STANDARD INDUSTRIAL LEASE -- MULTI-TENANT
1. Parties. This Lease, dated, for reference purposes only, January 1, 1996,
is made by and between CAPISTRANO ENTERPRISES (hereincalled "Lessor") and
NORDATA, INC. dba DATATECH, Xxxxxx Xxxxxx, President and Xxxx Xxxxxx, Vice
President (hereincalled "Lessee").
2. Premises, Parking and Common Areas.
2.1. Premises. Lessor hereby leases to Lessee and Lessee leases from
Lessor for the term, at the rental, and upon all of the conditions set forth
herein, real property situated in the County of Orange, State of California
commonly known as 00000 X Xxxxx Xxxxxx, Xxxxx 0000 and 0000, Xxx Xxxx
Xxxxxxxxxx, XX 00000 and described as Office/Warehouse herein referred to as the
"Premises," as may be outlined on an Exhibit attached hereto, including rights
to the Common areas as hereinafter specified but not including any rights to the
roof of the Premises or to any Building in the Industrial Center. The Premises
are a portion of a building, herein referred to as the "Building." The
Premises, the Building, the Common Areas, the land upon which the same are
located, along with all other buildings and improvements thereon, are herein
collectively referred to as the "Industrial Center."
2.2. Vehicle Parking. Lessee shall be entitled to (6) Six vehicle parking
spaces, unreserved and unassigned, on those portions of the Common Areas
designated by Lessor for parking. Lessee shall not use more parking spaces than
said number. Said parking spaces shall be used only 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 are
herein referred to as "Oversized Vehicles."
2.2.1 Lessee shall not permit or allow any vehicles that
belong to or are controlled by Lessee or Lessee's employees, suppliers,
shippers, customers, or invitees to be loaded, unloaded, or parked in areas
other than those designated by Lessor for such activities.
2.2.2 If Lessee permits or allows any of the prohibited
activities described in paragraph 2.2 of this Lease, then Lessor shall have the
right, without notice, 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 Lessee,
which cost shall be immediately payable upon demand by Lessor.
2.3. 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 that are provided and designated by the Lessor from
time to time for the general non-exclusive use of Lessor, Lessee and of other
lessees of the Industrial Center and their respective employees, suppliers,
shippers, customers and invitees, including parking areas, loading and unloading
areas, trash areas, roadways, sidewalks, walkways, parkways, driveways and
landscaped areas.
2.4. Common Areas - Lessee's Rights. Lessor hereby grants to Lessee, for
the benefit of Lessee and its employees, suppliers, shippers, customers and
invitees, during the term of this Lease, the non-exclusive right to use, in
common with others 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 governing 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 Areas.
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 such other rights and remedies that it may have, to remove the
property and charge the cost to Lessee, which cost shall be immediately
payable upon demand by Lessor.
2.5. 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. Lessee
agrees to abide by and conform to all such rules and regulations, and to cause
its employees, suppliers, shippers, 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.
2.6. Common Areas - 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 and walkways; (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 the Common
Areas; (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 any portion thereof; (f) To do and
perform such other acts and 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.
2.6.1 Lessor shall at all times provide the parking
facilities required by applicable law and in no event shall the number of
parking spaces that Lessee is entitled to under paragraph 2.2. be reduced.
3. Term.
3.1. Term. The term of this Lease shall be for (1) One years(s) with a N/A
annual increase on the anniversary date, commencing on January 1, 1996 and
ending on December 31, 1996 unless sooner terminated pursuant to any provision
hereof.
3.2. Delay in Possession. Notwithstanding said commencement date, if for
any reason Lessor cannot deliver possession of the Premises to Lessee on said
date, Lessor shall not be subject to any liability therefor, 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 be obligated to
pay rent or perform any other obligation of Lessee under the terms of this
Lease, except as may be otherwise provided in this Lease, until possession of
the Premises is tendered to Lessee; provided, however, that if Lessor shall not
have delivered possession of the Premises within sixty (60) days from said
commencement date, Lessee may, at Lessee's option, by notice in writing to
Lessor within ten (10) days thereafter, 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.
3.3. Early Possession. If Lessee occupies the Premises prior to said
commencement date, such occupancy shall be subject to all provisions of this
Lease, such occupancy shall not advance the termination date, and Lessee shall
pay rent for such period at the initial monthly rates set forth below.
4. Rent.
4.1. Base Rent. Lessee shall pay to Lessor, as Base Rent and Non-exclusive
license fee of the Premises, without any offset or deduction, except as may be
otherwise expressly provided in this Lease, on the First day of each month of
the term hereof, monthly payments in advance of $1955.00 as Rent. Rent is
rounded to the nearest dollar.
$1955.00 First Months rent
0 Last Months rent
$2500.00 Security deposit (Currently on Deposit)
0 Sign Fee
$ 50.00 First months Operating Expenses. (Total monthly expenses except
for increase in Taxes and Insurance.)
$ 50.00 Last months Operating Expenses. (Total monthly expenses except
for increases in Taxes and insurance.) (Currently on Dep.)
Total amount Lessee shall pay Lessor UPON EXECUTION of this lease $2005.00
Total amount Lessee shall pay Lessor at the FIRST of every month $2005.00
Rent for any period during the term hereof which is for less than one month
shall be a pro rata portion of the Base Rent. Rent shall be payable in lawful
money of the United States to Lessor at the address stated herein or to such
other person or at such other place as Lessor may designate in writing.
4.2. Operating Expenses. Lessee shall pay to Lessor during the term
hereof, in addition to the Base Rent, Lessee's Share, as hereinafter defined, of
all Operating Expenses, as hereinafter defined, during each calendar year of the
term of this Lease, in accordance with the following provisions:
(a) "Lessee's Share" is defined, for purposes of this Lease, as 1.20
percent.
(b) "Operating Expenses" is defined, for purposes of this Lease, as all
costs incurred by Lessor, if any, for:
(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, striping bumpers,
irrigation systems, Common Area lighting facilities and
fences and gates;
(bb) Trash disposal services;
(cc) Tenant directories;
(dd) Fire detection systems including sprinkler system
maintenance and repair;
(ee) Security service;
(ff) Any other service to be provided by Lessor that is elsewhere
in this Lease stated to be an "Operating Expense;"
(II) The cost of water, gas and electricity to service the Common
Areas.
(c) The inclusion of the improvements, facilities and services set forth
in paragraph 4.2(b)(I) of the definition of Operating Expenses shall not be
deemed to impose an obligation upon Lessor to either have said improvements 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 Operating Expenses shall be payable by Lessee within
ten (10) days after a reasonable 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 Operating
Expenses and the same shall be payable monthly or quarterly, as Lessor shall
designate, during each twelve-month period of Expenses as aforesaid, Lessor
shall deliver to Lessee within sixty (60) days after the expiration of each
calendar year a reasonably detailed statement showing Lessee's Share of the
actual Operating Expenses incurred during the preceding year. If Lessee's
payments under this paragraph 4.2(d) during said preceding year exceed Lessee's
Share as indicated on said statement, Lessee shall be entitled to credit the
amount of such overpayment against Lessee's Share of Operating Expenses next
falling due. If Lessee's payments under this paragraph during said preceding
year were less than Lessee's Share as indicated on said statement, Lessee shall
pay to Lessor the amount of the deficiency within ten (10) days after delivery
by Lessor to Lessee of said statement.
(e) Lessee acknowledges that neither Lessor nor its agent have made any
representation or warranty as to the square footage of the Premises. Any
reference to square footage is an approximation only and may include measurement
from the exteriors of outside walls and/or measurement from the drip-line of the
roof and includes all inside walls and service areas. In no event shall the
rent be adjusted based on square footage of the Premises.
5. Security Deposit. Lessee shall deposit with Lessor upon execution hereof
$2500.00 (Currently on Deposit) as security for Lessee's faithful performance of
Lessee's obligations hereunder. If Lessee fails to pay rent or other charges
due hereunder, or otherwise defaults with respect to any provision of this
Lease, Lessor may use, apply or retain all or any portion of said deposit for
the payment of any rent or other charge in default or for the payment of any
other sum to which Lessor may become obligated by reason of Lessee's default, or
to compensate Lessor for any loss or damage which Lessor may suffer thereby. If
Lessor so uses or applies all or any portion of said deposit, Lessee shall
within ten (10) days after written demand therefor deposit cash with Lessor in
an amount sufficient to restore said deposit to the full amount then required of
Lessee. If the monthly rent shall, from time to time, increase during the term
of this Lease, Lessee shall, at the time of such increase, deposit with lessor
additional money as a security deposit so that the total amount of the security
deposit held by Lessor shall at all times bear the same proportion to the then
current Base Rent as the initial security deposit bears to the Initial Base Rent
set forth in paragraph 4. Lessor shall not be required to keep said security
deposit separate from its general accounts. If Lessee performs all of Lessee's
obligations hereunder, said deposit, or so much thereof as has not heretofore
been applied by Lessor, shall be returned, without payment of interest or other
increment for its use, to Lessee (or, at Lessor's option, to the last assignee,
if any, of Lessee's interest hereunder) at the expiration of the term hereof,
and after Lessee has vacated the Premises. No trust relationship is created
herein between Lessor and Lessee with respect to said security Deposit.
