Exhibit 10.5
BASIC LEASE INFORMATION
LEASE DATE: September 2, 1992
TENANT: DepoMed Systems, Inc., a California Corporation
TENANTS ADDRESS: 0000 X Xxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
LANDLORD: 0000 XXXXX XXXXX LIMITED PARTNERSHIP, a Texas Limited
Partnership
XXXXXXXX'S ADDRESS:c/o Xxxxxxxx Xxxx Company
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
PROJECT: XXXXXX CITY TECHNOLOGY CENTER
DESCRIPTION: That 66,869 square foot, two-building complex, located at
the corner of Hatch and Chess Drives, in Foster City,
California, commonly known as the Xxxxxx City Technology
Center as outlined in green on Exhibit A.
BUILDING
DESCRIPTION: That 33,849 square foot, one-story, concrete, tilt-up
building commonly known as 0000 Xxxxx Xxxxx, Xxxxxx Xxxx,
Xxxxxxxxxx. The building is in the southwestern most corner
of the Project, as outlined in blue on Exhibit "A".
PREMISES: That approximately 3,300 square feet of rentable area of the
building commonly known as 0000 X Xxxxx Xxxxx, Xxxxxx Xxxx,
Xxxxxxxxxx as outlined in red on Exhibit "A".
PERMITTED USE: Office, laboratory and warehouse
PARKING DENSITY: Three (3) spaces per 1,000 square feet - See Paragraph 40.
ESTIMATED TERM COMMENCEMENT DATE: September 15, 1992
LENGTH OF TERM: Thirty (30) Months. See Paragraph 3.
RENT:
BASE RENT: $ See Paragraph 38.
ESTIMATED FIRST YEAR BASIC OPERATING COST: $ 667.00 per month
SECURITY DEPOSIT: $ 3,389.00
TENANT'S PROPORTIONATE SHARE:
OF BUILDING: 9.75%
OF PROJECT: 4.94%
BROKER: Xxxxx Xxxx, TRI Commercial Brokerage
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and the Lease, the latter shall control.
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TABLE OF CONTENTS
PAGE
BASIC LEASE INFORMATION....................................................... 1
TABLE OF CONTENTS............................................................. 2
1. PREMISES................................................................ 3
2. POSSESSION AND LEASE COMMENCEMENT....................................... 3
3. TERM.................................................................... 3
4. USE..................................................................... 4
5. RULES AND REGULATIONS................................................... 5
6. RENT.................................................................... 6
7. BASIC OPERATING COST.................................................... 6
8. INSURANCE AND INDEMNIFICATION...........................................10
9. WAIVER OF SUBROGATION...................................................13
10. LANDLORD'S REPAIRS AND SERVICES.........................................13
11. TENANT'S REPAIRS........................................................14
12. ALTERATIONS.............................................................14
13. SIGNS...................................................................15
14. INSPECTION/POSTING NOTICES..............................................16
15. UTILITIES...............................................................16
16. SUBORDINATION...........................................................17
17. FINANCIAL STATEMENTS....................................................17
18. ESTOPPEL CERTIFICATE....................................................17
19. SECURITY DEPOSIT........................................................18
20. TENANT'S REMEDIES.......................................................18
21. ASSIGNMENT AND SUBLETTING...............................................19
22. AUTHORITY OF PARTIES....................................................20
23. CONDEMNATION............................................................20
24. CASUALTY DAMAGE.........................................................21
25. HOLDING OVER............................................................23
26. DEFAULT.................................................................23
27. LIENS...................................................................26
28. TRANSFERS BY LANDLORD...................................................26
29. RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS.........................27
30. WAIVER..................................................................27
31. NOTICES.................................................................28
32. ATTORNEYS' FEES.........................................................28
33. SUCCESSORS AND ASSIGNS..................................................28
34. FORCE MAJEURE...........................................................29
35. BROKERAGE COMMISSION....................................................29
36. MISCELLANEOUS...........................................................29
37. ADDITIONAL PROVISIONS...................................................31
EXHIBITS
--------
EXHIBIT A...........................................Site Plan, Legal Description
EXHIBIT B.................................Tenant Improvements and Specifications
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LEASE
THIS LEASE is made as of this 2nd day of September, 1992, by and between 1170
Chess Drive Limited Partnership, a Texas Limited Partnership (hereinafter called
"Landlord") and DepoMed Systems, Inc., a California Corporation (hereinafter
called "Tenant").
PREMISES
1. Landlord leases to Tenant and Tenant leases from Landlord, upon the terms
and conditions hereinafter set forth, those premises (the "Premises")
outlined in red on Exhibit A and described in the Basic Lease Information.
The Premises may be all or part of the building (the "Building") or of the
project (the "Project") which may consist of more than one building. The
Building and Project are outlined in blue and green respectively on Exhibit
A.
POSSESSION AND LEASE COMMENCEMENT
2. CONSTRUCTION OF IMPROVEMENTS. In the event this Lease pertains to a
Building to be constructed or improvements to be constructed within a
Building, the provisions of this Paragraph 2.A. shall apply in lieu of the
provisions of some or all of the Premises, or (2) the improvements
constructed or to be constructed in the Premises shall have been
substantially completed in accordance with the plans and specifications
described on __________ whether or not substantial completion of the
Building itself shall have occurred. If for any reason Landlord cannot
deliver possession of the Premises to Tenant on the Estimated Term
Commencement Date, Landlord shall not be subject to any liability therefor,
nor shall Landlord be in default hereunder. In the event of any dispute as
to substantial completion of work performed or required to be performed by
Landlord, the certificate of Landlord's architect or general contractor
shall be conclusive. Substantial completion shall have occurred
notwithstanding Tenant's submission of a punchlist to Landlord, which
Tenant shall submit, if at all, within thirty (30) days after the Term
Commencement Date. Tenant shall, upon demand, execute and deliver to
Landlord a letter of acceptance of delivery of the Premises.
