series D Preferred Stock will automatically convert into Common Stock on the earlier of any date following October 4, 2001 when the price of our common stock as reported on the Nasdaq National Market System has exceeded $14.00 or on October 4, 2005. However, should the price of our common stock as reported on the Nasdaq National Market System on the first date after October 4, 2005 be below $7.00 per share, then the Series D Preferred Stock shall convert no later than October 4, 2006. Shares of Series D Preferred Stock have no voting rights other than those required by the General Corporation Law of the State of California.
NUMBER OF SHARES OF COMMON STOCK THAT WE MAY ISSUE
Assuming the full conversion of the Series D Preferred Stock and the exercise of outstanding warrants to purchase 478,900 shares of our Common Stock issued in connection with the sale of the Series D Preferred Stock, we would issue or have issued 1,422,710 shares of our common stock to the selling shareholders and these 1,422,710 shares would represent approximately 8% of our outstanding capital stock as of December 31, 2000.
SELLING SHAREHOLDER TABLE
The table below lists, in each case as of December 31, 2000:
1. the name of each selling shareholder;
2. the number of shares each selling shareholder beneficially owns, assuming the full conversion of the Series D Preferred Stock and the exercise of all outstanding warrants to purchase our Common Stock issued in connection with the Sale of the Series D Preferred Stock;
3. how many shares of common stock the selling shareholder may resell under this prospectus; and
4. assuming each selling shareholder sells all the shares listed next to its name, how many shares of common stock each selling shareholder will beneficially own after completion of the offering.
Beneficial ownership is determined in accordance with rules promulgated by the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. This table is based upon information supplied to us by officers, directors and principal shareholders. Except as otherwise indicated, Abaxis believes that the persons or entities named in the table have sole voting and investment power with respect to all shares of the common stock shown as beneficially owned by them, subject to community property laws where applicable.
In order to prevent dilution to the selling shareholders, these numbers may also change because of (1) stock splits, (2) stock dividends or (3) similar events involving our common stock.
We may amend or supplement this prospectus from time to time in the future to update or change this list of selling shareholders and shares which may be resold.
BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP
PRIOR TO THE OFFERING SHARES TO BE AFTER THE OFFERING
---------------------- SOLD IN THE -----------------------
SELLING SHAREHOLDER SHARES PERCENT OFFERING SHARES PERCENT
------------------- --------- --------- ------------ ------------ -------
Banca del Gottardo...................... 578,571 578,571 3.3%
Viale S. Franscini 8
6900 Lugano
Switzerland
NeoMed Innovations ASA.................. 422,541 2.7% 96,428 518,969 3.0
Parkveien I5
0256 Oslo
Norway
NeoMed Fund............................. 192,857 192,857 1.1
Parkveien 55
0256 Oslo
Norway
Vladimir Ostoich........................ 29,314 29,314 1.0
Chief Executive Officer
Mosely Limited Partnership.............. 28,928 28,928 *
Laddie John Dill........................ 4,821 4,821 *
Frederick Gardner....................... 9,462 9,462 *
G. Tilton Gardner....................... 9,642 9,462 *
Peter Koepke............................ 9,642 9,462 *
Michael Pressman........................ 19,285 19,285 *
Silk, Inc. ............................. 4,821 4,821 *
Martha Aron Trust....................... 9,642 9,462 *
Affiliate of Our Vice President,
Research and Development
Ronald and Laurette Blasig.............. 19,285 19,285 *
Michael Mercer.......................... 8,392 8,392 *
Vice President, Domestic Marketing and
Sales
Robert Milder........................... 3,857 3,857 *
Vice President, Operations
Clinton H. Severson..................... 29,507 29,507 *
Chairman of the Board of Directors,
President and Chief Executive Officer
OMT Capital Management.................. 14,464 14,464 *
E. Brooke Alexander..................... 9,642 9,642 *
Argossey, Ltd. ......................... 15,621 15,621 *
Johnny Barbis........................... 4,821 4,821 *
Robert Lee Biggs........................ 19,285 19,285 *
Peter Colgan............................ 9,642 9,642 *
G. Tilton Gardner....................... 35,678 35,678 *
Stephen Genender........................ 4,821 4,821 *
Louis Horwitz........................... 9,642 9,642 *
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BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP
PRIOR TO THE OFFERING SHARES TO BE AFTER THE OFFERING
---------------------- SOLD IN THE -----------------------
SELLING SHAREHOLDER SHARES PERCENT OFFERING SHARES PERCENT
------------------- --------- --------- ------------ ------------ -------
Edward Kitchen.......................... 54,000 54,000 *
IRA FBO James McPhail................... 4,821 4,821 *
Odyssey Venture Partners LP............. 15,814 15,814 *
Oxcal Venture Partners.................. 19,285 19,285 *
Gruntal Securities...................... 150,000 150,000 *
Total.............................. 1,422,170
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PLAN OF DISTRIBUTION
The selling shareholders may sell their shares of common stock in one or more transactions, which may involve block transactions,
1. on the Nasdaq National Market;
2. on such other markets on which our common stock may from time to time be trading;
3. in privately-negotiated transactions;
4. through the writing of options on the shares of common stock, short sales or any combination of the two.
The selling shareholders may sell at market prices at the time of sale, at prices related to the market price or at negotiated prices. It is possible that a selling shareholder will attempt to sell shares of common stock in block transactions to market makers or other purchasers at a price per share which may be below the then current market price. Some or all of the shares of common stock offered by this prospectus may not be issued to, or sold by, the selling shareholders.
The selling shareholders and any brokers, dealers or agents, upon effecting the sale of any of the shares of common stock, may be deemed to be "underwriters" as that term is defined under the Securities Act of 1933 or the Securities Exchange Act of 1934, or the rules and regulations thereunder. In addition, the selling shareholders and any other persons participating in the sale or distribution of the shares of common stock will be subject to applicable provisions of the Securities Exchange Act of 1934 and the rules and regulations thereunder. These provisions may limit the timing of purchases and sales of any of common stock by the selling shareholders or any other such person. The foregoing may affect the marketability of the shares of common stock.
We have agreed to use our best efforts to keep the Registration Statement, of which this prospectus constitutes a part, effective until the earlier of (1) the date when the selling shareholders have resold all of the shares of their registered common stock pursuant to Rule 144, Regulation S or an effective registration statement or (2) one year from the date that the SEC declares the Registration Statement effective.
LEGAL MATTERS
Gray Cary Ware & Freidenrich LLP will issue an opinion about the legality of the shares for us.
EXPERTS
The financial statements and the related financial statement schedule incorporated in this prospectus by reference from the Company's Annual Report on Form 10-K for the year ended March 31, 2000 have been audited by Deloitte & Touche LLP, independent auditors, as stated in their reports, which are incorporated herein by reference, and have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
No one (including any salesman or broker) is authorized to provide oral or written information about this offering that is not included in this prospectus.
ABAXIS, INC.
1,422,170 Shares of
Common Stock
January 10, 2001
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses, other than the underwriting discounts and commissions payable by the Registrant in connection with the sale of the Common Stock being registered. All amounts shown are estimates except for the registration fee and the NASD filing fee.
AMOUNT TO BE
PAID
------------
Registration fee............................................ $ 2,112.72
Nasdaq National Market additional listing fee............... --
Printing expenses........................................... 5,000
Legal fees and expenses..................................... 20,000
Accounting fees and expenses................................ --
Transfer agent and registrar fees........................... --
Miscellaneous expenses...................................... 2,887.28
----------
Total..................................................... $30,000.00
==========
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation (Exhibit 3.1) and Bylaws (Exhibit 3.2) provide that the Company shall indemnify its directors, officers, employees, and agents to the full extent permitted by California law, including in circumstances in which indemnification is otherwise discretionary under California law. In addition, the Company has entered into separate indemnification agreements (Exhibit 10.1) with its directors and officers which would require the Company, among other things, to indemnify them against certain liabilities which may arise by reason of their status or service (other than liabilities arising from willful misconduct of a culpable nature) to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified, and to maintain directors' and officers' liability in reasonable amounts. The Company currently has directors' and officers' liability insurance in the amount of $4 million per occurrence or per year.
