Exhibit 10.7
COMMERCIAL LEASE
AGREEMENT
AMB PROPERTY II, L.P.
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Landlord
AND
AMERICAN PHARMACEUTICAL PARTNERS, INC.
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Tenant
STANDARD INDUSTRIAL LEASE AGREEMENT Property Address:600 Supreme Drive
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
NET ESCROW
Execution Copy Date: December 4, 2000
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between, AMB PROPERTY II,
L.P., a Delaware limited partnership, or its assigns, hereinafter referred to as
"Landlord", and AMERICAN PHARMACEUTICAL PARTNERS, INC., a California
corporation, hereinafter referred to as "Tenant";
WITNESSETH:
1. PREMISES AND TERM. In consideration of the mutual obligations of Landlord
and Tenant set forth herein, Landlord leases to Tenant, and Tenant hereby takes
from Landlord the Premises situated within the Village of Bensenville, County of
DuPage, State of Illinois, more particularly described and depicted on EXHIBIT
"A" attached hereto and incorporated herein by reference, commonly known as ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, and consisting of approximately 108,711 square feet (the
"Premises"), to have and to hold, subject to the terms, covenants and conditions
in this Lease. The term of this Lease shall commence on the "Commencement Date"
hereinafter set forth and shall end on September 30, 2004.
The Commencement Date shall be September 15, 2001. Tenant shall, as of ten (10)
days prior to the Commencement Date, have the right to, and shall, inspect the
Premises and list those items which must be remedied by Landlord prior to the
start of the Lease, and shall, upon satisfactory completion of such inspection
and the completion of such remedies by Landlord, reaffirm that (i) it has
inspected and accepts the Premises in its as-is, where-is condition, with all
faults, (ii) the buildings and improvements comprising the same are suitable for
the purpose for which the Premises are leased, (iii) the Premises are in good
and satisfactory condition, and (iv) no representations as to the repair of the
Premises, nor promises to alter, remodel or improve the Premises have been made
by Landlord (unless otherwise expressly set forth in this Lease). If this Lease
is executed before the Premises become vacant or otherwise available and ready
for occupancy, or if any present Tenant or occupant of the Premises holds over,
and Landlord cannot, using good faith efforts, acquire possession of the
Premises prior to the date above recited as the Commencement Date of this Lease,
Landlord shall not be deemed to be in default hereunder nor in any way liable to
Tenant because of such failure, and Tenant agrees to accept possession of the
Premises at such time as Landlord is able to tender the same, which date shall
thenceforth be deemed to be the "Commencement Date"; and the term of this Lease
automatically shall be extended so as to include the full number of months
hereinbefore provided for, except that if the Commencement Date is other than
the first day of a calendar month such term also shall be extended for the
remainder of the calendar month in which possession is tendered. Landlord hereby
waives payment of rent covering any period prior to such tendering of
possession. After the Commencement Date, Tenant shall, upon demand, execute and
deliver to Landlord a letter of acceptance of delivery of the Premises.
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2. BASE RENT, SECURITY DEPOSIT AND ESCROW PAYMENTS.
A. Tenant agrees to pay to Landlord rent for the Premises, in advance,
without demand, deduction or set off, at the following rates:
Time Period Monthly Base Rent
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September 15, 2001 - September 30, 2002 $47,561.00
October 1, 2002 - September 30, 2003 $48,750.00
October 1, 2003 - September 30, 2004 $49,969.00
Renewal Period (if Option to Renew is exercised) See Paragraph 26
The first such monthly installment, plus the other monthly charges set forth in
Paragraph 2C below shall be due and payable as follows: one-half of such
installment ($26,992.00) shall be due and payable on or before June 15, 2001 and
the balance of such installment ($26,992.00) shall be due and payable on or
before July 15, 2001. The failure of Tenant to make either of these payments
within five (5) days after same are due shall result in a default under the
Lease, entitling Landlord to terminate the Lease and re-market the Premises. The
next full monthly installment shall be due and payable on or before the first
day of each calendar month succeeding the Commencement Date, except that all
payments due hereunder for any fractional calendar month shall be prorated.
B. In addition, Tenant agrees to deposit with Landlord ten (10) days
prior to the Commencement Date the sum of Fifty-Three Thousand Nine Hundred
Ninety-Three and 00/100 Dollars ($53,993.00) (the "Security Deposit") which
shall be held by Landlord, without obligation for interest, as security for the
performance of Tenant's obligations under this Lease, it being expressly
understood and agreed that this Deposit is not an advance rental deposit or a
measure of Landlore's damages in case of Tenant's default. Upon each occurrence
of an event of default, and the expiration of any applicable cure periods,
Landlord may use all or part of the Security Deposit to pay past due rent or
other payments due Landlord under this Lease, and the cost of any other damage,
injury, expense or liability caused by such event of default without prejudice
to any other remedy provided herein or provided by law. On demand, Tenant shall
pay Landlord the amount that will restore the Security Deposit to its original
amount. The Security Deposit shall be deemed the property Landlord, but any
remaining balance of such Deposit shall be promptly returned by Landlord to
Tenant when Tenant's obligations under this Lease have been fulfilled.
C. Tenant agrees to pay its proportionate share (as defined in Paragraph
22K below) of (i) Taxes (hereinafter defined) payable by Landlord pursuant to
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, (▇▇) the cost of utilities payable pursuant to ▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇, (▇▇▇) the cost of administering and maintaining any insurance pursuant to
Paragraph 9 below and (iv) the cost of any common area charges payable by Tenant
in accordance with Paragraph 4 below. During each month of the term of this
Lease, on the same day that rent is due hereunder, Tenant shall escrow with
Landlord an amount equal to 1/12 of the estimated annual cost of its
proportionate share of such items. Tenant authorizes Landlord, and Landlord
agrees, to use the funds deposited with Landlord under this ▇▇▇▇▇▇▇▇▇ ▇▇ to pay
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such costs. The initial monthly escrow payments are based upon the estimated
amounts for the year in question, and shall be increased or decreased annually
to reflect the projected actual cost of all such items. If the Tenant's total
escrow payments are less than Tenant's actual proportionate share of all such
items, Tenant shall pay the difference to Landlord within ten (10) days after
demand. If the total escrow payments of Tenant are more than Tenant's actual
proportionate share of all such items, Landlord shall retain such excess and
credit it against Tenant's next annual escrow payments; provided, any escrow
balance remaining at the termination or expiration of the Lease shall be
promptly returned to Tenant. The amount of the monthly rental and the initial
monthly escrow payments are as follows:
(1) Base Rent as set forth in Paragraph 2A $ See Paragraph 2A
(2) Tax Escrow Payment.............. ...... $ 4,146.00
(3) Insurance Escrow Payment........ ...... $ 152.00
(4) Utility Charge.................. ...... $ N/A
(5) Common Area Charge.............. ...... $ 2,125.00
(6) Other........................... ...... $ N/A
Monthly Payment Total........... ...... $ Varies throughout term of
Lease
3. TAXES.
A. Landlord agrees to pay when due all taxes, assessments and
governmental charges of any kind and nature (collectively referred to herein as
"Taxes") that accrue against the Premises, and/or the land and/or improvements
of which the Premises are a part. If at any time during the term of this Lease,
there shall be levied, assessed or imposed on Landlord a capital levy or other
tax directly on the rents received therefrom and/or a franchise tax assessment,
levy or charge measured by or based, in whole or in part, upon such rents from
the Premises and/or the land and improvements of which the Premises are a part,
then all such taxes, assessments, levies or charges, or the part, thereof so
measured or based, shall be deemed to be included within the term "Taxes" for
the purposes hereof. The Landlord shall have the right to employ a tax
consulting firm, at a reasonable rate, to attempt to assure a fair tax burden on
the building and grounds within the applicable taxing jurisdiction. Tenant
agrees to pay its proportionate share of the cost of such consultant.