TERM
3. The Term of this Lease shall commence on the Term Commencement Date and
continue in full force and effect for the number of months specified as the
Length of Term in the Basic Lease Information or until this Lease is
terminated as otherwise provided herein. If the Term Commencement Date is
a date other than the first day of the calendar month, the Term shall be
the number of months of the Length of Term in addition to the remainder of
the calendar month following the Term Commencement Date.
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USE
4. A. GENERAL. Tenant shall use the Premises for the Permitted Use and for
no other use or purpose. Tenant shall control Tenant's employees, agents,
customers, visitors, invitees, licensees, contractors, assignees and
subtenants (collectively, "Tenant's Parties") in such a manner that Tenant
and Xxxxxx's Parties cumulatively do not exceed the Parking Density at any
time. Tenant and Xxxxxx's Parties shall have the nonexclusive right to
use, in common with other parties occupying the Building or Project, the
parking areas and driveways of the Project, subject to such rules and
regulations as Landlord may from time to time prescribe.
B. LIMITATIONS. Tenant shall not permit any odors, smoke, dust, gas,
substances, noise or vibrations to emanate from the Premises, nor take any
action which would constitute a nuisance or would disturb, obstruct or
endanger any other tenants of the Building or Project in which the Premises
are situated or interfere with their use of their respective premises.
Storage outside the Premises of materials, vehicles or any other items is
prohibited. Tenant shall not use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause or maintain or permit any nuisance in, on or about the Premises.
Tenant shall not commit or suffer the commission of any waste in, on or
about the Premises. Tenant shall not allow any sale by auction upon the
Premises, or place any loads upon the floors, walls or ceilings which
endanger the structure, or place any harmful liquids in the drainage system
of the Building or Project. No waste, materials or refuse shall be dumped
upon or permitted to remain outside the Premises except in trash containers
placed inside exterior enclosures designated for that purpose by Landlord.
Landlord shall not be responsible to Tenant for the non-compliance by any
other tenant or occupant of the Building or Project with any of the above-
referenced rules or any other terms or provisions of such tenant's or
occupant's lease or other contract.
C. COMPLIANCE WITH REGULATIONS. By entering the Premises. Tenant accepts
the Premises in the condition existing as of the date of such entry,
subject to all existing or future applicable municipal, state and federal
and other governmental statutes, regulations, laws and ordinances,
including zoning ordinances and regulations governing and relating to the
use, occupancy and possession of the Premises and the use, storage,
generation and disposal of Hazardous Materials (hereinafter defined) in, on
and under the Premises (collectively "Regulations"). Except for pre-
existing violations, Tenant shall, at Tenant's sole expense, strictly
comply with all Regulations now in force or which may hereafter be in force
relating to the Premises and the use of the Premises and/or the use,
storage, generation of Hazardous Materials in, on and under the Premises.
Tenants shall at its sole cost and expense obtain any and all
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licenses or permits necessary for Xxxxxx's use of the Premises. Tenant
shall promptly comply with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted. Tenant
shall not do or permit anything to be done in, on, or about the Premises or
bring or keep anything which will in any way increase the rate of any
insurance upon the Premises, Building or Project, or upon any contents
therein or cause a cancellation of said insurance or otherwise affect said
insurance in any manner. Tenant shall indemnity, defend, protect and hold
Landlord harmless from and against any loss, cost, expense, damage,
attorneys' fees or liability arising out of the failure of Tenant to comply
with any applicable law or comply with the requirements as set forth
herein.
D. HAZARDOUS WASTES. Tenant shall not cause, or allow any of Tenant's
Parties to cause, any Hazardous Materials to be used, generated, stored or
disposed of on or about the Premises, the Building or the Project. As used
in this Lease, "Hazardous Materials" shall include, but not be limited to,
hazardous, toxic and radioactive materials and those substances defined as
"hazardous substances," "hazardous materials ... hazardous wastes," "toxic
substances," or other similar designations in any federal, state, or local
law, regulation, or ordinance. Landlord shall have the right at all
reasonable times to inspect the Premises and to conduct tests and
investigations to determine whether Tenant is in compliance with the
foregoing provisions, the costs of all such inspections, tests and
investigations to be borne by Xxxxxx. Tenant shall indemnify, defend,
protect and hold Landlord harmless from and against all liabilities,
losses, costs and expenses, demands, causes of action, claims or judgments
directly or indirectly arising out of the use, generation, storage or
disposal of Hazardous Materials by Tenant or any of Tenant's Parties, which
indemnity shall include, without limitation, the cost of any required or
necessary repair, cleanup or detoxification, and the preparation of any
closure or other required plans, whether such action is required or
necessary prior to or following the termination of this Lease. Neither the
written consent by Xxxxxxxx to the use, generation, storage or disposal of
Hazardous Materials nor the strict compliance by Tenant with all laws
pertaining to Hazardous Materials shall excuse Tenant from Tenant's
obligation of indemnification pursuant to this Paragraph 4.D.
Tenant's,obligations pursuant to the foregoing indemnity shall survive the
termination of this Lease.
RULES AND REGULATIONS
5. Tenant shall faithfully observe and comply with any reasonable rules and
regulations Landlord may from time to time prescribe in writing for the
purpose of maintaining the proper care, cleanliness, safety, traffic flow
and general order of the Premises or Project. Tenant shall cause
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Xxxxxx's Parties to comply with such rules and regulations. Landlord shall
not be responsible to Tenant for the non-compliance by any other tenant or
occupant of the Building or Project with any of the rules and regulations.
RENT
6. A. BASE RENT. Tenant shall pay to Landlord, without demand throughout
the Term, Base Rent as specified in the Basic Lease Information, payable in
monthly installments in advance on or before the first day of each calendar
month, in lawful money of the United States, without deduction or offset
whatsoever, at the address specified in the Basic Lease Information or to
such other place as Landlord may from time to time designate in writing.
Base Rent for the first full month of the Term shall be paid by Tenant upon
Xxxxxx's execution of this Lease. If the obligation for payment of Base
Rent commences on other than the first day of a month, then Base Rent shall
be prorated and the prorated installment shall be paid on the first day of
the calendar month next succeeding the Term Commencement Date.
