STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE - MODIFIED NET
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. Basic Provisions ("Basic Provisions")
1.1 Parties: This Lease ("Lease"), dated for reference purposes only,
April 8, 2002, is made by and between Arden Eagle Associates, Ltd. ("Lessor")
and RVision, LLC, a California corporation ("Lessee") (collectively the
"Parties" or individual a "Party").
1.2(a) Premises: That certain portion of the Building, including all
improvements therein or to be provided by Xxxxxx under the terms of this Lease,
commonly known by the street address of 0000-X Xxxxxxx Xxxxx, located in the
City of San Xxxx, County of Santa Xxxxx, State of California, with zip code
95131, as outlined as Exhibit __ attached hereto ("Premises"). The Building is
that certain building contained in the Premises and generally described as
(describe briefly the nature of the Building): that three (3) building complex
consisting of 2355, 2365, and 2371-2373 Paragon Drive, also known as APN
000-00-000 & 000-00-000.
In addition to Lessee's right to use and occupy the Premises as herein
specified, Lessee shall have non-exclusive rights to the Common Areas (as
defined in Paragraph 2.7 below) as hereinafter specified, but shall not have any
rights to the roof, exterior walls or utility raceways of the Building or to any
other buildings in the Industrial Center. The Premises, the Building, the Common
Areas, the land upon which they are located, along with any improvements
thereon, are herein collectively referred to as the "Industrial Center." (Also
see Paragraph 2.)
1.2(b) Parking: twelve (12) unreserved vehicle parking spaces
("Unreserved Parking Spaces"); and -0- reserved vehicle parking spaces
("Reserved Parking Spaces"). (Also see Paragraph 2.6.)
1.3 Term: Two (2) years and o months ("Original Term") commencing April
9, 2002 ("Commencement Date") and ending April 8, 2004 ("Expiration Date").
(Also see Paragraph 3.)
1.4 Early Possession: N/A ("Early Possession Date"). (Also see
Paragraph 3.2 and 3.3.)
1.5 Base Rent: $3,990.00 PER MONTH ("Base Rent"), payable on the First
(1st) day of each month commencing May 1, 2002 (Also see Paragraph 4.)
[x] If this box is checked, this Lease provides for the base Rent to be
adjusted per Addendum ___attached hereto.
1.6(a) Base Rent paid upon execution $2,926.00 as Base Rent for the
period April 9, 2002 - April 30, 2002
1.6(b) Lessee's Share of Common Area Operating Expenses: 4and 40/100
percent (4.4%) ("Lessee Share") as determined by
[x] pro rata square footage of the Premises as compared to the total
square footage of the Building or [ ] other criteria as described in Addendum
_____.
1.7 Security Deposit: $12,390.00 ("Security Deposit"). (Also see
Paragraph 5.) (See Addendum)
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1.8 Permitted Use: Administration, Development and assembly if security
cameras ("Permitted Use") (Also see Paragraph 6.)
1.9 Insuring Party. Lessor is the "Insuring Party." (Also see Paragraph
8.)
1.10(a) Real Estate Brokers. The following real estate broker(s)
(collectively, the "Brokers") and brokerage relationships exist in this
transaction and are consented by the Parties [check applicable boxes):
[x] CB Xxxxxxx Xxxxx represents Lessor exclusively ("Lessor's Broker")
[x] Xxxxx Xxxxxx Associates represents Lessee exclusively ("Lessee's
Broker")
[ ] BLANK represents both Lessor and Lessee ("Dual Agent"). (Also see
Paragraph 15.)
1.10(b) Payment to Brokers. Upon the execution of this Lease by both
Parties, Lessor shall pay to said Broker(s), jointly, or in such separate shares
as they may mutually designate in writing, a fee as set forth in a separate
written agreement between Lessor and said Broker(s) (or in the event there is no
separate written agreement between Lessor and said Broker(s), the sum on $BLANK)
for brokerage services rendered by said Broker(s) in connection with this
transaction.
1.11 Guarantor. The obligations of the Lessee under this Lease are to
be guaranteed by (Blank)
1.12 Addenda and Exhibits. Attached hereto is an Addendum or Addenda
consisting of Paragraphs 49 through 54, and Exhibits A through C all of which
constitute a part of this Lease.
2. Premises, Parking and Common Areas.
2.1 Renting. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Premises, for the term, at the rental, and upon all of the
terms, covenants and conditions set forth in this Lease. Unless otherwise
provided herein, any statement or square footage set forth in this Lease, or
that may have been used in calculating rental and/or Common Area Operating
Expenses, is an approximation which Lessor and Lessee agree is reasonable and
the rental and the rental and Lessee's Share (as defined in Paragraph 1.6(b))
based thereon is not subject to revision whether or not the square footage is
more or less.
2.2 Condition. Lessor shall deliver the Premises to Lessee clean and
free of debris on the Commencement Date and warrants to Lessee that the existing
plumbing, electrical systems, fire sprinkler system, lighting, air conditioning
and heating systems and loading doors, if any, in the Premises, other than
those constructed by Lessee, shall be in good operating condition on the
Commencement Date. If a non-compliance with said conditions exists as of the
Commencement Date, Lessor shall, except as otherwise provided in this Lease,
promptly after receipt of written notice from Lessee setting forth with
specifically the nature and extent of such non-compliance rectify same at
Lessor's expense. If Lessee does not give Lessor written notice (30) days after
the Commencement Date, correction of that non-compliance shall be the obligation
of Lessee at Lessee's sole cost and expense.
2.3 Compliance with Covenants, Restrictions and Building Code. Lessor
warrants that any improvements (other than those construed by the Lessee's
direct action) on or in the Premises which have been constructed or installed by
Lessor or with Lessor's consent or at Lessor's direction shall comply with all
applicable covenants or restrictions of record and applicable building codes,
regulations and ordinances in effect on the Commencement Date. Lessor further
warrants to Lessee that Lessor has no knowledge of any claim having been made by
any governmental agency that a violation or violations of applicable building
codes, regulations, or ordinances exist with regard to the Premises as of the
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Commencement Date. Said warranties shall not apply to any Alterations or Utility
Installations (defined in Paragraph 7.3(a) made or to be made by Lessee. If the
Premises do not comply with such said warranties, Lessor shall, except as
otherwise provided in this Lease, promptly alter receipt of written notice from
Lessee given within six (6) months following the Commencement Date and setting
forth with specifically the nature and extent of such non-compliance, take such
action, at Lessor's expense, as it may be reasonable or appropriate to rectify
the non-compliance. Lessor makes no warranty that the Permit used in Paragraph
1.8 is permitted for the Premises under applicable laws (as defined in Paragraph
2.4).
2.4 Acceptance of Premises. Lessee hereby acknowledges: (a) that it has
been advised by the Broker(s) to satisfy itself with respect to the condition of
the Premises (including but not limited to the electrical and fire sprinkler
systems, security, environmental aspects, seismic and earthquake requirements,
and compliance with Americans with Disabilities Act, and applicable zoning,
municipal, county, state and federal laws, ordinances and regulations and any
covenants or restrictions of record (collectively, "Applicable Law") and the
present and future suitability of the Premises for Lessee's intended use; (b)
that Lessee has made such investigation as it seems relate to Lessee's occupancy
of the Premises and/or the terms of this Lease; and (c) that neither Lessor, nor
any of Lessor's agents, has made any oral or written representations or
warranties with respect to said matters other than as set forth in this Lease.
2.5 Lessee as Prior Owner/Occupant. The warranties made by Lessor in
Paragraph 2 shall be of no force or effect if immediately prior to the date set
forth in Paragraph 1.1 Lessee was the owner or occupant of the Premises, in such
event, Lessee shall, at Lessee's sole cost expense, correct any non-compliance
of the Premises with said warranties.
2.6 Vehicle Parking. Lessee shall be entitled to use the number of
Unreserved Parking Spaces specified in Paragraph 1.2(b) on those portions of the
Common Areas designated from time to time by Lessor for parking. Lessee shall
not use more parking spaces than said number. Said Parking Spaces shall be used
for parking by vehicles no larger than full-size passenger automobiles or
pick-up trucks, herein called "Permitted Size Vehicles." Vehicles other than
Permitted Size Vehicles shall be parked and loaded or unloaded as directed by
Lessor in the Rules and Regulations (as defined in Paragraph 40) issued by
Lessor. (Also see Paragraph 2.9.)
(a) Lessee shall not permit or allow any vehicles that belong
to or are controlled by Lessee or Lessee's employees, suppliers.
Shippers, customers, contractors or invitees to be loaded, unloaded or
parked in areas other then those designated by Lessor for such
activities.
(b) If Lessee permits or allows any of the prohibited
activities described in this Paragraph 2.9, then the Lessor shall have
the right, without notice. to, in addition to such other rights and
remedies that it may have, to remove or tow away the vehicle involved
and charge the cost to the Lessee, which cost shall be immediately
payable upon demand by the Lessor.
(c) Lessor shall at the Commencement Date of this Lease,
provide the parking facilities required by Applicable Law.
2.7 Common Areas Definition. The term "Common Areas" is defined as all
areas and facilities outside the Premises and within the exterior boundary line
of the Industrial Center and interior utility raceways within the Premises that
are provided and designated b the Lessor from time to time for the general
non-exclusive use of Lessor, Lessee and other leases of the Industrial Center
and their respective employees, suppliers, shippers, customers, contractors and
invitees, including parking areas, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, parkways, driveways and landscaped areas.
2.8 Common Areas - Lessee's Rights. Lessor hereby grants to Lessee, for
the benefit of Lessee and its employees, suppliers, shippers, contractors,
customers and invitees, during the term of this Lease, the non-exclusive right
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to use, in common with other entitled to such use, the Common Areas as they
exist from time to time, subject to any rights, powers, and privileges reserved
by Lessor under the terms hereof or under the terms of any rules and regulations
or restrictions the use of the Industrial Center. Under no circumstances shall
the right herein granted to use the Common Areas be deemed to include the right
to store any property, temporarily or permanently, in the Common Area any such
storage shall be permitted only by the prior written consent of Lessor or
Lessor's designated agent, which consent may be revoked at any time. In the
event that any unauthorized storage shall occur then Lessor shall have the
right, without notice, in addition to other rights and remedies that it may
have, to remove the property and charge the costs to the Lessee, which cost
shall be immediately payable upon demand by Lessor.
2.9 Common Areas Rules and Regulations. Lessor or such other person(s)
as Lessor may appoint shall have the exclusive control and management of the
Common Areas and shall have the right, from time to time, to establish, modify,
amend and enforce reasonable Rules and Regulations with respect thereto in
accordance with Paragraph 40. Lessee agrees to abide by and conform to all such
Rules and Regulations, and to cause its employees, shippers, contractors,
customers and invitees to so abide and conform. Lessor shall not be responsible
to Lessee for the non-compliance with said rules and regulations by other
lessees of the Industrial Center.
2.10 Common Area - Changes. Lessor shall have the right, in Lessor's
sole discretion, from time to time:
(a) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of
driveways, entrances, parking spaces, parking areas, loading and
unloading areas, ingress, egress, direction of traffic, landscaped
areas, walkways and utility raceways;
(b) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises
remains available;
(c) To designate other land outside the boundaries of the
Industrial Center to be a part of a Common Area;
(d) To add additional buildings and improvements to the Common
Areas;
(e) To use the Common areas while engaged in making additional
improvements, repairs or alterations to the Industrial Center, or an
portion thereof; and
(f) To do and perform such other acts and to make such other
changes in, to or with respect to the Common Areas and Industrial
Center as Lessor may, in the exercise of sound business judgment, deem
to be appropriate.
3. Term
3.1 Term. The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Paragraph 1.3.
3.2 Early Possession. If an Early Possession Date is specified in
Paragraph 1.4 and if Lessee totally or partially occupies the Premises after the
Early Possession Date but before the Commencement Date, the obligation to pay
Base Rent shall be abated for the period of such early occupancy. All other
terms of this Lease, however, (including but not limited to the obligations to
pay Lessee's Share of Common Area Operating Expenses and to carry the insurance
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required in Paragraph 8) shall be effected during such period. Any such early
possession shall not affect nor advance the Expiration Date of the Original
Term.
3.3 Delay in Possession. If for any reason Lessor cannot deliver possession
of the Premises to Lessee by the Early Possession Date, if one is specified in
Paragraph 1.4, or if no Early Possession Date is specified, by the Commencement
Date, Lessor shall not be subject to any liability thereof, nor shall such
failure affect the validity of this Lease, or the obligations of Lessee
hereunder, or extend the term hereof, but in such case, Lessee shall not, except
as otherwise provided herein, be obligated to pay rent or perform any other
obligation of Lessee under the terms of this Lease until Lessor delivers
possession of the Premises to Lessee. If possession of the Premises is not
delivered to Lessee within sixty (60) days after the Commencement Date, Lessee
may, at its option, by notice in writing to Lessor within ten (10) days after
the end of said sixty (60) day period, cancel this Lease, in which event the
parties shall be discharged from all obligations hereunder; provided further,
however, that if such written notice of Lessee is not received by Lessor within
said ten (10) day period, Lessee's right to cancel this Lease hereunder shall
terminate and be of no further force or effect. Except as may be otherwise
provided, and regardless of when the Original Term actually commenced, if
possession is not tendered to Lessee when required by this Lease and Lessee does
not terminate this Lease, as aforesaid, the period free of the obligation to pay
Base Rent, if any, that Lessee would otherwise have enjoyed shall run from the
date of delivery of possession and continue for a period equal to the period
during which the Lessee would have otherwise enjoyed under the terms hereof, but
minus any days of delay caused by the acts, changes or omissions of Lessee.
4. Rent.
4.1. Base Rent. Lessee shall pay Base Rent and other rent or charges,
as the same may be adjusted from time to time, to Lessor in lawful money of the
United States, without offset or deduction, on or before the day on which it is
due under the terms of this Lease. Base Rent and all other rent and charges for
any period during the term hereof which is for less than one full month shall be
prorated based upon the actual number of days of the month involved. Payment of
Base Rent and other charges shall be made to Lessor at its address stated herein
or to such other persons or to such other addresses as Lessor may from time to
time designate in writing to Lessee.
4.2 Common Area Operating Expenses. Lessee shall pay to Lessor during
the term hereof, in addition to the Base Rent. Lessee's Share (as specified in
Paragraph 1.6(b)) of all Common Area Operating Expenses, as hereinafter defined,
during each calendar year or the term of this Lease, in accordance with the
following provisions:
(a) "Common Area Operating Expenses" are defined for purpose
of this lease, as all costs incurred by Lessor relating to the
ownership and operation of the Industrial Center, including but not
limited to the following:
(i) The operation, repair and maintenance, in neat,
clean, good order and condition, of the following:
(aa) The Common Areas, including parking
areas, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, parkways, driveways,
landscaped areas, stripping, bumpers, irrigation
systems, Common Area lighting facilities, fences and
gates, elevators and roof.
(bb) Exterior signs and any tenant
directories.
(cc) Fire detection and sprinkler systems.
(ii) The costs of water, gas, electricity, and
telephone to service the Common Areas.
(iii) Trash disposal, property management and
security services and cost of any environmental inspections.
(iv) Reserves set aside for maintenance and repair of
Common Areas.