6. Use.
6.1. Use. The Premises shall be used and occupied only for General Office
Purposes & Distribution of Computer Hardware & Related Business or any other use
which is reasonably comparable and for no other purpose.
(a) Lessee will conduct its business and control its employees, agents,
invitees, and visitors in such manner as not to create any nuisance, or
interfere with, annoy, or disturb any other tenant or occupant of the building
or Lessor in its operation of the building. Lessee will not do anything which
is prohibited by the standard form of extended coverage fire policy, or will
increase the existing rate of such insurance, or otherwise affect any other
insurance affecting the building, or cause a cancellation of any such insurance.
6.2. Compliance with Law.
(a) Lessor warrants to Lessee that the Premises, in the state existing on
the date that the Lease term commences, but without regard to the use for which
Lessee will occupy the Premises, does not violate any covenants or restrictions
of record, or any applicable building code, regulation or ordinance in effect on
such Lease term commencement date. In the event it is determined that this
warranty has been violated, then it shall be the obligation of the Lessor, after
written notice from Lessee, to promptly, at Lessor's sole costs and expense,
rectify any such violation. In the event Lessee does not give to Lessor written
notice of the violation of this warranty within six months from the date that
the Lease term commences, the correction of same shall be the obligation of the
lessee at Lessee's sole cost. The warranty contained in this paragraph 6.2(a)
shall be of no force or effect if, prior to the date of this Lease, Lessee was
an owner or occupant of the Premises and, in such event, Lessee shall correct
any such violation at Lessee's sole cost.
(b) Except as provided in paragraph 6.2(a) Lessee shall, at Lessee's
expense, promptly comply with all applicable statutes, ordinances, rules,
regulations, orders, covenants and restrictions of record, and requirements of
any fire insurance underwriters or rating bureaus, now in effect or which may
hereafter come into effect, whether or not they reflect a change in policy from
that now existing, during the term or any part of the term hereof, relating in
any manner to the Premises and the occupation and use by lessee of the premises
and of the Common Areas, Lessee shall not use nor permit the use of the Premises
or the Common Areas in any manner that will tend to create waste or a nuisance
or shall tend to disturb other occupants of the Industrial Center.
(c) Lessee shall not grant any concessions, licenses or permission for the
sale or taking of orders for food or beverages in the Premises, nor install or
permit the installation or use of any machine or equipment for dispensing foods
or beverages in the Industrial Center, nor permit the preparation, serving,
distribution or delivery of food or beverages in the Premises without written
approval of Lessor and in compliance with arrangements prescribed by Lessor,
except that Lessee may install coffee makers, refrigerator and microwave oven in
the Premises for ordinary use by Lessee's employees. Only persons approved by
Lessor shall be permitted to serve, distribute, or deliver food and beverages
within the Industrial Center, or to use the elevators or the public areas of the
Industrial Center for that purpose.
(d) The Premises shall not be used or permitted to be used for
residential, lodging or sleeping purposes.
6.3. Condition of Premises.
(a) Lessor shall deliver the Premises to Lessee clean and free of debris
on the Lease commencement date (unless Lessee is already in possession) and
Lessor warrants to Lessee that the plumbing, lighting, air conditioning,
heating, and loading doors in the Premises shall be in good operating condition
on the Lease commencement date. In the event that it is determined that this
warranty has been violated, then it shall be the obligation of Lessor, after
receipt of written notice from Lessee setting forth with specificity the nature
of the violation, to promptly, at Lessor's sole cost, rectify such violation,
Lessee's failure to give such written notice to Lessor within thirty (30) days
after the Lease commencement date shall cause the conclusive presumption that
Lessor has complied with all of Lessor's obligations hereunder. The warranty
contained in this paragraph 6.3(a) shall be of no force or effect if prior to
the date of this Lease, Lessee was an owner or occupant of the Premises.
(b) Except as otherwise provided in this Lease, Lessee hereby accepts the
Premises in their condition existing as of the Lease commencement date or the
date that Lessee takes possession of the Premises, whichever is earlier, subject
to all applicable zoning, municipal, county and state laws, ordinances and
regulations governing and regulating the use of the Premises, and any covenants
or restrictions of record, and accepts this Lease subject thereto and to all
matters disclosed thereby and by any exhibits attached hereto. Lessee
acknowledges that neither Lessor nor Lessor's agent has made any representation
or warranty as to the present or future suitability of the Premises for the
conduct of Lessee's business.
7. Maintenance, Repairs, Alterations and Common Area Services.
7.1. Lessor's Obligations. Subject to the provisions of paragraphs 4.2
(Operating Expenses), 6 (Use), 7.2 (Lessee's Obligations) and 9 (Damage or
Destruction) and except for damage caused by any negligent or intentional act or
omission of Lessee, Lessee's employees, suppliers, shippers, customers or
invitees, in which event Lessee shall repair the damage, Lessor, at Lessor's
expense, subject to reimbursement pursuant to paragraph 4.2, shall keep in good
condition and repair the foundations, exterior walls, structural condition of
interior bearing walls, and roof of the Premises, as well as the parking lots,
walkways, driveways, landscaping, fences, signs, and utility installations of
the Common Areas and all parts thereof, as well as providing the services for
which there is an Operating Expense pursuant to paragraph 4.2. Lessor shall
not, however, be obligated to paint the exterior or interior surface of exterior
walls, nor shall Lessor be required to maintain, repair or replace windows,
doors or plate glass of the Premises. Lessor shall have no obligation to make
repairs under this paragraph 7.1 until a reasonable time after receipt of
written notice from Lessee of the need for such repairs. Lessee expressly
waives the benefits of 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 the Lessor's failure to keep the Premises in
good order, condition and repair. Lessor shall not be liable for damages or
loss of any kind or nature by reason of Lessor's failure to furnish any Common
Area Services when such failure is caused by accident, breakage, repairs,
strikes, lockout, or other labor disturbances or disputes of any character, or
by any other cause beyond the reasonable control of Lessor.
7.2. Lessee's Obligations.
(a) Subject to the provisions of paragraphs 6 (Use), 7.1 (Lessor's
Obligations), and 9 (Damage or Destruction), Lessee, at Lessee's expense, shall
keep in good order, condition and repair the Premises and every part thereof
(whether or not the damaged portion of the Premises or the means of repairing
the same are reasonably or readily accessible to Lessee) including, without
limiting the
generality of the foregoing, all plumbing, heating, ventilating and
air conditioning systems (Lessee shall procure and maintain, at Lessee's
expense, a ventilating and air conditioning system maintenance contract),
electrical and lighting facilities and equipment within the Premises, fixtures,
interior walls and interior surfaces of exterior walls, ceilings, windows,
doors, plate glass, and skylights located within the Premises, Lessor reserves
the right to procure and maintain the ventilating and air conditioning system
maintenance contract and if Lessor so elects, Lessee shall reimburse Lessor,
upon demand, for the cost thereof.
(b) If Lessee fails to perform Lessee's obligations under this paragraph
7.2 or under any other paragraph of this Lease, Lessor may enter upon the
Premises after ten (10) days' prior written notice to Lessee (except in the case
of emergency, in which no notice shall be required), perform such obligations on
Lessee's behalf and put the premises in good order, condition and repair, and
the cost thereof together with interest thereon at the maximum rate then
allowable by law shall be due and payable as additional rent to Lessor together
with Lessee's next Base Rent installment.
(c) On the last day of the term hereof, or on any sooner termination,
Lessee shall surrender the Premises to Lessor in the same condition as
received, ordinary wear and tear excepted, clean and free of debris. Any
damage or deterioration of the Premises shall not be deemed ordinary wear and
tear if the same could have been prevented by good maintenance practices,
Lessee shall repair any damage to the Premises occasioned by the installation
or removal of Lessee's trade fixtures, alternations, furnishings and
equipment. Notwithstanding anything to the contrary otherwise stated in this
Lease, Lessee shall leave the air lines, power panels, electrical
distribution systems, lighting fixtures, space heaters, air conditioning,
plumbing and fencing on the Premises in good operating condition.
7.3. Alternations and Additions.
(a) Lessee shall not, without Lessor's prior written consent make any
alternations, improvements, additions or Utility installations in, on or about
the Premises, or the Industrial Center, except for nonstructural alterations to
the Premises not exceeding $2,500 in cumulative costs, during the term of this
Lease. In any event, whether or not in excess of $2,500 in cumulative cost,
Lessee shall make no change or alteration to the exterior of the Premises nor
the exterior of the Building nor the Industrial Center without Lessor's prior
written consent. As used in this paragraph 7.3 the term "Utility Installation"
shall mean carpeting, window coverings, air lines, power panels, electrical
distribution systems, lighting fixtures, space heaters, air conditioning,
plumbing and fencing. Lessor may require that Lessee remove any or all of said
alterations, improvements, additions or Utility Installations at the expiration
of the term, and restore the Premises and the Industrial Center to their prior
condition. Lessor may require Lessee to provide Lessor, at Lessee's sole cost
and expense, a lien and completion bond in an amount equal to one and one-half
times the estimated cost of such improvements, to insure Lessor against any
liability for mechanic's and materialmen's liens and to insure completion of the
work. Should Lessee make any alterations, improvements, additions or Utility
installations without the prior approval of Lessor, Lessor may, at any time
during the term of this Lease, require that Lessee remove any or all of the
same.