B. ADDITIONAL RENT. All monies other than Base Rent required to be paid
by Tenant hereunder, including, but not limited to, the interest and late
charge described in Paragraph 26.D., any monies spent by Landlord pursuant
to Paragraph 30, and Xxxxxx's Proportionate Share of Basic Operating Cost,
as specified in Paragraph 7 of this Lease, shall be considered additional
rent ("Additional Rent"). "Rent" shall mean Base Rent and Additional Rent.
BASIC OPERATING COST
7. A. BASIC OPERATING COST. In addition to the Base Rent required to be
paid hereunder, Tenant shall pay as Additional Rent, Xxxxxx's Proportionate
Share, as defined in the Basic Lease Information, of Basic Operating Cost
in the manner set forth below. Landlord shall account for each item of
Basic Operating Cost as either a cost attributable to the Building or to
the Project, as determined by Landlord in Landlord's sole discretion, and
unless provided to the contrary in this Lease, Tenant shall pay the
applicable Tenant's Proportionate Share of each such Basic Operating Cost,
as set forth in the Basic Lease Information. Basic Operating Cost shall
mean all expenses and costs of every kind and nature which Landlord shall
pay or become obligated to pay, because of or in connection with the
management, maintenance, preservation and operation of the Project and its
supporting facilities (determined in accordance with generally accepted
accounting principles, consistently applied) including but not limited to
the following:
(1) TAXES. All real property taxes, possessory interest taxes, business or
license taxes or fees, service payments in lieu of such taxes or fees,
annual or periodic license or use fees, excises, transit charges, housing
fund
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assessments, open space charges, assessments, levies, fees or charges,
general and special, ordinary and extraordinary, unforeseen as well as
foreseen, of any kind (including fees "in-lieu" of any such tax or
assessment) which are assessed, levied, charged, confirmed, or imposed by
any public authority upon the Project, its operations or the Rent (or any
portion or component thereof (all of the foregoing being hereinafter
collectively referred to as "real property taxes"), or any tax imposed in
substitution, partially or totally, of any tax previously included within
the definition of real property taxes, or any additional tax the nature of
which was previously included within the definition of real property taxes,
except (a) inheritance or estate taxes imposed upon or assessed against the
Project, or any part thereof or interest therein, and (b) taxes computed
upon the basis of net income of Landlord or the owner of any interest
therein. Basic Operating Cost shall also include any taxes, assessments,
or any other fees imposed by any public authority upon or measured by the
monthly rental or other charges payable hereunder, including, without
limitation, any gross income tax or excise tax levied by the local
governmental authority in which the Project is located, the federal
government, or any other governmental body with respect to receipt of such
rental, or upon, with respect to or by reason of the development,
possession, leasing, operation, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Premises or any portion thereof,
or upon this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises. In the
event that it shall not be lawful for Tenant to reimburse Landlord for all
or any part of such taxes, the monthly rental payable to Landlord under
this Lease shall be revised to net to Landlord the same net rental after
imposition of any such taxes by Landlord as would have been payable to
Landlord prior to the payment of any such taxes.
(2) INSURANCE. All insurance premiums and costs, including but not limited
to, any deductible amounts, premiums and cost of insurance incurred by
Landlord, as more fully set forth in Paragraph 8.A. herein.
(3) REPAIRS AND IMPROVEMENTS. Repairs, replacements and general
maintenance for the Premises, Building and Project (except for those
repairs expressly made the financial responsibility of Landlord pursuant to
the terms of this Lease, repairs to the extent paid for by proceeds of
insurance or by Tenant or other third parties, and alterations attributable
solely to tenants of the Project other than Tenant). Such repairs,
replacements, and general maintenance shall include the cost of any capital
improvements made to or capital assets acquired for the Project, Building,
or Premises after the Term Commencement Date that reduce any other Basic
Operating Cost, are reasonably necessary for the health and safety of the
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occupants of the Project, or are made to the Building by Landlord after the
date of this Lease and are required under any governmental law or
regulation, such costs or allocable portions thereof to be amortized over
such reasonable period as Landlord shall determine, together with interest
on the unamortized balance at the "prime rate" charged at the time such
improvements or capital assets are constructed or acquired by Xxxxx Fargo
Bank, N.A. (San Francisco), plus two (2) percentage points, but in no event
more than the maximum rate permitted by law.
(4) SERVICES. All expenses relating to maintenance, janitorial and service
agreements and services, and costs of supplies and equipment used in
maintaining the Premises, Building and Project and the equipment therein
and the adjacent sidewalks, driveways, parking and service areas,
including, without limitation, alarm service, window cleaning, elevator
maintenance, Building exterior maintenance and landscaping.
(5) UTILITIES. Utilities which benefit all or a portion of the Premises,
Building or Project.
(6) MANAGEMENT FEE. A management and accounting cost recovery fee equal to
three percent (3%) of the sum of Base Rent and Basic Operating Cost.
(7) LEGAL AND ACCOUNTING. Reasonable legal and accounting expenses
relating to the Project, including the cost of audits by certified public
accountants.
In the event that the Building is not fully occupied during any fiscal year
of the Term as determined by Landlord, an adjustment shall be made in
computing the Basic Operating Cost for such year so that Tenant pays an
equitable portion of all variable items of Basic Operating Cost, as
reasonably determined by Landlord; provided, however, that in no event
shall Landlord be entitled to collect in excess of one hundred percent
(100%) of the total Basic Operating Cost from all of the tenants in the
Building including Tenant.
Basic Operating Cost shall not include specific costs incurred for the
account of, separately billed to and paid by specific tenants.
Notwithstanding anything herein to the contrary, in any instance wherein
Landlord, in Landlord's sole discretion, deems Tenant to be responsible for
any amounts greater than Tenant's Proportionate Share, Landlord shall have
the right to allocate costs in any reasonable manner Landlord deems
appropriate.