(v) Real property taxes (as defined in Paragraph
10.02) to be paid by Lessor for the Building and the Common
Areas under Paragraph 10 hereof.
(vi) The cost of the premium for the insurance
policies maintained by Lessor under Paragraph 8 hereof.
(vii) Any deductible portion of an insured loss
concerning the Building or the Common Area.
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(viii) Any other services to be provided by Lessor
that are stated elsewhere in this Lease to be a Common Area
Operating Expense.
(b) Any Common Area Operating Expense and Real Estate Property
Taxes that are specifically attributable to the Building or to any
other building in the Industrial Center, or to the operation, repair
and maintenance thereof, shall be allocated entirely to the Building or
to any other building. However any Operating Expenses and Real Estate
Property Taxes that are not specifically attributed to the Building or
to any other building, or to the operation, repair and maintenance
thereof, shall be equitably allocated by Lessor to all buildings in the
Industrial Center.
(c) The inclusion of improvements, facilities and services set
forth in Subparagraph 4.2(a) shall not be deemed to impose an
obligation upon Lessor to either have said improvement or facilities or
to provide those services unless the Industrial Center already has the
same, Lessor already provides the services, or Lessor has agreed
elsewhere in this Lease to provide the same or some of them.
(d) Lessee's Share of Common Area Operating Expenses shall be
payable by Lessee within ten (10) after a reasonably detailed statement
of actual expenses is presented to Lessee by Lessor. At Lessor's
option, however, an amount may be estimated by Lessor from time to time
of Lessee's share of annual Common Area Operating Expenses and the same
shall be paid monthly or quarterly, as Lessor shall designate, during
each 12-month period of the Lease term, on the same day as the Base
Rent is due hereunder, Lessor shall deliver to Lessee within sixty (60)
days of the expiration of each calendar year, a reasonably detailed
statement showing Lessee's Share of Common Area Operating Expenses
incurred during the preceding year. If Lessee's payment under this
Paragraph 4.2(d) during said preceding year exceeded Lessee's Share as
indicated on said statement, Lessee shall be credited the amount of
such over payment against Lessee's Share of Common Areas Operating
Expenses next becoming due. If Lessee's payments under Paragraph 4.2(d)
during said preceding year were less than Lessee's Share as indicated
on said statement, Lesser shall pay to Lessor the amount of the
deficiency within ten (10) days after delivery by Lessor to Lessee of
said statement.
5. Security Deposit. Lessee shall deposit with Lessor upon Lessee's execution
hereof the Security Deposit set forth in Paragraph 1.7 as security for Lessee's
faithful performance of Lessee's obligations under this Lease. If Lessee fails
to pay Base Rent or other rent or charges due hereunder, or otherwise Defaults
under the terms of this Lease as defined in Paragraph 13.1, Lessor may apply or
retain all or any portion of said Security Deposit for the payment of any amount
due Lessor or reimburse or compensate Lessor for any liability, cost, expense,
loss or damage (including attorney's fees) which Lessor may suffer or incur by
reason thereof. If Lessor uses or applies all or a portion of said Security
Deposit, Lessee shall within ten (10) days after written request therefore
deposit monies with Lessor sufficient to restore said Security Deposit to the
full amount required by this Lease. Any time the Base Rent increases during the
term of this Lease, Lessee shall, upon written request from Lessor, deposit
additional monies with Lessor as an addition to the Security Deposit so that the
total amount of the Security Deposit shall at all times bear the same proportion
to the than current Base Rent as the Initial Security Deposit bears to the
initial Base Rent set forth in Paragraph 1.5. Lessor shall not be required to
keep all or any part of the Security Deposit separate from its general account.
Lessor shall, at the expiration or earlier termination of the terms of the terms
hereof and after Lessee has vacated the Premises, return to Lessee (or, at
Lessor's option, to the last assignee, if any, of Lessee's interest herein),
that portion of the Security Deposit not used or applied by Lessor. Unless
otherwise expressly agreed in writing by Lessor, no part of the Security Deposit
shall be considered to be held in trust, to bear interest or other increment for
its use, or to be pre-payment for any monies to be paid by Lessee under this
Lease.
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6. Use.
6.1 Permitted Use.
(a) Lessee shall use and occupy the Premises only for the
Permitted use set forth in Paragraph 1.8, or any other legal use when
is reasonably comparable thereof, and for no other purpose. Lessee
shall not use or permit the use of the Premises in a manner that is
unlawful, creates a waste or a nuisance, or disturb owners and/or
occupants, or causes damage to the Premises or neighboring premises or
properties.
(b) Lessor hereby agrees to not unreasonably withhold or delay
its consent to any written request by Lessee, Lessee's assignees and by
prospective assignees and subtenants or Lessee, its assignees and
subtenants, for a modification of said Permitted Use, so long as the
same will not impact the structural integrity of the improvements on
the Premises or the Building or the mechanical or electrical systems
therein, does not conflict with uses of other lessees, is not
significantly bothersome to the Premises or the Building or
improvements thereon, and is otherwise permissible pursuant to this
Paragraph 6. If Lessor elects to withhold such consent, Lessor shall
within five (5) days after such request give a written notification of
same, which notice shall include an explanation of Lessor's reasonable
objections to the change in use.
6.2 Hazardous Substances.
(a) Reportable Uses Required Consent. The term "Hazardous
Substances" as used in this Lease shall mean any product, substance,
chemical, material or waste whose presence, nature, quantity and/or
intensity or existence, use, manufacture, disposal, transportation,
spill, release or effect, either by itself or in combination with other
material expected for use on the Premises, is either: (i) Potential
injurious to the public health, safety or welfare, the environment, or
the Premises; (ii) regulated or monitored by any governmental authority
or (ii) a basis for potential liability for Lessor to any governmental
agency or third party under any applicable statute or common law
theory. Hazardous Substance shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, crude oil or any products or
by-products thereof. Lessee shall not engage in any activity in or
about the Premises which constitutes a Reportable Use (as hereinafter
defined) of Hazardous Substances without the express prior written
consent of Lessor and compliance in a timely manner (at Lessee's sole
cost and expense) with all Applicable Requirements (as defined in
Paragraph 6.3). Reportable Use shall mean (i) the installation or use
of any below ground storage tank; (ii) the generation, possession,
storage, use, transportation, or disposal or Hazardous Substance that
requires a permit form, or with respect to which and Applicable Laws
require that a notice be given to persons entering or occupying the
Premises or neighboring properties. Notwithstanding the foregoing,
Lessee may without Lessor's prior consent, but upon notice to Lessor
and in compliance with all Applicable Requirements, use any ordinary
and customary materials reasonably required to be used by Lessee in the
normal course of the Permitted Use, so long as such use is not a
Reportable Use and does not expose the Premises or neighboring
properties to any meaningful risk of contamination or damage or expose
Lessor to any liability therefore. In addition, Lessor may (but without
an obligation to do so) condition its consent to any Reportable Use of
any Hazardous Substance by Lessee upon Lessee's giving Lessor such
additional assurance as Lessor, in its reasonable discretion, deems
necessary to protect itself, the public, the Premises and the
environment against damage, contamination or injury and/or liability
therefor, including but not limited to the installation (and, at
Lessor's option, removal on or before Lease expiration or earlier
termination) of reasonably necessary protective medications to the
Premises (such as concrete encasements) and/or the deposit of an
additional Security Deposit under Paragraph 5 thereof.
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(b) Duty to Inform Lessor. If Lessee knows, or has reasonable
cause to believe, that a Hazardous Substance has come to be located in,
on, under or about the Premises or the Building, other than as
previously consented by the Lessor, Lessee shall immediately give
Lessor written notice thereof, together with a copy of any statement,
report, notice, registration, application, permit, business plan,
license, claim, action, or proceeding given to, or received from, any
governmental authority or private party concerning the presence, spill,
release, discharge of, or exposure to, such Hazardous Substance
including but not limited to such documents as may be involved in any
Reportable Use involving the Premises. Lessee shall not cause or permit
such Hazardous Substance to be spilled or released I, on, under or
about the Premises (including, without limitation, through the plumbing
or sanitary sewer system).
(c) Indemnification. Lessee shall indemnify, protect, defend
and hold Lessor, its agents, employees, lenders and ground lessor, if
any, and the Premises, harmless against any and all damages,
liabilities, judgments, costs, claims, liens, expenses, penalties, loss
of permits and attorneys and fees arising out of or involving any
Hazardous Substance brought onto the Premises by or for Lessee or by
anyone under Lessee's control. Lessee's obligations under this
Paragraph 6.2(c) shall include, but not be limited to, the effects of
any contamination or injury to person, property or the environment
created or suffered by the Lessee, and the cost of investigation
(including consultants and attorney fees and testing, removal,
remediation, restoration thereof, or any contamination therein
involved, and shall survive the expiration or earlier termination of
this Lease. No termination, cancellation or release agreement entered
into by Lessor and Lessee shall release Lessee from the obligations
under this Lease with respect to Hazardous Substances, unless
specifically so agreed by Lessor in writing at the time of such
agreement.
6.3 Lessee's Compliance with Requirements. Lessee shall, at Lessees
sole cost and expense, fully, diligently and in a timely manner, comply with all
"Applicable Requirements" which term is used in this Lease to mean all laws,
ruled, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, the requirements of any applicable insurance
underwriter or rating bureau, and the recommendations of Lessor's engineers
and/or consultants, relating in any manner to the Premises including but not
limited to matters pertaining to (i) Industrial hygiene; (ii) environmental
conditions on, in, under or about the Premises, including soil and groundwater
conditions, and (iii) the use, generation, manufacture, production,
installation, maintenance, removal, transportation, storage spill, or release of
any Hazardous Substances, now in effect or which may hereafter come into effect.
Lessee, shall, within five (5) days after receipt of Lessor's written request,
provide Lessor with copies of all documents and information, including but not
limited to permits, registrations, manifests, applications, reports and
certificates, evidencing Lessee's compliance with any Applicable Requirements
specified by Lessor, and shall immediately upon receipt, notify Lessor in
writing (with copies of any documents involved) of any threatened or actual
claim, notice, citation, warning, complaint or report pertaining to or involving
failure by Lessee or the Premises to comply with any Applicable Requirements.
6.4 Inspection Compliance with Law, Lessor, Lessee's agents, employees,
contractors and designated representatives, and the holders of any mortgages,
deeds of trust or ground leases on the Premises ("Lenders") shall have the right
to enter the Premises at any time in the case of an emergency, and otherwise at
reasonable times, for the purpose of inspecting the condition of the Premises
and for verifying compliance by Lessee with this Lease and all Applicable
Requirements (as defined in Paragraph 6.3),and Lessor shall be entitled to
employ experts and/or consultant in connection with therewith to advise Lessor
with respect to Lessee's activities, including but not limited to Lessee's
installation, operation, use, monitoring, maintenance, or removal of any
Hazardous Substance on or from the Premises. The costs and expenses of any such
inspections shall be paid by the party requesting same, unless a Default or
Breach of this Lease by Lessee or a violation of Applicable Requirements or a
contamination, cause or materially contributed to by Lessee, is found to exist
or to be imminent, or unless the inspection is requested or ordered by a
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governmental authority as the result of nay such existing imminent violation or
contamination. In such case, Lessee shall upon request reimburse Lessor or
Lessor's Lender, as the case may be, for the costs and expenses of such
inspections.
7. Maintenance, Repairs, Utility installations, Trade Fixtures and Alterations.
7.1 Lessee's Obligations.
(a) Subject to the provisions of Paragraphs 2.2 (Condition),
2.3 (Compliance with Covenants, Restrictions and Building Code), 7.2
(Lessor's Obligations), 9 (Damage or Destruction), and 14
(Condemnation), Lessee shall, at Lessee's sole cost and expense and at
all times, keep the Premises and every part thereof in good order,
condition and repair (whether or not such portion of the Premises
requiring repair, or the means of repairing the same are reasonably or
readily accessible to Lessee, and whether or not the need for such
repairs occur as a result of Lessee's use, any prior use, the elements
or the age of such portion of the Premises), including without limiting
the generally of the foregoing, all equipment or facilities
specifically serving the Premises, such as plumbing, fixtures, interior
walls, interior surfaces or exterior walls, ceilings, floors, windows,
do pursuant doors, plate glass, and skylights, but excluding any items
which are the responsibility of Lessor pursuant to Paragraph 7.2 below.
Lessee, in keeping the Premises in good order, condition and repair,
shall exercise and perform good maintenance practices. Lessee's
obligations shall include restorations, replacement or renewals when
necessary to keep the Premises and all improvements thereon or a part
thereof in good order, condition and state of repair.
(b) Lessee shall, at Lessee's sole cost and expense, produce
and maintain a contract, with copies to Lessor, in customary form and
substance for and with a contractor specializing and experienced in the
Inspection, maintenance and service of the heating, air conditioning
and ventilation system for the Premises. However, Lessor reserves the
right, upon notice to Lessee, to procure and maintain the contract for
the heating, air conditioning and ventilation systems, and if Lessor so
elects, Lessee shall reimburse Lessor, upon demand, for the cost
thereof.
(c) If Lessee fails to perform Lessee's obligations under this
Paragraph 7.1, Lessor may enter upon the Premises after ten (10) days
prior written notice to Lessee (expect in the case of an emergency, in
which case no notice shall be required), perform such obligations on
Lessee's behalf, and put the Premises in good order, condition and
repair, in accordance with Paragraph 13.2 below.
7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2
(condition), 2.3 (Compliance with Covenants, Restrictions and Building Code),
4.2 (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9
(Damage or Destruction) and 14 (Condemnation), Lessor, subject to reimbursement
pursuant to Paragraph 4.2 shall keep in good order, condition and repair the
foundations, exterior walls, structural condition of interior basing walls,
exterior roof, fire sprinkler and/or hose (if located in the Common Area) or
other automatic fire extinguisher system including the alarm and/or smoke
detection systems and equipment, ire hydrant, parking lots, walkways, parkways,
driveways, landscaping, fences, signs and utility systems serving the Common
Areas and all parts thereof, as well as providing the services for which there
is a Common Area Operating Expense pursuant to Paragraph 4.2. Lessor shall not
be obligated to paint the exterior or interior surfaces or existing walls nor
shall Lessor be obligated to maintain, repair or replace windows, doors or plate
glass of the Premises. Lessee expressly waives the benefit or any statute now or
hereafter in effect which would otherwise afford Lessee the right to make
repairs at Lessor's expense or to terminate this Lease because of Lessor's
failure to keep the Building, Industrial Center or Common Area in good order,
condition and repair.
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7.3 Utility Installations, Trade Fixtures, Alterations.
(a) Definitions; Consent Required. The term "Utility
Installation" is used in this Lease to refer to all air lines, power
panels, electrical distribution, security, protection systems,
communications systems, lighting fixtures, heating, ventilating and air
conditioning equipment, plumbing, and fencing in, on or about the
Premises. The term "Trade Fixtures" shall mean Lessee's machinery and
equipment which can be removed without doing material damage to the
Premises. The term "Alterations" shall mean any modification of the
improvements on the Premises which are provided by Lessor under the
terms of this Lease other than Utility Installations or Trade Fixtures.