These indemnification provisions may be sufficiently broad to permit indemnification of the Registrant's officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
3.1 Restated Articles of Incorporation(4)(7)
3.2 By-laws(1)
3.3 Certificate of Determination(9)
3.4 Certificate of Correction of the Certificate of
Determination
5.1 Opinion and Consent of Gray Cary Ware & Freidenrich LLP
10.1 1989 Stock Option Plan as amended and forms of agreement(3)
10.2 1992 Outside Directors Stock Option Plan and forms of
agreement(4)
10.3 401(k) Plan(1)
10.4 Exclusive Distribution Agreement dated September 20, 1991
between the Company and Teramecs(1)(2)
10.5 Sponsored Research Agreement dated as of September 20, 1991
between the Company and Teramecs(1)(2)
10.6 Development Agreement between the Company and Becton
Dickinson and Company (through its Becton Dickinson
Immunocytometry Systems Division) dated April 9, 1993(4)(5)
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
10.7 Supply Agreement between the Company and Becton Dickinson
and Company (through its Becton Dickinson Immunocytometry
Systems Division) dated September 16, 1994(5)(6)
10.8 Licensing agreement between the Company and Pharmacia
Biotech, Inc. dated October 1, 1994(5)(6)
10.9 Employment Agreement with Mr. Clinton H. Severson dated
March 31, 1997(8)
10.10 Lease Agreement with Principal Development Investors, LLC,
dated June 21, 2000
10.11 Registration Rights Agreement dated July 18, 1997 between
the Company and certain shareholders(9)
10.12 Securities Purchase Agreement dated July 18, 1997 between
the Company and certain shareholders(10)
21.1 Subsidiaries of Registrant
23.1 Independent Auditors' Consent
23.2 Consent of Gray Cary Ware & Freidenrich LLP. Reference is
made to Exhibit 5.1
24.1 Power of Attorney (see signature page)
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(2) Confidential treatment of certain portions of these agreements has been granted.
(3) Incorporated by reference to the exhibit filed with the Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1992.
(4) Corporated by reference to the exhibit filed with the Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1993.
(5) Confidential treatment of certain portions of these agreements has been granted.
(6) Incorporated by reference to the exhibit filed with the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1994.
(7) Incorporated by reference to the exhibit filed with the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 1996.
(8) Incorporated by reference to the exhibit filed with the Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1997.
(9) Incorporated by reference to the Company's Current Report on Form 8-K filed October 19, 2000.
(10) Incorporated by reference to the Company's Amended Current Report on Form 8-K/A filed January 5, 2000.
All Schedules have been omitted because the information required to be set forth therein is not applicable or is shown in the Financial Statements or notes thereto.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification by the Registrant for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referenced in Item 14 of this Registration Statement or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, the
II-2
Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
- For purposes of determining any liability under the Securities Act, the information omitted from the form of Prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective; and
- For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of Prospectus shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Union City, State of California, on January 10, 2001.
ABAXIS, INC.
By: /s/ CLINTON S. SEVERSON
--------------------------------------
Clinton S. Severson
President and Chief Executive Officer
(Principal Executive Officer)
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POWER OF ATTORNEY
Each of the officers and directors of Abaxis, Inc. whose signature appears below hereby constitutes and appoints Clinton S. Severson and Donald Stewart, and each of them, his true and lawful attorneys and agents, each with full power of substitution, and each with power to act alone, to sign on behalf of the undersigned any amendment or amendments to this Registration Statement on Form S-3 (including post-effective amendments) and any and all new registration statements filed pursuant to Rule 462 under the Securities Act of 1933, as amended, in connection with or related to the offering contemplated by this Registration Statement, as amended, and to perform any acts necessary in order to file such amendments or registration statements, with exhibits thereto and other documents in connection therewith, and each of the undersigned does hereby ratify and confirm his signature as it may be signed by his said attorney and agent to any and all such documents and all that said attorneys and agents, or their or his substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the date indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ CLINTON S. SEVERSON Chairman of the Board, January 10, 2001
----------------------------------------------------- President and Chief Executive
Clinton S. Severson Officer
/s/ DONALD STEWART Vice President, Finance & January 10, 2001
----------------------------------------------------- Administration, Chief
Donald Stewart Financial Officer and
Principal Accounting Officer
/s/ RICHARD BASTIANI Director January 10, 2001
-----------------------------------------------------
Richard Bastiani
/s/ BRENTON G. A. HANLON Director January 10, 2001
-----------------------------------------------------
Brenton G. A. Hanlon
/s/ PRITHIPAL SINGH, PH.D. Director January 10, 2001
-----------------------------------------------------
Prithipal Singh, Ph.D.
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II-4
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ERNEST S. TUCKER Director January 10, 2001
-----------------------------------------------------
Ernest S. Tucker
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
3.1 Restated Articles of Incorporation(4)(7)
3.2 By-laws(1)
3.3 Certificate of Determination(9)
3.4 Certificate of Correction of the Certificate of
Determination
5.1 Opinion and Consent of Gray Cary Ware & Freidenrich LLP
10.1 1989 Stock Option Plan as amended and forms of agreement(3)
10.2 1992 Outside Directors Stock Option Plan and forms of
agreement(4)
10.3 401(k) Plan(1)
10.4 Exclusive Distribution Agreement dated September 20, 1991
between the Company and Teramecs(1)(2)
10.5 Sponsored Research Agreement dated as of September 20, 1991
between the Company and Teramecs(1)(2)
10.6 Development Agreement between the Company and Becton
Dickinson and Company (through its Becton Dickinson
Immunocytometry Systems Division) dated April 9, 1993(4)(5)
10.7 Supply Agreement between the Company and Becton Dickinson
and Company (through its Becton Dickinson Immunocytometry
Systems Division) dated September 16, 1994(5)(6)
10.8 Licensing agreement between the Company and Pharmacia
Biotech, Inc. dated October 1, 1994(5)(6)
10.9 Employment Agreement with Mr. Clinton H. Severson dated
March 31, 1997(8)
10.10 Lease Agreement with Principal Investors, LLC, dated June
21, 2000
10.11 Registration Rights Agreement dated July 18, 1997 between
the Company and certain shareholders(9)
10.12 Securities Purchase Agreement dated July 18, 1997 between
the Company and certain shareholders(10)
23.1 Independent Auditors' Consent
23.2 Consent of Gray Cary Ware & Freidenrich LLP. Reference is
made to Exhibit 5.1
24.1 Power of Attorney (see signature page)
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(2) Confidential treatment of certain portions of these agreements has been granted.
(3) Incorporated by reference to the exhibit filed with the Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1992.
(4) Incorporated by reference to the exhibit filed with the Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1993.
(5) Confidential treatment of certain portions of these agreements has been granted.
(6) Incorporated by reference to the exhibit filed with the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1994.
(7) Incorporated by reference to the exhibit filed with the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 1996.
(8) Incorporated by reference to the exhibit filed with the Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1997.
(9) Incorporated by reference to the Company's Current Report on Form 8-K filed October 19, 2000.
(10) Incorporated by reference to the Company's Amended Current Report on Form
8-K/A filed January 5, 2000.
EXHIBIT 3.4
CERTIFICATE OF CORRECTION
OF THE
CERTIFICATE OF DETERMINATION
OF
ABAXIS, INC.
The undersigned, Donald Stewart, hereby certifies that:
1. He is the Chief Financial Officer and Secretary of Abaxis, Inc., a California corporation.
2. The instrument being corrected is entitled "CERTIFICATE OF DETERMINATION OF RIGHTS PREFERENCES, PRIVILEGES AND RESTRICTIONS OF SERIES D PREFERRED STOCK OF ABAXIS, INC." and said instrument was filed with the Secretary of State of the State of California on September 22, 2000.
A. Section 2, subsection 2 of such Certificate of Determination reads in full as follows:
"Dividends. Each holder of record of a share of Series D Preferred Stock shall be entitled to receive, out of any assets at the time legally available therefore, a dividend of Seventy Dollars ($70.00) per share per annum, payable on April 1st and September 1st of each year but which amount shall be prorated to the extent a share of Preferred Stock is issued and outstanding for less than such biannual period. The right to the dividends on the Series D Preferred Stock described in the preceding sentence shall be cumulative. The Corporation will pay such dividends either in cash or by issuing shares of the Corporation's Common Stock ("Common Stock") having the Market Value (as defined below) equal to such dividends, at the option of the Board of Directors of the Corporation. If the Corporation elects to pay such dividends by issuing Common Stock, the "Market Value" of such Common Stock will be the average of the closing sale prices of the Corporation's Common Stock as reported on the Nasdaq National Market System for the Five (5) trading days prior to the record date for such dividend. A holder of Series D Preferred Stock who would otherwise be entitled to receive a fraction of a share of Common Stock under this Section 2 (taking into account all shares of Series D Preferred Stock held by such holder) shall receive, in lieu thereof, an amount equal to the product of such fractional interest multiplied by the Market Value. No dividends or distributions shall be made with respect to the Common Stock unless at the same time an equivalent dividend with respect to the Series D Preferred Stock has been paid or declared and set apart for payment."