B. PAYMENT OF ESTIMATED BASIC OPERATING COST. "Estimated Basic Operating
Cost" for any particular year shall mean Landlord's estimate of the Basic
Operating Cost for such fiscal year made prior to commencement of such
fiscal year as hereinafter provided. Landlord shall have the right from
time to time to revise its fiscal year and interim
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accounting periods so long as the periods as so revised are reconciled with
prior periods in accordance with generally accepted accounting principles
applied in a consistent manner. During the last month of each fiscal year
during the Term, or as soon thereafter as practicable, Landlord shall give
Tenant written notice of the Estimated Basic Operating Cost made in good
faith for the ensuing fiscal year. Tenant shall pay Tenant's Proportionate
Share of the Estimated Basic Operating Cost with installments of Base Rent
for the fiscal year to which the Estimated Basic Operating Cost applies in
monthly installments on the first day of each calendar month during such
year, in advance. If at any time during the course of the fiscal year,
Landlord determines in good faith that Basic Operating Cost is projected to
vary from the then Estimated Basic Operating Cost by more than ten percent
(10%), Landlord may, by written notice to Tenant, revise the Estimated
Basic Operating Cost for the balance of such fiscal year, and Xxxxxx's
monthly installments for the remainder of such year shall be adjusted so
that by the end of such fiscal year Tenant has paid to Landlord Tenant's
Proportionate Share of the revised Estimated Basic Operating Cost for such
year.
C. COMPUTATION OF BASIC OPERATING COST ADJUSTMENT. "Basic Operating Cost
Adjustment" shall mean the difference between Estimated Basic Operating
Cost and Basic Operating Cost for any fiscal year determined as hereinafter
provided. Within one hundred twenty (120) days after the end of each
fiscal year, as determined by Landlord, or as soon thereafter as
practicable, Landlord shall deliver to Tenant a statement of Basic
Operating Cost for the fiscal year just ended, accompanied by a computation
of Basic Operating Cost Adjustment. If such statement shows that Xxxxxx's
payment based upon Estimated Basic Operating Cost is less than Tenant's
Proportionate Share of Basic Operating Cost, then Tenant shall pay to
Landlord the difference within twenty (20) days after receipt of such
statement. If such statement shows that Xxxxxx's payments of Estimated
Basic Operating Cost exceed Xxxxxx's Proportionate Share of Basic Operating
Cost, then (provided that Tenant is not in default under this Lease)
Landlord shall pay to Tenant the difference within twenty (20) days after
delivery of such statement to Tenant. If this Lease has been terminated or
the Term hereof has expired prior to the date of such statement, then the
Basic Operating Cost Adjustment shall be paid by the appropriate party
within twenty (20) days after the date of delivery of the statement.
Should this Lease commence or terminate at any time other than the first
day of the fiscal year, Xxxxxx's Proportionate Share of the Basic Operating
Cost Adjustment shall be prorated by reference to the exact number of
calendar days during such fiscal year that this Lease is in effect.
D. NET LEASE. This shall be a net Lease and Base Rent shall be paid to
Landlord absolutely net of all costs and expenses, except as specifically
provided to the contrary in
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this Lease. The provisions for payment of Basic Operating Cost and the
Basic Operating Cost Adjustment are intended to pass on to Tenant and
reimburse Landlord for all costs and expenses of the nature described in
Paragraph 7.A. incurred in connection with the ownership, maintenance and
operation of the Building or Project and such additional facilities now and
in subsequent years as may be determined by Landlord to be necessary to the
Building or Project.
E. TENANT AUDIT. In the event that Tenant shall dispute the amount set
forth in any statement provided by Landlord under Paragraph 7.B. or 7.C.
above, Tenant shall have the right, not later than ninety (90) days
following the receipt of such statement and upon the condition that Tenant
shall first deposit with Landlord the full amount in dispute, to cause
Landlord's books and records with respect to Basic Operating Cost for such
fiscal year to be audited by certified public accountants selected by
Xxxxxx and subject to Landlord's reasonable right of approval. The Basic
Operating Cost Adjustment shall be appropriately adjusted on the basis of
such audit. If such audit discloses a liability for a refund in excess of
ten percent (10%) of Tenant's Proportionate Share of the Basic Operating
Cost Adjustment previously reported, the cost of such audit shall be borne
by Landlord; otherwise the cost of such audit shall be paid by Xxxxxx. If
Tenant shall not request an audit in accordance with the provisions of this
Paragraph 7.E. within ninety (90) days after receipt of Landlord's
statement provided pursuant to Paragraph 7.B. or 7.C., such statement shall
be final and binding for all purposes hereof.
INSURANCE AND INDEMNIFICATION
8. A. LANDLORD'S INSURANCE. Xxxxxxxx agrees to maintain insurance insuring
the Building against fire, lightning, vandalism and malicious mischief
(including, if Landlord elects, "All Risk" coverage, earthquake, and/or
flood insurance), in an amount not less than eighty percent (80%) of the
replacement cost thereof, with deductibles and the form and endorsements of
such coverage as selected by Landlord. Such insurance may also include, at
Landlord's option, insurance against loss of Base Rent and Additional Rent,
in an amount equal to the amount of Base Rent and Additional Rent payable
by Tenant for a period of at least twelve (12) months commencing on the
date of loss. Such insurance shall be for the sole benefit of Landlord and
under Xxxxxxxx's sole control. Landlord shall not be obligated to insure
any furniture, equipment, machinery, goods or supplies which Tenant may
keep or maintain in the Premises, or any leasehold improvements, additions
or alterations within the Premises. Landlord may also carry such other
insurance as Landlord may deem prudent or advisable, including, without
limitation, liability insurance in such amounts and on such terms as
Landlord shall determine.
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B. TENANT'S INSURANCE.
(1) PROPERTY INSURANCE. Tenant shall procure at Tenant's sole cost and
expense and keep in effect from the date of this Lease and at all times
until the end of the Term, insurance on all personal property and fixtures
of Tenant and all improvements made by or for Tenant to the Premises,
insuring such property for the full replacement value of such property.