"Lessee-Owned Alterations and/or Utility Installations" are defined as
Alterations and/or Utility Installations made by Lessee that are not
yet owned by Lessor pursuant to Paragraph 7.4(a); Lessee shall not make
nor cause to be made any Alterations or Utility Installations, in, on,
under or about the Premises without Lessor's prior written consent.
Lessee may, however, make non-structural Utility Installations to the
interior of the Premises (excluding the roof) without Lessor's consent
but upon notice to Lessor, so long as they are not visible from the
outside of the premises, do not involve punctuating, relocating or
removing the roof or any existing walls, or changing of interfering
with the sprinkler or the detections systems and the cumulative cost
thereof during the term of this Lease as extended does not exceed
$2,500.00.
(b) Consent. Any alterations or Utility Installations that
Lessee shall desire to make and which the consent of the Lessor shall
be presented in written form with detailed plants. All consent s given
by Lessor, whether by virtue of Paragraph 7.3(a) or by subsequent
specific consent, shall be deemed conditional upon: (i) Lessee's
acquiring all applicable permits required by governmental authorities;
(ii) the furnishing of all copies of such permits together with a copy
of the plans and specifications for the Alteration or Utility
Installation to Lessor prior to commencement of the work thereon; and
(iii) the compliance by Lessees with all conditions of said permits in
a prompt and expeditious manner. Any Alterations or Utility
Installations by Lessee during the term of this Lessee shall be done in
a good and workmanlike manner, with good and sufficient materials, and
be in compliance with all Applicable Requirements. Lessee shall
promptly upon completion thereof furnish Lessor with as built plans and
specifications therefore. Lessee may, but without obligation to do so,
condition its consent to requested Alteration or Utility Installation
that costs $2,500.00 or more upon Lessee providing Lessor with a lien
and competition bond in an amount equal to and one and one half times
the estimated cost of such Alteration or Utility Installation.
(c) Lien Protection. Lessee shall pay when due all claims for
labor or material furnished or alleged to have been furnished to or for
Lessee at or for use on the Premises, which claims are or may be
secured by any mechanics lien against the Premises or any interest
therein. Lessee shall give Lessor not less than ten (10) days notice
prior to the commencement of any work in, on, or about the Premises,
and Lessor shall have the right to post notices of non-responsibility
in or on the Premises as provided by law. If Lessee shall, in good
faith, contest the validity of any such lien, claim or demand, than
Lessee shall as at its sole cost and expense defend and protect itself,
Lessor and the Premises against the same and shall pay and satisfy any
such adverse judgment that may be rendered thereon before the
enforcement thereof against the Lessor of the Premises. If Lessor shall
require, Lessee shall furnish to Lessor a surety bond satisfactory to
Lessor in an amount equal to one and one half times the amount of such
contested lien claim or demand, indemnifying Lessor against liability
or the same as required by law for the holding of the Premises free
from the effect of such lien or claim. In addition, Lessor may require
Lessee to pay Lessor's attorneys fees and costs in participating in
such action it Lessor shall decide it is to its best interest to do so.
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7.4 Ownership, Removal, Surrendering, and Restoration.
(a) Ownership. Subject to Lessor's right to require their
removal and to cause Lessee to become the owner thereof as hereinafter
provided in this Paragraph 7.4., all Alterations and Utility
Installations made to the Premises by Lessee shall be the property of
and owned by Lessee, but considered a part of the Premises. Lessor may,
at any time and at its option, elect in writing to Lessee to be the
owner of all or nay specified part of the Lessee owned Alteration and
Utility Installations. Unless otherwise instructed per Subparagraph
7.4(b) hereof, all Lessee-Owned Alterations and Utility Installations
shall, all the expiration or earlier termination of the Lease, become
the property of Lessor and remain upon the Premises and be surrendered
with the Premises by Lessee.
(b) Removal. Unless otherwise agreed in writing, Lessor may
require that any and all Lessee-Owned Alterations or Utility
installations be removed by the expiration or earlier termination of
this Lease, notwithstanding that their installation may have been
consented by Lessor. Lessor may require the removal at any time of all
or any part of any Alterations or Utilities Installations made without
required consent of Lessor.
(c) Surrender/Restoration. Lessee shall surrender the Premises
by the end of the last day of the Lease Term or any other termination
date, clean of debris and in good operating condition and state of
repair, ordinary wear and tear expected. Ordinary wear and tear shall
not include any damage or restoration that would have been prevented by
good maintenance practice or by Lessee performing all of its
obligations under this Lease. Except as otherwise agreed or specified
herein, the Premises, as surrendered, shall include the Alterations and
Utility Installations. The obligation of Lessee shall include the
repair of any damage occasioned by the installation, maintenance or
removal of Lessee's Trade Fixtures, furnishing, equipment and
Lessee-Owned Alterations, and Utility Installations and shall be
removed and restored the Premises per the Lease.
8. Insurance; Indemnity
8.1 Payment of Premiums. The cost of the premiums for the insurance
policies maintained by Lessor under this Paragraph shall be Common Area Expense
pursuant to Paragraph 4.2 hereof. Premiums for policy periods commencing prior
to, or extending beyond the term of this Lease shall be pro-rated to coincide
with the corresponding Commencement Date or Expiration Date.
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force
during the term of this Lease a Commercial General Liability policy of
insurance protecting Lessee, Lessor and any Lenders whose names have
been provided to Lessee in writing (as additional insured) against
claims for bodily injury, personal injury and property damage based
upon, involving or arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such
insurance shall be on an occurrence basis providing single limited
coverage in an amount not less than $1,000,000 per occurrence with an
"Additional Insured Managers or Lessors of Premises" endorsement and
contain the "Amendment of the Pollution Exclusion" endorsement for
damage cased by heat, smoke or fumes from a hostile fire. The policy
shall not contain any intra-insured exclusions as between insured
persons or organizations, but shall include coverage for liability
assumed under this Lease as an "insured contract" for the performance
of Lessee's indemnity obligations hereunder. The limits of said
insurance required by this Lease or as carried by Lessees shall not
11
however limit the liability of Lessee nor relief Lessees of any
obligation under hereunder. All insurance to be required by this Lease
or as carried by Lessees shall be primary to and contributory with any
similar insurance carried by Lessor, whose insurance shall be
considered excess insurance only.
(b) Carried by Lessor. Lessor shall also maintain liability
insurance described in Paragraph 8.2(a) above, in addition to and not
in lieu of, the insurance required to be maintained by Lessee. Lessee
shall not be named as an additional insured therein.
8.3 Property Insurance/Building, Improvements in Rental Value.
(a) Building and Improvements. Lessor shall obtain and keep in
force during the term of this Lease a policy or policies in the name of
Lessor, with less payable to Lessor and any Lender (s), Insuring
against loss or damage to the Premises. Such Insurance shall be for
full replacement costs, as the same shall exist from time to time, or
the amount required by any Lender(s), but in no event more than the
commercially reasonable and available insurable value thereof it, by
reason of the unique nature or age of the Improvements involved, such
letter amount is less than full replacement cost. Lessee-Owned
Alteration and Utility Installation, Trade Fixtures and Lessee's
personal property shall be insured by Lessee pursuant to Paragraph 8.4.
If the coverage is available and commercially appropriated, Lessor's
policy or policies shall Insure against all risk of direct physical
loss or damage (except the perils of flood and/or earthquake unless
required by a Lender), including coverage for any additional cost
resulting from debris removal and reasonable amount 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 reasons of the enforcement of any building,
zoning, safety or land use laws as the result of a covered loss, but
not including, plate glass insurance. Said policy or policies shall
also contain an agreed valuation provision in lieu of any co-insurance
clauses, waiver of subrogation, and inflation guard protection causing
an increase in the annual property insurance coverage amount by a
factor of not less than the adjusted US Department of Labor Consumer
Price Index for all urban consumers for the city nearest to where the
Premises are located.
(b) Rental Value. Lessor shall also obtain and keep in form
therein the term of this Lease a this Lease a policy or policies in the
name of Lessor, with less payable to Lessor and any Lender (s),
Insuring the loss of the full rental and other charges payable by all
Lessees of the building to Lessor for one year (including all Real
Property Taxes, Insurance costs, all Common Areas Operating Expense and
any scheduled rental increases). Said Insurance may provide that in the
event the Lessee is terminated by reason of an insured loss, the period
of Indemnity for such coverage shall be extended beyond the date of the
completion of repairs or replacement of the Premises, to provide for
one full year's loss of rental revenue from date of any such loss. Said
Insurance shall contain an agreed valuation provision in lieu of any
co-insurance clause, and the amount of coverage shall be adjusted
annually to reflect a the projected rental income, Real Property Taxes,
insurance premium costs, and any expenses, if any, otherwise payable,
for the next 12 month period, Common Area Operating Expenses shall
include any deductible amount in the event of such loss.
(c) Adjacent Premises. Lessee shall pay for any increase in
the premiums for the property insurance of the Building and for the
Common Areas or other buildings in the Industrial Center if said
increase is cause by Lessee's acts, omissions, use or occupancy of the
Premises.
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(d) Lessee's Improvements. Since Lessor is the insuring party,
Lessor shall not be required to insure Lessee-Owned Alterations and
Utility Installations unless the item in question has become the
property of the Lessor under the terms of this Lease.
8.4 Lessee's Property Insurance. Subject to the requirements of
Paragraph 8.5, Lessee at its cost shall either by separate policy, or, at
Lessor's option, by endorsement to a policy already carried, maintain insurance
coverage on all of Lessee's personal property. Trade Fixtures and Lessee-Owned
Alterations and Utilities Installations in, on, or about the Premises similar in
coverage to that carried by Lessor as the insuring party under Paragraph 8.3(a).
Such insurance shall be full replacement cost coverage with the deductible not
to exceed $1,000. The proceeds from any such insurance shall be used by Lessee
for the replacement of personal property and the restoration of Trade Fixtures
and Lessee-Owned Alterations and Utility Installations. Upon request from
Lessor, Lessee shall provide Lessor with written evidence that such insurance is
enforced.
8.5 Insurance Policies. Insurance required hereunder shall be in
companies duly licensed to transact business in the state where the Premises are
located and maintaining the policy term a "General Policy Holder Rating" of at
least B+, V, or such other rating as may be required by a Lender, as set forth
in the most current issue of "Best Insurance Guide." Lessee shall not do or
permit to be done anything which shall invalidate the Insurance policies
referred to in this Paragraph 8. Lessee shall cause to be delivered to Lessor
within seven (7) days after the earlier of the Early Possession Date or the
Commencement Date, certified copies of, or certificates evidencing the existence
and amount of, the insurance required under Paragraph 8.2(a) and 8.4. No such
policy shall be cancelable or subject to modification except after thirty (30)
days prior written to Lessor. Lessee shall at least thirty (30) days prior to
the expiration of such policies, furnish Lessor with evidence of renewal or
"Insurance Bidders" evidencing renewal thereof or Lessor may order such
insurance and charge the cost thereof to Lessee, which amount shall be payable
by Lessee to Lessor upon demand.
8.6. Waiver of Subrogation. Without affecting any other rights or
remedies, Lessees and Lessors each hereby release and relief the other and waive
their entire right to recover damages (whether in contract or in court) against
the other, for loss or damage to their property arising out of on incident to
the perils required to be insured against under Paragraph 8. The effect of such
releases and waives of the right to recover damages shall not be limited by the
amount of insurance carried or required, or by any deductibles applicable
thereto. Lessor and Lessee agree to have their respective insurance company
issuing property damage insurance waive any rights to subrogation that such
companies may have against Lessor or Lessee, as the case may be, so long as the
insurance is not invalidated thereby.
8.7 Indemnity. Except for Lessor negligence and/or breach of expressed
warranties, Lessee shall indemnify, protect, defend and hold harmless the
Premises, Lessor and its agents. Lessor or master ground lessor, partner and
Lenders, from and against any and all claims loss of rents and/or damages,
costs, liens, judgments, penalties, loss of permits, attorneys and consultants
fees, expenses and /or liabilities arising out of, involving, or in connection
with the occupancy of the Premises by Lessee. The conduct of Lessee's business,
any act, omission or neglect of Lessees, its agents, contractors, employees or
invitees, and out of any Default or Breach by Lessee in the performance in a
timely manner by any obligation on Lessee's part to be performed under this
Lease. The foregoing shall include, but not be limited to, the defense or
pursuit of any claim or any action or proceeding Involved therein, and whether
or not (in the case of claims made against Lessors) litigated and/or reduced to
judgment in case any action or proceeding be brought against Lessor by reason of
any of the foregoing matters. Lessee upon notice from Lessor shall defend the
same at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor
shall cooperate with Lessee in such defense. Lessor need not have first paid any
such claim in order to be so indemnified.
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8.8 Exception of Lessor from Liability. Lessor shall not be liable for
injury or damage to the person or goods, wears, merchandise or other property of
Lessee, Lessee's employees, contractors, invitees, customers or any other person
in or about the Premises, whether such damage or injury be caused by or result
from line steam, electricity, gas, water or rain, or form of breakage, leakage,
or obstruction of pipes or other defects of pipes, the sprinkles wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cost, whether said injury or damage results from conditions arising upon the
Premises or upon other portions of the building of which the Premises are a
part, from other sources or places, and regardless of whether the cost of such
damage or injury or the means or repairing the same is accessible or not. Lessor
shall not be liable for any damages arising from any act or neglect of any other
Lessee or Lessor nor from the failure by Lessor to enforce the provisions of any
other lease in the Industrial Center. Notwithstanding Lessor's negligence or
breach of this Lease, Lessor shall under no circumstances be liable for injury
to Lessee's business or for any loss of income or profit therefrom.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction
to the Premises, other than Lessee-Owned Alterations and Utility
Installations, the repair cost of which damage or destruction is less
than fifty percent (50%) of the than Replacement cost (as defined in
Paragraph 9.1 (d)) of the Premises (excluding Lessee-Owned Alterations
and Utility Installations and Trade Fixtures) immediately prior to such
damage or destruction.
(b) "Premises Total Destruction" shall mean damage or
destruction to the Premises, other than Lessee-Owned Alterations and
Utility Installations, the repair costs of is less than fifty percent
(50%) of the than Replacement cost of the Premises (excluding
Lessee-Owned Alterations and Utility Installations and Trade Fixtures)
immediately prior to such damage or destruction. In addition, damage or
destruction to the Building, other than Lessee-Owned Alterations and
Utility Installations and Trade Fixtures of any Lessee's of the
Building, the cost of which damage or destruction is fifty percent
(50%) or more of the than replacement cost (excluding Lessee-Owned
Alterations and Utility Installations and Trade Fixtures of any lessees
of the Building) of the Building, at the option of Lessor, be deemed to
be Premise's total destruction.
(c) "Insured Loss" shall mean damage or destruction to the
Premises, other than Lessee-Owned Alterations and Utility Installations
and Trade Fixtures, which was caused by an event required to be covered
by the Insurance described in Paragraph 8.3(a). Irrespective of any
deductible amount or coverage limits involved.
(d) "Replacement Cost" shall mean the cost to repair or
rebuild the Improvements owned by Lessor at the time of the occurrence
to the conditions existing immediately prior thereto, including
demolition, debris removal and upgrading required by the operation of
the applicable building codes, ordinances of loss, without deduction
for depreciation.