B. Section 2, subsection 2 of such Certificate of Determination, as corrected, should read in full as follows:
"Dividends. Each holder of record of a share of Series D Preferred Stock shall be entitled to receive, out of any assets at the time legally available therefore, a dividend of Seventy Dollars ($70.00) per share per annum, payable on April 1st and OCTOBER 1st of each year but which amount shall be prorated to the extent a share of Preferred Stock is issued and outstanding for less than such biannual period. The right to the dividends on the Series D Preferred Stock described in the preceding sentence shall be cumulative. The Corporation will pay such dividends either in cash or by issuing shares of the Corporation's Common Stock ("Common Stock") having the Market Value (as defined below) equal to such dividends, at the option of the Board of Directors of the Corporation. If the Corporation elects to pay such dividends by issuing Common Stock, the "Market Value" of such Common Stock will be the average of the closing sale prices of the Corporation's Common Stock as reported on the Nasdaq National Market System for the Five (5) trading days prior to the record date for such dividend. A holder of Series D Preferred Stock who would otherwise be entitled to receive a fraction of a share of Common Stock under this Section 2 (taking into account all shares of Series D Preferred Stock held by such holder) shall receive, in lieu thereof, an amount equal to the product of such fractional interest multiplied by the Market Value. No dividends or distributions shall be made with respect to the Common Stock unless at the same time an equivalent dividend with respect to the Series D Preferred Stock has been paid or declared and set apart for payment."
C. That said Section 2, subsection 2, as corrected, does not alter the wording of any resolution or written consent which was adopted by the Board of Directors or shareholders.
The undersigned further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of their own knowledge.
Date: January 10, 2001
/s/ Donald Stewart
-------------------------------
Donald Stewart, Chief Financial
Officer and Secretary
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EXHIBIT 5.1
January 4, 2001
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: ABAXIS, INC. REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
As legal counsel for Abaxis, Inc., a California corporation (the "Company"), we are rendering this opinion in connection with the preparation and filing of a registration statement on Form S-3 (the "Registration Statement") relating to the registration under the Securities Act of 1933, as amended, of 1,422,710 shares of Common Stock, no par value (the "Common Stock"), consisting of 943,270 shares of Common Stock issuable by the Company upon the conversion of shares of the Company's Series D Convertible Preferred Stock issued to certain selling shareholders (the "Conversion Shares") and 478,900 shares of Common Stock issuable by the Company upon the exercise of warrants issued and outstanding (the "Warrant Shares").
We have examined such instruments, documents and records as we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. Based on such examination, we are of the opinion that the 1,422,710 shares of Common Stock of the Company being registered pursuant to the Registration Statement and to be sold by the selling shareholders are duly authorized shares of Common Stock and the Conversion Shares (if and when issued upon conversion of the shares of the Company's Series D Convertible Preferred Stock in accordance with the Company's Certificate of Determination) and the Warrant Shares (if and when issued upon the exercise of the warrants in accordance with their terms) will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and the use of our name wherever it appears in said Registration Statement. This opinion is to be used only in connection with the issuance of the Common Stock while the Registration Statement is in effect.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich LLP ------------------------------------------ GRAY CARY WARE & FREIDENRICH LLP |
EXHIBIT 10.10
LEASE AGREEMENT
BASIC LEASE INFORMATION
LEASE DATE: June 21, 2000
LANDLORD: PRINCIPAL DEVELOPMENT INVESTORS, LLC,
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: ABAXIS, INC.,
a California corporation
TENANT'S ADDRESS: 1320 Chesapeake Terrace
Sunnyvale, California 94089
PREMISES: Approximately 91,124 rentable square feet, which is the entirety of Building E as shown
on Exhibit A
PREMISES ADDRESS: 3240 Whipple Road
Union City, California 94587
BUILDING E: Approximately 91,124 rentable square feet
LOT: The tax parcel upon which Building E is situated
PARK: CROSSROADS TECHNOLOGY PARK: Approximately 322,238 rentable square feet
PHASE I: Approximately 233,298 rentable square feet
TERM: January 1, 2001 ("Commencement Date"), through
December 31, 2010 ("Expiration Date")
BASE RENT (Para. 3): Sixty Eight Thousand Three Hundred Forty-Three and 00/100 Dollars ($68,343.00) per month
ADJUSTMENTS TO BASE RENT: Commencing on January 1, 2002, the monthly Base Rent shall increase to $71,076.72;
Commencing on January 1, 2003, the monthly Base Rent shall increase to $73,919.79;
Commencing on January 1, 2004, the monthly Base Rent shall increase to $76,876.58;
Commencing on January 1, 2005, the monthly Base Rent shall increase to $79,951.64;
Commencing on January 1, 2006, the monthly Base Rent shall increase to $83,149.71;
Commencing on January 1, 2007, the monthly Base Rent shall increase to $86,475.70;
Commencing on January 1, 2008, the monthly Base Rent shall increase to $89,934.73;
Commencing on January 1, 2009, the monthly Base Rent shall increase to $93,532.12; and
Commencing on January 1, 2010, the monthly Base Rent shall increase to $97,273.40.
ADVANCE RENT (Para. 3): Eighty Four Thousand One Hundred Ninety-Eight and 58/100 Dollars ($84,198.58)
COLLATERAL FOR TENANT'S
PERFORMANCE UNDER THE
LEASE (Para. 4): Refer to Section 4 herein.
|
*TENANT'S SHARE OF OPERATING EXPENSES (Para. 6.1): 100% of the Building
*TENANT'S SHARE OF TAX EXPENSES (Para. 6.2): 100% of the Building
*TENANT'S SHARE OF COMMON AREA UTILITY COSTS (Para. 7.2): 100% of the Building
*TENANT'S SHARE OF UTILITY EXPENSES (Para. 7.1): 100% of the Building
*The amount of Tenant's Share of the expenses as referenced above shall be subject to modification as set forth in this Lease.
PERMITTED USES (Para. 9): Office, biotechnology/pharmaceutical R&D, manufacturing, and related warehousing, but only to the extent
permitted by the City of Union City, California, and all agencies and governmental authorities having
jurisdiction thereof
PARKING SPACES: Two hundred forty-six (246) non-exclusive and non-designated spaces (to be confirmed by Landlord's
architect subject to final space plan).
BROKER (Para. 33): BT Commercial and Technology Commercial for Tenant
BT Commercial 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 (Intentionally omitted)
Exhibit E - Tenant's Initial Hazardous Materials Disclosure Certificate
Exhibit F - Change of Commencement Date - Example
Exhibit G - Sign Criteria (Intentionally omitted)
Exhibit H - Letter of Credit
Exhibit I - Tenant's Property
Exhibit J - Subordination, Non-Disturbance and Attornment Agreement
ADDENDA: Addendum 1 - Option to Extend the Lease Term
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TABLE OF CONTENTS
SECTION PAGE 1. Premises....................................................................................3 2. Occupancy; Adjustment of Commencement Date..................................................3 3. Rent........................................................................................3 4. Collateral for Tenant's Performance Under the Lease/Letter of Credit........................3 5. Condition of Premises; Tenant Improvements..................................................4 6. Additional Rent.............................................................................5 7. Utilities and Services......................................................................7 8. Late Charges................................................................................7 9. Use of Premises.............................................................................8 10. Alterations; and Surrender of Premises......................................................8 11. Repairs and Maintenance.....................................................................9 12. Insurance..................................................................................10 13. Limitation of Liability and Indemnity......................................................11 14. Assignment and Subleasing..................................................................11 15. Subordination..............................................................................13 16. Right of Entry.............................................................................14 17. Estoppel Certificate.......................................................................14 18. Tenant's Default...........................................................................14 19. Remedies for Tenant's Default..............................................................15 20. Holding Over...............................................................................16 21. Landlord's Default.........................................................................16 22. Parking....................................................................................16 23. Transfer of Landlord's Interest............................................................16 24. Waiver.....................................................................................16 25. Casualty Damage............................................................................16 26. Condemnation...............................................................................18 27. Environmental Matters/Hazardous Materials..................................................18 28. Financial Statements.......................................................................19 29. General Provisions:........................................................................20 30. Signs......................................................................................21 31. Mortgagee Protection.......................................................................21 32. Warranties of Tenant.......................................................................21 33. Brokerage Commission.......................................................................21 34. Quiet Enjoyment............................................................................22 |
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 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.
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 is actually
tendered to Tenant 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.