(b) Any alterations, improvements, additions or Utility installations in
or about the Premises or the Industrial Center that Lessee shall desire to make
and which requires the consent of the Lessor shall be presented to Lessor in
written form, with proposed detailed plans. If Lessor shall give its consent,
the consent shall be deemed conditional upon Lessee acquiring a permit to do so
from appropriate governmental agencies, the furnishing of a copy thereof to
Lessor prior to the
commencement of the work and the compliance by lessee of all conditions of
said permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises, or the Industrial Center, or any
interest therein, Lessee shall give Lessor not less than ten (10) days'
notice prior to the commencement of any work in the Premises, and Lessor
shall have the right to post notices of non-responsibility in or on the
Premises or the Building as provided by law. If Lessee shall, in good faith,
contest the validity of any such lien, claim or demand, then Lessee shall, at
its sole expense defend itself and Lessor against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before the
enforcement thereof against the Lessor or the Premises or the Industrial
Center, upon the condition that if Lessor shall require Lessee shall furnish
to Lessor a surety bond satisfactory to Lessor in an amount equal to such
contested lien claim or demand indemnifying Lessor against liability for the
same and holding the Premises and the Industrial Center 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 if Lessor shall
decide it is to Lessor's best interest to do so.
(d) All alterations, improvements, additions and Utility Installations
(whether or not such Utility Installations constitute trade fixtures of
Lessee), which may be made on the Premises, shall be the property of Lessor
and shall remain upon and be surrendered with the Premises at the expiration
of the Lease term, unless Lessor requires their removal pursuant to paragraph
7.3(a). Notwithstanding the provisions of this paragraph 7.3(d), Lessee's
machinery and equipment, other than that which is affixed to the Premises so
that it cannot be removed without material damage to the Premises, and other
than Utility Installations, shall remain the property of Lessee and may be
removed by Lessee subject to the provisions of paragraph 7.2.
7.4. Utility Additions. Lessor reserves the right to install new or
additional utility facilities throughout the Building and the Common Areas
for the benefit of Lessor or Lessee, or any other lessee of the Industrial
Center, including, but not by way of limitation, such utilities as plumbing,
electrical systems, security systems, communication systems, and fire
protection and detection systems, so long as such installations do not
unreasonably interfere with Lessee's use of the Premises.
8. Insurance; Indemnity.
8.1. Liability Insurance - Lessee. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease a policy of Combined
Single Limit Bodily Injury and Property Damage Insurance insuring Lessee and
Lessor against any liability arising out of the use, occupancy or maintenance
of the Premises and the Industrial Center. Such insurance shall be in an
amount not less than $500,000.00 per occurrence. The policy shall insure
performance by Lessee of the indemnity provisions of this paragraph 8. The
limits of said insurance shall not, however, limit the liability of Lessee
hereunder.
8.2. Liability Insurance - Lessor. Lessor shall obtain and keep in
force during the term of this Lease a policy of Combined Single Limit Bodily
Injury and Property Damage Insurance, insuring Lessor, but not Lessee,
against any liability arising out of the ownership, use, occupancy or
maintenance of the Industrial Center in an amount not less than $500,000.00
per occurrence.
8.3. Property Insurance. lessor shall obtain and keep in force during
the term of this Lease a policy or policies of insurance covering loss or
damage to the Industrial Center improvements, but not Lessee's personal
property, fixtures, equipment or tenant improvements, in an amount not to
exceed the full replacement value thereof, as the same may exist from time to
time, providing protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
flood (in the event same is required by the lender having a lien on the
Premises) special extended perils ("all risk," as such term is used in the
insurance industry), plate glass insurance and such other insurance as Lessor
deems advisable. In addition, Lessor shall obtain and keep in force, during
the term of this Lease, a policy of rental value insurance covering a period
of one year, with loss payable to Lessor, which insurance shall also cover
all Operating Expenses for said period.
8.4. Payment of Premium Increase.
(a) After the term of this Lease has commenced, Lessee shall not be
responsible for paying Lessee's Share of any increase in the property
insurance premium for the Industrial Center specified by Lessor's insurance
carrier as being caused by the use, acts or omissions of any other lessee of
the Industrial Center, or by the nature of such other lessee's occupancy
which create an extraordinary or unusual risk.
(b) Lessee, however, shall pay the entirety of any increase in the
property insurance premium for the Industrial Center over what it was
immediately prior to the commencement of the term of this Lease if the
increase is specified by Lessor's insurance carrier as being caused by the
nature of Lessee's occupancy or any act or omission of Lessee.
(c) Lessee shall pay to Lessor, during the term hereof, in addition to
the rent, Lessee's Share (as defined in paragraph 4.2(a)) of the amount of
any increase in premiums for the insurance required under Paragraphs 8.2 and
8.3 over and above such premiums paid during the Base Period, as hereinafter
defined, whether such premiums increase shall be the result of the nature of
Lessee's occupancy, any act or omission of the Lessee, requirements of the
holder of a mortgage or deed of trust covering the Premises, increased
valuation of the Premises, or general rate increases. In the event that the
Premises have never been occupied previously, the premiums during the "Base
Period" shall mean the last twelve months of the prior occupancy. In the
event that the Premises have never been occupied previously, the premiums
during the "Base Period" shall be deemed to be the lowest premiums reasonably
obtainable for said insurance assuming the most nominal use of the Premises.
Provided, however, in lieu of the Base Period, the parties may insert a
dollar amount at the end of this sentence which figure shall be considered as
the insurance premium for the Base Period: $1996. In no event, however,
shall Lessee be responsible for any portion of the premium cost attributable
to liability insurance coverage in excess of $500,000 procured under
paragraph 8.2
(d) Lessee shall pay any such premium increases to Lessor within 30
days after receipt by Lessee of a copy of the premium statement or other
satisfactory evidence of the amount due. If the insurance policies
maintained hereunder cover other improvements in addition to the Premises,
Lessor shall also deliver to Lessee a statement of the amount of such
increase attributable to the Premises and showing in reasonable detail, the
manner in which such amount was computed. If the term of this Lease shall
not expire concurrently with the expiration of the period covered by such
insurance, Lessee's ability for premium increases shall be prorated on an
annual basis.
8.5. Insurance Policies. Insurance required hereunder shall be in
companies holding a "General Policyholders Rating" of at least B plus, or
such other rating as may be required by a lender
having a lien on the Premises, as set forth in the most current issue of
"Best's Insurance Guide." Lessee shall not do or permit to be done anything
which shall invalidate the insurance policies carried by Lessor. Lessee
shall deliver to Lessor copies of liability insurance policies required under
paragraph 8.1 or certificates evidencing the existence and amounts of such
insurance within seven (7) days after the commencement date of this Lease.
No such policy shall be cancelable or subject to reduction of coverage or
other modification except after thirty (30) days prior written notice to
Lessor. Lessee shall, at least thirty (30) days prior to the expiration of
such policies, furnish Lessor with renewals or "binders" thereof.
8.6. Waiver of Subrogation. Lessee and Lessor each hereby release and
relieve the other, and waive their entire right of recovery against the other
for loss or damage arising out of or incident to the perils insured against
which perils occur in, on or about the Premises, whether due to the
negligence of Lessor or Lessee or their agents, employees, contractors and/or
invitees. Lessee and Lessor shall, upon obtaining the policies of insurance
required hereunder, give notice to the insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.
8.7. Indemnity. Lessee shall indemnify and hold harmless Lessor from
and against any and all claims arising from Lessee's use of the Industrial
Center, or from the conduct of Lessee's business or from any activity, work
or things done, permitted or suffered by Lessee in or about the Premises or
elsewhere and shall further indemnify and hold harmless Lessor from and
against any and all claims arising from any breach or default in the
performance of any obligation on Lessee's part to be performed under the
terms of this Lease, or arising from any act or omission of Lessee, or any of
Lessee's agents, contractors, or employees, and from and against all costs,
attorney's fees, expenses and liabilities incurred in the defense of any such
claim or any action or proceeding brought thereon, and in case any action or
proceeding be brought against Lessor by reason of any such claim, 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, as a material part of the consideration to lessor,
hereby assumes all risk of damage to property of Lessee or injury to persons,
in, upon or about the Industrial Center arising from any cause and Lessee
hereby waives all claims in respect thereof against Lessor.