(e) "Hazardous Substance Conditions" shall mean the occurrence
or discovery of a condition involving the presence of or contamination
by, a Hazardous Substance as defied in Paragraph 6.2(a), in, on, or
under the Premises.
9.2 Premises Partial Damage - Insured Loss. If Premises Partial Damage
that is not an insure Loss occurs, than Lessor, shall at Lessor's expense pay
for such damage (but not Lessee's Trade Fixtures or Lessee-Owned Alterations and
Utility Installations) as soon as reasonably possible and this Lease shall
continue in full force and effect. In the event, however, that there is a
14
shortage of insurance proceeds in such shortage is due to the fact that by
reasons of the unique nature of the Improvements in the Premises, full
replacement cost insurance coverage was not commercially reasonable and
available, Lessor shall have no obligation to pay for the shortage in insurance
proceeds or to fully restore the unique aspects of the Premises unless Lessee
provides Lessor with the funds to cover same or adequate assurance thereof,
within then (10) days following receipt of written notice of such shortage and
request therefor. If Lessor receives said funds or adequate assurance thereof
with in said ten (10) day period, Lessor shall complete them as soon as
reasonably possible and this Lease shall remain in full force and effect. If
Lessor does not receive such funds or assurance within said period, Lessor may
nevertheless elect by written notice to Lessee within ten (10) days thereafter
to make such restoration and repair as is commercially reasonable with Lessor
paying any shortage in proceeds. In which case this Lease shall remain in full
force and effect. If Lessor does not receive such funds or assurance within such
ten (10) day period and if Lessor does not so elect to restore and repair, than
this Lease shall terminate sixty (60) days following the occurrence of the
damage or destruction. Unless otherwise agreed, Lessee shall in no event have
any right to reimbursement from Lessor for any funds contributed by Lessee to
repair any such damage or destruction. Premises Partial Damage due to flood or
earthquake shall be subject to Paragraph 9.3 rather than Paragraph 9.2,
notwithstanding that there may be some insurance coverage but the net proceeds
of any such insurance shall be made available for the repairs if made by either
party.
9.3 Partial Damage -Uninsured Loss. If Premises partial damage that is
not an insured Loss occurs, unless cause by a negligent or willful act of Lessee
(in which event Lessee shall make the repairs at Lessee's expense and this Lease
shall continue in full force and effect), Lessor may at Lessor's option, either
(i) repair such damage as soon as reasonable possible at Lessor's expense, in
which event this Lease shall continue in full force and effect, or (ii) if with
written notice to Lessee within thirty (30) days after receipt by Lessor of
knowledge of the occurrence of such damage of Lessor's desire to terminate this
Lease as of the date sixty (60) days following the date of such notice. In the
event Lessor elects to give such notice of Lessor's intention to terminate this
Lease, Lessee shall have the right within ten (10) days after the receipt of
such notice to give written notice to Lessor of Lessee's commitment to pay for
the repair of such damage total at Lessee's expense and without reimbursement
from Lessor. Lessee shall provide Lessor with the required funds or satisfactory
assurance thereof within thirty (30) days following such commitment from Lessee.
In such event this Lease shall continue in full force and effect, and Lessor
shall proceed to make such repairs as soon as reasonably possible after the
required funds are available. If Lessee does not give such not provide the funds
or assurance thereof within the times specified above, this Lease shall
terminate as of the date specified in Lessor's notice of termination.
9.4 Total Destruction. Not withstanding any other provision hereof, if
Premises total destruction occurs (including any destruction required by any
authorized public authority), this Lease shall terminate sixty (60) days
following the date of such Premises total destruction, whether or not the damage
or destruction is an insured Loss or was caused by a negligent or willful act of
Lessee. In the event, however, that the damage or destruction was caused by
Lessee, Lessor shall have the right to recover Lessor's damages from Lessee
except as released and waived in Paragraph 9.7.
9.5 Damage Near End of Term. If at any time during the last six (6)
months of the term of this Lease there is a damage for which the cost to repair
exceeds one month's Base Rent, whether or not an insure Loss, Lessor may, at
Lessor's option terminate this Lease effective sixty (60) days following the
date of occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within thirty (30) days of the date of occurrence of such
damage. Provided, however, if Lessee at that time exercisable option to extend
this Lease or to purchase the Premises, than Lessee may preserve this Lease by
(a) exercising such option, and (b) providing Lessor with any shortage in
insurance proceeds (or adequate assurance thereof) needed to make the repairs on
or before the earlier of (i) the date which is ten (10) days after Lessee's
receipt of Lessor's written notice purporting to terminate this Lease, or (ii)
the day prior to the date upon which such option expires. If Lessee duly
exercises such option during such period and provides Lessor with funds for
15
adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor
shall, at Lessor's expense repair such damage as soon as reasonably possible and
this Lease shall continue in full force and effect. If Lessee fails to exercise
such option and provide such funds or assurance during such period, then this
Lease shall terminate as of the date set forth in the first sentence of this
Paragraph 9.5.
9.6 Abatement of Rent; Lessee's Remedies.
(a) In the event of (i) Premises Partial Damage or (ii)
Hazardous Substance Condition for which Lessee is not legally
responsible, the Base Rent, Common Area Operating Expenses and other
charges, if any, payable by Lessee hereunder for the period during
which such damage or condition, its repair, remediation or restoration
continues, shall be abated in proportion to the degree to which
Lessee's use of the Premises is impaired, but not in excess of proceeds
from insurance required to be carried under Paragraph 8.3(b). Except
for abatement of Base Rent, Common Area Operating Expenses and other
charges, if any, as aforesaid, all other obligations of Lessee
hereunder shall be performed by Lessee, and Lessee shall have no claim
against Lessor for any damage suffered by reason of any such damage,
destruction, repair, remediation or restoration.
(b) If Lessor shall be obligated to repair or restore the
Premises under the provisions of this Paragraph 9 and shall not
commence, in a substantial and meaningful way, the repair or
restoration of the Premises within ninety (90) days after such
obligation shall accrue, Lessee may, at any time prior to the
commencement of such repair or restoration, give written notice to
Lessor and to any Lenders of which Lessee has actual notice of Lessee's
election to terminate this Lease on a date not less than sixty (60)
days following the giving of such notice. If Lessee gives such notice
to Lessor and such Lenders and such repair or restoration is not
commenced within thirty (30) days after receipt of such notice, this
Lease shall terminate as of the date specified in said notice. If
Lessor or a Lender commencing the repair or restoration of the Premises
within thirty (30) days after the receipt of such notice, this Lease
shall continue in full force and effect. "Commence" as used in this
Paragraph 9.6 shall mean either the unconditional authorization of the
preparation of the required plans, or the beginning of the actual work
on the Premises, whichever occurs first.
9.7 Hazardous Substance Conditions. If a Hazardous Substance Condition
occurs, unless Lessee is legally responsible therefore (in which case Lessee
shall make the investigation and remediation thereof required by Applicable
Requirements and the Lease shall continue in full force and effect, but subject
to Lessor's rights under Paragraph 6.2(c) and Paragraph 13), Lessor may at
Lessor's option either (i) investigate and remediate such Hazardous Substance
Condition, if required, as soon as reasonably possible of Lessor's expense, in
which event this Lease shall continue in full force and effect, or (ii) if the
estimated cost to investigate and remediate such condition exceeds twelve (12)
times the then monthly Base Rent or $100,000 whichever is greater, give written
notice to Lessee within thirty (30) days after receipt by Lessor of knowledge of
the occurrence of such Hazardous Substance Condition of Lessor's desire to
terminate this Lease as of the date sixty (60) days following the date of such
notice. In the event Lessor elects to give such notice of Lessor's intention to
terminate this Lease, Lessee shall have the right within ten (10) days after the
receipt of such notice to give written notice to Lessor of Lessee's commitment
to pay for the excess costs of (a) investigation and remediation of such
Hazardous Substance Condition to the extent required by Applicable Requirements,
over (b) an amount equal twelve (12) times the then monthly Base Rent or
$100,000 whichever is greater. Lessee shall provide Lessor with the fund
required of Lessee or satisfactory assurance thereof within thirty (30) days
following said commitment by Lessee. In such event this Lease shall continue in
full force and effect, and Lessor shall proceed to make such investigation and
remediation as soon as reasonably possible after the required funds are
available. If Lessee does not give such notice and provide the required funds or
16
assurance thereof within the time period specified above, this Lease shall
terminate as of the date specified in Lessor's notice of termination.
9.8 Termination - Advance Payments. Upon termination of this Lease
pursuant to this Paragraph 9, Lessor shall return to Lessee any advance payment
made by Lessee to Lessor and so much of Lessee's Security Deposit as has not
been or is not then required to be, used by Lessor under the terms of this
Lease.
9.9 Waiver of Statutes. Lessor and Lessee agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the Premises
and the Building with respect to the termination of this Lease and hereby waive
the provisions of any present or future statute to the extent it is inconsistent
herewith.
10. Real Property Taxes.
10.1 Payment of Taxes. Lessor shall pay the Real Property Taxes, as
defined in Paragraph 10.2, applicable to the Industrial Center, and except as
otherwise provided in Paragraph 10.3, any such amounts shall be included in the
calculation of Common Area Operating Expenses in accordance with the provisions
of Paragraph 4.2.
10.2 Real Property Tax Definition. As used herein, the term "Real
Property Taxes" shall include any form of real estate tax or assessment,
general, special ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed upon the Industrial Center by any
authority having the direct or indirect power to tax, inducing any city, state
or federal government, or any school, agricultural, sanitary, fire, steel,
drainage, or other improvement district thereof, levied against any legal or
equitable interest of Lessor in the Industrial Center or any portion thereof,
Lessor's right to rent or other income therefrom, and/or Lessor's business of
leasing the Premises. The term "Real Property Taxes" shall also include any tax,
fee, levy, assessment or charge, or any increase therein, imposed by reason of
events occurring, or changes in Applicable Law taking effect, during the term of
this Lease, including but not limited to, a change in the ownership of the
Industrial Center or in the improvements thereon, the execution of this Lease,
or any modification, amendment or transfer thereof, and whether or not
contemplated by the Parties. In calculating Real Property Taxes for any calendar
year, the Real Property Taxes for any real estate tax year shall be included in
the calculation of Real Property Taxes for such calendar year based upon the
number of days which such calendar year and tax year have in common.
10.3 Additional Improvements. Common Area Operating Expenses shall not
include Real Property Taxes specified in the tax assessor's records and work
sheets as being caused by additional improvements placed upon the Industrial
Center by other lessees or by Lessor for the exclusive employment of such other
lessees. Notwithstanding Paragraph 10.1 hereof, Lessee shall, however, pay to
Lessor at the time Common Area Operating Expenses are payable under Paragraph
4.2, the entirety of any increase in Real Property Taxes if assessed solely by
reason of Alterations, Trade Fixtures or Utility Installations placed upon the
Premises by Lessee or at Lessee's request.
10.4 Joint Assessment. If the Building is not separately assessed, Real
Property Taxes allocated to the Building shall be on equitable proportion of the
Real Property Taxes for all of the land and improvements included within the tax
parcel assessed, such proportion to be determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information as
may be reasonably available. Lessor's reasonable determination thereof, in good
faith, shall be conclusive.
10.5 Lessee's Property Taxes. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
17
of Lessee contained in the Premises or stored within the Industrial Center. When
possible, Lessee shall cause its Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
If any of Lessee's said property shall be assessed with Lessor's real property,
Lessee shall pay Lessor the taxes attributable to Lessee's property within ten
(10) days after receipt of a written statement setting forth the taxes
applicable to Lessee's property.
11. Utilities. Lessee shall pay directly for all utilities and services supplied
to the Premises, including but not limited to electricity, telephone, security,
gas and cleaning of the Premises, together with any taxes thereon, If any such
utilities or services are not separately metered to the Premises or separately
billed to the Premises, Lessee shall pay to Lessor a reasonable proportion to be
determined by Lessor of all such charges jointly metered or billed with other
premises in the Building, in the manner and within the time periods set forth in
Paragraph 4.2(d).
12. Assignment and Subletting.
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operation of law
assign, transfer, mortgage or otherwise transfer or encumber
(collectively, "assign") or sublet all or any part of Lessee's interest
in this Lease or in the Premises without Lessor's prior written consent
given under and subject to the terms of Paragraph 36.
(b) A change in the control of Lessee shall constitute an
assignment requiring Lessor's consent. The transfer, on a cumulative
basis, of twenty-five percent (25%) or more of the voting control of
Lessee shall constitute a change in control for this purpose.
(c) The involvement of Lessee or its assets in any
transaction, or series of transactions (by the way of merger, sale,
acquisition, financing, refinancing, transfer leveraged buy-out or
otherwise), whether or not a formal assignment or hypothecation of this
Lease or Lessee's assets occurs, which results or will result in a
reduction of the Net Worth of Lessee, as hereinafter defined, by an
amount equal to or greater than twenty-five (25%) of such Net Worth of
Lessee as it was represented to Lessor at the time of full execution
and delivery of this Lease at the time of the most recent assignment to
which Lessor has consented, or as it exists immediately prior to said
transaction or transactions consulting such reduction, at whichever
time said Net Worth of Lessee was or is greater, shall be considered an
assignment of this Lease by Lessee to which Lessor may reasonably
withhold its consent. "Net Worth of Lessee" for purposes of this Lease
shall be the net worth of Lessee (excluding any Guarantors) established
under generally accepted accounting principles consistently applied.
(d) An assignment or subletting of Lessee's interest in this
Lease without Lessor's specific prior written consent shall, at
Lessor's option, be a Default curable after notice per Paragraph 13.1,
or a non-curable Breach without the necessity of any notice and grace
period. If Lessor elects to treat such unconsented to assignment or
subletting as a non-curable Breach, Lessor shall have the right to
either: (i) terminate this Lease, or (ii) upon thirty (30) days'
written notice ("Lessor's Notice"), increase the monthly Base Rent for
the Premises to the greater of the then fair market rental value of the
Premises, as reasonably determined by Lessor, or one hundred ten
percent (110%) of the Base Rent then in effect. Pending determination
of the new fair market rental value, if disputed by Lessee, Lessee
shall pay the amount set forth in Lessor's Notice, with any overpayment
credited against the next installment(s) of Base Rent coming due, and
any underpayment for the period retroactively to the effective date of
the adjustment being due an payable immediately upon the determination
thereof. Further, in the event of such Breach and rental adjustment,
18
(i) the purchase price of any option to purchase the Premises held by
Lessee shall be subject to similar adjustment to the then fair market
value as reasonably determined by Lessor (without the Lease being
considered an encumbrance or any deduction for depreciation or
obsolescence, and considering the Premises at its highest and best use
and in good condition) or one hundred ten percent (110%) of the price
previously in effect, (ii) any index-oriented rental or price
adjustment formulas contained in this Lease shall be adjusted to
require that the base index be determined with reference to the index
applicable to the time of such adjustment, and (iii) any fixed rental
adjustments scheduled during the remainder of the Lease term shall be
increased in the same ratio as the new rental bears to the Base Rent in
effect immediately prior to the adjustment specified in Lessor's
Notice.
(e) Lessee's remedy for any breach of this Paragraph 12.1 by
Lessor shall be limited to compensatory damages and/or injunctive
relief.