B. Tenant shall be liable for all taxes levied or assessed against any
personal property or fixtures placed in the Premises. If any such taxes are
levied or assessed against Landlord or Landlord's property and (i) Landlord pays
the same of (ii) the assessed value of Landlord's property is increased by
inclusion of such personal property
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and fixtures and Landlord pays the increased taxes, then, upon demand Tenant
shall pay to Landlord such taxes.
4. LANDLORD'S REPAIRS.
A. Landlord, at its own cost and expense, shall maintain in good
condition the roof, foundation and the structural soundness of the exterior
walls of the building of which the Premises are a part in good repair,
reasonable wear and tear excluded, and all maintenance and repairs shall be
performed promptly and in a workmanlike manner. The term "walls" as used herein
shall not include windows, glass or plate glass, doors, special store fronts or
office entries. Tenant shall immediately give Landlord written notice of defect
or need for repairs, after which Landlord shall have reasonable opportunity to
repair same or cure such defects.
B. Landlord shall perform the paving, floor slab, common area, and
landscape replacement and maintenance (including the removal of snow and ice
from the parking areas, driveways and alleys surrounding the Premises), exterior
painting and common sewage line plumbing necessary to maintain the Premises
reasonably in accordance with their function and surroundings, and Tenant shall
be liable for its proportionate share of the cost and expense of such repair,
replacement, maintenance and other such items (which cost shall be comprised of
the actual cost plus an administration and supervision fees incurred by Landlord
in connection therewith equal to fifteen percent (15%) of the actual cost
thereof unless a repair is necessitated by damage caused by the act or neglect
of Tenant, its agents, employees, invitees, licensees or contractors, in which
event Tenant shall bear one hundred percent (100%) of such cost which cost shall
include an administration and supervision fee of fifteen percent (15%) of the
cost thereof). The cost that the Tenant may be charged is the cost of performing
such service for this building on a stand alone basis.
C. Tenant agrees to pay its proportionate share of the cost of (i)
maintenance and/or landscaping of any property that is a part of the building
and/or project of which the Premises are a part, (ii) maintenance and/or
landscaping of any property that is maintained or landscaped by any property
owner or community owner association that is named in the restrictive covenants
or deed restrictions to which the Premises are subject, and (iii) operating and
maintaining any property, facilities or services provided for the common use of
Tenant and other lessees of any project or building of which the Premises are a
part, all as necessary to maintain the Premises reasonably in accordance with
their function and surroundings.
D. Landlord, at Tenant's cost and expense, shall enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
for servicing all hot water, heating and air conditioning systems and equipment
within the Premises. The service contract will include all services suggested by
the equipment manufacturer in its operations/maintenance manual and an executed
copy of such contract will be provided to Tenant.
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E. The costs and expenses that Tenant is obligated to pay pursuant to
Paragraphs 4B-D above shall constitute the common area charges identified in
Paragraph 2C above.
F. Tenant shall immediately give Landlord written notice of the need for
repairs that are the responsibility of Landlord under this Paragraph 4, after
which Landlord shall have reasonable opportunity to repair same or cure such
defects. If Landlord shall fail so to undertake such repairs within thirty (30)
days after Tenant's written notice to Landlord requesting that such repairs be
made and thereafter diligently and continuously prosecute the same to
completion, then Tenant shall have the right, but not the obligation, to make or
cause to be made any and all such repairs (provided that Landlord reasonably
approves the contractor selected by Tenant to undertake such repairs and the
cost and scope of such work, which approvals shall not be unreasonably
withheld), and the invoices for such contractor shall be paid by Tenant and
later reimbursed after Landlord is furnished with copies of paid invoices.
5. TENANT'S REPAIRS.
A. Tenant, at its own cost and expense, shall (i) promptly make all
necessary repairs and replacements to the Premises, except for those required to
be made by the Landlord pursuant to Paragraph 4 above, and (ii) keep the parking
areas, sidewalks, driveways and alleys surrounding the Premises in a clean and
sanitary condition and shall remove all rubbish from same.
B. Tenant shall use equipment and fixtures which avoid damage to the
floor slab. In addition, Tenant agrees not to overload the floor slabs in any
way so as to cause damage to the slab or the foundation and shall be responsible
for any damage to the floor slab resulting from its actions or the actions of
its employees, agents or contractors.
6. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises without the prior written consent of Landlord,
which shall not be unreasonably withheld or delayed with respect to such
alterations, additions or improvements which are nonstructural in nature or
which do not involve roof penetrations. Any alterations performed by Tenant
shall be in accordance with all of the terms and conditions of this Paragraph 6.
All work to be performed by Tenant under this Paragraph 6 shall be performed in
accordance with plans and specifications approved in advance by Landlord and in
compliance with all applicable codes, rules, regulations, ordinances and laws by
licensed contractors who are approved in advance by Landlord and who carry
policies of workers' compensation and liability insurance in minimum coverage
amounts acceptable to Landlord. Tenant shall furnish copies of insurance
certificates evidencing the required insurance coverage prior to commencing any
work and Landlord shall be designated as an additional insured on such
certificates. Tenant shall furnish to Landlord written evidence of security to
assure Landlord that all work performed pursuant to this Paragraph shall be free
and clear of all mechanic's liens or other liens, encumbrances, security
interests and charges. Tenant shall indemnify, defend, protect and hold Landlord
harmless from and against any and all costs (including attorneys' fees and court
costs), losses, expenses, damages and other liabilities arising out
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of or in connection with the work performed in accordance with this Paragraph.
Tenant, at its own cost and expense, may erect such shelves, bins, machinery and
trade fixtures as it desires provided that (a) such items do not alter the basic
character of the Premises or the building and/or improvements of which the
Premises are a part, (b) such items do not overload or damage the same, (c) such
items may be removed without injury to the Premises, and (d) the construction,
erection or installation thereof complies with all applicable governmental laws,
ordinances, regulations and with Landlord's specifications and requirements. All
alterations, additions, improvements and partitions erected by Tenant shall be
and remain the property of Tenant during the term of this Lease. All shelves,
bins, machinery and trade fixtures installed by Tenants shall be removed on or
before the earlier to occur of the date of termination of the Lease or vacating
the Premises, at which time Tenant shall restore the Premises to their original
condition, reasonable wear and tear excepted. All alterations, installations,
removals and restoration shall be performed in a good and workmanlike manner so
as not to damage or alter the primary structural qualities of the buildings and
other improvements situated on the Premises or of which the Premises are a part.
7. SIGNS. Tenant shall not install any signs upon the Premises without the
prior written consent of Landlord, which shall not be unreasonably withheld with
respect to signage installed on the monument sign and front door of the
Premises. Tenant shall not otherwise be permitted to install signage on the
building. Any signs shall be removed at Tenant's cost upon termination or
expiration of this Lease. Tenant shall, as necessary to restore the same to the
condition of the surface area surrounding the signage, repair, paint, and/or
replace the building facial surface to which its signs are attached upon
vacation of the Premises, or the removal or alteration of its signage. Tenant
shall not (i) make any changes to the exterior of the Premises, (ii) install any
exterior lights, decorations, balloons, flags, pennants, banners or painting, or
(iii) erect or install any signs, windows or door lettering, placards,
decorations or advertising media of any type which can be viewed from the
exterior of the Premises, without Landlord's prior written consent which shall
not be unreasonably withheld as long as same complies with Landlord's reasonable
criteria. All signs, decorations, advertising media, blinds, draperies and other
window treatment or bars of other security installations visible from outside
the Premises shall conform in all respects to the criteria reasonably
established by Landlord.