8.8. Exemption of Lessor from Liability. lessee hereby agrees that
Lessor shall not be liable for injury to Lessee's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Lessee, Lessee's employees, invitees, customers, or any other
person in or about the Premises or the Industrial Center, nor shall Lessor be
liable for injury to the person of Lessee, Lessee's employees, agents or
contractors, whether such damage or injury is caused by or results from fire,
steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, or from any other cause,
whether said damage or injury results from conditions arising upon the
Premises or upon other portions of the Industrial Center, or from other
sources or places and regardless of whether the cause of such damage or
injury or the means of repairing the same is inaccessible to Lessee. lessor
shall not be liable for any damages arising from any act or neglect of any
other lessee, occupant or user of the Industrial Center, nor from the failure
of Lessor to enforce the provisions of any other lease of the Industrial
Center.
9. Damage or Destruction.
9.1. Definitions.
(a) "Premises Partial Damage" shall mean if the Premises are damaged or
destroyed to the extent that the cost of repair is less than fifty percent of
the then replacement cost of the Premises.
(b) "Premises Total Destruction" shall mean if the Premises are damaged
or destroyed to the extent that the cost of repair is fifty percent or more
of the then replacement cost of the Premises.
(c) "Premises Building Partial Damage" shall mean if the Building of
which the Premises are a part is damaged or destroyed to the extent that the
cost to repair is less than fifty percent of the then replacement cost of the
Building.
(d) "Premises Building Total Destruction" shall mean if the Building of
which the Premises are a part is damaged or destroyed to the extent that the
cost to repair is fifty percent or more of the then replacement cost of the
Building.
(e) "Industrial Center Buildings" shall mean all of the buildings on
the Industrial Center site.
(f) "Industrial Center Buildings Total Destruction" shall mean if the
Industrial Center Buildings are damaged or destroyed to the extent that the
cost of repair is fifty percent or more of the then replacement cost of the
Industrial Center Buildings.
(g) "Insured Loss" shall mean damage or destruction which was caused by
an event required to be covered by the insurance described in paragraph 8.
The fact that an insured Loss has a deductible amount shall not make the loss
an uninsured loss.
(h) "Replacement Cost" shall mean the amount of money necessary to be
spent in order to repair or rebuild the damaged area to the condition that
existed immediately prior to the damage occurring excluding all improvements
made by lessees.
9.2. Premises Partial Damage; Premises Building Partial Damage.
(a) Insured Loss: Subject to the provisions of paragraphs 9.4 and 9.5,
if at any time during the term of this Lease there is damage which is not an
Insured Loss and which falls within the classification of Premises Partial
Damage or Premises Building Partial Damage, then Lessor shall, at Lessor's
expense, repair such damage to the Premises, but not Lessee's fixtures,
equipment or tenant improvements, as soon as reasonably possible and this
Lease shall continue in full force and effect.
(b) Uninsured Loss: Subject to the provisions of paragraphs 9.4 and
9.5, if at any time during the term of this Lease there is damage which is
not an Insured Loss and which falls within the classification of Premises
Partial Damage or Premises Building Partial Damage, unless caused by a
negligent or willful act of Lessee (in which event Lessee shall make the
repairs at Lessee's expense), which damage prevents Lessee from using the
Premises, Lessor may at Lessor's option either (I) repair such damage as soon
as reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (II) give written notice to Lessee
within thirty (30) days after the date of the occurrence of such damage of
Lessor's intention to cancel and terminate this Lease as of the date of the
occurrence of such damage. In the event Lessor elects to give such notice of
Lessor's intention to cancel
and 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
intention to repair such damage at Lessee's expense, without reimbursement
from Lessor, in which event this Lease shall continue in full force and
effect, and Lessee shall proceed to make such repairs as soon as reasonably
possible if Lessee does not give such notice within such 10-day period this
Lease shall be canceled and terminated as of the date of the occurrence of
such damage.
9.3. Premises Total Destruction; Premises Building Total Destruction;
Industrial Center Buildings Total destruction.
(a) Subject to the provisions of paragraph 9.4 and 9.5, if at any time
during the term of this Lease there is damage, whether or not it is an
Insured Loss, and which falls into the classifications of either (I) Premises
Total Destruction, or (II) Premises Building Total Destruction, or (III)
Industrial Center Buildings Total Destruction, then Lessor may at Lessor's
option either (I) repair such damage or destruction, but not Lessee's
fixtures, equipment or tenant improvements, as soon as reasonably possible at
Lessor's expense, and this Lease shall continue in full force and effect, or
(II) give written notice to Lessee within thirty (30) days after the date of
occurrence of such damage of Lessor's intention to cancel and terminate this
Lease, in which case this Lease shall be canceled and terminated as of the
date of the occurrence of such damage.
9.4. Damage Near End of Term.
(a) Subject to paragraph 9.4(b), if at any time during the last six
months of the term of this Lease there is substantial damage, whether or not
an Insured Loss, which falls within the classification of Premises Partial
Damage, Lessor may at Lessor's option cancel and terminate this Lease as of
the date of occurrence of such damage by giving written notice to Lessee of
Lessor's election to do so within 30 days after the date of occurrence of
such damage.
(b) Notwithstanding paragraph 9.4(a), in the event that Lessee has an
option to extend or renew this Lease, and the time within which said option
may be exercised has not yet expired, Lessee shall exercise such option, if
it is to be exercised at all, no later than twenty (20) days after the
occurrence of any Insured Loss falling within the classification of Premises
Partial Damage during the last six months of the term of this Lease. If
Lessee duly exercises such option during said twenty (20) day period, Lessor
shall, at Lessor's expense, repair such damage, but not Lessee's fixtures,
equipment or tenant improvements, as soon as reasonably possible and this
Lease shall continue in full force and effect. If Lessee fails to exercise
such option during said twenty (20) day period, then Lessor may at Lessor's
option terminate and cancel this Lease as of the expiration of said twenty
(20) day period by giving written notice to Lessee of Lessor's election to do
so within ten (10) days after the expiration of said twenty (20) day period,
notwithstanding any term or provision in the grant of option to the contrary.
9.5. Abatement of Rent; Lessee's Remedies.
(a) In the event Lessor repairs or restores the Premises pursuant to
the provisions of this paragraph 9, the rent payable hereunder for the period
during which such damage, repair or restoration continues shall be abated in
proportion to the degree to which Lessee's use of the Premises is impaired.
Except for abatement of rent, if any, Lessee shall have no claim against
Lessor for any damage suffered by reason of any such damage, destruction,
repair 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 such repair
or restorations within ninety (90) days after such obligation shall accrue,
Lessee may at Lessee's option cancel and terminate this Lease by giving
Lessor written notice of Lessee's election to do so at any time prior to the
commencement of such repair or restoration. In such event this Lease shall
terminate as of the date of such notice.
9.6. Termination - Advance Payments. Upon termination of this Lease
pursuant to this paragraph 9, an equitable adjustment shall be made
concerning advance rent and advance payments made by Lessee to Lessor.
Lessor shall, in addition, return to Lessee so much of Lessee's security
deposit as has not theretofore been applied by Lessor.
9.7. Waiver. Lessor and Lessee waive the provisions of any statute
which relates to termination of leases when Leased property is destroyed and
agree that such event shall be governed by the terms of this Lease.
10. Real Property Taxes.
10.1. Payment of Tax Increase. Lessor shall pay the real property
tax, as defined in paragraph 10.3, applicable to the Industrial Center,
provided, however, that Lessee shall pay, in addition to rent, Lessee's Share
(as defined in paragraph 4.2 (all of the amount, if any, by which real
property taxes applicable to the Premises increase over the fiscal real
estate tax year 19___ -19___. Such payment shall be made by Lessee within
thirty (30) days after receipt of Lessor's written statement setting forth
the amount of such increase and the computation thereof. If the term of this
Lease shall not expire concurrently with the expiration of the tax fiscal
year, Lessee's liability for increased taxes for the last partial lease year
shall be prorated on an annual basis.
10.2. Additional Improvements. Lessee shall not be responsible for
paying Lessee's Share of any increase in real property tax 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 enjoyment of such other lessees. Lessee shall, however,
pay to Lessor at the time that Operating Expenses are payable under paragraph
4.2(___) the entirety of any increase in real property tax if assessed solely
by reason of additional improvements placed upon the Premises by Lessee or at
Lessee's request.
10.3. Definition of "Real Property Tax." As used herein, the term
"real property tax" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bonds, bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed on the Industrial Center or any
portion thereof by any authority having the direct or indirect power to tax,
including any city, county, state or federal government, or any school,
agricultural, sanitary, fire, street, drainage or other improvement district
thereof, as against any legal or equitable interest of Lessor in the
Industrial Center or in any portion thereof, as against Lessor's right to
rent or other income therefrom, and as against Lessor's business of leasing
the Industrial Center. The term "real property tax" shall also include any
tax, fee, levy, assessment or charge (I) in substitution of, partially or
totally, any tax, fee, levy, assessment or charge hereinabove included within
the definition of "real property tax," or (II) the nature of which was
hereinbefore included within the definition of "real property tax," or (III)
which is imposed for a service or right not charged prior to June 1, 1978,
or, if previously charged, has been increased since June 1, 1978, or (iv)
which is imposed as a result of a transfer, either partial or total, of
Lessor's interest in the Industrial Center or which is added to a tax or
charge hereinbefore included within the definition of real property tax by
reason of such transfer, or (v)
which is imposed by reason of this transaction, any modifications or changes
hereto, or any transfers hereof.