(2) LIABILITY INSURANCE. Tenant shall procure at Tenant's sole cost and
expense and keep in effect from the date of this Lease and at all times
until the end of the Term either Comprehensive General Liability insurance
or Commercial General Liability insurance applying to the use and occupancy
of the Premises and the Building, and any part of either, and any areas
adjacent thereto, and the business operated by Tenant, or by any other
occupant on the Premises. Such insurance shall include Broad Form
Contractual Liability insurance coverage insuring all of Tenant's indemnity
obligations under this Lease. Such coverage shall have a minimum combined
single limit of liability of at least One Million Dollars ($1,000,000.00),
and a general aggregate limit of Two Million Dollars ($2,000,000.00). All
such policies shall be written to apply to all bodily injury, property
damage or loss, personal injury and other covered loss, however occasioned,
occurring during the policy term, shall be endorsed to add Landlord and any
party holding an interest to which this Lease may be subordinated as an
additional insured, and shall provide that such coverage shall be primary
and that any insurance maintained by Landlord shall be excess insurance
only. Such coverage shall also contain endorsements: (i) deleting any
employee exclusion on personal injury coverage; (ii) including employees as
additional insureds; (iii) deleting any liquor liability exclusion; and
(iv) providing for coverage of employer's automobile non-ownership
liability. All such insurance shall provide for severability of interests;
shall provide that an act or omission of one of the named insureds shall
not reduce or avoid coverage to the other named insureds; and shall afford
coverage for all claims based on acts, omissions, injury and damage, which
claims occurred or arose (or the onset of which occurred or arose) in whole
or in part during the policy period. Said coverage shall be written on an
"occurrence" basis, if available. If an "occurrence" basis form is not
available, Tenant must purchase "tail" coverage for the most number of
years available, and tenant must also purchase "tail" coverage if the
retroactive date of an "occurrence" basis form is changed so as to leave a
gap in coverage for occurrences that might have occurred in prior years.
If a "claims made" policy is ever used, the policy must be endorsed so that
Landlord is given the right to purchase "tail" coverage should Tenant for
any reason not do so or if the policy is to be cancelled for nonpayment of
premium.
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(3) GENERAL INSURANCE REQUIREMENTS. All coverages described in this
Paragraph 8.B. shall be endorsed to provide Landlord with thirty (30) days'
notice of cancellation or change in terms. If at any time during the Term
the amount or coverage of insurance which Tenant is required to carry under
this Paragraph 8.B. is, in Landlord's reasonable judgment, materially less
than the amount or type of insurance coverage typically carried by owners
or tenants of properties located in the general area in which the Premises
are located which are similar to and operated for similar purposes as the
Premises, Landlord shall have the right to require Tenant to increase the
amount or change the types of insurance coverage required under this
Paragraph 8.B. All insurance policies required to be carried under this
Lease shall be written by companies rated A+XII or better in "Best's
Insurance Guide" and authorized to do business in California. Any
deductible amounts under any insurance policies required hereunder shall be
subject to Landlord's prior written approval. In any event deductible
amounts shall not exceed One Thousand Dollars ($1,000,00.00). Tenant shall
deliver to Landlord on or before the Term Commencement Date, and thereafter
at least thirty (30) days before the expiration dates of the expiring
policies, certified copies of Tenant's insurance policies, or a certificate
evidencing the same issued by the insurer thereunder, showing that all
premiums have been paid for the full policy period; and, in the event
Tenant shall fail to procure such insurance, or to deliver such policies or
certificates, Landlord may, at Landlord's option and in addition to
Xxxxxxxx's other remedies in the event of a default by Tenant hereunder,
procure the same for the account of Tenant, and the cost thereof shall be
paid to Landlord as Additional Rent.
C. INDEMNIFICATION. Landlord shall not be liable to Tenant for any loss
or damage to person or property caused by theft, fire, acts of God, acts of
a public enemy, riot, strike, insurrection, war, court order, requisition
or order of governmental body or authority or for any damage or
inconvenience which may arise through repair or alteration of any part of
the Building or Project or failure to make any such repair, except as
expressly otherwise provided in Paragraph 10. Tenant shall indemnify,
defend by counsel reasonably acceptable to Landlord, protect and hold
Landlord harmless from and against any and all liabilities, losses, costs,
damages, injuries or expenses, including reasonable attorneys' fees and
court costs, arising out of or related to: (1) claims of injury to or death
of persons or damage to property occurring or resulting directly or
indirectly from the use or occupancy of the Premises, or from activities of
Tenant, Xxxxxx's Parties or anyone in or about the Premises or Project, or
from any cause whatsoever; (2) claims for work or labor performed, or for
materials or supplies furnished to or at the request of Tenant in
connection with performance of any work done for the account of Tenant
within the Premises or Project; and (3) claims arising from
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any breach or default on the part of Tenant in the performance of any
covenant contained in this Lease. The foregoing indemnity shall not be
applicable to claims arising from the active negligence or willful
misconduct of Landlord. The provisions of this Paragraph shall survive the
expiration or termination of this Lease with respect to any claims or
liability occurring prior to such expiration or termination.
WAIVER OF SUBROGATION
9. To the extent permitted by law and without affecting the coverage provided
by insurance to be maintained hereunder, Landlord and Xxxxxx each waive any
right to recover against the other for: (a) damages for injury to or death
of persons; (b) damages to property; (c) damages to the Premises or any
part thereof; and (d) claims arising by reason of the foregoing due to
hazards covered by insurance to the extent of proceeds recovered therefrom.
This provision is intended to waive fully, and for the benefit of each
party, any rights and/or claims which might give rise to a right of
subrogation in favor of any insurance carrier. The coverage obtained by
each party pursuant to this Lease shall include, without limitation, a
waiver of subrogation by the carrier which conforms to the provisions of
this paragraph.