8. UTILITIES. Landlord agrees to provide normal water service to the Premises.
Tenant shall pay for all water, gas, heat, light, power, telephone, sewer,
sprinkler charges and other utilities and services used on or at the Premises,
together with any taxes, penalties, surcharges or the like pertaining to the
Tenant's use of the Premises, and any maintenance charges for utilities.
Landlord shall have the right to cause any of said services to be separately
metered to Tenant, at Landlord's expense. Tenant shall pay its proportionate
share of all charges for jointly metered utilities. Landlord shall not be liable
for any interruption or failure of utility service on the Premises, except as
may be due to Landlord's neglect or willful act, in which event Landlord shall
restore such service as soon as reasonably possible after being notified of same
by Tenant.
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9. INSURANCE.
A. Landlord, initially at its own cost but subject to reimbursement
pursuant to Paragraph 2C above, shall maintain insurance covering the buildings
situated on the Premises or of which the Premises are a part in an amount not
less than eighty percent (80%) of the "replacement cost" thereof insuring
against the perils of Fire, Lightning, Extended Coverage Vandalism and Malicious
Mischief, Liability and Rental Interruption and such other insurance as Landlord
shall deem necessary.
B. Tenant, at its own expense, shall maintain during the term of this
Lease a policy or policies of worker's compensation and comprehensive general
liability insurance, including personal injury and property damage, with
contractual liability endorsement, in the amount of One Million Dollars
($1,000,000.00) for property damage and Two Million Dollars ($2,000,000) per
occurrence for personal injuries or deaths of persons occurring in or about the
Premises. Tenant, at its own expense, also shall maintain during the term of
this Lease, fire and extended coverage insurance covering the replacement costs
of (i) all alterations, additions, partitions and improvements installed or
placed on the Premises by Tenant or by Landlord on behalf of Tenant and (ii) all
of Tenant's personal property contained within the Premises, and business
interruption insurance insuring loss of profits in the event of an insured peril
damaging the Premises. Said policies shall (i) name Landlord as an additional
insured (except for the worker's compensation policy, which instead shall
include waiver of subrogation endorsement in favor of Landlord), (ii) be issued
by an insurance company which is acceptable to Landlord, and (iii) provide that
said insurance shall not be canceled unless thirty (30) days prior written
notice shall have been given to Landlord. Said policies shall provide primary
coverage to Landlord; when any policy issued to Landlord is similar or duplicate
in coverage, Landlord's policy shall be excess over Tenant's policies. Said
policy or policies, or certificates thereof, shall be delivered to Landlord by
Tenant upon commencement of the term of the Lease and upon each renewal of said
insurance.
C. Tenant will not permit the Premises to be used for any purpose or in
any manner that would (i) void the insurance thereon, (ii) increase the
insurance risk, or (iii) cause the disallowance of any sprinkler credits,
including, without limitation, use of the Premises for the receipt, storage or
handling of any product, material or merchandise that is explosive or highly
inflammable. If any increase in the cost of any insurance on the Premises or the
building of which the Premises are a part is caused by Tenant's use the
Premises, or because Tenant vacates the Premises, then Tenant shall pay the
amount of such increase to Landlord.
10. FIRE AND CASUALTY DAMAGE.
A. If the Premises or the building of which the Premises are a part
should be damaged or destroyed by fire or other peril, Tenant immediately shall
give written notice to Landlord. If the buildings situated upon the Premises or
of which the Premises are a part should be totally destroyed by any peril
covered by the insurance to be provided by Landlord under Paragraph 9A above, of
if they should be so damaged thereby that, in Landlord's reasonable estimation,
rebuilding or repairs cannot be completed within one
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hundred fifty (150) days after the date of such damage, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease effective upon the date of the occurrence of such damage; provided, that
Landlord shall give Tenant written notice of the occurrence of such
determination within thirty (30) days of the event causing the damage.
B. If the buildings situated upon the Premises or of which the Premises
are a part, should be damaged by any peril covered by the insurance to be
provided by Landlord under Paragraph 9A above, and in Landlord's estimation,
rebuilding or repairs can be substantially completed within one hundred fifty
(150) days after the date of such damage, this Lease shall not terminate, and
Landlord shall restore the Premises to substantially its previous condition,
except that Landlord shall not be required to rebuild, repair or replace any
part of the partitions, fixtures, additions and other improvements that may have
been constructed, erected or installed in, or about the Premises or for the
benefit of, or by or for Tenant. All payments due Landlord from Tenant on the
portion of the Premises damaged shall ▇▇▇▇▇ until the completion of such
rebuilding, repair or replacement. If such repairs and rebuilding have not been
substantially completed within one hundred fifty (150) days after the date of
such damage (subject to delays outside of Landlord's control), Tenant, as
Tenant's exclusive remedy, may terminate this Lease by delivering written notice
of termination to Landlord in which event the rights and obligations hereunder
shall cease and terminate. In the event of any insurance claim Tenant shall be
liable for payment of (a) its proportionate share of the deductible under any of
Landlord's insurance policies with respect to the Premises if the insurance
claim pertains to the entire building of which the Premises forms a part of (b)
the entire deductible under any of Landlord's insurance policies with respect to
the Premises if the insurance claim pertains solely to the Premises. Landlord
hereby notifies Tenant that the amount of the deductible is Five Thousand and
00/100 Dollars ($5,000.00).
C. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises 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 ten (10) days after such requirement is
made known by any such holder (but in no event more than twenty (20) days after
the insured event), whereupon all rights and obligations hereunder shall cease
and terminate.
D. Anything in this Lease to the contrary notwithstanding, Landlord and
Tenant hereby waive and release each other of and from any and all rights of
recovery, claim, action or cause of action, against each other, their agents,
officers and employees, for any loss or damage that may occur to the Premises,
improvements to the building of which the Premises are a part, or personal
property (building contents) within the building and/or Premises, for any reason
regardless of cause or origin if and to the extent that insurance is available
for the loss or damage. Each party to this Lease agrees immediately after
execution of this Lease to give each insurance company, which has issued to it
policies of fire and extended coverage insurance, written notice of the terms of
the mutual waivers contained in this subparagraph, and if necessary, to have the
insurance policies properly endorsed.
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E. If the Premises are damaged by any peril not covered by the insurance
to be provided by Landlord under Paragraph 9A above and the cost to repair such
damage exceeds any amount, Tenant may elect to contribute, Landlord may elect to
commence to repair and restore the Premises, in which event this Lease shall
remain in full force and effect except that Tenant's payments shall be abated
during such repair, or not to repair and restore the Premises, in which event
this Lease shall terminate with Tenant's payments abating as of the date of the
damages; provided, Landlord shall give Tenant written notice of its election
within thirty (30) days of the occurrence of such damage.