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, 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 beginning the second (2nd) month of the Term of the Lease (provided, however, that Landlord has actually received the Advance Rent as provided herein). 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. COLLATERAL FOR TENANT'S PERFORMANCE UNDER THE LEASE/LETTER OF CREDIT
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 County of Santa Clara, California, running in favor of Landlord issued by a solvent nationally recognized bank with a long term rating of BBB or higher, or as otherwise agreed in writing by Landlord, under the supervision of the Superintendent of Banks of the State of California, or a National Banking Association, in the amount of Eight hundred Twenty Thousand One Hundred Sixteen Dollars ($820,116.00) (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) in substantially the form of Exhibit H attached hereto with the certification portion thereof being the same as set forth in Exhibit H hereto, and (e) fully assignable by Landlord and permit partial draws. Additionally, provided Tenant has not been in default of this Lease beyond applicable notice and cure periods for the previous consecutive twenty-four (24) month period, the face amount of the Letter of Credit may be reduced as follows: (i) at any time after the twenty-fourth (24th) month of the Term, and provided Tenant has earned a cumulative net profit in excess of Two Million Dollars ($2,000,000.00) for the four (4) previous quarters (as reported in Tenant's audited financial statements), the face amount of the Letter of Credit shall be reduced to Four Hundred Ten Thousand Fifty-eight Dollars ($410,058.00); and (ii)
at any time after the date which is thirty-six (36) months after the face amount
of the Letter of Credit is reduced as provided in (i) above, provided Tenant has
earned a cumulative net profit in excess of Two Million Dollars ($2,000,000.00)
for the four (4) previous quarters (as reported in Tenant's audited financial
statements), the face amount of the Letter of Credit shall be reduced to
Ninety-seven Thousand Two Hundred Seventy-Three Dollars ($97,273.00). 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 4. 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 Eight hundred Twenty Thousand One Hundred Sixteen Dollars
($820,116.00) (or such lesser amount as may be permitted in accordance with this
Section 4), Tenant shall within five (5) business days of Landlord's written
notice (such notice to be given pursuant to Section 29.9 herein) 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 Eight
hundred Twenty Thousand One Hundred Sixteen Dollars ($820,116.00) (or such
lesser amount as may be permitted in accordance with this Section 4) and each
such additional (or replacement) letter of credit shall comply with all of the
provisions of this Section 4, and if Tenant fails to do so, notwithstanding
anything to the contrary contained in Section 18 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 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 4, Landlord shall have the right to present such Letter of Credit to the
bank in accordance with the terms of this Section 4, 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 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.
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.
Landlord shall cause the existing plumbing, electrical systems, fire sprinkler
system, lighting, HVAC and loading doors in the Premises (other than those
constructed by Tenant or Tenant's Representatives) (hereinafter "Building
Components") to be in good operating condition on the Commencement Date of this
Lease. Except as otherwise provided in this Lease, should any of the Building
Components not be in good operating condition on the Commencement Date, then
Landlord, within a commercially reasonable time period after receipt of written
notice from Tenant setting forth with specificity the nature and extent of such
non-compliance, shall rectify such non-compliance at no expense to Tenant. If
Tenant does not give Landlord written notice of a non-compliance within thirty
(30) days after the Commencement Date of this Lease (except for HVAC
non-compliance, in which event Tenant shall have sixty (60) days to notify
Landlord), then Landlord and Tenant agree that the Building Components shall be
deemed to be in good operating condition, and Landlord shall have no
responsibility for the costs and expenses related to any non-compliance of any
of the Building Components. Tenant shall have the benefit of any warranties on
the Building Components that are in effect as of the Commencement Date of the
Lease.
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 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 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 commercially reasonable 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 Lease 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 commercially reasonable property
management fee, 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
Building, if and to the extent, in Landlord's sole discretion, such services are
provided; (viii) the creation and modification of any rail spur or track
agreements, 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 and any
reasonable reserves established 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)
except for ADA Work (defined below) performed as part of the Tenant Improvements
pursuant to Exhibit B hereto and charged against the Tenant Improvement
Allowance, 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"); 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.
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 actually reimbursed by insurance or by direct reimbursement by any other tenant of the Project; (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 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) reports, points, fees and
other lender costs and closing costs on any mortgage or mortgages, or other debt
instruments encumbering the Premises, the Building, the Phase or the Park;
(xiii) any items for which Landlord is reimbursed by insurance; (xiv) leasing.
commissions advertising and promotional expenses and any other costs of
disbursements incurred in connection with the original leasing of the Premises,
the Building, the Phase or the Park, or future re-leasing of same; (xv)
Landlord's general corporate or partnership overhead and general administrative
expenses; the cost of signs identifying the Landlord and tenants of the Park
(except for directory signs identifying tenants of the Park, which shall be
included in Operating Expenses as provided in Section 6.1.1 herein); (xvi)
non-recurring costs to remedy structural defects in original construction
materials or installations in the Premises, Building, Phase or the Park; (xvii)
costs incurred in installing, operating and maintaining any specialty service
that is not industry-standard for comparable buildings in the San Francisco East
Bay, provided that this exclusion shall not apply to such services that are
required by Law; charitable or political contributions made by Landlord; (xviii)
fees or dues payable to trade associations and industry associations; (xix)
entertaining, dining or travel expenses (other than those expenses reasonably
incurred in connection with the maintenance and operation of all or any portion
of the Premises, the Building, the Phase or the Park; and (xx) flowers, gifts,
balloons or similar items provided to Tenant, other tenants, employees, vendors,
contractors, prospective tenants or agents.
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 twenty (20) 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. 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 provided, however, prior to such deduction, Landlord shall first give Tenant thirty (30) days from the date of Landlord's invoice therefor to pay such underpayment. 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, attorneys, and other professional advisors and, unless litigation ensues between the parties, 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 five percent (5%) of the total of such costs and expenses, 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, not to exceed $2,000.00. However, if through such audit it is determined that there is a discrepancy of five percent (5%) 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, not to exceed $2,000.00.
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. If Tenant disputes any such estimate or determination, then Tenant shall either pay the estimated amount or cause the Premises to be separately metered at Tenant's sole expense. 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 second 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 real property taxes on the Premises.
Therefore, if any installment of Rent or any other sum payable by Tenant is not
received by Landlord within five (5) business days of the due date, Tenant shall
promptly pay to Landlord a late charge, as liquidated damages, in an amount
equal to five percent (5%) of such delinquent amount for the first instance
during any calendar year, seven percent (7%) for the second (2nd) instance
during any calendar year and ten percent (10%) for the third (3rd) instance in
any calendar year in which Landlord does not receive Rent within such
five-business-day period plus interest on such delinquent amount at the rate
equal to the prime rate plus three percent (3%) for every month or portion
thereof after the first thirty (30) days that such sums remain unpaid.
Notwithstanding the foregoing, Landlord waives the late charge for the first
(1st) instance 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 and consistent 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 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"). 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 the Premises. Tenant agrees to sign any documents reasonably requested by
Landlord to effectuate any such easements, rights, dedications, maps or
restrictions. Tenant agrees to, and does hereby, assume full and complete
responsibility to ensure that the Premises, including without limitation, the
Tenant Improvements, are in compliance with all applicable Laws throughout the
Term of this Lease. Additionally, 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 regardless of when such Laws became effective. 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.
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; provided, however, notwithstanding the foregoing, if Tenant permissibly uses the Premises for the purposes allowed by the provisions of this Lease and such permissible use increases the rate of premiums paid for such insurance, then Tenant shall not be considered in breach of the foregoing restriction so long as Tenant agrees to pay, and actually does promptly pay, as Additional Rent any such increase in the rate of, or premiums for, such insurance. No auctions 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 or suffer to be committed 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. 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. 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 be permitted to make, at its sole cost and expense, non-structural alterations and additions to the interior of the Premises and alterations and additions not visible from the exterior of the Premises without obtaining Landlord's prior written consent, provided the cost of same does not exceed $20,000.00 each job and $30,000.00 cumulatively each calendar year except for recarpeting, which shall not exceed $40,000.00 in any one (1) calendar year, (the "Permitted Improvements"). Tenant, however, shall first notify Landlord of such alterations or additions so that Landlord may post a Notice of Non-Responsibility on the Premises. Within ten (10) business days of Landlord's receipt of Tenant's written notice of any item comprising the Permitted Improvements and at the time that Landlord's consent is given as to any alterations for which Landlord's consent is required, Landlord shall notify Tenant, in writing, whether or not Landlord will required Tenant to remove such item from the Premises upon the expiration or
earlier termination of this Lease. Except for the Permitted Improvements, 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 so long as any such Alteration does not affect the Building systems or the structural integrity of the Premises or the Building. 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.