12.2 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor's consent, any assignment or
subletting shall not (i) be effective without the express written
assumption by such assignee or sublessee of the obligations of Lessee
under this Lease, (ii) release Lessee of any obligations hereunder, nor
(iii) after the primary liability of Lessee for the payment of Base
Rent and other sums due Lessor hereunder or for the performance of any
other obligations to be performed by Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's
obligations from any person other than Lessee pending approval or
disapproval of an assignment. Neither a delay in the approval or
disapproval of such assignment nor the acceptance of any rent for
performance shall constitute a waiver or estoppel of Lessor's right to
exercise its remedies for the Default or Breach by Lessee of any of the
terms, covenants or conditions of this Lease.
(c) The consent of Lessor to any assignment or subletting
shall not constitute a consent to any subsequent assignment or
subletting by Lessee or to any subsequent of successive assignment or
subletting by the assignee or sublessee. However, Lessor may consent to
subsequent sublettings and assignments of the sublease or any
amendments or modifications thereto without notifying Lessee or anyone
else liable under this Lease or the sublease and without obtaining
their consent, and such action shall not relieve such persons from
liability under this Lease or the sublease.
(d) In the event of any Default or Breach of Lessee's
obligation under this Lease, Lessor may proceed directly against
Lessee, any Guarantor or anyone else responsible for the performance of
the Lessee's obligations under this Lease, including any sublessee,
without first exhausting Lessor's remedies against any other persons or
entity responsible therefore to Lessor, or any security held by Lessor.
(e) Each request for consent to an assignment or subletting
shall be in writing, accompanied by information relevant to Lessor's
determination as to the financial and operational responsibility and
appropriateness of the proposed assignee or sublessee, including but
not limited to the intended use and/or required modification of the
Premises, if any, together with a non-refundable deposit of $1,000 or
ten percent (10%) of the monthly Base Rent applicable to the portion of
the Premises which is the subject of the proposed assignment or
sublease, whichever is greater, as reasonable consideration for
Lessor's consideration and processing the request for consent. Lessee
agrees to provide Lessor with such other or additional information
and/or documentation as may be reasonably requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by
reason of accepting such assignment or entering into such sublease, be
19
deemed for the behalf of Lessor, to have assumed and agreed to conform
and comply with each and every term, covenant, condition and obligation
herein to be observed or performed by Lessee during the term of said
assignment or sublease, other than such obligations as are contrary to
or inconsistent with provisions of any assignment or sublease to which
Lessor has specifically consented in writing.
(g) The occurrence of a transaction described in Paragraph
12.2(c) shall give Lessor the right (but not the obligation) to require
that the Security Deposit be increased by an amount equal to six (6)
times the then monthly Base Rent, and Lessor may make the actual
receipt by Lessor of the Security Deposit Increase a condition to
Lessor's consent to such transaction.
(h) Lessor, as a condition to give its consent to any
assignment or subletting, any require that the amount and adjustment
schedule of the rent payable under this Lease be adjusted to what is
then the market value and/or adjustment schedule for property similar
to the Premises as then constituted, as determined by Lessor.
12.3 Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Lessee of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of
Lessee's interest in all rentals and income arising from any sublease
of all or a portion of the Premises heretofore or hereafter made by
Lessee, and Lessor may collect such rent and income and apply same
toward Lessee's obligations under this Lease; provided, however, that
until a Breach (as defined in Paragraph 13.1) shall occur in the
performance of Lessee's obligations under this Lease, Lessee may,
except as otherwise provided in this Lease, receive, collect and enjoy
the rents accruing under such sublease, Lessor shall not, by reason of
the foregoing provision or any other assignment of such sublease to
Lessor, nor by reason of the collection of the rents from a sublessee,
be deemed liable to the sublessee for any failure of Lessee to perform
and comply with any of Lessee's obligations to such sublease under such
Sublease. Lessee hereby irrevocably authorizes and directs any such
sublessees, upon receipt of a written notice from Lessor stating that a
Breach exists in the performance of Lessee's obligations under this
Lease, to pay to Lessor the rents and other charges due and to become
due under the sublease. Sublessee shall rely upon any such statement
and request from Lessor and shall pay such rents and other charges to
Lessor without any obligation or right to inquire as to whether such
Breach exists and notwithstanding any notice from or claim from Lessee
to the contrary. Lessee shall have no right or claim against such
sublease, or, until the Breach has been cured, against Lessor, for any
such rents and other charges so paid by said sublessee to Lessor.
(b) In the event of a Breach by Lessee in the performance of
its obligations under this Lease, Lessor, at its option and without any
obligation to do so, may require any sublessee to attorn to Lessor, in
which event Lessor shall undertake the obligations of the sublessor
under such sublease from the time of the exercise of said option to the
expiration of such sublease; provided, however, Lessor shall not be
liable for any prepaid rents or security deposit paid by such sublessee
to such sublessor or for any other prior defaults or breaches of such
sublessor under such sublease.
(c) Any matter or thing requiring the consent of the sublessor
under a sublease shall also require the consent of Lessor herein.
(d) No sublessee under a sublease approved by Lessor shall
further reassign or sublet all or any part of the Premises without
Lessor's prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or
Breach by Lessee to the sublessee, who shall have the right to cure the
Default of Lessee within the grace period, if any, specified in such
20
notice. The sublessee shall have a right of reimbursement and offset
from and against Lessee for any such Defaults cured by the sublessee.
13. Default, Breach, Remedies.
13.1 Default; Breach. Lessor and Lessee agree that if an attorney is
consulted by Lessor in connections with a Lessee Default or Breach (as
thereinafter defined) $350.00 is a reasonable minimum sum per such occurrence
for legal services sand costs in the preparation and service of a notice of
default, and that Lessor may include the cost of such services and costs in said
notice as due and payable to cure said default. A default by Lessee is defined
as a failure to observe, comply with or perform nay of the terms, covenants,
conditions or rules applicable to Lessee under this Lease. A Breach" by Lessee
is defined as the occurrence of any one or more of the following defaults and
where a grace period for cure after notice is specified therein, the failure by
Lessee to cure such Default prior to the expiration of the applicable grace
period, and shall entitle Lessor to pursue the remedies set forth in Paragraphs
13.2 and/or 13.3
(a) The vacating of the Premises without the intention to
reoccupy same, or the abandonment of the Premises.
(b) Except as expressly otherwise provided in this Lease, the
failure by Lessee to make any payment of Base Rent, Lessee's Share of
Common Are Operating Expenses, or any other monetary payment required
to be made by Lessee hereunder as and when due, the failure by Lessee
to provide Lessor with reasonable evidence of insurance or surety bond
required under this Lease, or the failure of Lessee to fulfill any
obligation under this Lease which endangers or threatens life or
property, where such failure continues for a period of three (3) days
following written notice thereof by or on behalf of Lessor to Lessee.
(c) Except as expressly otherwise provided in this Lease, the
failure by Lessee to provide Lessor with reasonable written evidence
(in duly executed original form, if applicable) of (i) compliance with
Applicable Requirements per Paragraph 6.3, (i) the inspection,
maintenance and service contracts required under Paragraph 7.1(b),
(iii) the rescission of an unauthorized assignment or subletting per
Paragraph 12.1, (iv) a Tenancy Statement per Paragraphs 16 or 37, (v)
the subordination or non0subordination of this Lease per Paragraph 30,
(vi) the guaranty of the performance of Lessee's obligations under this
Lease if required under Paragraphs 1.11 and 37, (vii) the execution of
any document requested under Paragraph 42 (easements), or (viii) any
other documentation or information which Lessor may reasonably require
of Lessee under the terms of this lease, where any such failure
continues for a period of ten (10) days following written notice by or
on behalf of Lessor to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions
or provisions of this Lease, or of the rules adopted under Paragraph 40
hereof that are to be observed, complied with or performed by Lessee,
other than those described in Subparagraphs 13.1(a), (b) or (c), above,
where such Default continues for a period of thirty (30) days after
written notice thereof by or on behalf of Lessor to Lessee; provided,
however, that if the nature of Lessee's Default is such that more than
thirty (30) days are reasonably required for its cure, then it shall
not be deemed to be a Breach of this Lease by Lessee if Lessee
commences such cure within said thirty (30) day period and thereafter
diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the
making by Lessee of any general arrangement or assignment for the
benefit of creditors; (ii) Lessee's becoming a "debtor" as defined in
11 U.S. Code Section 101 or any successor statute thereto (unless, in
the case of a petition filed against Lessee, the same is dismissed
within sixty (60) days); (iii) the appointment of a trustee or receiver
to take possession of substantially all of Lessee's assets located at
21
the Premises or of Lessee's interest in this Lease, where possession is
not restored to Lessee within thirty (30) days; or (iv) the attachment,
execution or other judicial seizure of substantially all of Lessee's
assets located at the Premises or of Lessee's interest in this Lease,
where such seizure is not discharged within thirty (30) days; provided,
however, in the event that any provision of this Subparagraph 13.1(a)
is contrary to any applicable law, such provision shall be of no force
or effect, and shall not affect the validity of the remaining
provisions.
(f) The discovery by Lessor that any financial statement of
Lessee or of any Guarantor, given to Lessor by Lessee or any Guarantor,
was materially false.
(g) If the performance of Lessee's obligations under this
Lease is guaranteed: (i) the death of a Guarantor, (ii) the termination
of a Guarantor's liability with respect to this Lease other than in
accordance with the terms of such guaranty, (iii) a Guarantor's
becoming insolvent or the subject of a bankruptcy filing, (iv) a
Guarantor's refusal to honor the guaranty, or (v) a Guarantor's breach
of its guaranty obligation on an anticipatory breach basis, and
Lessee's failure within sixty (60) days following written notice by or
on behalf of Lessor to Lessee of any such event, to provide Lessor with
written alternative assurances of security, which, when coupled with
the then existing resources of Lessee, equals or exceeds the continued
financial resources of Lessee and the Guarantors that existed at the
time of execution of this Lease.
13.2 Remedies. If Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after written notice
to Lessee (or in case of an emergency, without notice), Lessor may at its option
(but without obligation to do so), perform such duly or obligation on Lessee's
behalf, including but not limited to the obtaining of reasonably required bonds,
insurance policies, or governmental licenses, permits or approvals. The costs
and expenses of any such performance by Lessor shall be due and payable by
Lessee to Lessor upon invoice therefore. If any check given to Lessor by Lessee
shall not be honored by the bank upon which it is drawn, Lessor, at its own
option, may require all future payments to be made under this Lease by Lessee to
be made only by cashier's check. In the event of a Breach of this Lease by
Lessee (as defined in Paragraph 13.1), with or without further notice or demand,
and without limiting Lessor in the exercise of any right or remedy which Lessor
may have by reason of such Breach, Lessor may:
(a) Terminate Lessee's right to possession of the Premises by
any lawful means, in which case this Lease and the term hereof shall
terminate and Lessee shall immediately surrender possession of the
Premises to Lessor, in such event Lessor shall be entitled to recover
from Lessee: (i) the worth at the time of the award of the unpaid rent
which had been earned at the time of termination; (ii) the worth at the
time of award of the amount by which the unpaid rent which would have
been earned after termination until the time of award exceeds the
amount of such rental loss that the Lessee proves could have been
reasonably avoided; (iii) the worth at the time of award of the amount
by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that the Lessee proves
could have been reasonably avoided; (iv) any other amount necessary to
compensate Lessor for all the detriment proximately caused by the
Lessee's failure to perform its obligations under this Lease or which
in the ordinary course of things would be likely to result therefrom,
including but not limited to the cost of recovering possession of the
Premises, expenses of reletting, including necessary renovation and
alteration of the Premises, reasonable attorneys' fees, and that
portion of any leasing commission paid by Lessor in connection with
this Lease applicable to the unexpired term of this Lease. The worth at
the time of award of the amount referred to in provision (iii) of the
immediately preceding sentence shall be computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San
Francisco or the Federal Reserve Bank District in which the Premises
are located at the time of aware plus one percent (1%). Efforts by
Lessor to mitigate damages caused by Lessee's Default or Breach of this
Lease shall not waive Lessor's right to recover damages under this
Paragraph 13.2. If termination of this Lease is obtained through the
provisional remedy of unlawful detainer, Lessor shall have the right to
recover in such proceeding the unpaid rent and damages as are
recoverable therein, or Lessor may reserve the right to recover all or
any part thereof in a separate suit for such rent and/or damages. If a
notice and grace period required under Subparagraph 13.1(b), (c) or (d)
was not previously given, a notice to pay rent or quit, or to perform
22
or quit, as the case may be, given to Lessee under any statute
authorizing the forfeiture of leases for unlawful detainer shall also
constitute the applicable notice for grace period purposes required by
Subparagraph 13.1(b), (c) or (d). In such case, the applicable grace
period under the unlawful detainer statue shall run concurrently after
the one such statutory notice, and the failure of Lessee to cure the
Default within the greater of the two (2) such grace periods shall
constitute both an unlawful detainer and a Breach of this Lease
entitling Lessor to the remedies provided for in this Lease and/or by
said statute.
(b) Continue the Lease and Lessee's right to possession in
affect (in California under California Civil Code Section 1951.4) after
Lessee's Breach and recover the rent as it becomes due, provided Lessee
has the right to sublet or assign, subject only to reasonable
limitations. Lessor and Lessee agree that the limitations on assignment
and subletting in this Lease are reasonable. Acts of maintenance or
preservation, efforts to relet the Premises, or the appointment of a
receiver to protect the Lessor's interest under this Lease, shall not
constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available to
Lessor under the laws of judicial decision of the state wherein the
Premises are located.
(d) The expiration or termination of this Lease and/or the
termination of Lessee's right to possession shall not relieve Lessee
from liability under any indemnity provisions of this Lease as to
matters occurring or accruing during the term hereof or by reason of
Lessee's occupancy of the Premises.
13.3 Inducement Recapture in Event of Breach. Any agreement by Lessor
for free or abated rent or other charges applicable to the Premises, or the
giving or paying by Lessor to or for Lessee of any cash or other bonus,
inducement or consideration for Lessee's entering into this Lease, all of which
concessions are hereinafter referred to as "inducement Provisions" shall be
deemed conditioned upon Lessee's full and faithful performance of all of the
terms, covenants and conditions of this Lease to be performed or observed by
Lessee during the term hereof as the same may be extended. Upon the occurrence
of a Breach (as defined in Paragraph 13.1) of this Lease by Lessee, any such
inducement Provision shall automatically be deemed deleted from this Lease and
of no further force or effect, and any rent, other charge, bonus, inducement or
consideration theretofore abated, given or paid by Lessor under such an
inducement Provision shall be immediately due an payable by Lessee to Lessor,
and recoverable by Lessor, as additions rent due under this Lease,
notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by
Lessor of rent or the cure of the Breach which initiated the operation of this
Paragraph 13.3 shall not be deemed a waiver by Lessor of the provision of this
Paragraph 13.3 unless specifically so stated in writing by Lessor at the time of
such acceptance.