LANDLORD'S REPAIRS AND SERVICES
10. Landlord shall at Landlord's expense maintain the structural soundness of
the structural beams of the roof, foundations and exterior walls of the
Building in good repair, reasonable wear and tear excepted. The term
"exterior walls" as used herein shall not include windows, glass or plate
glass, doors, special store fronts or office entries. Landlord shall
perform on behalf of Tenant and other tenants of the Project, as an item of
Basic Operating Cost, the maintenance of the Building, Project, and public
and common areas of the Project, including but not limited to the roof,
pest extermination, the landscaped areas, parking areas, driveways, the
truck staging areas, rail spur areas, fire sprinkler systems, sanitary and
storm sewer lines, utility services, electric and telephone equipment
servicing the Building(s), exterior lighting, and anything which affects
the operation and exterior appearance of the Project, which determination
shall be at Landlord's sole discretion. Except for the expenses directly
involving the items specifically described in the first sentence of this
Paragraph 10, Tenant shall reimburse Landlord for all such costs in
accordance with Paragraph 7. Any damage caused by or repairs necessitated
by any act of Tenant may be repaired by Landlord at Landlord's option and
at Tenant's expense. Tenant shall immediately give Landlord written notice
of any defect or need of repairs after which Landlord shall have a
reasonable opportunity to repair same. Landlord's liability with respect
to any defects, repairs, or maintenance for
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which Landlord is responsible under any of the provisions of this Lease
shall be limited to the cost of such repairs or maintenance.
TENANT'S REPAIRS
11. Tenant shall at Tenant's expense maintain all parts of the Premises in a
good, clean and secure condition, reasonable wear and tear excepted, and
promptly make all necessary repairs and replacements, including but not
limited to all windows, glass, doors, walls and wall finishes, floor
covering, heating, ventilating and air conditioning systems, truck doors,
dock bumpers, dock plates and levelers, plumbing work and fixtures,
downspouts, electrical and lighting systems, and fire sprinklers. Tenant
shall at Tenant's expense also perform regular removal of trash and debris.
If required by the railroad company, Xxxxxx agrees to sign a joint
maintenance agreement governing the use of the rail spur, if any. Tenant
shall, at Xxxxxx's own expense, enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor for servicing
all hot water, heating and air conditioning systems and equipment within or
serving the Premises. The maintenance contractor and the contract must be
approved by Landlord. The service contract must include all services
suggested by the equipment manufacturer within the operation/maintenance
manual and must become effective and a copy thereof delivered to Landlord
within thirty (30) days after the Term Commencement Date. Tenant shall not
damage any demising wall or disturb the integrity and support provided by
any demising wall and shall, at its sole expense, immediately repair any
damage to any demising wall caused by Tenant or Tenant's Parties. See
Paragraph 41.
ALTERATIONS
12. Tenant shall not make, or allow to be made, any alterations or physical
additions in, about or to the Premises without obtaining the prior written
consent of Landlord, which consent shall not be unreasonably withheld with
respect to proposed alterations and additions which: (a) comply with all
applicable laws, ordinances, rules and regulations; (b) are in Landlord's
opinion compatible with the Project and its mechanical, plumbing,
electrical, heating/ventilation/ air conditioning systems; and (c) will not
interfere with the use and occupancy of any other portion of the Building
or Project by any other tenant or its invitees. Specifically, but without
limiting the generality of the foregoing, Landlord shall have the right of
written consent for all plans and specifications for the proposed
alterations or additions, construction means and methods, all appropriate
permits and licenses, any contractor or subcontractor to be employed on the
work of alteration or additions, and the time for performance of such work.
Tenant shall also supply to Landlord any documents and information
reasonably requested by Landlord in connection
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with Xxxxxxxx's consideration of a request for approval hereunder. Tenant
shall reimburse Landlord for all costs which Landlord may incur in
connection with granting approval to Tenant for any such alterations and
additions, including any costs or expenses which Landlord may incur in
electing to have outside architects and engineers review said plans and
specifications. All such alterations, physical additions or improvements
(other than trade fixtures paid for by Tenant which shall be and remain the
property of Tenant) shall remain the property of Tenant until termination
of this Lease, at which time they shall be and become the property of
Landlord if Landlord so elects; provided, however, that Landlord may, at
Landlord's option, require that Tenant, at Tenant's expense, remove any or
all alterations, additions, improvements and partitions made by Tenant and
restore the Premises by the termination of this Lease, whether by lapse of
time, or otherwise, to their condition existing prior to the construction
of any such alterations, additions, partitions or leasehold improvements.
All such removals and restoration shall be accomplished in a good and
workmanlike manner so as not to cause any damage to the Premises or Project
whatsoever. If Tenant fails to so remove such alterations, additions,
improvements and partitions or Tenant's trade fixtures or furniture,
Landlord may keep and use them or remove any of them and cause them to be
stored or sold in accordance with applicable law, at Tenant's sole expense.
In addition to and wholly apart from Xxxxxx's obligation to pay Tenant's
Proportionate Share of Basic Operating Cost, Tenant shall be responsible
for and shall pay prior to delinquency any taxes or governmental service
fees, possessory interest taxes, fees or charges in lieu of any such taxes,
capital levies, or other charges imposed upon, levied with respect to or
assessed against its personal property, on the value of the alterations,
additions or improvements within the Premises, and on Tenant's interest
pursuant to this Lease. To the extent that any such taxes are not
separately assessed or billed to Tenant, Tenant shall pay the amount
thereof as invoiced to Tenant by Landlord.
SIGNS
13. All signs, notices and graphics of every kind or character, visible in or
from public view or corridors, the common areas or the exterior of the
Premises, shall be subject to Landlord's prior written approval. Tenant
shall not place or maintain any banners whatsoever or any window decor in
or on any exterior window or window fronting upon any common areas or
service area or upon any truck doors or man doors without Landlord's prior
written approval. Any installation of signs or graphics on or about the
Premises and Project shall be subject to any applicable governmental laws,
ordinances, regulations and to any other requirements imposed by Landlord.
Tenant shall remove all such signs and graphics prior to the termination of
this Lease. Such installations and removals shall be made in such manner
as
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to avoid injury or defacement of the Premises, Building or Project and any
other improvements contained therein, and Tenant shall repair any injury or
defacement, including without limitation, discoloration caused by such
installation or removal.