11. LIABILITY AND INDEMNIFICATION. Tenant shall hold Landlord harmless from and
defend Landlord against (a) any and all claims or liability for any injury or
damage (i) to any person or property whatsoever occurring in, on or about the
Premises or any part thereof and/or of the building of which the Premises are a
part, including without limitation, elevators, stairways, passageways or
hallways, the use of which Tenant may have in accordance with this Lease, when
such injury or damage shall be caused by the act, neglect, fault of, or omission
of any duty with respect to the same by Tenant, its agents, servants, employees,
or invitees, (ii) arising from the conduct of management of any work done by the
Tenant in or about the Premises, and (iii) arising from transactions of the
Tenant, and (b) all reasonable costs, counsel fees, expenses and liabilities
incurred in connection with any such claim or action or proceeding brought with
respect to subparagraph (a). Landlord shall hold Tenant harmless from and defend
Tenant against any and all claims or liability for any injury or damage arising
out of or caused by the Landlord's negligence, fault or omission of any duty
under this Lease, or Landlord's use of the Premises or the building and property
of which Premises are a part; provided, however, that Landlord's obligation
hereunder shall not extend to the extent any claim or liability arises out of
and/or with respect to the negligent or intentionally wrongful act or omission
of Tenant, its agents, servants, employees, or invitees, out of Tenant's breach
of this Lease and/or out of the acts or omissions of other tenants of the
building of which the Premises are a part. The provisions of this Paragraph 11
shall survive the expiration or termination of this Lease with respect to any
claims or liability occurring prior to such expiration or termination.
12. USE. The Premises shall be used only for the purpose of receiving, storing,
shipping and selling (other than retail) products, materials and merchandise
made and/or distributed by Tenant and for such other lawful purposes as may be
incidental thereto. Outside storage, including, without limitation, storage of
trucks and other vehicles, other than those vehicles used in the ordinary course
of Tenant's business, is prohibited without Landlord's prior written consent.
Tenant shall have the non-exclusive right to use, in common with other Tenants
of the building of which the Premises are a part, the parking provided and
designated as such by Landlord. Tenant shall comply with all governmental laws,
ordinances and regulations applicable to the use of the Premises and promptly
shall comply with all governmental orders and directives for the correction,
prevention and abatement of nuisances in or upon, or connected with, the
Premises, all at Tenant's sole expense. Tenant shall not permit any
objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to
emanate from the Premises nor take any other action that would constitute a
nuisance or would disturb, unreasonably interfere with, or endanger Landlord or
any other lessees of the building in which the Premises are a part.
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Tenant shall pay the cost of any modifications to the Premises, the building in
which the Premises are located and the common areas required as a result of
Tenant's particular use of the Premises.
13. INSPECTION. Landlord and Landlord's agents and representatives shall have
the right to, upon reasonable prior notice to Tenant, enter the Premises at any
reasonable time during business hours, to inspect the Premises and to make such
repairs as may be required or permitted pursuant to this Lease. During the
period that is six (6) months prior to the end of the Lease term or any
extension thereof, upon reasonable prior telephonic notice to Tenant, Landlord
and Landlord's representatives may enter the Premises during business hours for
the purpose of showing the Premises. Any such entry shall be conducted so as to
minimize disruption to Tenant's business and operations. In addition, Landlord
shall have the right to erect a suitable sign on the Premises stating the
Premises are available. Tenant shall notify Landlord in writing at least thirty
(30) days prior to vacating the Premises and shall arrange to meet with Landlord
for a joint inspection of the Premises prior to vacating. If Tenant fails to
give such notice or to arrange for such inspection, then Landlord's inspection
of the Premises shall be deemed correct for the purpose of determining Tenant's
responsibility for repairs and restoration of the Premises.
14. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not have the right to assign, sublet, transfer or
encumber this Lease, or any interest therein without the prior written consent
of Landlord, which Landlord shall not unreasonably withhold or delay. Any
attempted assignment, subletting, transfer or encumbrance by Tenant in violation
of the terms and covenants of this Paragraph shall be void. In the event Tenant
desires to sublet the Premises, or any portion thereof, or assign this Lease,
Tenant shall give written notice thereof to Landlord within a reasonable time
prior to the proposed commencement date of such subletting or assignment which
notice shall set forth the name of the proposed sublessee or assignee, the
relevant terms of sublease and copies of financial reports and other relevant
financial information of the proposed sublessee or assignee.
B. In addition to, but not in limitation of, Landlord's right to approve
of any sublessee or assignee, Landlord shall have the option, in its sole
discretion, in the event of any proposed subletting or assignment, to terminate
this Lease, or in case of a proposed subletting of less than the entire
Premises, to recapture the portion of the Premises to be sublet, as of the date
the subletting or assignment is to be effective. The option shall be exercised
if at all, by Landlord giving Tenant written notice thereof within thirty (30)
days following Landlord's receipt of Tenant's written notice as required above.
If this Lease shall be terminated with respect to the entire demised Premises,
pursuant to this Paragraph, the term of this Lease shall end on the date stated
in Tenant's notice as the effective date of the sublease or assignment as if
that date had been originally fixed in this Lease for the expiration of the term
hereof; provided, however, that effective on such date Tenant shall pay Landlord
all amounts, as estimated by Landlord, payable by Tenant to such date with
respect to taxes, insurance, repairs, maintenance, restoration and other
obligations, costs or charges which are the responsibility of Tenant hereunder.
Further,
10
upon any such cancellation Landlord and Tenant shall have no further obligations
or liabilities to each other under this Lease, except with respect to
obligations or liabilities which accrued hereunder as of such cancellation date
(in the same manner as if such cancellation date were the date originally fixed
in this Lease of the expiration of the term hereof). If Landlord recaptures
under this Paragraph only a portion of the Premises, the rent during the
unexpired term hereof shall ▇▇▇▇▇ proportionately based on the rent per square
foot contained in this Lease as of the date immediately prior to such recapture.
Tenant shall, at Tenant's own cost and expense, discharge in full any
commissions which may be due and owing as a result of any proposed assignment or
subletting, whether or not the Premises are recaptured pursuant thereto and
rented by Landlord to the proposed Tenant or any other tenant.
C. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. (S) 101 et. seq., (the "Bankruptcy
Code"), any and all monies or other consideration payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of
the Bankruptcy Code. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and be promptly paid
or delivered to Landlord. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed, without
further act or deed, to have assumed all of the obligations arising under this
Lease on and after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Landlord an instrument confirming such assumption.
D. Notwithstanding the foregoing, Tenant shall have the right to assign
this Lease to any affiliate (as such term is defined in the Securities Act of
1933) provided that such assignment is in form reasonably satisfactory to
Landlord. Any assignee, sublessee or transferee of Tenant's interest in this
Lease (all such assignees, sublessees and transferees being hereinafter referred
to as "Transferees"), by assuming Tenant's obligations hereunder, shall assume
liability to Landlord for all amounts paid to person other than Landlord by such
Transferees in contravention of this Paragraph. No assignment, subletting or
other transfer, whether consented to by Landlord or not or permitted hereunder
shall relieve Tenant of its liability hereunder. If an event of default occurs
and is not cured in accordance with the terms of this Lease while the Premises
or any part thereof are assigned or sublet, then Landlord, in addition to any
other remedies herein provided, or provided by law, may collect directly from
such Transferee all rents payable to Tenant and apply such rent against any sums
due Landlord hereunder. No such collection shall be construed to constitute a
novation or a release of Tenant from the further performance of Tenant's
obligations hereunder.
E. Tenant shall reimburse Landlord for all costs and expenses, including
attorneys' fees, incurred by Landlord in connection with or resulting from a
request by Tenant to assign, sublet, transfer or encumber this Lease, or any
interest therein. Tenant shall reimburse Landlord for such costs and expenses
within fifteen (15) days of receipt of an invoice for same.