10.4. Joint Assessment. If the Industrial Center is not separately
assessed, Lessee's Share of the real property tax liability shall be an
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. Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other personal
property of Lessee contained in the Premises or elsewhere. When possible,
Lessee shall cause said trade fixtures, furnishings, equipment and all other
personal property to be assessed and billed separately from the real property
of Lessor.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay to Lessor the taxes attributable to
Lessee within ten (10) days after receipt of a written statement setting
forth the taxes applicable to Lessee's property.
11. Utilities. Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises, together
with any taxes thereon. If any such services are not separately metered to
the Premises, Lessee shall pay at Lessor's option, either Lessee's Share or a
reasonable proportion to be determined by Lessor of all charges jointly
metered with other premises in the building.
12. Assignment and Subletting.
12.1. Lessor's Consent Required. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in the Lease or in the
Premises, without Lessor's prior written consent, which Lessor shall not
unreasonably withhold. Lessor shall respond to Lessee's request for consent
hereunder in a timely manner and any attempted assignment, transfer,
mortgage, encumbrance or subletting without such consent shall be void, and
shall constitute a breach of this Lease without the need for notice to Lessee
under paragraph 13.1.
12.2. Lessee Affiliate. Notwithstanding the provisions of paragraph
12.1 hereof, Lessee may assign or sublet the Premises, or any portion
thereof, without Lessor's consent, to any corporation which controls, is
controlled by or is under common control with Lessee, or to any corporation
resulting from the merger or consolidation with Lessee, or to any person or
entity which acquires all the assets of Lessee as a going concern of the
business that is being conducted on the Premises, all of which are referred
to as "Lease Affiliate," provided that before such assignment shall be
effective said assignees shall assume, in full, the obligations of Lessee
under this Lease. Any such assignment shall not, in any way, affect or limit
the liability of Lessee under the terms of this Lease even if after such
assignment or subletting the terms of this Lease are materially changed or
altered without the consent of Lessee, the consent of whom shall not be
necessary.
12.3. Terms and Conditions of Assignment. Regardless of Lessor's
consent, no assignment shall release Lesee of Lessee's obligations hereunder
or alter the primary liability of Lessee to pay the Base Rent and Lessee's
Share of Operating Expenses, and to perform all other obligations to be
performed by Lessee hereunder. Lessor may accept rent from any person other
than Lessee pending approval or disapproval of such assignment. Neither a
delay in the approval or disapproval of such assignment nor the acceptance of
rent shall constitute a waiver or estoppel of Lessor's right to exercise its
remedies for the breach of any of the terms or conditions of this paragraph
12 of this Lease. Consent to one assignment shall not be deemed consent to
any subsequent assignment. In the event of default by any assignee of Lessee
or any successor of Lessee, in the performance of any of the terms hereof,
Lessor may proceed directly against Lessee without the necessity of
exhausting remedies against said assignee. Lessor may consent to subsequent
assignments of this Lease or amendments or modifications to this Lease with
assignees of Lessee, without notifying Lessee, or any successor of Lessee,
and without obtaining its or their consent thereto and such action shall not
relieve Lessee of Liability under this Lease.
12.4. Terms and Conditions Applicable to Subletting. Regardless of
Lessor's consent, the following terms and conditions shall apply to any
subletting by Lessee of all or any part of the Premises and shall be included in
subleases:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's interest
in all rentals and income arising from any sublease 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 default
shall occur in the performance of Lessee's obligations under this Lease, Lessee
may receive, collect and enjoy the rents accruing under such sublease. Lessor
shall not, by reason of this or any other assignment of such sublease to Lessor
nor by reason of the collection of the rents from such a subleasee, be deemed
liable to the sublessee for any failure of Lessee to perform and comply with any
of Lessee's obligations to such sublessee under such sublease. Lessee hereby
irrevocably authorizes and directs any such sublessee, upon receipt of a written
notice from Lessor stating that a default exists in the performance of Lessee's
obligations under this Lease, to pay to Lessor the rents due and to become due
under the sublease. Lessee agrees that such sublessee shall have the right to
rely upon any such statement and request from Lessor, and that such sublessee
shall pay such rents to Lessor without any obligation or right to inquire as to
whether such default exists and notwithstanding any notice from or claim from
Lessee to the contrary, Lessee shall have no right or claim against such
sublessee or Lessor for any such rents so paid by said sublessee to Lessor.
(b) No sublease entered into by Lessee shall be effective unless and until
it has been approved in writing by Lessor. In entering into any sublease,
Lessee shall use only such form of sublease as is satisfactory to Lessor, and
once approved by Lessor, such sublease shall not be changed or modified without
Lessor's prior written consent. Any sublessee shall, by reason of entering into
a sublease under this Lease, be deemed, for the benefit of Lessor, to have
assumed and agreed to conform and comply with each and every obligation herein
to be performed by Lessee other than such obligations as are contrary to or
inconsistent with provisions contained in a sublease to which Lessor has
expressly consented in writing.
(c) If Lessee's obligations under this Lease have been guaranteed by third
parties, then a sublease, and Lessor's consent thereto, shall not be effective
unless said guarantors give their written consent to such sublease and the terms
thereof.
(d) The consent by Lessor to any subletting shall not release Lessee
from its obligations or alter the primary liability of Lessee to pay the rent
and perform and comply with all of the obligations of Lessee to be performed
under this Lease.
(e) The consent by Lessor to any subletting shall not constitute a consent
to any subsequent subletting by Lessee or to any assignment or subletting by the
sublessee. However, Lessor may consent to subsequent sublettings and
assignments of the sublease or any amendments or modifications hereto without
notifying Lessee or anyone else liable on the Lease or sublease and without
obtaining their consent and such action shall not relieve such persons from
liability.
(f) In the event of any default under this Lease, Lessor may proceed
directly against Lessee, any guarantors or any one else responsible for the
performance of this Lease, including the sublessee, without first exhausting
Lessor's remedies against any other person or entity responsible therefor ___
Lessor, or any security held by Lessor or Lessee.
(g) In the event Lessee shall default 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 Lessee under such sublease from the time the
exercise of said option to the termination of such sublease; provided, however,
Lessor shall not be liable for any prepaid rents or security deposit paid by
such sublessee to Lessee or for any other prior defaults of Lessee under such
sublease.
(h) Each and every consent required of Lessee under a sublease shall also
require the consent of Lessor.
(i) No sublessee shall further assign or sublet all or any part of the
Premises without Lessor's prior written consent.
(j) Lessor's written consent to any subletting of the Premises by Lessee
shall not constitute an acknowledgement that no default then exists under this
Lease of the obligations to be performed by Lessee nor shall such consent be
deemed a waiver of any then existing default, except as may be otherwise stated
by Lessor at the time.
(k) With respect to any subletting to which Lessor has consented, Lessor
agrees to deliver a copy of any notice of default by Lessee to the sublessee.
Such sublessee shall have the right to cure a default of Lessee within ten (10)
days after service of said notice of default upon such sublessee, and the
sublessee shall have a right of reimbursement and offset from and against Lessee
for any such defaults cured by the sublessee.
12.5. Attorney's Fees. In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment or subletting if
Lessee shall request the consent of Lessor for any act Lessee proposes to do
then Lessee shall pay Lessor's reasonable attorneys fees incurred in connection
therewith, such attorneys fees not to exceed $350.00 for each such request.
13. Default; Remedies.
13.1. Default. The occurrence of any one or more of the following
events shall constitute a material default of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other payment
required to be made by Lessee hereunder, when due, where such failure shall
continue for a period of three (3) days after written notice thereof from Lessor
to Lessee. In the event that Lessor serves Lessee with a Notice
to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes such
Notice to Pay Rent or Quit shall also constitute the notice required by this
subparagraph.
(c) Except as otherwise provided in this Lease, the failure by Lessee to
observe or perform any of the covenants, conditions or provisions of this Lease
to be observed or performed by Lessee, other than described in paragraph (b)
above, where such failure shall continue for a period of thirty (30) days after
written notice thereof from Lessor to Lessee; provided, however, that if the
nature of Lessee's noncompliance is such that more than thirty (30) days are
reasonably required for its cure, then Lessee shall not be deemed to be in
default if Lessee commenced such cure within said thirty (30) day period and
thereafter diligently prosecutes such cure to completion. To the extent
permitted by law, such thirty (30) day notice shall constitute the sole and
exclusive notice required to be given to Lessee under applicable Unlawful
Detainer statutes.
(d) The making by Lessee of any general arrangement or general assignment
for the benefit of creditors; (ii) Lessee becomes a "debtor" as defined in 11
U.S.C. 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 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. In the event that any
provision of this paragraph 13.1(d) is contrary to any applicable law, such
provision shall be of no force or effect.
(e) The discovery by Lessor that any financial statement given to Lessor
by Lessee, any assignee of Lessee, any subtenant of Lessee, any successor in
interest of Lessee or any guarantor of Lessee's obligation hereunder, was
materially false.