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, and normal wear and tear excepted), but with 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 the Permitted Improvements (to the extent Landlord has notified Tenant in writing of such removal as required in Section 10.1 above) 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 notice to Tenant given not later than ninety (90) 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 as to which Landlord notified Tenant, at the time of consent, that removal would be required; 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, including, but not limited to, Tenant's property set forth on Exhibit I hereto. 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, which consent shall not
be withheld unreasonably.
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, 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), and (b) replace the structural portions of the roof of the Building (excluding the roof membrane).
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 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 flood, earthquake, and 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.
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, and insuring for loss of
rents for a period of at least nine (9) months commencing on the date of such
loss. However, all alterations, additions and improvements made to the Premises
by Tenant (other than the Tenant Improvements) 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. At Landlord's
option, 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 Building and/or any other buildings within the Park 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.
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 reasonably 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.
14. ASSIGNMENT AND SUBLEASING
14.1 PROHIBITION: Except to a Related Entity in accordance with the provisions of Section 14.8 below, 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 (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 other than a transfer to a Related Entity, 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; (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 registered or certified mail addressed to Landlord at Landlord's Address specified in the Basic Lease Information. Within thirty (30) 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 requested proposed Transfer and the election to recapture as set forth in Section 14.5 below. 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 thirty (30) 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
conditions contained in such consent, (d) the proposed Transferee does not
intend to occupy a substantial portion 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, (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) either the proposed Transferee, or
any person or entity which directly or indirectly, controls, is controlled by,
or is under common control with, the proposed Transferee: (i) occupies space in
the Building at the time of the request for consent, or (ii) is negotiating with
Landlord to lease space in the Building at such time, (k) the Transfer occurs
during the time period between the Commencement Date and the date that at least
ninety percent (90%) of the rentable square feet of the Building is leased, (l)
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 quoted 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 (m) 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 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 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. Except for a Transfer to a Related Entity as provided herein, 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 seven hundred fifty dollars ($750) plus Tenant shall promptly reimburse Landlord for actual reasonable legal and other expenses incurred by Landlord in connection with any actual or proposed Transfer.
14.5 RECAPTURE: Except with respect to a Transfer to a Related Entity in accordance with 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 thirty-five percent (35%) of the rentable square feet of the Premises, or (ii) is for a term which by itself or taken together with then existing or pending Transfers is greater than fifty percent (50%) of 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 (the "Landlord's Recapture Notice"), to recapture the Subject Space described in the Tenant's Notice. If within fifteen (15) days of Landlord's delivery to Tenant of the Landlord's Recapture Notice Tenant does not deliver to Landlord written notice (the "Tenant's Recapture Rescission Notice") that Tenant has elected (i) not to consummate such proposed Transfer, and (ii) to rescind the request to enter into such proposed Transfer, such Landlord's Recapture Notice 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 regarding Landlord's recapture right 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 and this Lease as so amended shall continue thereafter in full force and effect.
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 (excluding compensation for Tenant's Property as defined in this Lease) 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, fifty percent (50%) of the Transfer Premium with no deduction whatsoever for of any and all expenses and costs of Tenant related to such Transfer.
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 RELATED ENTITIES: Notwithstanding anything to the contrary contained
in this Section 14, so long as Tenant delivers to Landlord (1) at least fifteen
(15) business days prior written notice of its intention to Transfer the
Premises to any Related Entity, which notice shall set forth the name of the
Related Entity, (2) a copy of the proposed agreement pursuant to which such
Transfer shall be effectuated, and (3) such other information concerning the
Related Entity as Landlord may reasonably require, including without limitation,
information regarding any change in the proposed use of any portion of the
Premises and any financial information with respect to such Related Entity, and
so long as (i) any change in the proposed use of the subject portion of the
Premises is in conformance with the uses permitted to be made under this Lease
and do not involve the use or storage of any Hazardous Materials except as
otherwise expressly permitted under Section 29 of this Lease, and (ii) at the
time of the proposed assignment or sublease, the net profits and financial
condition of the Related Entity is reasonably adequate and sufficient in
relation to the then remaining obligations of Tenant under this Lease, then
Tenant may effect a Transfer (X) to any Related Entity, or (Y) in connection
with any merger, consolidation or sale of substantially all of the assets of
Tenant, a sale of all or substantially all of the stock of Tenant, or a public
offering of all of Tenant's stock without having to obtain the prior written
consent of Landlord thereto. For purposes of this Lease the term "Related
Entity" shall mean and refer to any corporation or entity which controls, is
controlled by or is under common control with Tenant, as all of such terms are
customarily used in the industry.
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. 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. 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 five (5) 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. Tenant hereby agrees that if at any time during the Term of this Lease, Landlord places a lien of a deed of trust against, the Premises, the Building and the Lot in favor of Principal Mutual Life Insurance Company (the "Related Lender"), Tenant shall sign, notarize and deliver a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit J attached hereto, entitled "Subordination, Non-Disturbance and Attornment Agreement." If Landlord at any time during the Term of the Lease causes the Premises, the Building and the Lot to be encumbered by a 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 Related 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 may not be the "Subordination, Non-Disturbance and Attornment Agreement" attached to the Lease as Exhibit J, but such agreement will be a similar commercially reasonable form which will not adversely affect Tenant's rights hereunder. If the foregoing occurs and/or if any party which acquires, or otherwise succeeds to, Landlord's interest in the Premises, the Building or the Lot (including without limitation, any ground lessee) encumbers or places a lien against the Premises, the Building or the Lot with a mortgage, deed of trust or similar security instrument and the beneficiary thereof requires this Lease to be subordinated to such encumbrance or lien, Landlord or the successor of Landlord will use commercially reasonable efforts to provide to Tenant a subordination, non-disturbance and attornment agreement in form reasonably acceptable to Landlord or such successor of Landlord, the subject beneficiary and Tenant. If said subordination, non-disturbance and attornment agreement is required and agreed upon by the aforesaid parties, Landlord or the successor of Landlord, the subject beneficiary and Tenant shall cause any such subordination, non-disturbance and attornment agreement to be executed, acknowledged and recorded concurrently with, or as soon as practicable after, the execution and recordation of any such lien, deed of trust or mortgage. In addition to the foregoing, if Landlord enters into a ground lease with regard to the Building and/or the Lot and such ground lessee requires this Lease to be subordinated to such ground lease, Landlord, the ground lessee and ground lessor will use commercially reasonable efforts to provide to Tenant a subordination, non-disturbance and attornment agreement in form reasonably acceptable to such Landlord, ground lessee, ground lessor, any beneficiary of ground lessee, and to Tenant.
16. RIGHT OF ENTRY
Landlord and its agents shall have the right to enter the Premises with twenty-four (24) hours' written or verbal notice at all reasonable times for purposes of inspection, exhibition, posting of notices, investigation, replacements, repair, maintenance and alteration, subject, however, to Tenant's reasonable security procedures. Tenant shall use its best efforts to cooperate with Landlord and Landlord's Representatives with respect to Landlord's right of entry herein. 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. 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 sole active gross negligence or willful misconduct of Landlord or its authorized representatives. Notwithstanding the foregoing, Landlord and its agents may enter the Premises at any time without prior notice in the event of an emergency which determination of such emergency shall be in Landlord's sole but reasonable judgment.
17. ESTOPPEL CERTIFICATE
Tenant shall execute (and acknowledge if required by any lender or ground lessor) and deliver to Landlord, within ten (10) calendar 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 (as statutorily defined) 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 within five (5) days after Landlord's delivery of written notice to Tenant that said payment is past due. Tenant agrees that any such written notice delivered by Landlord, to the fullest extent permitted by Law, shall serve as the statutorily required notice under applicable Law;
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, 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, (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, and (iv) Tenant's use of the Premises which will 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 as required by Section 9.2 herein. 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, 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 sixty (60) 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 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 (as statutorily defined) 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 one hundred fifty percent (150%) 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, including but not limited to, any Claims made by any succeeding tenant founded upon such failure to surrender, and any lost profits to Landlord resulting therefrom.
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.
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. 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 either party 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 sixty (60) 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 ninety
(90) days; (b) in more than ninety (90) days but in less than one hundred eighty
(180) days; or (c) in more than one hundred eighty (180) days, from the date of
Tenant's written 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 ninety (90) 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 and to the extent Tenant vacates the affected portions of the Premises until any and all repairs required herein to be made by Landlord are substantially completed but such abatement shall only be to the extent (i) 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, and (ii) Landlord receives rental abatement insurance proceeds therefor.