11
F. In the event that Tenant subleases all or a portion of the Premises
pursuant to a sublease approved in writing by Landlord and such sublease
provides for the payment of a gross rental (including base rent, taxes,
insurance and other costs payable under Paragraph 2 of the Lease), and any other
consideration owing to Tenant in connection with the sublease that exceeds the
aggregate payments owed by Tenant for such portion of the Premises pursuant to
Paragraph 2 of this Lease, Tenant shall pay to Landlord at the commencement of
the term of the sublease the amount of such excess. In addition, in the event
that Tenant assigns the Lease pursuant to an assignment approved in writing by
Landlord (other than an assignment permitted under Paragraph 14D of the Lease)
and Tenant receives consideration for such assignment, Tenant shall pay to
Landlord the amount of such consideration upon Landlord's execution of a written
consent to the assignment. The failure of Tenant to make such payment in a
timely manner shall constitute an event of default under this Lease.
15. CONDEMNATION. If any portion of Premises are taken for any public or
quasi-public use under governmental law, ordinance or regulation, or by right of
eminent domain, or by private purchase in lieu thereof (a "Condemnation Event")
and the Condemnation Event prevents or materially interferes with the use of the
Premises for the purpose for which they were leased to Tenant, this Lease shall
be terminable at Tenant's option and the rent shall be abated during the
unexpired portion of the Lease, effective on the first to occur of the
following: (a) the date on which the condemning or purchasing authority occupies
the Premises (or portion thereof); or (b) the date on which the condemning or
purchasing authority requires that the Premises (or portion thereof) be vacated.
In the event Tenant does not terminate this Lease due to a partial condemnation,
the rent payable hereunder during the unexpired portion of this Lease shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances. All compensation, awards or damages in connection with or
resulting from a Condemnation Event (the "Award") shall be paid to and be the
sole property of Landlord, whether the Award is made as compensation for
diminution in value of the leasehold estate, the fee interest in the Premises,
or some other aspect of value associated with the Premises. However, the Tenant
may seek in a separate proceeding, a separate award for relocation expenses
incurred by the Tenant as a result of any such condemnation, so long as such
separate award in no way diminishes any award or payment which the Landlord
would otherwise receive as a result of such condemnation. Tenant further
acknowledges and agrees that Landlord shall have no monetary or other
obligations to Tenant in connection with or with respect to Condemnation Event
or an early termination of the Lease that is triggered by a Condemnation Event
in accordance with this Paragraph 15.
16. HOLDING OVER. At the termination of this Lease by its expiration or
otherwise, Tenant immediately shall deliver possessions to Landlord with all
repairs and maintenance required herein to be performed by Tenant completed. If,
for any reason, Tenant retains possession of the Premises or any part thereof
after such termination, then Landlord may, at its option, serve written notice
upon Tenant that such holding over constitutes either (i) renewal of this Lease
for one year, and from year to year thereafter, (ii) creation of a month to
month tenancy, upon the terms and conditions set forth in this Lease, or (iii)
creation of a tenancy at sufferance, in any case upon the terms and conditions
set forth in this Lease; provided, however, that the monthly rental or daily
12
rental under (iii) shall, in addition, to all other sums which are to be paid by
Tenant hereunder whether or not as additional rent, be equal to one hundred
fifty percent (150%) of the rental being paid monthly to Landlord under this
Lease immediately prior to such termination (prorated in the case of (iii) on
the basis of a 365 day year for each day Tenant remains in possession). If no
such notice is served then a tenancy at sufferance shall be deemed to be created
at the rent in the preceding sentence. Tenant shall also pay to Landlord all
damages sustained by Landlord resulting from retention of possession by Tenant,
including the loss of any proposed subsequent tenant for any portion of the
Premises. The provisions of this Paragraph shall not constitute a waiver by
Landlord of any right of re-entry as herein set forth; nor shall receipt of any
rent or any other act in apparent affirmance of the tenancy operate as a waiver
of the right to terminate this Lease for a breach of any of the terms,
covenants, or obligations herein on Tenant's part to be performed. No holding
over by Tenant, whether with or without consent of Landlord shall operate to
extend this Lease except as otherwise expressly provided. The preceding
provisions of this Paragraph 16 shall not be construed as consent for Tenant to
retain possession of the Premises in the absence of written consent thereto by
Landlord.
17. QUIET ENJOYMENT. Landlord covenants that on or before the Commencement Date
it will have good title to the Premises, free and clear of all liens and
encumbrances, excepting only the lien for current taxes not yet due, such
mortgage or mortgages as are permitted by the terms of this Lease, zoning
ordinances and other building and fire ordinances and governmental regulations
relating to the use of such property, and easements restrictions and other
conditions of record. If this Lease is a sublease then Tenant agrees to take the
Premises subject to the provisions of the prior Leases. Landlord represents that
it has the authority to enter into this Lease and that so long as Tenant pays
all amounts due hereunder and performs all other covenants and agreements herein
set forth. Tenant shall peaceably and quietly have, hold and enjoy the Premises
for the term hereof without hindrances or molestation from Landlord subject to
the terms and conditions of this Lease.
18. EVENTS OF DEFAULT. The following events (herein individually referred to
as "event of defaults") each shall be deemed to be events of nonperformance by
Tenant under this Lease:
A. Tenant shall fail to pay any installment of the rent herein reserved
when due, or any other payment or reimbursement to Landlord required herein when
due, and such failure shall continue for a period of five (5) days from the date
such payment was due.
B. The Tenant or any guarantor of the Tenant's obligations hereunder
shall (i) become insolvent, (ii) admit in writing its inability to pay its
debts, (iii) make a general assignment for the benefit of creditors, (iv)
commence any case, proceeding or other action seeking to have an order for
relief entered on its behalf as a debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part
13
of its property, or (v) take any action to authorize any of the actions set
forth above in this Paragraph.
C. Any case, proceeding or other action against the Tenant or any
guarantor of the Tenant's obligations hereunder shall be commenced seeking (i)
to have an order for relief entered against it as debtor or to adjudicate it a
bankrupt or insolvent, (ii) reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors, or
(iii) appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property, and such case,
proceeding or other action (a) results in the entry of an order for relief
against it which it is not fully stayed within seven (7) business days after the
entry thereof or (b) shall remain undismissed for a period of forty-five (45)
days.
D. Tenant shall (i) vacate all or a substantial portion of the Premises
or (ii) fail to continuously operate its business at the Premises for the
permitted use set forth herein, whether or not Tenant is in default of the
rental payments due under this Lease; provided, however, in any case, Tenant
shall not be in default under this Paragraph so long as it (x) continues to pay
Rent, (y) regulates the temperature and utilities within the Premises in such a
manner as to not cause damage thereto and otherwise continues to maintain the
Premises in accordance with the requirements of the Lease, and (z) notifies
Landlord of its intent with respect to (i) and (ii) above.
E. Tenant shall fail to discharge any lien placed upon the Premises in
violation of Paragraph 21 hereof within twenty (20) days after any such lien or
encumbrance is filed against the Premises.
F. Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than those listed in this Paragraph 18), and shall not cure
such failure within thirty (30) days after written notice thereof to Tenant;
provided, however, if the nature of Tenant's obligations is such that more than
thirty (30) days is reasonably required to cure such failure, then Tenant shall
have such time as is reasonably required provided Tenant commences such
performance after written notice from Landlord and thereafter diligently
prosecutes the same to completion.
G. Tenant shall fail to comply with the terms and provisions of Paragraph
24 hereunder.
H. Tenant shall fail to deliver the estoppel certificate within the time
provided in Paragraph 22D and such failure continues for an additional ten (10)
day period after Tenant receives telephonic notice from Landlord of such non-
delivery. Tenant shall not be in default, however, if Landlord delivers the
estoppel certificate pursuant to the provisions of Paragraph 22D below.