13.2. Remedies. In the event of any such material default by Lessee,
Lessor may at any time thereafter, with or without notice or demand and without
limiting Lessor in the exercise of any right or remedy which Lessor may have by
reason of such default:
(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 all damages incurred by Lessor
by reason of Lessee's default 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 attorney's fees,
and any real estate commission actually paid; the worth at the time of award by
the court having jurisdiction thereof of the amount by which the unpaid rent for
the balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Lessee proves could be reasonably avoided;
that portion of the leasing commission paid by Lessor pursuant to paragraph 15
applicable to the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case this Lease shall
continue in effect whether or not Lessee shall have vacated or abandoned the
Premises. In such event Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor under
the laws or judicial decisions of the state wherein the Premises are located.
Unpaid installments or rent and other unpaid
monetary obligations of Lessee under the terms of this Lease shall bear
interest from the date due at the maximum rate then allowable by Law.
(d) Upon occurrence of any of the events of default listed in Section
13.1, Lessor shall have, in addition to any other remedy provided by law, the
option to enter upon and take possession of the demised premises, by force if
necessary, without terminating this lease and expel or remove Lessee and any
other persons who may be occupying such premises or any part thereof. Lessor
may relet the demised premises and receive the rent thereof. Lessee agrees to
pay Lessor monthly or on demand from time to time any deficiency that may arise
by reason of any such reletting.
13.3. Default by Lessor. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, but in
no event later than thirty (30) days after written notice by Lessee to Lessor
and to the holder of any first mortgage or deed of trust covering the Premises
whose name and address shall have theretofore been furnished to lessee in
writing, specifying wherein Lessor has failed to perform such obligations
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance then Lessor shall not be in
default if Lessor commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion.
13.4. Late Charges; Liquid Damages: Lessee hereby acknowledges that
late payment by Lessee of Base Rent, Lessee's Share of Operating Expenses or
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 on Lessor by the terms of any mortgage or
trust deed covering the Industrial Center. Accordingly, if any Installment of
Base Rent, Operating Expenses, or any other sum due from Lessee shall not be
received by Lessor or Lessor's designee within five (5) days after such amount
shall be due, then, without any requirement of notice to Lessee, Lessee shall
pay to Lessor a late charge equal to 10% 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 with respect to such overdue amount, nor prevent Lessor from exercising
any of the other rights and remedies granted hereunder. In the event that a
late charge is payable hereunder, whether or not collected, for three (3)
consecutive installments of any of the aforesaid monetary obligations of Lessee,
then Base rent and Operating Expense shall automatically become due and payable
quarterly in advance, rather than monthly, notwithstanding paragraph 4.1 or any
other provision of this Lease to the contrary. There will be a $50.00 charge
for all checks that are returned for insufficient funds. If it occurs two (2)
or more times during the term of the Lease, the Lessor shall have the option to
require Lessee to pay the monthly rent by cashiers check.
13.5. Payments After Termination. No payments of money by Lessee to
Lessor after the expiration or other termination of this Lease or after the
giving of any notice (other than a demand for payment of money) by Lessor to
Lessee, shall reinstate, continue or extend the Lease Term or make ineffective
any notice given to Lessee prior to the payment of such money. After the
service of notice or the commencement of a suit, or after final judgment
granting Lessor possession of the Premises, Lessor may receive and collect any
sums of Rent or other obligations of Lessee due under this Lease, and the
payment thereof shall not make ineffective any notice, or in any manner affect
any pending suit or any judgment theretofore obtained.
14. Condemnation. If the premises or any portion thereof of the Industrial
Center 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 at to the part so taken as of the
date the condemning authority takes title or possession, whichever first
occurs. If more than ten percent of the floor area of the Premises, or more
than twenty-five percent of that portion of the common areas designated as
parking for the Industrial Center is taken by condemnation, Lessee may, at
Lessee's option, such option to be exercised in writing only 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
rent shall be reduced in the proportion that the floor area of the Premises
taken bears to the total floor area of the Premises. No reduction of rent
shall occur if the only area taken is that which does not have the Premises
located thereon. Any award for the condemnation 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 in value of the leasehold
or for the taking of the fee, or as severance [damages]; provided, however,
that Lessee shall be entitled to any award for loss of or damage to Lessee's
trade fixtures and removable personal property. In the event that this Lease
is not terminated by reason of such condemnation, Lessor shall to the extent
of severance damages received by Lessor in connection with such condemnation,
repair any damage to the Premises caused by such condemnation except to the
extent that Lessee has been reimbursed therefor by the condemning authority.
Lessee shall pay any amount in excess of such severance damages required to
complete such repair.
15. Broker's fee. Lessee warrants that it has had no dealings with any other
real estate broker or agents in connection with the negotiation of this Lease
excepting only N/A Brokerage Company and that it knows of no
other Real Estate Broker or agent who is or might be entitled to a commission or
fee in connection with this Lease. Lessee shall indemnify and hold Lessor
harmless from any claims asserted by another Real Estate Broker or agent
claiming a commission or finder's fee in connection with this Lease as a result
of the acts or conduct of Lessee. Lessor shall be responsible for any brokerage
commission paid to N/A Brokerage Company pursuant to Lessor's agreement with
such company. This provision shall survive the termination of expiration of
this Lease.
16. Estoppel Certificate.
(a) Each party (as "responding party") shall at any time upon not less
than ten (10) days' prior written notice from the other party ( "requesting
party") execute, acknowledge and deliver to the requesting party a statement
in writing (I) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and
the date to which the rent and other charges are paid in advance, if any, and
(II) acknowledging that there are not, to the responding party's knowledge,
any uncured defaults on the part of the requesting party, or specifying such
defaults if any are claimed. Any such statement may be exclusively relied
upon by any prospective purchaser or encumbrancer of the Premises or of the
business of the requesting party.
(b) At the requesting party's option, the failure to deliver such
statement within such time shall be a material default of this Lease by the
party who is to respond, without any further notice to such party, or it shall
be conclusive upon such party that (I) this Lease is in full force and effect,
without
modification except as may be represented by the requesting party, (II) there
are no uncured defaults in the requesting party's performance, and (III) if
Lessor is the requesting party, not more than one month's rent has been paid
in advance.
(c) If Lessor desires to finance, refinance, or sell the Industrial
Center, or any part thereof, Lessee hereby agrees to deliver to any lender or
purchaser designated by Lessor such financial statements of Lessee as may be
reasonably required by such lender or purchaser. Such statements shall include
the past three (3) years' financial statements of Lessee. 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 only the
owner or owners, at the time in question, of the fee title or a lessee's
interest in a ground lease of the Industrial Center, and except as expressly
provided in paragraph 15, in the event of any transfer of such title or
interest, Lessor herein named (and in case of any subsequent transfers then the
grantor) shall be relieved from and after the date of such transfer of all or
any liability as respects Lessor's obligations thereafter to be performed,
provided that any funds in the hands of Lessor or the then grantor at the time
of such transfer, in which Lessee has an interest, shall be delivered to the
grantee. The obligations contained in this Lease to be performed by Lessor
shall, subject as aforesaid, be binding on Lessor's successors and assigns, only
during their respective periods of ownership.
18. Severability. The invalidity of any provisions 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. Except as expressly herein provided, any
amount due to Lessor not paid when due shall bear interest at the maximum rate
then allowable by law from the date due. Payment of such interest shall not
excuse or cure any default by Lessee under this Lease; provided, however, that
interest shall not be payable on late charges incurred by Lessee nor on any
amounts upon which late charges are paid by Lessee.
20. Time of Essence. Time is of the essence with respect to the obligations to
be performed under this Lease.
21. Additional Rent. All monetary obligations of Lessee to Lessor under the
terms of this Lease, including but not limited to Lessee's Share of Operating
Expenses and Insurance and tax expenses payable shall be deemed to be rent.
22. Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
or contemporaneous agreement or understanding pertaining to any such matter
shall be effective. This lease may be modified in writing only signed by the
parties in interest at the time of the modification. Except as otherwise stated
in this Lease, Lessee hereby acknowledges that neither the real estate broker
listed in paragraph 15 hereof nor any cooperating broker on this transaction nor
the Lessor or any employee or agents of any of said persons has made any oral or
written warranties or representations to Lessee relative to the condition or use
by Lessee of the Premises or the Industrial Center and Lessee acknowledges that
Lessee assumes all responsibility regarding the Occupational Safety Health Act,
the legal use and adaptability of the Premises and the compliance thereof with
all applicable laws and regulations in effect during the term of this Lease
except as otherwise specifically stated in this Lease.
23. Notices. Any notice required or permitted to be given hereunder shall be
in writing and may be given by personal delivery or by certified mail, and if
given personally or by mail, shall be deemed sufficiently given if addressed to
Lessee or to Lessor at the address noted below the signature of the respective
parties, as the case may be. Either party may by notice to the other party
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
notice purposes. 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 notice to
Lessee.
24. Waivers. No waiver by Lessor or any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provision. Lessor's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Lessor's consent to
or approval of any subsequent act by Lessee. The acceptance of rent hereunder
by Lessor shall not be a waiver of any preceding breach by Lessee of any
provision hereof, other than the failure of Lessee to pay the particular rent so
accepted, regardless of Lessor's knowledge of such preceding breach at the time
of acceptance of such rent.