25.1.2 INSURED DAMAGE REQUIRING MORE THAN 90 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 ninety (90) days but in less than one hundred eighty (180) 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 must vacate and surrender the Premises to Landlord by no later than ten (10) business days thereafter or there shall not be any abatement of Rent until Tenant so vacates 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 and to the extent Tenant actually vacates the affected portions of the Premises until any and all repairs required herein to be made by Landlord are substantially completed but such abatement shall only be to the extent (i) 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, and (ii) Landlord receives rental abatement insurance proceeds therefor. If Landlord fails to substantially complete such repairs within one hundred eighty (180) days after the date on which Landlord is notified by Tenant of the occurrence of such casualty [such 180-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 one hundred eighty (180) 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 immediately vacate the Premises and surrender possession thereof to Landlord.
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 one hundred eighty (180) 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, provided Tenant diligently proceeds to and expeditiously vacates the Premises (but, in all events Tenant must vacate and surrender the Premises to Landlord by no later than ten (10) business days thereafter or there shall not be any abatement of Rent until Tenant so vacates 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 and to the extent Tenant actually vacates the affected portions of the Premises until any and all repairs required herein to be made by Landlord are substantially completed but such abatement shall only be to the extent (i) 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, and (ii) Landlord receives rental abatement insurance proceeds therefor.
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. 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 its 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, 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 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 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.
25.4 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 and Tenant is not
using or otherwise occupying same 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 twenty-five percent (25%) or more 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"), 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 reasonably 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 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. 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 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. If it is determined by Landlord that the condition of all or any portion of the Project is not in compliance with the provisions of this Lease with respect to Hazardous Materials, including without limitation, all Environmental Laws at the expiration or earlier termination of this Lease, then Landlord may require Tenant to hold over possession of the Premises until Tenant can surrender the Premises to Landlord in the condition in which the Premises existed as of the Commencement Date and prior to the appearance of such Hazardous Materials except for reasonable wear and tear, including without limitation, the conduct or performance of any closures as required by any Environmental Laws. The burden of proof hereunder shall be upon Tenant. For purposes hereof, the term "reasonable wear and tear" shall not include any deterioration in the condition or diminution of the value of any portion of the Project in any manner whatsoever related to directly, or indirectly, Hazardous Materials. Any such holdover by Tenant will be with Landlord's consent, will not be terminable by Tenant in any event or circumstance and will otherwise be subject to the provisions of Section 20 of this Lease.
27.7 TENANT'S EXCULPATION: Tenant shall not be liable for, nor otherwise obligated to, Landlord under any provision of this Lease with respect to (i) any claim, remediation obligation, investigation obligation, liability, cause of action, attorney's fees, consultants' cost, expense or damage resulting from any Hazardous Material present in, on or about the Premises or any of the Buildings in the Park to the extent not caused nor otherwise permitted, directly or indirectly, by Tenant or Tenant's Representatives; or (ii) the removal, investigation, monitoring or remediation of any Hazardous Material present in, on or about the Premises, the Building or the Park caused by any source, including third parties other than Tenant and Tenant's Representatives, as a result of, or in connection with, the acts or omissions of persons other than Tenant or Tenant's Representatives; provided, however, Tenant shall be fully liable for and otherwise obligated to Landlord under the provisions of this Lease for all liabilities, costs, damages, penalties, claims, judgments, expenses (including without limitation, attorneys' and experts' fees and costs) and losses to the extent (a) Tenant or any of Tenant's Representatives contributes to the presence of such Hazardous Materials or Tenant and/or any of Tenant's Representatives exacerbates the conditions caused by such Hazardous Materials, or (b) Tenant and/or Tenant's Representatives allows or permits persons over which Tenant or any of Tenant's Representatives has control and/or for which Tenant or any of Tenant's Representatives are legally responsible for, to cause such Hazardous Materials to be present in, on, under, through or about any portion of the Premises, the Building or the Park, or does not take all reasonably appropriate actions to prevent such persons over which Tenant or any of Tenant's Representatives has control and/or for which Tenant or any of Tenant's Representatives are legally responsible from causing the presence of Hazardous Materials in, on, under, through or about any portion of the Premises, the Building or the Park.
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) 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. Notwithstanding the foregoing, Landlord agrees that the form of Tenant's annual report shall be a form which is acceptable to Landlord.
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. On the date that Tenant executes this Lease, 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.
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, 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 shown on the return receipt or verification of mail courier, as provided in this Section 29.9, upon the date personal delivery is made, or if mailed without a return receipt, then within forty-eight (48) hours after the date deposited in the mail.
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. Each party shall keep and maintain such confidential information strictly confidential. Tenant shall not disclose such confidential information to any person or entity other than its financial, legal, and space planning consultants, its prospective investors and lenders and its prospective subtenants for the Premises. Landlord
shall not disclose such financial information to any person or entity other than its financial and legal consultants, its property management company, its prospective investors in the Park, and its prospective purchasers and lenders.
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, as long as Tenant's normal business operation is not materially and substantially impaired, 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.
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. Should Tenant elect to sublease the Premises as provided in Section 14 herein, Tenant may place one professionally designed and manufactured sign (with the words "Sublease Available") in the landscaped area close to the main entrance to the Premises for the period of Tenant's marketing of the Premises. Such sign shall not exceed an area of six (6) square feet, and shall be first approved by Landlord, which approval shall not be unreasonably withheld or delayed.
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. 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.
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, 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.
IN WITNESS WHEREOF, this Lease is executed by the parties as of the Lease Date referenced on Page 1 of this Lease.
TENANT:
ABAXIS, INC.,
a California corporation
By: /s/ Donald Stewart
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Its: Chief Financial Officer
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Date: June 21, 2000
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LANDLORD:
PRINCIPAL DEVELOPMENT INVESTORS, LLC,
a Delaware limited liability company
By: PRINCIPAL LIFE INSURANCE COMPANY,
an Iowa corporation, its member
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.
EXHIBIT A
PREMISES
This exhibit, entitled "Premises", is and shall constitute Exhibit A to that certain Lease Agreement dated June 21, 2000 (the "Lease"), by and between PRINCIPAL DEVELOPMENT INVESTORS, LLC, a Delaware limited liability company ("Landlord") and ABAXIS, INC., a California corporation ("Tenant") for the leasing of certain premises located in Crossroads Technology Park at Building E, 3240 Whipple Road, Union City, 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 Project:
EXHIBIT B TO LEASE AGREEMENT
TENANT IMPROVEMENTS
This exhibit, entitled "Tenant Improvements", is and shall constitute Exhibit B to that certain Lease Agreement dated June 21, 2000 (the "Lease"), by and between PRINCIPAL DEVELOPMENT INVESTORS, LLC, a Delaware limited liability company ("Landlord") and ABAXIS, INC., a California corporation ("Tenant") for the leasing of certain premises located in Crossroads Technology Park at Building E, 3240 Whipple Road, Union City, 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 Legacy Partners CDS, Inc. 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". Not later than five (5) days after the Initial Plans are prepared and delivered to Tenant, 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. 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 or other tenants in the Building; (c) would increase the cost of operating the Building or the Park; (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; (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 or the difficulties 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. The foregoing reasons, however, shall not be the only reasons for which Landlord may 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.
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) 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, Tenant shall approve the Final Drawings within five (5) days
after receipt of same from Landlord. Tenant's failure to approve or disapprove
such Final Drawings within the foregoing five (5) day time period, shall be
conclusively deemed to be approval of same by Tenant. If Tenant reasonably
disapproves of any matters included in the Final Drawings because such items are
not substantially consistent with the Initial Plans, Tenant shall, within the
aforementioned five (5) 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 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 several licensed, bonded and insured general contractors. The Tenant Improvements shall be constructed by a general contractor selected by Landlord (the "General Contractor"). 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").
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 directly attributable to Tenant's use or Tenant's specialized tenant
improvements, in which event such delays are considered Tenant Delays) (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 the General Contractor issues to
Landlord a notice of substantial completion, or 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 the date on which Tenant
first takes occupancy of the Premises, whichever first occurs ("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.