14
19. REMEDIES.
A. Upon each occurrence of an event of default and the expiration of the
applicable cure period, Landlord shall have the option to pursue any one or more
of the following remedies without any notice or demand:
(1) Terminate this Lease; and/or
(2) Enter upon and take possession of the Premises without terminating
this Lease; and/or
(3) Alter all locks and other security devices at the Premises with or
without terminating this Lease, and pursue, at Landlord's option,
one or more remedies pursuant to this Lease, Tenant hereby
specifically waiving any state or federal law to the contrary; and
in any such event Tenant immediately shall surrender the Premises
to Landlord, and if Tenant fails so to do Landlord, without waiving
any other remedy it may have, may enter upon and take possession of
the Premises and expel or remove Tenant and any other person who
may be occupying such Premises or any part thereof, without being
liable for prosecution or any claim of damages therefor; and/or
(4) Maintain Tenant's right to possession in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned
the Premises. In such event Landlord shall be entitled to enforce
all of Landlord's rights and remedies under this Lease, including
the right to recover rent as it becomes due.
B. If Landlord terminates this Lease, at Landlord's option, Tenant shall
be liable for and shall pay to Landlord, the sum of all rental and other
payments owed to Landlord hereunder accrued to the date of such termination,
plus, as liquidated damages, an amount equal to (1) the present value of the
total rental and other payments owed hereunder for the remaining portion of the
Lease term, calculated as if such term expired on the date set forth in
Paragraph 1, less (2) all amounts received by Landlord through reletting the
Premises during such remaining term (but only to the extent of the rent herein
reserved). An action to collect amounts due by Tenant to Landlord under this
subparagraph may be brought following termination of the Lease without the
necessity of Landlord's waiting until the expiration of the Lease Term.
C. If Landlord repossesses the Premises without terminating the Lease,
Tenant, at Landlord's option, shall be liable for and shall pay Landlord on
demand all rental and other payments owed to Landlord hereunder, accrued to the
date of such repossession, plus all amounts required to be paid by Tenant to
Landlord until the date of expiration of the term as stated in Paragraph 1,
diminished by all amounts received by Landlord through reletting the Premises
during such remaining term (but only to the extent of the rent herein reserved).
Actions to collect amounts due by Tenant to Landlord
15
under this subparagraph may be brought from time to time, on one or more
occasions, without the necessity of Landlord's waiting until expiration of the
Lease term.
D. Upon an event of default and the expiration of the applicable cure
period, in addition to any sum provided to be paid herein, Tenant also shall be
liable for and shall pay to Landlord (i) brokers' fees incurred by Landlord in
connection with reletting the whole or any part of the Premises, (ii) the costs
of removing and storing Tenant's or other occupant's property, (iii) the costs
of repairing, altering, remodeling or otherwise putting the Premises into
condition reasonably acceptable to a new tenant or tenants and for a similar use
as Tenant, (iv) all reasonable expenses incurred in marketing the Premises, and
(v) all reasonable expenses incurred by Landlord in enforcing or defending
Landlord's rights and/or remedies. If either party hereto institute any action
or proceeding to enforce any provision hereof by reason of any alleged breach of
any provision of this Lease, the prevailing party shall be entitled to receive
from the losing party all reasonable attorneys' fees and all court costs in
connection with such proceeding.
E. In the event Tenant fails to make any payment due hereunder when
payment is due, to help defray the additional cost to Landlord for processing
such late payments, Tenant shall pay to Landlord on demand a late charge in an
amount equal to five percent (5%) of such installment; and the failure to pay
such amount within ten (10) days after demand therefor shall be an additional
event of default hereunder. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Landlord's remedies
in any manner.
F. Exercise by Landlord of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of the
Premises by Landlord, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant. Tenant and Landlord further agree that forbearance by a
party to enforce its rights pursuant to the Lease at law or in equity, shall not
be a waiver of such right to enforce one or more of its rights in connection
with any subsequent default.
G. In the event of termination and/or repossession of the Premises for an
event of default, Landlord shall use reasonable efforts to relet the Premises
and to collect rental after reletting, provided, that, Tenant shall not be
entitled to credit or reimbursement of any proceeds in excess of the rental owed
hereunder. Landlord may relet the whole or any portion of the Premises for any
period, to any Tenant and for any use and purpose.
H. If Landlord fails to perform any of its obligations hereunder within
thirty (30) days after written notice from Tenant specifying such failure,
Tenant's exclusive remedy shall be an action for damages, except that pursuant
to Paragraph 4 of the Lease, Tenant shall have the right to cure a default by
Landlord in making a repair for which Landlord is responsible. Notwithstanding
the foregoing, if the nature of Landlord's obligation is such that more than
thirty (30) days is reasonably required to cure such
16
failure, except with respect to a repair obligation which shall be governed by
Paragraph 4 of the Lease, then Landlord shall have such time as is reasonably
required provided Landlord commences such performance within thirty (30) days
after written notice from Tenant and thereafter diligently prosecutes the same
to completion. Unless and until Landlord fails to so cure any default after such
notice, Tenant shall not have any remedy or cause of action by reason thereof.
All obligations of Landlord hereunder will be construed as covenants, not
conditions, and all such obligations will be binding upon Landlord only during
the period of its possession of the Premises and not thereafter. The term
"Landlord" shall mean only the owner, for the time being of the Premises, and in
the event of the transfer by such owner of its interest in the Premises, such
owner shall thereupon be released and discharged from all covenants and
obligations of the Landlord thereafter accruing, but such covenants and
obligations shall be binding during the Lease term upon each new owner for the
duration of such owner's ownership. Notwithstanding any other provision hereof,
Landlord shall not have any personal liability hereunder. In the event of any
breach of default by Landlord in any term or provision of this Lease, Tenant
agrees to look solely to the equity or interest then owned by Landlord in the
Premises or of the building of which the Premises are a part; however, in no
event, shall any deficiency judgment or any money judgment of any kind be sought
or obtained against any Landlord.
I. If Landlord repossesses the Premises pursuant to the authority herein
granted, then Landlord shall have the right to (i) keep in place and use or (ii)
remove and store all of the furniture, fixtures and equipment at the Premises
including that which is owned by or leased to Tenant at all times prior to any
foreclosure thereon by Landlord or repossession thereof by any Landlord thereof
or third party having a lien thereon. Landlord also shall have the right to
relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") who presents to Landlord
a copy of any instrument represented by Claimant and reasonably believed by
Landlord to have been executed by Tenant (or any predecessor of Tenant) granting
Claimant the right under various circumstances to take possession of such
furniture, fixtures, equipment or other property, without the necessity on the
part of Landlord to inquire into the authenticity or legality of said
instrument. The rights of Landlord herein stated shall be in addition to any and
all other rights that Landlord has or may hereafter have at law or in equity.
J. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this whether or not
expressly denominated as rent, shall constitute rent.
K. This is a contract under which applicable law excuses Landlord from
accepting performance from (or rendering performance to) any person or entity
other than Tenant; provided, however, Landlord acknowledges and agrees that it
has an obligation to mitigate any damages it incurs under this Lease.
20. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter constituting a lien
or charge upon the Premises or the improvements situated thereon or the building
of which the
17
Premises are a part, provided, however, that if the mortgage trustee, or holder
of any such mortgage or deed of trust elects to have Tenant's interest in this
Lease superior to any such instrument then by notice to Tenant from such
mortgage trustee or holder, this Lease shall be deemed superior to such lien,
whether this Lease was executed before or after said mortgage or deed of trust.
Tenant, at any time hereafter on reasonable notice, shall execute any
instruments, releases or other documents that may be required by any mortgagee
for the purpose of subjecting and subordinating this Lease to the lien of any
such mortgage.