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.
26. Holding Over.
26.1. Month-to-Month Tenancy. If Lessee, with Lessor's written
consent, remains in possession of the Premises or any part thereof after the
expiration or other termination of the term hereof, such occupancy shall be a
tenancy from month to month upon all the provisions of this Lease pertaining to
the obligations of Lessee, but all Options, if any, granted under the terms of
this Lease shall be deemed terminated and be of no further effect during said
month to month tenancy. Base Rent during such month to month tenancy shall be
110% of the amount paid in the last month prior to the date of expiration or
other termination of the Lease term hereof. Such month to month tenancy may be
terminated by Lessor or Lessee on the 1st day of any calendar month by delivery
of at least 30 days advance written notice of termination to the other.
26.2. Tenancy at Sufferance. If without Lessor's written consent in
Lessor's sole discretion, Lessee remains in possession of the Premises after the
expiration or other termination of the Lease term hereof, Lessee shall be deemed
to be occupying the Premises upon a tenancy at sufferance only, at a monthly
base rent equal to 150% of the amount paid in the last month prior to the date
of expiration or other termination of this Lease. Such tenancy at sufferance
may be terminated by Lessor at any time by notice of termination to Lessee, and
by Lessee on the last day of any calendar month by at least 30 days advance
written notice of termination to Lessor. Notwithstanding the foregoing, Lessor
shall be entitled to such other remedies and damages provided under this Lease
or at law.
26.3. General. Any month-to-month tenancy or tenancy at sufferance
hereunder shall be subject to all other terms and conditions of this Lease
except any right of renewal or option and nothing contained in this Paragraph 26
shall be construed to limit or impair any of Lessor's rights or re-entry or
eviction or constitute a waiver thereof.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. Covenants and Conditions. Each provision of this Lease performable by
Lessee shall be deemed both a covenant and a condition.
29. Binding Effect; Choice of Law. Subject to any provisions hereof
restricting assignment or subletting by Lessee and subject to the provisions
of paragraph 17, this Lease shall bind the parties, their personal
representative, successors and assigns. This Lease shall be governed by the
laws of the State wherein the Industrial Center is located and any litigation
concerning this Lease between the parties hereto shall be initiated in the
county in which the Industrial Center is located.
30. Subordination.
(a) This Lease, and any Option granted hereby, at Lessor's option, shall
be subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation or security now or hereafter placed upon the Industrial Center and
to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements, and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease and any
Options granted hereby prior to the lien of its mortgage, deed of trust or
ground lease, and shall give written notice thereof to Lessee, this Lease and
such Options shall be deemed prior to such mortgage, deed of trust or ground
lease, whether this Lease or such Options are dated prior or subsequent to the
date of said mortgage, deed of trust or ground lease or the date of recording
thereof.
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease or any Option granted
herein prior to the lien of any mortgage, deed of trust or ground lease, as
the case may be, Lessee's failure to execute such documents within ten (10)
days after written demand shall constitute a material default by Lessee
hereunder without further notice to Lessee or, at Lessor's option, Lessor
shall execute such documents on behalf of Lessee as Lessee's
attorney-in-fact. Lessee does hereby make, constitute and irrevocable
appoint Lessor as Lessee's attorney-in-fact and in Lessee's name, place and
stead, to execute such documents in accordance with this paragraph 30(b).
31. Attorney's Fees. If either party or the broker(s) named herein bring an
action to enforce the terms hereof or declare rights hereunder, the
prevailing party in any such action, on trial or appeal, shall be entitled to
his reasonable attorney's fees to be paid by the losing party as fixed by the
court. The provisions of this paragraph shall inure to the benefit of the
broker named herein who seeks to enforce a right hereunder.
32. Lessor's Access. Lessor and Lessor's agents shall have the right to
enter the Premises at reasonable times for the purpose of inspecting the
same, showing the same to prospective purchasers, lenders, or lessees, and
making such alterations, repairs, improvements or additions to the Premises
or to the Industrial Center as Lessor may deem necessary or desirable.
Lessor may at any time place on or about the Premises or the Building any
ordinary "For Sale" signs and Lessor may at any time during the last 120 days
of the term hereof place on or about the Premises any ordinary "For Lease"
signs. All activities of Lessor pursuant to this paragraph shall be without
abatement of rent, nor shall Lessor have any liability to Lessee for the same.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises or the Common
Areas 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 Premises or the
Industrial Center without Lessor's prior written consent. Under no
circumstances shall Lessee place a sign on any roof of the Industrial Center.
35. Merger. The voluntary or other surrender of this Lease by Lessee, or a
mutual cancellation thereof, or a termination by Lessor, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to
Lessor of any or all of such subtenancies.
36. Consents. Except for paragraph 33 hereof, wherever in this Lease the
consent of one party is required to an act of the other party such consent
shall not be unreasonably withheld or delayed.
37. Guarantor. In the event that there is a guarantor of this Lease, said
guarantor shall have the same obligations as Lessee under this Lease.
38. Quiet Enjoyment. Lessor warrants that it has full right and power to
execute and perform this lease and to grant the state demised herein and that
Lessee, on payment of rent and performing the covenants herein contained,
shall peaceable and quietly have, hold and enjoy the demised premises during
the full term of this Lease and any extension or renewal hereof; provided,
however, that Lessee accepts this lease and subject and subordinate to any
recorded mortgage, deed of trust or other lien presently existing upon the
demised premises. Lessor is hereby irrevocably vested with full power and
authority to subordinate Lessee's interest hereunder to any mortgage deed of
trust or other lien hereafter placed on the demised premises, and Lessee
agrees upon demand to execute such further instruments subordinating this
lease as Lessor may request, provided such further subordination shall be
upon the express condition that this Lease shall be recognized by the
mortgagee and the rights of Lessee shall remain in full force and effect
during the term of this Lease so long as Lessee shall continue to perform all
of the covenants of this lease.
39. Options.
39.1. Definition. As used in this paragraph the word "Option" has
the following meaning: (1) the right or option to extend the term of this
Lease or to renew this Lease or to extend or renew any lease that Lessee has
on other property of Lessor; (2) the option or right of first refusal to
lease the Premises or the right of first offer to lease the Premises or the
right of first refusal to lease other space within the Industrial Center or
other property of Lessor or the right of first offer to lease other space
within the Industrial Center or other property of Lessor; (3) the right or
option to purchase the Premises or the Industrial Center, or the right of
first refusal to purchase the Premises or the Industrial Center, or the right
of first offer to purchase the Premises or the Industrial Center, or the
right or option 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. Each Option granted to Lessee in this Lease
is personal to the original Lessee and may be exercised only by the original
Lessee while occupying the Premises who does so without the intent of
thereafter assigning this Lease or subletting the Premises or any portion
thereof, and
may not be exercised or be exercised or be assigned, voluntarily or
involuntarily, by or to any person or entity other than Lessee, provided,
however that an option may be exercised by or assigned to any Lessee
Affiliate as defined in paragraph 12.2 of this Lease. The Option, if any,
herein granted to Lessee are not assignable separate and apart from this
Lease, nor may any Option be separated from this Lease in any manner, either
by reservation or otherwise.
39.3. Multiple Options. In the event that Lessee has any multiple
options to extend or renew this Lease a later option cannot be exercised
unless the prior option to extend or renew this Lease has been so exercised.
39.4. Effect of Default or 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 time commencing from the date Lessor gives to Lessee a notice of
default pursuant to paragraph 13.1(b) or 13.1(c) and continuing until the
noncompliance alleged in said notice of default is cured, or (ii) during the
period of time commencing on the date after a monetary obligation to Lessor
is due from Lessee and unpaid (without any necessity for notice thereof to
Lessee) and continuing until the obligation is paid, or (iii) at any time
after an event of default described in paragraphs 13.1(a), 13.1(d) or 13.1(e)
(without any necessity of Lessor to give notice of such default to Lessee) or
(iv) in the event that Lessor has given to Lessee three or more notices of
default under paragraph 13.1(b), or paragraph 13.1(c), whether or not the
defaults are cured, during the 12 month period of time immediately prior to
the time that Lessee attempts to exercise the subject Option.
(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 provision 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)
Lessee fails to commence to cure a default specified in paragraph 13.1(c)
within thirty (30) days after the date that Lessor gives notice to Lessee of
such default and/or Lessee fails thereafter to diligently prosecute said cure
to completion, or (iii) Lessee commits a default described in paragraph
13.1(a), 13.1(d) or 13.1(e) (without any necessity of Lessor to give notice
of such default to Lessee), or (iv) Lessor gives to Lessee three or more
notices of default under paragraph 13.1(b), or paragraph 13.1(c), whether or
not the defaults are cured.