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: (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 or Tenant's
requirements for special construction or phasing; (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 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 Nine Hundred Eleven Thousand Two Hundred Forty and 00/100 Dollars ($911,240.00) (the "Tenant Improvement Allowance") based upon an allowance of Ten and 00/100 Dollars ($10.00) per rentable square foot for 91,124 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 manufacturing/flex 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 Union City, California 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 four and one-half percent (4.5%) of all direct and indirect costs of procuring, constructing and installing the first $1,366,860.00 of Tenant Improvements in the Premises and the Building and one and one-half percent (1 _%) of all such costs exceeding the first $1,366,860.00, provided, however, that the total construction management fee paid to Landlord shall not exceed the sum of $75,000.00
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 faithfully pay all
of the Excess Tenant Improvement Costs to Landlord in the following described
manner. A portion of the Excess Tenant Improvement Costs up to a maximum amount
of Four Hundred Fifty Five Thousand Six Hundred Twenty and 00/100 Dollars
($455,620.00), based on Five and 00/100 Dollars ($5.00) per rentable square foot
for 91,124 square feet of the Premises, shall be amortized over the initial term
of the Lease at the rate of thirteen percent (13%) per annum and such amortized
amount (together with interest charges thereon) shall paid by Tenant with, and
as part of, the Rent for the Premises in accordance with the provisions and
requirements of Section 3 of the Lease (the "Amortized Excess TI Costs"). The
portion of the Excess Tenant Improvement Costs in excess of the Amortized Excess
TI Costs shall be paid by Tenant, in cash, to Landlord 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 Section 8 above and this
Section 10 within the time periods 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, 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 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 one hundred eighty (180) days from the date the Lease is signed by Tenant.
13. TENANT ACCESS. Landlord, in Landlord's reasonable discretion and upon receipt of a written request from Tenant, may grant 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 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) 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 31 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.
EXHIBIT C TO LEASE AGREEMENT
RULES & REGULATIONS
This exhibit, entitled "Rules & Regulations", is and shall constitute Exhibit C to that certain Lease Agreement dated June 21, 2000 (the "Lease"), by and between PRINCIPAL DEVELOPMENT INVESTORS, LLC, a Delaware limited liability company ("Landlord") and ABAXIS, INC., a California corporation ("Tenant") for the leasing of certain premises located in Crossroads Technology Park at Building E, 3240 Whipple Road, Union City, 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. 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 normal daily 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.
4. All window coverings installed by Tenant and visible from the outside of the Building require the prior written approval of Landlord.
5. 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.
7. Tenant agrees not to make any duplicate keys without the prior consent of Landlord.
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.
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 27 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: PRINCIPAL DEVELOPMENT INVESTORS, LLC,
a Delaware limited liability company
c/o Legacy Partners Commercial, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404
Attn: Senior Vice President, Operations
Phone: (650) 571-2200
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Name of (Prospective) Tenant: ABAXIS, INC., a California corporation
Mailing Address: 1320 Chesapeake Terrace, Sunnyvale, California 94089
Contact Person, Title and Telephone Number(s): TBD
Contact Person for Hazardous Waste Materials Management and Manifests and Telephone Number(s): TBD
Address of (Prospective) Premises: 3240 Whipple Road, Union City, California 94587
Length of (Prospective) Initial Term: 120 months
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 [ ] |
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 [ ]
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.
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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 [ ]
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:
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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 [ ]
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 27 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 27 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 27 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:
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:
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 $___________.
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]
EXHIBIT H
LETTER OF CREDIT
IRREVOCABLE LETTER OF CREDIT
________________, 2000 Our irrevocable standby Letter of
Credit: No.
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Beneficiary:
----------------------------------- Applicant:
----------------------------------- ----------------------------------
----------------------------------- ----------------------------------
----------------------------------- ----------------------------------
Amount: Exactly USD $_____________
(_______________________
and __/100 Dollars)
Final Date of Expiration: ________
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We (the "Bank") hereby issue our irrevocable standby Letter of Credit No. ___________ in Beneficiary's favor for the account of the above-referenced Applicant, in the aggregate amount of exactly USD $_______________.
This Letter of Credit is available with us at our above office by presentation of your draft drawn on us at sight bearing the clause: "Drawn under No. ______________ [INSERT NAME OF BANK] Letter of Credit No. ______________" and accompanied by the following:
1. Beneficiary's signed certification purportedly signed by an authorized officer or agent stating:
(A) "Such amount is due to the Beneficiary as landlord under the terms and conditions of that certain lease agreement dated ______________ for premises located at _______________________________________________"; or
(B) "The Bank has notified us that this Letter of Credit will not be extended beyond the current expiration date of this Letter of Credit and Applicant has not delivered to Beneficiary at least thirty (30) days prior to the current expiration of this Letter of Credit a replacement Letter of Credit satisfactory to Beneficiary."
2. The original of this Letter of Credit.
SPECIAL CONDITIONS:
Partial draws under this Letter of Credit are permitted. Notwithstanding anything to the contrary contained herein, this Letter of Credit shall expire permanently without renewal on ________________________.
This Letter of Credit shall be automatically extended for an additional period of one (1) year, without amendment, from the present or each future expiration date but in any event not beyond _____________ which shall be the final expiration date of this Letter of Credit, unless, at least thirty (30) days prior to the then current expiration date we notify you by registered mail/overnight courier service at the above address that this Letter of Credit will not be extended beyond the current expiration date.
We hereby agree with you that all drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored upon presentation to us of the documents described in Paragraph 1 above on or before the expiration date of this Letter of Credit, without inquiry as to the accuracy thereof and regardless of whether Applicant disputes the content of any such documents or certifications.
This Letter of Credit is transferable and any such transfer may be effected by us, provided that you deliver to us your written request for transfer in form and substance reasonably satisfactory to us. Beneficiary may, at any time and without notice to Applicant and without first obtaining Applicant's consent thereto, transfer all or any portion of Beneficiary's interest in and to the Letter of Credit to another party, person or entity, regardless of whether or not such transfer is separate from or as a part of the assignment by Beneficiary of Beneficiary's rights and interests in and to the Lease. The original of this Letter of Credit together with any amendments thereto must accompany any such transfer request.
Except so far as otherwise expressly stated, this documentary credit is subject to Uniform Customs and Practice for Documentary Credits, 1993 Revision, International Chamber of Commerce Publication No. 500.
Please direct any correspondence including drawing or inquiry quoting our reference number to the above referenced address.
This document consists of two pages.
EXHIBIT I
TENANT'S PROPERTY
A. Laboratory benches and casework;
B. Air compressors;
C. Air handlers, HEPA filtration systems, and dehumidification units for rotor and bead manufacturing areas;
D. Warehouse racking;
E. Pre-manufactured cold rooms;
F. Fume hoods; and
G. DI water systems.
EXHIBIT J
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made and entered into as of ___________________, 2000, by and between Principal Mutual Life Insurance Company, an Iowa corporation, with principal offices located at 711 High Street, Des Moines, Iowa (hereinafter called "Mortgagee"), Principal Development Investors LLC, a Delaware limited liability company (hereinafter called, collectively, "Landlord"), c/o Legacy Partners Commercial, Inc., as manager for Landlord with the manager's principal office at 101 Lincoln Centre Drive, Fourth Floor, Foster City, California 94404, and Abaxis, Inc., a California corporation, having its principal office at 3240 Whipple Road, Union City, California 94587, Attention: Facilities Department (hereinafter called "Tenant");
W I T N E S S E T H
WHEREAS, Tenant has by a written lease, dated for reference purposes as of June 21, 2000, as amended and all future amendments approved by Mortgagee, and any extensions included as options therein (hereinafter called the "Lease"), leased from Landlord all or part of certain real estate and improvements thereon located at 3240 Whipple Road, Union City, California, as more particularly described in Exhibit A attached hereto (the "Demised Premises"); and
WHEREAS, Landlord has previously encumbered the Demised Premises as security for a loan from Lender to Landlord in the form of a Deed of Trust (hereinafter called the "Mortgage"); and
WHEREAS, Tenant, Landlord and Mortgagee have agreed to the following with respect to their mutual rights and obligations pursuant to the Lease and the Mortgage;
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) paid by each party to the other and the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt whereof is hereby acknowledged, the parties hereto do hereby covenant and agree as follows:
(1) Tenant's interest in the Lease and all rights of Tenant thereunder shall be and are hereby declared subject and subordinate to the Mortgage upon the Demised Premises and its terms, and the term "Mortgage" as used herein shall also include any amendment, supplement, modification, renewal or replacement thereof.
(2) In the event of any foreclosure of the Mortgage or any conveyance in lieu of foreclosure, and provided that the Lease, immediately prior to such foreclosure of the Mortgage or conveyance in lieu of foreclosure, shall have been in full force and effect and Tenant shall not then be in Default (as such term is defined in the Lease) of its obligations under the Lease, then in any such event, Mortgagee shall neither terminate the Lease nor join Tenant in foreclosure proceedings, nor disturb Tenant's possession, nor shall the leasehold estate or tenancy created by the Lease be affected in any way, and the Lease shall continue in full force and effect as a direct lease between Tenant and Mortgagee.