21. MECHANIC'S LIENS. Tenant has no authority, express or implied, to create or
place any lien or encumbrance of any kind or nature whatsoever upon, or in any
manner to bind the interest of Landlord or Tenant in the Premises or to charge
the rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or cause
to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed by or on
behalf of Tenant on the Premises and that it will save and hold Landlord
harmless from any and all loss, cost or expense based on or arising out of such
asserted claims or liens against the leasehold estate or against the right,
title and interest of the Landlord in the Premises or under the terms of this
Lease. Tenant agrees to give Landlord immediate written notice of the placing of
any lien or encumbrance against the Premises.
22. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions inserted
in this Lease are for convenience only and in no way define, limit or otherwise
describe the scope or intent of this Lease, or any provision hereof, or in any
way affect the interpretation of this Lease.
B. The terms, provisions and covenants and conditions contained in this
Lease shall run with the land and shall apply to, inure to the benefit of, and
be binding upon, the parties hereto and upon their respective heirs, executors,
personal representatives, legal representatives, successor and assigns, except
as otherwise herein expressly provided. Landlord shall have the right to
transfer and assign, in whole or in part, its rights and obligations in the
building and property that are the subject of this Lease. Each party agrees to
furnish to the other, promptly upon demand, a corporate resolution proof of due
authorization by partners, evidence of good standing or other appropriate
documentation evidencing the due authorization of such party to enter into this
Lease. Any information provided by Tenant pursuant to this Paragraph 22B shall
be maintained as confidential in accordance with the terms of the letter
agreement between the parties dated October 9, 2000.
C. Except for Tenant's obligation to make rental and other payments due
hereunder, neither party shall be held responsible for delays in performance of
its
18
obligations hereunder when caused by material shortages, weather, acts of God or
labor disputes.
D. Tenant agrees, from time to time but not more than once per calendar
year except upon Tenant's failure to make payments when due or in connection
with proposed sales, financings or refinancing of the Premises, within ten (10)
days after request by Landlord, to deliver to Landlord or Landlord's designee, a
certificate of occupancy, current financial statements prepared in accordance
with GAAP, and an estoppel certificate stating that this Lease is in full force
and effect, the date to which rent is paid and such other factual matters
pertaining to this Lease as may be requested by Landlord. Tenant hereby
irrevocably appoints Landlord as attorney-in-fact for the Tenant with full power
and authority to execute and deliver in the name of Tenant such estoppel
certificate if Tenant fails to deliver the same within such ten (10) day period
and such certificate as signed by Landlord or Landlord's beneficiary, as the
case may be, shall be fully binding on Tenant, if Tenant fails to deliver a
contrary certificate within five (5) days after receipt by Tenant of a copy of
the certificate executed by Landlord or Landlord's beneficiary, as the case may
be, on behalf of Tenant.
E. This Lease constitutes the entire understanding and agreement of the
Landlord and Tenant with respect to the subject matter of this Lease and
contains all of the covenants and agreements of Landlord and Tenant with respect
thereto. Landlord and Tenant each acknowledge that no representations,
inducements, promises of agreements oral or written, have been made by Landlord
at Tenant, or anyone acting on behalf of Landlord or Tenant, which are not
contained herein, and any prior agreements, promises, negotiations, or
representations not expressly set forth in this Lease are of no force or effect.
This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including. without
limitation, all payment obligations with respect to taxes and insurance and all
obligations concerning the condition and repair of the Premises prorated through
the termination of the Lease. Upon the expiration or earlier termination of the
term hereof, and prior to Tenant vacating the Premises, Tenant shall pay to
Landlord any amount reasonably estimated Landlord as necessary to put the
Premises, including without limitation, all heating and air conditioning system
and equipment therein, in good condition and repair, reasonable wear and test
excluded. Tenant shall also, prior to vacating the Premises, pay to Landlord the
amount, as estimated by Landlord of Tenant's obligation hereunder for real
estate taxes and insurance premiums prorated through the termination of the
Lease. All such amounts shall be used and held by Landlord for payment of such
obligations of Tenant hereunder, with Tenant being liable for any additional
costs therefor upon reasonable notice (with supporting documentation) by
Landlord, or with any excess to be returned to Tenant after all such obligations
have been determined and satisfied as the case may be. Any security deposit held
by Landlord shall be credited against the amount due from Tenant under this
▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇
▇. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Least shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added, as a
part of this Lease, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be valid end
enforceable.
H. All references in this Lease to the date hereof or similar references
shall be deemed to refer to the last date, in point of time, on which parties
hereto have executed this Lease.
I. Landlord and Tenant represent and warrant to the other that it has
dealt with no broker, agent or other person in connection with this transaction
other than ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company (the "Broker") or that no broker, agent or
other person brought about this transaction other than the Broker, other than as
may be referenced in a separate written agreement executed by such party, and
delivered to the other party and Landlord and Tenant agree to indemnify and hold
the other party harmless from and against any claims by any other broker, agent
or other person claiming a commission or other form of compensation by virtue of
having dealt with such party with regard to this leasing transaction. Landlord
agrees to the brokerage commissions of the Broker in connection with this
leasing transaction.
J. If and when included within the term "Landlord", as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address for the receipt of notices
and payments to Landlord. If and when included within the term "Tenant", as used
in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively shall be bound
by notices given in accordance with the provisions of Paragraph 23 hereof to the
same effect as if each had received such notice.
K. In the event the Premises constitute a portion of a multiple occupancy
building, Tenant's "proportionate share", as used in this Lease shall mean a
fraction, the numerator of which is 108.711 and the denominator of which is
202,759 equaling 53.62%,
L. Submission of this Lease shall not be deemed to be a reservation of the
Premises. Landlord shall not be bound hereby until its delivery to Tenant of an
executed copy hereof signed by Landlord, already having been signed by Tenant,
and until such delivery Landlord reserves the right to exhibit and lease the
Premises to other prospective tenants. Notwithstanding anything contained
herein to the contrary Landlord may with delivery of possession of the Premises
from Tenant until such time as Tenant has paid to
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Landlord the Security Deposit required by Paragraph 2B hereof and one month's
rent as set forth in Paragraph 2A hereof.
23. NOTICES. Each Provision of this instrument or of any applicable
governmental laws, ordinances regulations and other requirements with reference
to the sending, mailing or delivering of notice or the making of any payment by
Landlord to Tenant or with reference to the sending, mailing or delivering of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord c/o ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at ▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or at such other address as Landlord may
specify from time to time by written notice delivered in accordance herewith.
Tenant's obligation to pay rent and any other amounts to Landlord under the
terms of this Lease shall not be deemed satisfied until such rent and other
amounts have been actually received by Landlord. In addition to base rental due
hereunder, all sums of money and all payments due Landlord hereunder shall be
deemed to be additional rental owed to Landlord.
(b) All payments required to be made by Landlord to Tenant
hereunder shall be payable to Tenant at the address set forth below, or at such
other address within the continental United States as Tenant may specify from
time to time by written notice delivered in accordance herewith.
(c) Any written notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually received or
not when deposited in the United States Mail, postage prepaid, Certified Mail,
addressed to the parties hereto at the respective addresses set out below, or at
such other address as they have theretofore specified by written notice
delivered in accordance herewith.
24. HAZARDOUS WASTE
A. The term "Hazardous Substances", as used in this Lease shall mean
pollutants, contaminants, toxic or hazardous materials or wastes, petroleum
products or any other substances, the removal of which is required or the use of
which is restricted prohibited or penalized by "Environmental Law," which term
shall mean any and all federal, state or local laws including statutes,
regulations, ordinances, codes, rules and other governmental restrictions and
requirements relating to the environment, hazardous substances, or petroleum
products including but not limited to, the Federal Solid Waste Disposal Act, the
Federal Clean Air Act, the Federal Clean Water Act, the Federal Resource
Conservative and Recovery Act of 1976, the Federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980, regulations of the
Environmental Protection, Agency, regulations of the nuclear Regulatory Agency,
regulations or laws administered by OSHA and regulations of any state department
of natural resources or state environmental protection agency now or at any time
hereinafter in effect.