13.4 Late Charges. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Lessor by the terms of any ground lease, mortgage or deed of trust covering the
Premises. Accordingly, if any installment of rent or other sum due from Lessee
shall not be received by Lessor or Lessor's designee within ten (10) days after
such amount shall be due, then, without any requirement for notice to Lessee,
Lessee shall pay to Lessor a late charge equal to six percent (6%) of such
overdue amount. The parties hereby agree that such late charge represents a fair
and reasonable estimate of the costs Lessor will incur by reason of late payment
by Lessee. Acceptance of such late charge by Lessor shall in no event constitute
a waiver of Lessee's Default or Breach with respect to such overdue amount, nor
prevent Lessor from exercising any of the other rights and remedies granted
23
hereunder. In the event that a late charge is payable hereunder, whether or not
collected, for three (3) consecutive installments of Base Rent, then
notwithstanding Paragraph 4.1 or any other provision of this Lease to the
contrary, Base Rent shall, at Lessor's option, become due and payable quarterly
in advance.
13.5 Breach by Lessor. Lessor shall not be deemed in breach of this
Lease unless Lessor falls within a reasonable time to perform and obligation
required to be performed by Lessor. For purposes of this Paragraph 13.5, a
reasonable time shall in no event be less than thirty (30) days after receipt by
Lessor, and by any Lender(s) whose name and address shall have been furnished to
Lessee in writing for such purpose, of written notice specifying wherein such
obligation of Lessor has not been performed; provided, however, that if the
nature of Lessor's obligation is such that more than thirty (30) days after such
notice are reasonably required for its performance, then Lessor shall not be in
breach of this Lease if performance is commenced within such thirty (30) day
period and thereafter diligently pursued to completion.
14. Condemnation. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said power
(all of which are herein called "condemnation"), this Lease shall terminate as
to the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. If more than ten percent (10%) of the floor
area of the Premises, or more than twenty-five percent (25%) of the portion of
the Common Areas designated for Lessee's parking, is taken by condemnation,
Lessee may, at Lessee's option, to be exercised in writing within ten (10) days
after Lessor shall have given Lessee written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
shall have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Premises remaining, except that the Base Rent shall be
reduced in the same proportion as the rentable floor area of the Premises taken
bears to the total rentable floor area of the Premises. No reduction of Base
Rent shall occur if the condemnation does not apply to any portion of the
Premises. Any award for the taking of all or any part of the Premises under the
power of eminent domain or any payment made under threat of the exercise of such
power shall be the property of Lessor, whether such award shall be made as
compensation for diminution of value of the leasehold or for the taking of the
fee, or as severance damages; provided, however, that Lessee shall be entitled
to any compensation, separately awarded to Lessee for Lessee's relocation
expenses and/or loss of Lessee's Trade Fixtures. In the event that this Lease is
not terminated by reason of such condemnation, Lessor shall to the extent of its
net severance damages received, over and above Lessee's Share of this legal and
other expenses incurred by Lessor in the condemnation matter, repair any damage
to the Premises caused by such condemnation authority. Lessee shall be
responsible for the payment of any amount in excess of such net severance
damages required to complete such repair.
15. Brokers' Fees.
15.1 Procuring Cause. The Broker(s) named in Paragraph 1.10 is/are the
procuring cause of this Lease.
15.2 Additional Terms. Unless Lessor and Broker(s) have otherwise
agreed in writing, Lessor agrees that: (a) If Lessee exercises any Option ( as
defined in Paragraph 39.1) granted under this Lease or any Option subsequently
granted, or (b) if Lessee acquires any rights to the Premises or other promises
in which Lessor has an interest, or (c) if Lessee remains in possession of the
Premises with the consent of Lessor after the expiration of the term of this
Lease after having failed to exercise an Option, or (d) if said Brokers are the
procuring cause of any other lease or sale entered into between the Parties
pertaining to the Premises and/or any adjacent property in which Lessor has an
interest, or (e) if Base Rent is increased, whether by agreement or operation of
24
an escalation cause herein, then as to any of said transactions, Lessor shall
pay said Broker(s) a fee in accordance with the schedule of said Broker(s) in
effect at the time the execution of this Lease.
15.3 Assumption of Obligations. Any buyer or transferee of Lessor's
interest in this Lease, whether such transfer is by agreement or by operation of
law, shall be deemed to have assumed Lessor's obligation under this Paragraph
15. Each Broker shall be an intended third party beneficiary of the provision of
Paragraph 1.10 and of this Paragraph 15 to the extent of its interest in any
commission arising from this Lease and may enforce that right directly against
Lessor and its successors.
15.4 Representations and Warranties. Lessee and Lessor each represent
and warrant to the other that it has had no dealings with any person, firm,
broker or lender other than as named in Paragraph 1.10(a) in connection with the
negotiation of this Lease and/or the consummation of the transaction
contemplated hereby, and that no broker or other person, firm or entity other
than said named Broker(s) is entitled to any commission or finder's fee in
connection with said transaction. Lessee and Lessor do each hereby agree to
indemnify, protect, defend and hold the other harmless from and against
liability for compensation or charges which may be claimed by any such unnamed
broker, finder or other similar party by reason of any dealings or actions of
the Indemnifying Party, including any costs, expenses, and/or attorneys' fees
reasonably incurred with respect thereto.
16. Tenancy and Financial Statements.
16.1 Tenancy Statement. Each Party (as "Responding Party") shall within
ten (10) days after written notice from the other Party (the "Requesting Party")
execute, acknowledge and deliver to the Requesting Party a statement in writing
in a form similar to the then most current "Tenancy Statement" form published by
the American Industrial Real Estate Association, plus such additional
information, confirmation and/or statements as may be reasonably requested by
the Requesting Party.
16.2 Financial Statement. If Lessor desires to finance, refinance, or
sell the Premises or the Building or any part thereof, Lessee and all Guarantors
shall deliver to any potential lender or purchaser designated by Lessor such
financial statements of Lessee and such Guarantors as may be reasonably required
by such lender or purchaser, including but not limited to Lessee's financial
statements for the past three (3) years. All such financial statements shall be
received by Lessor and such lender or purchaser in confidence and shall be used
only for the purposes herein set forth.
17. Lessor's Liability. The term "Lessor" as used herein shall mean the owner or
owners at the time in question of the fee title to the Premises. In the event of
a transfer of Lessor's title or interest in the Premises or in this Lease,
Lessor shall deliver to the transferee or assignee (in cash or by credit) any
unused Security Deposit held by Lessor at the time of such transfer or
assignment. Except as provided in Paragraph 15.3, upon such transfer or
assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor
shall be relieved of all liability with respect to the obligations and/or
covenants under this Lease thereafter to be performed by the Lessor. Subject to
the foregoing, the obligations and/or covenants in this Lease to be performed by
the Lessor shall be binding only upon the Lessor as hereinabove defined.
18. Severability. The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
19. Interest on Past-Due Obligations. Any monetary payment due Lessor hereunder,
other than late charges, not received by Lessor within ten (10) days following
the date on which it was due, shall bear interest from the date due at the prime
rate charged by the largest state chartered bank in the state in which the
Premises are located plus four percent (4%) per annum, but not exceeding the
maximum rate allowed by law, in addition to the potential late charge provided
for in Paragraph 13.4.
25
20. Time of Essence. Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under this Lease.
21. Rent Defined. All monetary obligations of Lessee to Lessor under the terms
of this Lease are deemed to be rent.
22. No Prior or other Agreements; Broker Disclaimer. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein, and
no other prior or contemporaneous agreement or understanding shall be effective.
Lessor and Lessee each represents and warrants to the Brokers that is has made,
and is relying solely upon, its own investigation as to the nature, quality,
character and financial responsibility of the other Party to this Lease and as
to the nature, quality and character of the Premises. Brokers have no
responsibility with respect thereto or with respect to any default or breach
hereof by either Party. Each Broker shall be an intended third party beneficiary
of the provision of this Paragraph 22.
23. Notices.
23.1 Notice Requirements. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand or by
messenger or courier service) or may be sent by regular, certified or registered
mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile
transmission during normal business hours, and shall be deemed sufficiently
given if served in a manner specified in this Paragraph 23. The addresses noted
adjacent to a Party's signature on this Lease shall be that Party's address for
delivery or mailing of notice purposes. Either Party may by written notice to
the other specify a different address for notice purposes, except that upon
Lessee's taking possession of the Premises, the Premises shall constitute
Lessee's address for the purpose of mailing or delivering notices to Lessee. A
copy of all notices required or permitted to be given to Lessor hereunder shall
be concurrently transmitted to such party or parties at such addresses as Lessor
may from time to time hereafter designate by written notice to Lessee.
23.2 Date of Notice. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or if no delivery date is shown, the postmark thereon. If sent
by regular mail, the notice shall be deemed given forty-eight (48) hours after
the same is addressed as required herein and mailed with postage prepaid.
Notices delivered by United States Express Mail or overnight courier that
guarantees next day delivery shall be deemed given twenty-four (24) hours after
delivery of the same to the United States Postal Service or courier. If any
notice is transmitted by facsimile transmission or similar means, the same shall
be deemed served or delivered upon telephone or facsimile confirmation of
receipt of the transmission thereof, provided a copy is also delivered via
delivery or mail. If notice is received on a Saturday or a Sunday or a legal
holiday, it shall be deemed received on the next business day.
24. Waivers. No waiver by Lessor of the Default or Breach of any farm, covenant
or condition hereof by Lessee, shall be deemed a waiver of any other term,
covenant or condition hereof, or of any subsequent Default or Breach by Lessee
of the same or any other term, covenant or condition hereof. Lessor's consent
to, or approval of, any such act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to, or approval of, any subsequent or similar act
by Lessee, or be construed as the basis of an estoppel to enforce the provision
or provisions of this Lease requiring such consent. Regardless of Lessor's
knowledge of a Default or Breach at the time of accepting rent, the acceptance
of rent by Lessor shall not be a waiver of any Default or Breach by Lessee of
any provision hereof. Any payment given Lessor by Lessee may be accepted by
Lessor on account of moneys or damages due Lessor, notwithstanding any
qualifying statements or conditions made by Lessee in connection therewith,
which such statements and/or conditions shall be of no force or effect
whatsoever unless specifically agreed to in writing by Lessor at or before the
time of deposit of such payment.
26
25. Recording. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. No Right to Holdover. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease. In the event that Lessee holds over in violation of this Paragraph
26 then the Base Rent payable from and alter the time of the expiration or
earlier termination of this Lease shall be increased to two hundred percent
(200%) of the Base Rent applicable during the month immediately preceding such
expiration or earlier termination. Nothing contained herein shall be construed
as a consent by Lessor to any holding over by Lessee.
27. Cumulative Remedies. No remedy of election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies of
law or in equity.
28. Covenants and Conditions. All provisions of this Lease to be observed or
performed by Lessee are both covenants and conditions.
29. Binding Effect; Choice of Law. This Lease shall be binding upon the Parties,
their personal representatives, successors and assigns and be governed by the
laws of the State in which the Premises are located. Any litigation between the
Parties hereto concerning this Lease shall be initiated in the county in which
the Premises are located.
30. Subordination; Attornment; Non-Disburbances.
30.1 Subordination. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or other
hypothecation or security device (collectively, "Security Device"), now or
hereafter placed by Lessor upon the real property of which the Premises are a
part, to any and all advances made on the security thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof. Lessee
agrees that the Lenders holding any such Security Device shall have no duty,
liability or obligation to perform any of the obligation of Lessor under this
Lease, but that in the event of Lessor's default with respect to any such
obligation, Lessee will give any Lender whose name and address have been
furnished Lessee in writing for such purpose notice of Lessor's default pursuant
to Paragraph 13.5. If any Lender shall elect to have this Lease and/or any
Option granted hereby superior to the lien of its Security Device and shall give
written notice thereof to Lessee, this Lease and such Options shall be deemed
prior to such Security Device, notwithstanding the relative dates of the
documentation or recordation thereof.
30.2 Attornment. Subject to the non-disturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who acquires
ownership of the Premises by reason of a foreclosure of a Security Device, and
that in the event of such foreclosure, such new owner shall not: (i) be liable
for any act or omission of any prior Lessor or with respect to events occurring
prior to acquisition of ownership; (ii) be subject to any offsets or defenses
which Lessee might have against any prior Lessor; or (iii) be bound by
prepayment of more than one month's rent.
30.3 Non-Disturbance. With respect to Security Devices entered into by
Lessor after the execution of this lease, Lessee's subordination of this Lease
shall be subject to receiving assurance (a "non-disturbance agreement") from the
Lender that Lessee's possession and this Lease, including any options to extend
the term hereof, will not be disturbed so long as Lessee is not in Breach hereof
and attorns to the record owner of the Premises.
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30.4 Self-Executing. The agreements contained in this Paragraph 30
shall be effective without the execution of any further documents; provided,
however, that upon written request from Lessor or a Lender in connection with a
safe, financing or refinancing of Premises, Lessee and Lessor shall execute such
further writings as may be reasonably required to separately document any such
subordination or non-subordination, attornment and/or non-disturbance agreement
as is provided for herein.
31. Attorney's Fees. If any Party or Broker brings an action or proceeding to
enforce the terms hereof or declare rights hereunder, the Prevailing Party (as
hereafter defined) in any such proceeding, action, or appeal thereon, shall be
entitled to reasonable attorneys' fees. Such fees may be awarded in the same
suit or recovered in a separate suit, whether or not such action or proceeding
is pursued to decision or judgment. The term "Prevailing Party" shall include,
without limitation, a Party or Broker who substantially obtains or defeats the
relief sought, as the case may be, whether by compromise settlement, judgment,
or the abandonment by the other Party or Broker of its claim or defense. The
attorneys' fee award shall not be computed in accordance with any court fee
schedule, but shall be such as to fully reimburse all attorneys' fees reasonably
incurred. Lessor shall be entitled to attorneys' fees, costs and expenses
incurred in preparation and service of notices of Default and consultation in
connection therewith, whether or not a legal action is subsequently commended in
connection with such Default or resulting Breach. Broker(s) shall be intended
third party beneficiaries of this Paragraph 31.
32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents shall
have the right to enter the Premises at any time, in the case of an emergency,
and otherwise at reasonable times for the purpose of showing the same to
prospective purchasers, lenders, or lessees, and making such alterations,
repairs, improvements or additions to the Premises or to the Building, as Lessor
may reasonably deem necessary. Lessor may at any time place or about the
Premises or Building any ordinary "For Sale" signs and Lessor may at any time
during the last one hundred eighty (180) days of the term hereof place on or
about the Premises any ordinary "For Lease" signs. All such activities of Lessor
shall be without abatement of rent or liability to Lessee.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
34. Signs. Lessee shall not place any sign upon the exterior of the Premises or
the Building, except that Lessee may, with Lessor's prior written consent,
install (but not on the roof) such signs as are reasonably required to advertise
Lessee's own business to long as such signs are in a location designated by
Lessor and comply with Applicable Requirements and the signage criteria
established for the Industrial Center by Lessor. The installation of any sign on
the Premises by or for Lessee shall be subject to the provisions of Paragraph 7
(Maintenance, Repairs, Utility Installations, Trade Fixtures and Alterations).
Unless otherwise expressly agreed herein, Lessor reserves all rights to the use
or the roof of the Building, and the right to install advertising signs on the
Building, including the roof, which do not unreasonably interfere with the
conduct of Lessee's business. Lessor shall be entitled to all revenues from such
advertising signs.