40. Security Measures. Lessee hereby acknowledges that Lessor shall have no
obligation whatsoever to provide guard service or other security measures for
the benefit of the Premises or the Industrial Center. Lessee assumes all
responsibility for the protection of Lessee, Lessee employees, its agents,
and invitees and the property of Lessee and of Lessee's agents and invitees
from acts of third parties. Nothing herein contained shall prevent Lessor,
at Lessor's sole option, from providing security protection for the
Industrial Center or any part thereof, in which event the cost thereof shall
be included within the definition of Operating Expenses, as set forth in
paragraph 4.2(b).
41. Hazardous Substance. Lessee covenants and agrees that during the term of
this Lease, or any extension thereof, as follows: (1 no "Hazardous Substance"
shall be allowed on the Premises, (2) Lessee shall comply in all material
respects with all applicable "Environmental Requirements" relating to the
Premises and the property containing the same, (3) Lessee shall not engage in
any "Environmental Activity", or allow any "Environmental Activity" to occur
on the Premises in violation of any applicable Environmental Requirements,
and (4) Lessee shall not otherwise violate any applicable environmental
requirements. Lessee's violation of any of the above shall be deemed a
material default under this Lease and afford Lessor all of the rights and
remedies it has under Paragrpah 13 of the Lease, including but not limited
to, termination of the Lease.
As used above, the following terms shall have the following meaning:
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended from time to time (42 U.S.C. 9601 et
seq.).
"CODE" means the California Health and Safety Code, as amended from time
to time.
"ENVIRONMENTAL ACTIVITY" means any actual, proposed or threatened
storage, holding, existence, release, emission, discharge, generation,
processing, abatement, removal, disposition, handling or transportation of
any Hazardous Substance from, under, into or on the property or otherwise
relating to the property or the use of the property, or any other activity or
occurrence that causes or would cause any such event to exist.
"HAZARDOUS SUBSTANCES" means, at any time, (a) any "hazardous substance"
as defined in 101(14) of CERCLA (42 U.S.C. 9501(14) pr 25281(D) or 25316 of
the Code at such time; (b) any "hazardous waste" "infectious waste" or
"hazardous material" as defined in 25117, 25117.5 or 25501(j) of the code at
such time; (c) any additional substances or materials which at such time are
classified or considered to be hazardous or toxic under any Environmental
Requirements; (d) asbestos and asbestos-containing materials; and (e)
petroleum and petroleum products.
42. Sign Criteria. This criteria has been established for the mutual
benefit of all lessees and to maintain a professional business complex
appearance. Compliance will be strictly enforced. Any non-conforming or
unapproved signs must be brought into conformance with this criteria, at the
lessee's expense.
1. All costs incurred in making and installing Lessee's sign shall be at
Lessee's expense which is currently $100.00
2. No electrical or audible signs will be permitted.
3. Sign copy will be restricted to company name only.
4. The sign dimensions will be the same as current sign on building.
5. Sign color: Same as current colors on sign on building.
6. The sign blank which includes size, shape and composition will be
provided by the Lessor and is the property of Lessor.
7. Placement of the sign and method of attachment to the building will be
performed by the Lessor.
8. Upon removal of any sign, any damage to the building must be repaired
by the Lessee.
9. Except as provided herein, no advertising placards, banners, pennants,
names, insignias or trademarks or other description material shall be
affixed or maintained upon the glass panes or exterior walls of the
building or in the landscaped areas, or affixed to automobiles, trucks
or trailers in the parking areas. The restriction pertaining to
automobiles does not apply to magnetic or painted identification sign
placed on company or private vehicles for use in the normal course of
business.
[ ]
Tenant sign copy
43. Outside storage. No storage will be allowed on the building nor on any
of the common areas as pertains to landscaping, driveways, parking lots,
fences and all sidewalks and parkways adjacent to the premises. This
includes, but is not limited to, supplies materials, goods, pallets, dunnage
and equipment. No vehicles including boats and trailers, may be parked or
stored outside the building overnight. No outside storage of metal stock or
fabricated metal parts, no outside work or assembly of fabricated metal
parts. Lessee agrees to pay for disposal of metal and other manufacturing
wastes. Lessor provides only the amount of trash disposal reasonable
expected for a unit of this size. Violation of this paragraph shall
constitute a material breach of this lease.
44. Trash. It is Lessee's responsibility that all trash must be placed in
trash receptacles. Trash receptacles are provided. Violations will be
remedied at Lessee's expense.
45. Outside Work. No work shall be permitted on the sidewalks, roofs,
streets, driveways, parking or landscape areas. This includes, but is not
limited to, assembly, construction, mechanical work, painting, drying,
layout, cleaning, or repair of goods or materials. Violation of this
paragraph shall constitute a material breach of this lease.
46. Fire regulation. Lessee hereby agrees to comply with all fire
regulations imposed by federal, state, and local authorities. Lessee shall
not store any flammable liquids in any unit.
47. Electrical. Lessee hereby agrees that all electrical wiring, conduit,
J-boxes, and outlets installed by Lessee shall comply with all building
codes, and shall become the property of Lessor and shall not be removed from
the premises at the termination of this Lease or any extensions thereof.
48. Service Contract. Lessor will assume the responsibility to acquire an
air-conditioned service contract. This contract will provide for the
periodic change of filters and lubrication of the air-conditioning equipment.
However, repair of the heating and air-conditioning equipment remains the
responsibility of the Lessee hereunder.
49. Locks. Lessee does not have permission to change locks or keys without
written permission of Lessor.
50. Glass and Window Coverings.
50.1. You are not permitted to paste or stick any signs, numbers,
placards, trademarks, insignias, banners, pennants, names or other objects on
the glass. You will be held responsible for any damage to glass during the
term of the lease.
50.2. All window coverings must be approved in writing by Lessor prior
to installation and are to be at Lessee's expense. In addition,
notwithstanding anything to the contrary stated in paragraph 7.3, all window
coverings installed in the premises are to be considered a fixture and, as
such, are to remain in the Premises at the termination or expiration of this
Lease.
51. Easements. Lessors reserves to itself the right, from time to time, to
grant such easements, rights and dedications that Lessor deems necessary or
desirable, and to cause the recordation of Parcel Maps and restrictions, so
long as such easements, rights, dedications, Maps and restrictions do not
unreasonably interfere with the use of the Premises by Lessee. Lessee shall
sign any of the aforementioned documents upon request of Lessor and failure
to do so shall constitute a material default of this Lease by Lessee without
the need for further notice to Lessee.
52. 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.
53. Substituted Premises. Landlord reserves the right, without Tenant's
consent, on thirty (30) days' written notice to Tenant to substitute other
premises within the complex for the premises described above, provided that
the substituted premises: (i) contain at least the same square footage as the
Premises; (ii) contain comparable tenant improvements, and (iii) are made
available to Tenant at the then current rental rate for such space, in no
event to exceed the rental specified herein. Landlord shall pay all
reasonable moving expenses of Tenant incidental to such substitution of
premises.
54. Authority. If Lessee 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
deliver this Lease on behalf of said entity. If Lessee is a corporation,
trust or partnership, Lessee shall, within thirty (30) days after execution
of this Lease, deliver to Lessor evidence of such authority satisfactory to
Lessor.
55. Conflict. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisions, if any, shall be controlled by the
typewritten or handwritten provisions.
56. Offer. Preparation of this Lease by Lessor or Lessor's agent and
submission of same to Lessee shall not be deemed an offer to lease. This
Lease shall become binding upon Lessor and Lessee only when fully executed by
Lessor and Lessee.
57. Rent Increases are as follows:
Rent from N/A to N/A is $ N/A
---------------- ------------------- --------------------
Rent from to is $
---------------- ------------------- --------------------
Rent from to is $
---------------- ------------------- --------------------
Rent from to is $
---------------- ------------------- --------------------
58. Lessee acknowledges that the parties have taken into account a reduction
in the property taxes on the leased property in arriving at the rental rate
and other charges provided for hereunder. Lessee agrees to cooperate with
Lessor in the obtaining of an exemption from taxes for the leased premises in
the event that such exemption has not heretofore been obtained. In any
event, any reduction in property taxes attributable to the leased property
shall inure to the sole benefit of Lessor.
59. Addendum. Attached hereto is an addendum to addenda containing
paragraphs _________________ through _________________ which constitute a
part of this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN AND, BY 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.
THIS LEASE HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR
APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR THE REAL ESTATE BROKER OR ITS
AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX
CONSEQUENCES OF THIS LEASE OR THE TRANSACTION RELATING THERETO. THE
PARTIES SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL
AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
LESSOR LESSEE
NORDATA dba DATATECH
By: /s/ Xxxx Xxxxxxx By: /s/ X. Xxxxxx
------------------------------- ----------------------------
Xxxx Xxxxxxx By: Xxxxxx Xxxxxx, President
XXXXXXXX REAL ESTATE SERVICES, INC. Xxxx Xxxxxx, Vice President
Property Manager
I, the undersigned, hereby
ADDRESS FOR NOTICES personally and unconditionally
guarantee this lease and all terms
and conditions contained herein.
00000 "X" Xxxxx Xxxxxx #501 /s/ X. Xxxxxx
Xxx Xxxx Xxxxxxxxxx XX 00000 -----------------------------------
Xxxxxx Xxxxxx, President