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B. Tenant hereby agrees that (i) no activity will be conducted on the
Premises that shall produce any Hazardous Substance, except for such activities
that are part of the ordinary course of Tenant's business (the "Permitted
Activities") provided said Permitted Activities are conducted in accordance with
all Environmental Laws, are fully and completely disclosed to Landlord, and are
expressly approved in advance in writing by Landlord, (ii) the Premises shall
not be used in any manner for the storage of those Hazardous Substances, except
for such storage that is in the ordinary course of Tenant's business in amounts
appropriate for such use (the "Permitted Materia1") provided such Permitted
Materials are properly stored in a manner and location meeting all Environmental
Laws, are fully and completely disclosed to Landlord, and are expressly approved
in advance in writing by Landlord, (iii) no portion of the Premises shall be
used as a landfill or a dump, (iv) Tenant shall not install any underground of
any type, (v) Tenant shall not allow any surface or subsurface conditions to
come into existence that constitute, or with the passage of time may constitute,
a public or private nuisance, and (vi) Tenant shall not permit any Hazardous
Substances to be brought onto the Premises, except for the Permitted Materials,
and if so brought thereon, the same shall be immediately removed, with proper
disposal, and all required removal and cleanup procedures shall be diligently
undertaken pursuant to all Environmental Laws. Tenant shall immediately give
Landlord written notice soon as Tenant becomes aware of any suspected breach by
Tenant or Tenant's agents, employees, contractors, representatives or invitees
of Paragraph, or any condition or circumstance which makes the environmental
warranties contained in this Lease incomplete, inaccurate misleading, upon
learning of the presence or any release of any Hazardous Substances, or upon
receiving any correspondence, notice, pleading citation, indictment, complaint,
order, decree, or other document from any source asserting or alleging a
circumstance or condition which requires or may require a cleanup, removal,
remedial action, or other response by, or an the part of the Tenant under
Environmental Laws, or which seeks criminal or punitive penalties from Tenant
for an alleged violation of Environmental Laws, or otherwise pertaining to
Hazardous Substances which may affect the Premises, together with a copy
thereof. In the event of any such circumstance, Tenant agrees, at its expense
and at the request Landlord, to permit an environmental audit solely for the
benefit of the Landlord, to be conducted by the Landlord or an independent agent
selected by the Landlord and which may not be relied upon by the Tenant for any
purpose. Such audit shall be of a scope that is reasonable under circumstances.
This provision shall not relieve the Tenant from conducting its own
environmental audits or taking any other steps necessary to comply with
Environmental Laws. Landlord, in the event it is named as a party, shall have
the right, but not the obligation, to join and participate in any legal
proceedings or actions initiated in connection with any matters related to
Environmental Laws and to have its attorneys' fees in connection therewith paid
by Tenant. Tenant shall, at Landlord's request, defend all suits, actions or
proceedings commenced against Landlord with counsel approved by Landlord, in
Landlord's sole discretion, and Tenant shall pay all costs and judgments
associated therewith.
C. Tenant shall be solely responsible and shall indemnify, defend and hold
Landlord, and any property manager of the Premises, their directors, officers,
employees, agents, successors and assigns, harmless from and against all claims,
demands, actions,
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losses, liabilities, costs, expenses, damages and obligations of any nature
(including, without limitation, diminution in value of the Premises; all
consequential damages, the cost of any required or necessary repair, cleanup or
detoxification of the Premises; the preparation and implementation of any
closure remedial or other required plans; damages for the loss or restriction on
use of rentable or usable space or of any amenity of the Premises; damages
arising from any adverse impact on marketing of space; damages to adjacent
property; costs of restoring the Premises, and sums paid in settlement of
claims, attorneys' fees, court costs, consultant fees, and expert fees) incurred
by or asserted against Landlord and directly or indirectly as a result of,
arising from, connected with, or attributable to the use of the Premises by
Tenant or Tenant's agents, employees, contractors, representatives or invitees,
or the generation, storage, release, threatened release, discharge, disposal,
removal or presence of any Hazardous Substances, or relating to any activity,
act or omission of Tenant or Tenant's agents, employees, contractors,
representatives or invitees involving Hazardous Substances or noncompliance with
any Environmental Law. The foregoing indemnification shall survive the
termination or expiration of the Lease. Notwithstanding anything to the contrary
contained in this Lease, any default under the terms of this Paragraph shall be
a material default under this Lease enabling Landlord, at Landlord's option, to
immediately exercise any of the remedies set forth in this Lease, in addition to
any other remedies available to Landlord, without notice to Tenant and without
obligation to provide any grace or cure period to Tenant. Notwithstanding
anything to the contrary contained herein, Landlord's approval of any activity
or storage relating to any Hazardous Substance is not intended to, and shall
not, be deemed an undertaking by Landlord to determine whether or not such
activity or storage is in compliance with Environmental Laws and Landlord
assumes no responsibility with respect thereto.
25. ADDITIONAL PROVISIONS. See Exhibit "A" attached hereto and incorporated by
-----------
reference herein.
26. OPTION TO RENEW. Tenant shall have the right to renew the term of this
Lease for one (1) period of three (3) years (the "Renewal Term") subject to the
following terms and conditions:
A. Tenant shall not be entitled to extend the term hereof if on the date
provided for the exercise of its rights hereunder, or on the date of
commencement of the Renewal Term, Tenant is in default of the performance of any
of the terms, covenants and conditions herein contained for which notice of
default has been given by Landlord to Tenant in the manner provided in this
Lease, which default has not been or is not being remedied in the time provided
in this Lease;
B. Tenant shall exercise its right to extend the term of this Lease, if at
all, by notifying Landlord in writing of its election to exercise its right to
renew the term hereof (the "Renewal Notice") not later than six (6) months prior
to the expiration of the then current term;
C. The Renewal Term shall be upon the same terms, covenants and conditions
as contained in this Lease; provided, however, that the annual base rent per
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square foot for the Renewal Term shall be determined by mutual agreement between
Landlord and Tenant based upon the then prevailing market rental rate per square
foot charged by Landlord for comparable warehouse space in buildings of like
quality in the same rental market as the Premises as of the date the Renewal
Term is to commence; and
D. In the event Landlord and Tenant are unable to agree upon the rental
rate per square foot for the Renewal Term within thirty (30) days after delivery
of the Renewal Notice, the option to renew shall be deemed null and void and the
Lease shall expire in accordance with its term.
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EXECUTED BY LANDLORD, this 19 day of December, 2000.
Attest/Witness
AMB PROPERTY II, L.P.,
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ a Delaware limited partnership
-----------------------------
By: AMB PROPERTY HOLDING
CORPORATION, a Maryland corporation
_____________________________
Its: General Partner
Title: Administrative Assistant
------------------------
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Vice President
---------------------------
ADDRESS:
c/o ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company
Oakbrook Terrace Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
WITH A COPY TO:
AMB Property Corporation
Attn: Regional Manager - Chicago
Sixty State Street, Suite 3700
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
[Signatures continue on following page]
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Executed by Tenant this 1st day of December, 2000.
Attest/Witness American Pharmaceutical Partners, Inc.
a California corporation
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------- --------------------------------------
Title: Vice President and Title: Chief Operating Officer
General Counsel
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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