35. Termination; Merger. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or Lesser estate in the
Premises; provided, however, Lessor shall, in the event of any such surrender,
termination or cancellation, have the option to continue any one or all of any
existing subtenancies. Lessor's failure within ten (10) days following any such
event to make a written election to the contrary by written notice to the holder
of any such lesser interest, shall constitute Lessor's election to have such
event constitute the termination of such interest.
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36. Consents.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise provided
herein, wherever in this Lease the consent of a Party is required to an act by
or for the other Party, such consent shall not be unreasonably withheld or
delayed. Lessor's actual reasonable costs and expenses (including but not
limited to architects', attorneys', engineers' and other consultants' fees)
incurred in the consideration of, or response to, a request by Lessee for any
Lessor consent pertaining to this Lease or the Premises, including but not
limited to consents to an assignment a subletting or the presence or use of a
Hazardous Substance, shall be paid by Lessee to Lessor upon receipt of an
invoice and supporting documentation therefore, in addition to the deposit
described in Paragraph 12.2(e), Lessor may, as a condition to considering any
such request by Lessee, require that Lessee deposit with Lessor an amount of
money (in addition to the Security Deposit held under Paragraph 5) reasonably
calculated by Lessor to represent the cost Lessor will incur in considering and
responding to Lessee's request. Any unused portion of said deposit shall be
refunded to Lessee without interest, Lessor's consent to any act, assignment of
this Lease or subletting of the Premises by Lessee shall not constitute an
acknowledgment that no Default or Breach by Lessee of this Lease exists, nor
shall such consent be deemed a waiver of any then existing Default or Breach,
except as may be otherwise specifically stated in writing by Lessor at the time
of such consent.
(b) All conditions to Lessor's consent authorized by this Lease are
acknowledged by Lessee as being reasonable. The failure to specify herein any
particular condition to Lessor's consent shall not preclude the impositions by
Lessor at the time of consent of such further or other conditions as are then
reasonable with reference to the particular matter for which consent is being
given.
37. Guarantor.
37.1 Form of Guaranty. If there are to be any Guarantors of this Lease
per Paragraph 1.11, the form of the guaranty to be executed by each such
Guarantor shall be in the form most recently published by the American
Industrial Real Estate Association, and each such Guarantor shall have the same
obligations as Lessee under this lease, including but not limited to the
obligation to provide the Tenancy Statement and information required in
Paragraph 16.
37.2 Additional Obligations of Guarantor. It shall constitute a Default
of the Lessee under this Lease if any such Guarantor fails or refuses, upon
reasonable request by Lessor to give: (a) evidence of the due execution of the
guaranty called for by this Lease, including the authority of the Guarantor (and
of the party signing on Guarantor' behalf) to obligate such Guarantor on said
guaranty, and resolution of tits board of directors authorizing the making of
such guaranty, together with a certificate of incumbency showing the signatures
of the persons authorized to sign on its behalf, (b) current financial
statements of Guarantor as may from time to time be requested by Lessor, (c) a
Tenancy Statement, or (d) written confirmation that the guaranty is still in
effect.
38. Quiet Possession. Upon payment by Lessee of the rent for the Premises and
the performance of all of the covenants, conditions and provisions on Lessee's
part to be observed and performed under this Lease, Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provision of this Lease.
39. Options.
39.1 Definition. As used in this Lease, the word "Option" has the
following meaning: (a) the right to extend the terms of this Lease or to renew
this Lease or to extend or renew any lease that Lessee has on other property of
Lessor; (b) the right of first refusal to lease the Premises or the right of
29
first offer to lease the Premises or the right of first refusal to lease other
property of Lessor or the right of first offer to lease other property of
Lessor; (c) the right to purchase the Premises, or the right of first refusal to
purchase the Premises, or the right of first offer to purchase the Premises, or
the right to purchase other property of Lessor, or the right of first refusal to
purchase other property of Lessor, or the right of first offer to purchase other
property of Lessor.
39.2 Options Personal to Original Lessee. Each Option granted to Lessee
in this Lease is personal to the original Lessee named in Paragraph 1.1 hereof,
and cannot be voluntarily or involuntarily assigned or exercised by any person
or entity other than said original Lessee while the original Lessee is in full
and actual possession of the Premises and without the intention of thereafter
assigning or subletting. The Options, if any, herein granted to Lessee are not
assignable, either as a part of an assignment of this Lease or separately or
apart therefrom, and no Option may be separated from this Lease in any manner,
by reservation or otherwise.
39.3 Multiple Options. In the event that Lessee has any multiple
Options to extend or renew this Lease, a alter option cannot be exercised unless
the prior Options to extend or renew this Lease have been validly exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary;
(i) during the period commencing with the giving of any notice of
Default under Paragraph 13.1 and continuing until the noticed Default
is cured, or (ii) during the period of time any monetary obligation due
Lessor from Lessee is unpaid (without regard to whether notice thereof
is given Lessee), or (iii) during the time Lessee is in Breach of this
Lease, or (iv) in the event that Lessor has given to Lessee three (3)
or more notices of separate Defaults under Paragraph 13.1 during the
twelve (12) month period immediately preceding the exercise of the
Option, whether or not the Defaults are cured.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee's inability to
exercise an Option because of the provisions of Paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option
shall terminate and be of no further force or effect, notwithstanding
Lessee's due and timely exercise of the Option, if, after such exercise
and during the term of this Lease, (i) Lessee fails to pay to Lessor a
monetary obligation of Lessee for a period of thirty (30) days after
such obligation becomes due (without any necessity of Lessor to give
notice thereof to Lessee), or (ii) Lessor gives to Lessee three (3) or
more notices of separate Defaults under Paragraph 13.1 during any
twelve (12) month period, whether or not the Defaults are cured, or
(iii) if Lessee commits a Breach of this Lease.
40. Rules and Regulations. Lessee agrees that it will abide by, and keep and
observe all reasonable rules and regulations ("Rules and Regulations") which
Lessor may make from time to time for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other occupants or
tenants of the Building and the Industrial Center and their invitees.
41. Security Measures. Lessee hereby acknowledges that the rental payable to
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of the Premises, Lessee,
its agents and invitees and their property from the acts of third parties.
30
42. Reservations. Lessor reserves the right, from time to time, to grant,
without the consent or joinder of Lessee such easements, rights of way, utility
raceways, and dedications that Lessor deems necessary, and to cause the
recordation of parcel maps and restrictions, so long as such easements, rights
of way, utility raceways, dedications, maps and restrictions do not reasonably
interfere with the use of the Premises by Lessee. Lessee agrees to sign any
documents reasonably required by Lessor to effectuate any such easement rights,
dedication, map or restrictions.
43. Performance Under Protest. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one Party to the other under the provisions
hereof, the Party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment and there shall survive the right on the part of
said Party to institute suit for recovery of such sum. If it shall be adjudged
that there was no legal obligation on the part of said Party to pay such sum or
any part thereof, said Party shall be entitled to recover such sum or so much
thereof as it was not legally required to pay under the provisions of this
Lease.
44. Authority. If either Party hereto is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute and
delivery this Lease on its behalf. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after request by Lessor,
deliver to Lessor evidence satisfactory to Lessor of such authority.
45. Conflict. Any conflict between the printed provisions of this Lease and the
typewritten or handwritten provisions shall be controlled by the typewritten or
handwritten provisions.
46. Offer. Preparation of this Lease by either Lessor or Lessee or Lessor's
agent or Lessee's agent and submission of same to Lessee or Lessor shall not be
deemed an offer to lease. This Lease is not intended to be binding until
executed and delivered by all Parties hereto.
47. Amendments. This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification. The Parties shall amend
this Lease from time to time to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by an institution insurance company or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the property
of which the Premises are a part.
48. Multiple Parties. Except as otherwise expressly provided herein, if more
than one person or entity is named herein as either Lessor or Lessee, the
obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR YOUR
ATTORNEY'S REVIEW AND APPROVAL. FURTHER, EXPERTS SHOULD BE CONSULTED TO
EVALUATE THE CONDITION OF THE PROPERTY FOR THE POSSIBLE PRESENCE OF
ASBESTOS, UNDERGROUND STORAGE TANKS OR HAZARDOUS SUBSTANCES. NO
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REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL
REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKERS OR THEIR
CONTRACTORS, AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL
EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH
IT RELATES; THE PARTIES SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN
COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE. IF THE
SUBJECT PROPERTY IS IN A STATE OTHER THAN CALIFORNIA, AN ATTORNEY FROM
THE STATE WHERE THE PROPERTY IS LOCATED SHOULD BE CONSULTED.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at: Corte Madera, California
Dated: 4/10/02
By LESSOR: By LESSEE:
Arden Eagle Associates, Ltd. RVision, LLC,
Arden Properties, Inc. General Partner a California corporation
/s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------- ---------------------------------
Name Printed: Xxxx X. Xxxxxxxxx Name Printed: Xxxxxxx X. Xxxxxxxx
Title: President Title:
Address: 00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NOTE: These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are utilizing the
most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000; (000) 000-0000.
32
ADDENDUM
THIS FIRST ADDENDUM IS HEREBY MADE A PART OF THAT LEASE DATED APRIL 8, 2002, BY
AND BETWEEN ARDEN EAGLE ASSOCIATES, LTD. AS LESSOR AND RVISION, LLC, A
CALIFORNIA CORPORATION, AS LESSEE, FOR THE PROPERTY LOCATED AT 0000-X XXXXXXX
XXXXX, XXX XXXX, XXXXXXXXXX 00000.
49. Base Rent Schedule: Base Rent shall be adjusted to the following amounts on
the dates set forth below:
Date of Increase New Base Monthly Rent
---------------- ---------------------
April 8, 2002 to April 30, 2002 $2,926.00 NNN
May 1, 2002 to March 31, 2003 $3,990.00 NNN
April 1, 2003 to April 30, 2003 $4,144.00 NNN
May 1, 2003 to March 31, 2004 $4,200.00 NNN
April 1, 2004 to April 8, 2004 $1,120.00 NNN
50. Trash:
Notwithstanding anything to the contrary, all trash, including
dumpsters shall be contained within the fenced and gated trash area
adjacent from Lessee's rear entrance, a portion of which is included in
the leased Premises. Lessee shall be responsible for the timely removal
of Lessee's trash at its own expense. If Lessee generated large
quantities of trash, it shall be responsible for more frequent removal.
51. Building Improvements.
Lessor, at Lessor's sole cost and expense, shall provide the following
improvements:
o Install an independent light switch to control the
lighting in the upstairs private office, as shown on
Exhibit A.
o Install window blinds to cover the existing windows
in the manufacturing area, as shown on Exhibit A.
Lessee, at Lessee's sole cost and expense, shall be allowed to s
install an air compressor along the exterior [/s/ GJ, /s/ JT] rear of
the Premises at a location to be mutual agreed upon between Lessor and
Lessee.
52. Security Deposit.
So long as Lessee is NOT and has not been in default of any terms or
conditions of the Lease Agreement, Lessor shall credit $3,990.00 from
the cash Security Deposit towards Base Rent due and payable on
September 1, 2002.
So long as Lessee is NOT and has not bee in default of any terms or
conditions of the Lease Agreement, Lessor shall credit $4,144.00 from
the cash Security Deposit towards Base Rent due and payable on April 1,
2003.
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53. Option to Extend:
Lessor hereby grants to Lessee one (1) option to extend the term of
this Lease for an additional one (1) year period commencing when the
prior term expires upon each and all of the following terms and
conditions:
(i) In order to exercise an option to extend, Lessee must give written
notice of such election to Lessor and Lessor must receive the same at least 3
months prior to the date that the option period would commence, time being of
the essence. If proper notification of the exercise of an option is not given
and/or received, such option shall automatically expire.
(ii) The provisions of paragraph 39, including those relating to
Lessee's Default set forth in paragraph 39.4 of this Lease, are conditions of
this Option.
(iii) Except for the provisions of this Lease granting an option or
options to extend the term, all of the terms and conditions of this Lease except
where specifically modified by this Option shall apply.
(iv) This Option is personal to the original Lessee, and cannot be
assigned or exercised by anyone other than said original Lessee and only while
the original Lessee is in full possession of the Premises and without the
intention thereafter of assigning or subletting.
(v) The monthly rent for each month of the option period shall be
calculated as follows, using the method indicated below.
Market Rental Value Adjustment (MRV)
a. On April 9, 2004 the Base Rent shall be adjusted to One Hundred
percent (100%) of the "Market Rental Value" of the property as follows:
1) Four months prior to the Market Rental Value Adjustment
Date described above, the Parties shall attempt to agree upon what the new MRV,
including any appropriate annual increases, will be on the adjustment date. If
agreement cannot be reached within thirty days, then:
(a) Lessor and Lessee shall immediately appoint a
mutually acceptable appraiser or broker to establish the new MRV within the next
thirty days. Any associated costs will split equally between the parties, or
(b) Both Lessor and Lessee shall each immediately
make a reasonable determination of the MRV and submit such determination, in
writing, to arbitration in accordance with the following provisions:
(i) Within fifteen days thereafter, Lessor
and Lessee shall each select an appraiser or broker ("Consultant") of their
choice to act as an arbitrator. The two arbitrators so appointed shall
immediately select a third mutually acceptable Consultant to act as a third
arbitrator.
(ii) The three arbitrators shall within
thirty days of the appointment of the third arbitrator reach a decision as to
what the actual MRV for the Premises is, and whether Lessor's or Lessee's
submitted MRV is the closes thereto. The decision of a majority of the
arbitrators shall be binding on the Parties. The submitted MRV which is
determined to be the closest to the actual MRV shall thereafter be used by the
Parties.
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(iii) If either of the Parties fails to
appoint an arbitrator within the specified fifteen days, the arbitrator timely
appointed by one of them shall reach a decision on his or her own, and said
decision shall be binding on the Parties.
(iv) The entire costs of such arbitration
shall be paid by the party whose submitted MRV is not selected, i.e. the one
that is NOT the closest to the actual MRV.
b. Upon the establishment of each new Market Rental Value:
1. the new MRV will become the new "Base Rent" for the purpose of
calculating any further Adjustment, and
2. the first month of each Market Rental Value term shall become the
new "Base Month" for the purpose of calculating any further adjustments.
54. Signage:
Lessee, at Lessee's sole cost and expense, shall have access to signage
as is customary for the Creekside Business Center.
LESSOR: Arden Eagle Associates, Ltd. LESSEE: RVision, LLC,
BY: Arden Properties, Inc., Its G.P. a California Corporation
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------- --------------------------------
Xxxx X. Xxxxxxxxx, President Xxxxxxx X. Xxxxxxxx
Date: 4/10/02 Date: 08 APR 02
Exhibit A
0000-X Xxxxxxx Xxxxx
[FLOOR PLAN NOT TO SCALE]
Exhibit B
0000-X Xxxxxxx Xxxxx
[FLOOR PLAN NOT TO SCALE]
Exhibit C
CREEKSIDE BUSINESS CENTER
RULES AND REGULATIONS
1. Lessee agrees not to place anything against or near glass partitions or doors
or windows which may appear unsightly from outside the Premises, including,
without limitation, stickers, tinting materials, foil shades, blinds or screens.