INSPECTION/POSTING NOTICES
14. After reasonable notice, except in emergencies where no such notice shall
be required, Landlord, and Landlord's agents and representatives, shall
have the right to enter the Premises to inspect the same, to clean, to
perform such work as may be permitted or required hereunder, to make
repairs or alterations to the Premises or Project or to other tenant spaces
therein, to deal with emergencies, to post such notices as may be permitted
or required by law to prevent the perfection of liens against Xxxxxxxx's
interest in the Project or to exhibit the Premises to prospective tenants,
purchasers, encumbrancers or others, or for any other purpose as Landlord
may deem necessary or desirable: provided, however, that Landlord shall
use reasonable efforts not to unreasonably interfere with Xxxxxx's business
operations. Tenant shall not be entitled to any abatement of Rent by
reason of the exercise of any such right of entry. At any time within six
(6) months prior to the end of the Term, Landlord shall have the right to
erect on the Premises and/or Project a suitable sign indicating that the
Premises are available for lease. Tenant shall give written notice to
Landlord at least thirty (30) days prior to vacating the Premises and shall
meet with Landlord for a joint inspection of the Premises at the time of
vacating. In the event of Xxxxxx's failure to give such notice or
participate in such joint inspection, Landlord's inspection at or after
Xxxxxx's vacating the Premises shall conclusively be deemed correct for
purposes of determining Tenant's responsibility for repairs and
restoration.
UTILITIES
15. Tenant shall pay directly for all water, gas, heat, air conditioning,
light, power, telephone, sewer, sprinkler charges and other utilities and
services used on or from the Premises, together with any taxes, penalties,
surcharges or the like pertaining thereto, and maintenance charges for
utilities and shall furnish all electric light bulbs, ballasts and tubes.
If any such services are not separately metered to Tenant, Tenant shall pay
a reasonable proportion, as determined by Landlord, of all charges jointly
serving other premises. Landlord shall not be liable for any damages
directly or indirectly resulting from nor shall the Rent or any monies owed
Landlord under this Lease herein reserved be abated by reason of: (a) the
installation, use or interruption of use of any equipment used in
connection with the furnishing of any such utilities or services; (b) the
failure to furnish or delay in furnishing any such utilities or services
when such failure or delay is caused by acts of
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God or the elements, labor disturbances of any character, or any other
accidents or other conditions beyond the reasonable control of Landlord; or
(c) the limitation, curtailment, rationing or restriction on use of water,
electricity, gas or any other form of energy or any other service or
utility whatsoever serving the Premises or Project. Landlord shall be
entitled to cooperate voluntarily and in a reasonable manner with the
efforts of national, state or local governmental agencies or utility
suppliers in reducing energy or other resource consumption. The obligation
to make services available hereunder shall be subject to the limitations of
any such voluntary, reasonable program.
SUBORDINATION
16. Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, the Lease shall be subject
and subordinate at all times to: (a) all ground leases or underlying
leases which may now exist or hereafter be executed affecting the Premises
and/or the land upon which the Premises and Project are situated, or both;
and (b) any mortgage or deed of trust which may now exist or be placed upon
said Project, land, ground leases or underlying leases, or Landlord's
interest or estate in any of said items which is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate
or cause to be subordinated any such ground leases or underlying leases or
any such liens to this Lease. In the event that any ground lease or
underlying lease terminates for any reason or any mortgage or deed of trust
is foreclosed or a conveyance in lieu of foreclosure is made for any
reason, Tenant shall, notwithstanding any subordination, attorn to and
become the Tenant of the successor in interest to Landlord at the option of
such successor in interest. Within ten (10) days after request by
Xxxxxxxx, Xxxxxx shall execute and deliver any additional documents
evidencing Xxxxxx's attornment or the subordination of this Lease with
respect to any such ground leases or underlying leases or any such mortgage
or deed of trust, in the form requested by Landlord or by any ground
landlord, mortgagee, or beneficiary under a deed of trust.
FINANCIAL STATEMENTS
17. At the request of Landlord, Tenant shall provide to Landlord Tenant's
current financial statement or other information discussing financial worth
of Tenant, which Landlord shall use solely for purposes of this Lease and
in connection with the ownership, management and disposition of the
Project.
ESTOPPEL CERTIFICATE
18. Xxxxxx agrees from time to time, within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's
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designee, an estoppel certificate stating that this Lease is in full force
and effect, the date to which Rent has been paid, the unexpired portion of
this Lease, and such other matters pertaining to this Lease as may be
reasonably requested by Landlord. Failure by Tenant to execute and deliver
such certificate shall constitute an acceptance of the Premises and
acknowledgment by Tenant that the statements included are true and correct
without exception. Landlord and Xxxxxx intend that any statement delivered
pursuant to this Paragraph may be relied upon by any mortgagee,
beneficiary, purchaser or prospective purchaser of the Project or any
interest therein. The parties agree that Xxxxxx's obligation to furnish
such estoppel certificates in a timely fashion is a material inducement for
Landlord's execution of the Lease, and shall be an event of default if
Tenant fails to fully comply.
SECURITY DEPOSIT
19. Xxxxxx agrees to deposit with Landlord upon execution of this Lease, a
Security Deposit as stated in the Basic Lease Information, which sum shall
be held by Landlord, without obligation for interest, as security for the
performance of Tenant's covenants and obligations under this Lease. The
Security Deposit is not an advance rental deposit or a measure of damages
incurred by Landlord in case of Xxxxxx's default. Upon the occurrence of
any event of default by Tenant, Landlord may, from time to time, without
prejudice to any other remedy provided herein or provided by law, use such
fund to the extent necessary to make good any arrears of Rent or other
payments due to Landlord hereunder, and any other damage, injury, expense
or liability caused by such event of default, and Tenant shall pay to
Landlord, on demand, the amount so applied in order to restore the Security
Deposit to its original amount. Although the Security Deposit shall be
deemed the property of Landlord, any remaining balance of such deposit
shall be returned by Landlord to Tenant at such time after termination of
this Lease that all of Tenant's obligations under this Lease have been
fulfilled. Landlord may use and commingle the Security Deposit with other
funds of Landlord.