(3) After the receipt by Tenant of notice from Mortgagee of any foreclosure of the Mortgage or any conveyance of the Demised Premises in lieu of foreclosure, Tenant will thereafter attorn to and recognize Mortgagee or any purchaser from Mortgagee at any foreclosure sale or otherwise as its substitute landlord, and having thus attorned, Tenant's possession shall not thereafter be disturbed providing, and as long as, Tenant shall continue to pay annual rental under the Lease, and Tenant otherwise observes or performs the covenants, terms and conditions of the Lease to be observed and performed by Tenant thereunder. Any such attornment and recognition of a substitute landlord shall be upon all of the terms, covenants, conditions and agreement as are then set forth in Lease except as otherwise herein.
(4) Except as otherwise required pursuant to the provisions of Section 8 of the Lease, Tenant shall not prepay any of the rents, or income derived under the Lease more than one month in advance except with the prior written consent of Mortgagee.
(5) In no event shall Mortgagee be liable for the return of any security deposit, any act or omission of the Landlord, nor shall Mortgagee be subject to any offsets or deficiencies which Tenant may be entitled to assert against the Landlord as a result of any act or omission of Landlord occurring prior to Mortgagee's obtaining possession of the Demised Premises except for the obligations of Landlord to provide the Tenant Improvement Allowance in accordance with the provisions of Exhibit B to the Lease. Provided, however, so long as Mortgagee and Landlord remain the parties named herein, the provisions of this paragraph shall not apply.
(6) Mortgagee has received an assignment of the Lease and the Lease may not be amended or altered and Tenant may not be released therefrom or from any of its obligations except with the written consent of Mortgagee or except as otherwise so expressly provided under the provisions of the Lease.
(7) This Agreement and its terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, including without limitation, any purchaser at any foreclosure sale.
(8) This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts when taken together shall constitute but one agreement.
(9) Landlord hereby confirms and authorizes Tenant to recognize Mortgagee as its substitute landlord and to pay all Rent and charges directly to Mortgagee upon receiving written notice from Mortgagee in accordance with the provisions of Paragraph 3 above.
IN WITNESS WHEREOF, this Agreement has been fully executed under seal on the day and year first above written.
MORTGAGEE:
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY,
an Iowa corporation
TENANT:
ABAXIS, INC.,
a California corporation
LANDLORD:
PRINCIPAL DEVELOPMENT INVESTORS, LLC,
a Delaware limited liability company
STATE OF CALIFORNIA )
) ss.
COUNTY OF ALAMEDA )
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On this ____________ day of __________, 2000 before me, a Notary Public in and for said County, personally appeared ___________________ and ________________, to me personally known to be the identical persons whose names are subscribed to the instrument as officers for the Tenant herein named, who being each by me duly sworn did say that they are the __________________ and ___________________ respectively of ABAXIS, INC., a California corporation, and that said instrument was signed on behalf of said corporation by authority of its Board of Directors, and the aforesaid officers each acknowledged the execution of said instrument to be the duly authorized act and deed of said corporation, by it and by each of them voluntarily executed.
Notary Public in and for the County of Alameda, California
STATE OF IOWA )
) ss.
COUNTY OF POLK )
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On this ____________ day of __________, 2000 before me, a Notary Public in and for said County, personally appeared ___________________ and ________________, to me personally known to be the identical persons whose names are subscribed to the instrument as officers for the Landlord herein named, who being each by me duly sworn did say that they are the __________________ and ___________________ respectively of PRINCIPAL DEVELOPMENT INVESTORS LLC, a Delaware limited liability company, and that said instrument was signed on behalf of said corporation by authority of its Board of Directors, and the aforesaid officers each acknowledged the execution of said instrument to be the duly authorized act and deed of said corporation, by it and by each of them voluntarily executed.
STATE OF IOWA )
) ss.
COUNTY OF POLK )
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On this ____________ day of __________, 2000 before me, a Notary Public in and for said County, personally appeared ___________________ and ________________, to me personally known to be the identical persons whose names are subscribed to the instrument as officers for the Landlord herein named, who being each by me duly sworn did say that they are the __________________ and ___________________ respectively of PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, a corporation, and that said instrument was signed on behalf of said corporation by authority of its Board of Directors, and the aforesaid officers each acknowledged the execution of said instrument to be the duly authorized act and deed of said corporation, by it and by each of them voluntarily executed.
EXHIBIT A
TO SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
ADDENDUM 1
OPTION TO EXTEND THE LEASE TERM
This Addendum 1 (the "Addendum") is incorporated as part of that certain Lease Agreement dated for reference purposes as of June 21, 2000 (the "Lease"), by and between ABAXIS, INC., a California corporation ("Tenant"), and PRINCIPAL DEVELOPMENT INVESTORS, LLC, a Delaware limited liability company ("Landlord"), for the leasing of those certain premises located at 3240 Whipple Road, Union City, California 94587 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 four hundred twenty (420) days nor less than three hundred sixty-five (365) 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. 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 (excluding Tenant's Property or other improvements constructed by Tenant directly and paid by Tenant), and the monthly base rent paid by tenants for premises comparable to the Premises, and located in the competitive market area of the Premises, as reasonably determined by Landlord.
If Tenant does not agree with the Fair Rental Value (as reasonably determined by Landlord) for the Extended Term within ten (10) days of receipt by Landlord of the Option Notice for the Extended Term, Landlord and Tenant each, at its cost and by giving notice to the other party, shall appoint a competent and impartial commercial real estate broker (hereinafter "broker") with at least five (5) years' full-time commercial real estate brokerage experience in the geographical area of the Premises to set the Fair Rental Value for the Extended Term. If either Landlord or Tenant does not appoint a broker within ten (10) days after the other party has given notice of the name of its broker, the single broker appointed shall be the sole broker and shall set the Fair Rental Value for the Extended Term. If two (2) brokers are appointed by Landlord and Tenant as stated in this paragraph, they shall meet promptly and attempt to set the Fair Rental Value. In addition, if either of the first two (2) brokers fails to submit their opinion of the Fair Rental Value within the time frames set forth below, then the single Fair Rental Value submitted shall automatically be the initial monthly Base Rent for the Extended Term and shall be binding upon Landlord and Tenant. If the two (2) brokers are unable to agree within ten (10) days after the second broker has been appointed, they shall attempt to select a third broker, meeting the qualifications stated in this paragraph within ten (10) days after the last day the two (2) brokers are given to set the Fair Rental Value. If the two (2) brokers are unable to agree on the third broker, either Landlord or Tenant by giving ten (10) days' written notice to the other party, can apply to the Presiding Judge of the Superior Court of the county in which the Premises is located for the selection of a third broker who meets the qualifications stated in this paragraph. Landlord and Tenant each shall bear one-half (_) of the cost of appointing the third broker and of paying the third broker's fee. The third broker, however selected, shall be a person who has not previously acted in any capacity for either Landlord or Tenant. Within fifteen (15) days after the selection of the third broker, the third broker shall select one of the two Fair Rental Values submitted by the first two brokers as the Fair Rental Value for the Extended Term. The determination of the Fair Rental Value by the third broker shall be binding upon Landlord and Tenant.
In no event shall the monthly Base Rent for any period of the Extended Term as determined pursuant to this Addendum, 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 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 and the actual commencement date and expiration date of the Extended Term. Tenant shall have no other right to further extend the initial term of the Lease under this Addendum unless Landlord and Tenant otherwise expressly 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 solely be 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 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. Except with respect to a
Transfer to a Related Entity in accordance with the provisions of this Lease,
this Option is personal to Tenant and may not be assigned, voluntarily or
involuntarily, separate from or as part of the Lease. 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 has been in default (after notice and the applicable cure
period has expired) at any time during the initial term of the Lease, or 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 or the Related Entity's financial condition is unacceptable to
Landlord at the time the Option Notice is delivered to Landlord; provided,
however, if the net profits and financial condition of Tenant or the Related
Entity (as the case may then be ) is reasonably adequate and sufficient in
relation to the then remaining
obligations of Tenant under this Lease, then Tenant's or the Related Entity's (as applicable) then existing financial condition shall be acceptable to Landlord, as determined by Landlord in its sole but reasonable discretion; and/or (4) Tenant has failed to exercise properly this Option in a timely manner in strict accordance with the provisions of this Addendum; 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 set forth in this Addendum.
TENANT INITIALS LANDLORD INITIALS
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of Abaxis, Inc. on Form S-3 of our reports dated April 26, 2000 appearing in the Annual Report on Form 10-K of Abaxis, Inc. for the year ended March 31, 2000 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
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San Jose, California
January 4, 2001.
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