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2. If a directory is located at the Buildings, it is provided exclusively for
the display of the name and location of Lessee only and Lessor reserves the
right to exclude any other names therefrom.
3. The sidewalk, passages, exits, entrances, and stairways in and around the
Buildings shall not be obstructed by Lessee or used by it for any purpose other
than for ingress to and egress from the Premises. The passages, exits,
entrances, stairways, and roof are not for the use of the general public and
Lessor shall in all cases retain the right to control and prevent access thereto
by all persons whose presence in the judgment of Lessor shall be prejudicial to
the safety, character, reputation and interests of the Buildings and it s
Lessees, provided that nothing herein contained shall be construed to prevent
such access to persons with whom Lessee normally deals in the ordinary course of
Lessee's business unless such persons are engaged in illegal activities. Neither
Lessee nor any employees or invitees of Lessee shall go upon the roof of the
Buildings.
4. The toilets and urinals shall not be used for any purpose other than those
for which they were constructed, and no rubbish, newspapers or other substances
of any kind shall be thrown into them. Waste and excessive of unusual use of
water shall not be allowed. Lessee shall be responsible for any breakage,
stoppage or damage resulting from the violation of this rule by Lessee or its
employees or invitees.
5. Lessee shall not overload the floor of the Premises or xxxx, drive nails,
screw or drill into the partitions, woodwork or plaster or in any way deface the
Premises or any part thereof.
6. Lessee shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring building or
premises or those having business with them, whether by the use of any musical
instrument, radio, phonograph, machinery, or otherwise. Lessee shall not use,
keep or permit to be used, or kept, any foul or obnoxious gas or substance in
the Premises or permit or suffer the Premises to be used or occupied in any
manner offensive or objectionable to Lessor or other occupants of this or
neighboring buildings or premises by reason of any odors fumes of gases.
7. Neither Lessee nor any of Lessee's agents shall at any time bring or keep
upon the Premises any toxic, hazardous, inflammable, combustible or explosive
fluid, chemical or substance without the prior written consent of Lessor.
8. Lessee will not use the Premises for any business or activity other than that
specifically provided for in this Lease. Lessee will not conduct, nor permit to
the conducted, either voluntarily or involuntarily, any auction upon the
Premises without first having obtained Lessor's prior written consent which
consent Lessor may withhold in its sole and absolute discretion.
9. The Premises shall not be used for manufacturing, offices or the storage of
merchandise except as the same may be incidental to the permitted use of the
Premises. NO exterior storage shall be allowed at any time without the prior
written approval of Lessor. The Premises shall not be used for cooking or
washing clothes without the prior written consent of Lessor, or for lodging or
sleeping or for any immoral or illegal purposes.
10. Lessor will direct electricians as to the manner and location in which
telephone and telegraph wires are to be introduced. No boring or cutting for
wires will be allowed without the consent of Lessor. The location of telephones,
call boxes and other office equipment affixed to the Premises shall be subject
to the approval of Lessor.
11. Lessee shall not lay linoleum, tile, carpet or other similar floor covering
so that the same shall be affixed to the floor of the Premises in any manner
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except as approved by Lessor. The expense of repairing any damage resulting from
a violation of this rule or removal of any floor covering shall be borne by
Lessee.
12. Exterior blinds are furnished for each window by Lessor. Any additional
window covering desired by Lessee shall be approved by Lessor.
13. No awnings or other projection shall be attached to the outside walls of the
Buildings. No security bars or gates, curtains, blinds, shades or screens shall
be attached to or hung in, or used in connection with, any window or door of the
Premises without the prior written consent of Lessor. Neither the interior nor
exterior of any windows shall be coated or otherwise sunscreened without the
express written consent of Lessor.
14. Lessor reserves the right to exclude or expel from the Buildings any persons
who, in the judgment of Lessor, is intoxicated or under the influence of liquor
or drugs, or who shall in any manner do any act in violation of any of the rules
and regulations of the Buildings.
15. Lessee shall not disturb, solicit, or canvass any occupant of the Buildings.
16. Without the written consent of Lessor, Lessee shall not use the name of the
Buildings in connection with or in promoting or advertising the business of
Lessee except as Lessee's address.
17. Lessee shall not permit any contractor or other person making any
alteration, additions or installations within the Premises to use the hallways,
lobby or corridors as storage or work areas without the prior written consent of
Lessor. Lessee shall be liable for and shall pay the expense of any additional
cleaning or other maintenance required to be performed with the Buildings by or
for Lessee.
18. Lessee shall be entitled to use parking spaces as mutually agreed upon
between Lessee and Lessor subject to such reasonable conditions and regulations
as may be imposed from time to time by Lessor. Lessee agrees that vehicles of
Lessee or its employees, or agents shall not park in driveways nor occupy
parking spaces or other areas reserved for any use such as Visitors, Delivery,
Loading, or other Lessees. Lessor or its agents, shall have the right to cause
or be removed any car of Lessee, its employees or agents, that may be parked in
unauthorized areas, and Lessee agrees to save and hold harmless Lessor, its
agents and employees from any and all claims, losses, damages and demands
asserted or arising in respect to or in connection with the removal of any such
vehicle. Lessee, its employees, or agents shall not park campers, trucks or cars
on the Buildings' parking areas overnight or over weekends. Lessee will from
time to time, upon request of Lessor, supply Lessor with a list of license plate
numbers of vehicles owned or operated by its employees and agents.
19. Lessor reserves the right, without cost or liability to Lessor, to tow any
vehicle if such vehicle's audio theft alarm system remains engaged for an
unreasonable period of time.
20. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose if prohibited.
21. Lessor may refuse to permit any person to park in the parking facilities who
violates these rules with unreasonable frequency, and any violation of these
rules shall subject the violator's car to removal, at such car owner's expense.
Lessee agrees to use its best efforts to acquaint its employees, sublessees,
assignees, contractors, suppliers, customers and invitees with these parking
provisions, rules and regulations.
5
22. Lessee is responsible for purchasing and installing a security system if
required by law or City ordinance. The cost of purchasing and installation of
any such system is the sole cost and expense of Lessee.
23. Lessee is required to have a minimum of one sign and shall be allowed only
one sign per unit leased. No advertising placards, merchandise, banners,
pennants, names, insignia, trademarks, or other descriptive material shall be
affixed or maintained in a fashion to be displayed to the exterior of the suite
or on the glass panes of the building, landscaped areas, streets or parking
areas. No alarm company stickers larger than 3-1/2" x 2-1/2" will be allowed. A
layout of each proposed sign showing copy/logo and color sample must be
submitted to the Lessor for approval prior to fabrication and installation.
24. Maintenance of the Lessee sign is the responsibility of the Lessee. Lessor
may require Lessee to replace the sign(s) as needed, at Lessee's sole cost, to
maintain an acceptable appearance of the signs.
25. No deliveries will be made which impede or interfere with other Lessees or
the operation of the Buildings.
26. If Lessee requires telegraphic, telephonic, burglar alarm, satellite dishes,
antennae or similar services, it will first obtain Lessor's approval, and comply
with, Lessor's reasonable rules and requirements applicable to such services,
which may include separate licensing by, and fees paid to, Lessor, as well as
all federal, state, and local regulations. Lessee will not transmit or receive
any electromagnetic, microwave or other radiation which may be harmful or
hazardous to any person or property in or about the Premises or elsewhere within
the Buildings.
27. Lessee will store all its trash and garbage within its Premises or in other
facilities provided by Lessor. Lessee will not place in any trash box or
receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
is to be made in accordance with directions issued from time to time by Lessor
or according to each Lessee's Lease.
28. The entire Premises, including vestibules, entrances, doors, fixture,
windows and plate glass, shall at all times be maintained in a safe, neat and
clean condition by Lessee. All trash, refuse and waste materials shall be
regularly removed from the Premises by Lessee and placed in the containers at
the locations designated by Lessor for refuse collection, or stored within each
Lessee's Premises as provided in the Lease. All cardboard boxes must be "broken
down" prior to being placed in the trash containers. All Styrofoam chips must be
bagged or otherwise contained prior to placement in the trash containers, so as
not to constitute a nuisance. Pellets may not be disposed of in the trash
containers or enclosures. The burning of trash, refuse or waste materials is
prohibited.
29. Lessee assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed. Lessee will not leave or store any
equipment, materials or times of any kind outside the walls of the Premises.
30. This Exhibit sets forth the Rules and Regulations governing Lessee's use of
the Common Area and the Premises leased to Lessee pursuant to the terms,
covenants and conditions of the Lease to which this Exhibit is attached and
therein made part thereof. Unless otherwise defined, capitalized terms used
herein shall have the same meanings as set forth in the Lease. In the event of
any conflict or inconsistency between this Exhibit and the Lease, the Lease
shall control.
31. No animals shall be permitted at any time within the Premises.
6
32. Canvassing, soliciting, peddling, parading, picketing, demonstrating or
otherwise engaging in any conduct that unreasonably impairs the value or use of
the Premises or the Buildings is prohibited and Lessee shall cooperate to
prevent the same.
33. All furniture, equipment and freight shall be moved in and out of the
Buildings only at hours and in accordance with rules established by Lessor, and
shall not impair vehicular and pedestrian circulation in the Common Area. Lessor
will not be responsible for loss or damage to any furniture, equipment, or other
personal property of Lessee from any cause.
34. No air conditioning unit or other similar apparatus shall be installed or
used by Lessee without the prior written consent of Lessor.
35. Lessee shall use at Lessee's cost such pest extermination contractor as
Lessor may direct and at such intervals as Lessor may require.
36. Lessor may waive any one or more of these Rules for the benefit of any
particular Lessee, but no such waiver shall be construed as a waiver of Lessor's
right to enforce these Rules against any of all Lessees occupying the Buildings.
37. Lessee agrees to comply with all such Rules and Regulations. Should Lessee
not abide by these Rules and Regulations, Lessor (if there are any Restrictions,
any "Operator," "Association" or Declarant" under same) may serve a three (3)
day notice to correct the deficiencies. If Lessee has not corrected the
deficiencies by the end of the notice period, Lessee will be in default of the
Lease, and Lessor and/or its designee shall have the right, without further
notice, to cure the violation at Lessee's expense or terminate the Lease at
Lessor's sole discretion.
38. Lessor reserves the right to amend or supplement the foregoing Rules and
Regulations and to adopt and promulgate additional rules and regulations
applicable to the Premises and Buildings. Notice of such Rules and Regulations
and amendments and supplements thereto, if any, shall be given to the Lessee.
39. Neither Lessor not Lessor's agents or any other person or entity shall be
responsible to Lessee or to any other person for the ignorance or violation of
these Rules and Regulations by any other Lessee or other person. Lessee shall be
deemed to have read these Rules and Regulation s and to have agreed to abide by
them as a condition precedent, waivable only by Lessor, to Lessee's occupancy of
the Premises.
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Second Addendum to Lease by and Between Arden Eagle Associates
and RVision, LLC, a California Corporation April 8, 2002
This Second Addendum dated October 15, 2003 by and between Arden Eagle
Associates and RVision, LLC as Lessee, for the property located at 0000-X
Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, shall amend the Lease dated April 8,
2002 between the parties.
1. TERM. The Term of the Lease shall be extended by 24 months and 22
days and shall expire on April 30, 2006.
2. RENT. The new Base Rent shall be $3410 per month effective November
1, 2003.
3. All other terms and conditions of the Lease not in conflict with
this Second Addendum shall remain in full force and effect.
4. CONFIDENTIALITY: Lessee agrees that all the provisions of this
Addendum are extremely confidential, and that Lessee shall maintain all the
provisions of this Addendum in strictest confidence and will not divulge,
discuss or disclose the same by any means to any person, firm or other entity
other than its attorneys and tax advisors, without either the express permission
of Lessor or an order of any Court having Jurisdiction over a proceeding
involving Lessee. Any violation or breach of this section by Lessee shall be a
Default under the Lease.
5 Upgrade one window upstairs to open for fresh air.
AGREED TO AND ACCEPTED BY:
LESSOR:
Arden Eagle Associates, Ltd.
By: Arden Properties, Inc., General Partner
BY: /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Its: President
Date: 11/10/03
LESSEE:
RVision, LLC, a California Corporation
BY: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Its:
Date: 31 Oct 03
1
THIS THIRD ADDENDUM, DATED SEPTEMBER 1, 2005, IS HEREBY MADE A PART OF
THAT LEASE DATED APRIL 8, 2002, BY AND BETWEEN ARDEN EAGLE ASSOCIATES,
LTD. AS LESSOR AND RVISION LLC, AS LESSEE, FOR THE PROPERTY LOCATED AT
0000-X XXXXXXX XXXXX, XXX XXXX, XXXXXXXXXX 00000.
1. Premises: Section 1.2(a) of the Master Lease Dated April 8, 2002
shall be revised to include 2365-A and 0000-X Xxxxxxx Xxxxx.
2. Premises: Section 1.2(b) of the Master Lease Dated April 8, 2002
shall be revised to include twenty-seven (27) unreserved parking spaces.
3. Term: Section 1.3 of the Master Lease Dated April 8, 2002 and
Section 1 of the Second Addendum shall be revised to include an additional
thirty seven (27) months (extension of "Original Term") commencing September 1,
2005 (revision of "Commencement Date") and ending September 30, 2008 (revision
of "Expiration Date").
4. Base Rent: Section 1.5 of the Master Lease Dated April 8, 2002 shall
be revised as follows:
Months Base Rent
------ ---------
September 1, 2005 $0.00 NNN*
October 1, 2005 $0.00 NNN
November 1, 2005 to September 30, 2006 $7,630.00 NNN
October 1, 2006 to September 30, 2007 $7,859.00 NNN
October 1, 2007 to September 30, 2008 $8,950.00 NNN
* Free of Common Area Operating Expenses
5 Security Deposit: Section 1.7 of the Master Lease Dated April 8, 2002
shall be revised to $8,000. Upon execution of the Third Addendum Lessee shall
increase the existing Security Deposit by $3,744.00.
6. Tenant Improvements: Lessor, at Lesssor's sole cost and expense,
shall complete the following improvements during the month of September 2005:
[X] Provide all systems and sub-systems in 0000-X Xxxxxxx Xxxxx in good
working condition
[X] Provide all new ceiling tiles and cleaned vents throughout the
office areas of the Premises
[X] Repair all lights that are not working in the Premises.
[X] Provide window tinting for the upstairs offices of 0000-X Xxxxxxx
Xxxxx.
[X] Install new carpet in the office area of 0000-X Xxxxxxx Xxxxx.
Lessee, at Lessee's sole cost and expense, shall be allowed to complete
the following improvements:
[X] Provide additional power drops in 0000-X Xxxxxxx Xxxxx
[X] Install Fiber access to the Premises
[X] Install 2x2 concrete pads at the rear of both 0000-X Xxxxxxx Xxxxx.
The location and construction specs of which are to be mutually
agreed upon.
7. All other terms and conditions of the Lease not in conflict with
this Third Addendum shall remain in full force and effect.
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AGREED TO AND ACCEPTED BY:
-------------------------
LESSOR: Arden Eagle Associates, Ltd. LESSEE: RVision, LLC
By: Arden Properties, Inc., General Partner
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxxx, President
Date: 9/7/05 Date: 04Sep2005
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