TENANT'S REMEDIES
20. The liability of Landlord to Tenant for any default by Landlord under the
terms of this Lease are not personal obligations of the individual or other
partners, directors, officers and shareholders of Landlord, and Xxxxxx
agrees to look solely to Xxxxxxxx's interest in the Project for the
recovery of any amount from Landlord, and shall not look to other assets of
Landlord nor seek recourse against the assets of the individual or other
partners, directors, officers and shareholders of Landlord. Any lien
obtained to enforce any such judgment and any levy of execution thereon
shall be subject and subordinate to any lien, mortgage or deed of trust on
the Project.
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ASSIGNMENT AND SUBLETTING
21. A. GENERAL. Tenant shall not assign or sublet the Premises or any part
thereof without Landlord's prior written approval except as provided
herein. If Tenant desires to assign this Lease or sublet any or all of the
Premises, Tenant shall give Landlord written notice forty-five (45) days
prior to the anticipated effective date of the assignment or sublease.
Landlord shall then have a period of thirty (30) days following receipt of
such notice to notify Tenant in writing that Landlord elects either: (1)
to terminate this Lease as to the space so affected as of the date so
requested by Xxxxxx; or (2) to permit Tenant to assign this Lease or sublet
such space, subject, however, to Landlord's prior written approval of the
proposed assignee or subtenant and of any related documents or agreements
associated with the assignment or sublease. If Landlord should fail to
notify Tenant in writing of such election within said period, Landlord
shall be deemed to have waived option (1) above, but written approval by
Landlord of the proposed assignee or subtenant shall be required. If
Landlord does not exercise the option provided in subitem (1) above,
Xxxxxxxx's consent to a proposed assignment or sublet shall not be
unreasonably withheld. Without limiting the other instances in which it
may be reasonable for Landlord to withhold Landlord's consent to an
assignment or subletting, Landlord and Tenant acknowledge that it shall be
reasonable for Landlord to withhold Landlord's consent in the following
instances: The use of the Premises by such proposed assignee or subtenant
would not be a permitted use or would increase the Parking Density of the
Project; the proposed assignee or subtenant is not of sound financial
condition; the proposed assignee or subtenant is a governmental agency; the
proposed assignee or subtenant does not have a good reputation as a tenant
of property; the proposed assignee or subtenant is a person with whom
Landlord is negotiating to lease space in the Project; the assignment or
subletting would entail any alterations which would lessen the value of the
leasehold improvements in the Premises; or if Tenant is in default of any
obligation of Tenant under this Lease, or Tenant has defaulted under this
Lease on three (3) or more occasions during any twelve (12) months
preceding the date that Tenant shall request consent. Failure by Landlord
to approve a proposed assignee or subtenant shall not cause a termination
of this Lease. Upon a termination under this Paragraph 21.A., Landlord may
lease the Premises to any party, including parties with whom Xxxxxx has
negotiated an assignment or sublease, without incurring any liability to
Tenant.
B. BONUS RENT. Any Rent or other consideration realized by Tenant under
any such sublease or assignment in excess of the Rent payable hereunder,
after amortization of a reasonable brokerage commission, shall be divided
and paid, ten percent (10%) to Tenant, ninety percent (90%) to
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Landlord. In any subletting or assignment undertaken by Tenant, Tenant
shall diligently seek to obtain the maximum rental amount available in the
marketplace for such subletting or assignment.
C. PARTNERSHIP. If Tenant is a partnership, joint venture or other
incorporated business form, a transfer of the interest of persons, firms or
entities responsible for managerial control of Tenant by sale, assignment,
bequest, inheritance, operation of law or other disposition, so as to
result in a change in the present control of said entity and/or a change in
the identity of the persons responsible for the general credit obligations
of said entity shall constitute an assignment for all purposes of this
Lease.
D. LIABILITY. No assignment or subletting by Tenant shall relieve Tenant
of any obligation under this Lease. Any assignment or subletting which
conflicts with the provisions hereof shall be void.
AUTHORITY OF PARTIES
22. Landlord represents and warrants that it has full right and authority to
enter into this Lease and to perform all of Landlords's obligations
hereunder. Tenant represents and warrants that it has full right and
authority to enter into this Lease and to perform all of Tenant's
obligations hereunder.
CONDEMNATION
23. A. CONDEMNATION RESULTING IN TERMINATION. If the whole or any
substantial part of the Project of which the Premises are a part should be
taken or condemned for any public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and the taking would prevent or materially interfere with the
Permitted Use of the Premises, this Lease shall terminate and the Rent
shall be abated during the unexpired portion of this Lease, effective when
the physical taking of said Premises shall have occurred.
B. CONDEMNATION NOT RESULTING IN TERMINATION. If a portion of the Project
of which the Premises are a part should be taken or condemned for any
public use under any governmental law, ordinance, or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and this
Lease is not terminated as provided in Paragraph 23.A. above, this Lease
shall not terminate, but the Rent payable hereunder during the unexpired
portion of the Lease shall be reduced, beginning on the date when the
physical taking shall have occurred, to such amount as may be fair and
reasonable under all of the circumstances.
C. AWARD. Landlord shall be entitled to any and all payment, income,
rent, award, or any interest therein
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whatsoever which may be paid or made in connection with such taking or
conveyance and Tenant shall have no claim against Landlord or otherwise for
the value of any unexpired portion of this Lease. Notwithstanding the
foregoing, any compensation specifically awarded Tenant for loss of
business, Xxxxxx's personal property, moving costs or loss of goodwill,
shall be and remain the property of Tenant.
CASUALTY DAMAGE
24. A. GENERAL. If the Premises or Building should be damaged or destroyed
by fire, tornado or other casualty, Tenant shall give immediate written
notice thereof to Landlord. Within thirty (30) days after Xxxxxxxx's
receipt of such notice, Landlord shall notify Tenant whether in Landlord's
opinion such repairs can reasonably be made either: (1) within ninety (90)
days; (2) in more than ninety (90) days but in less than one hundred eighty
(180) days; or (3) in more than one hundred eighty (180) days from the date
of such notice. Landlord's determination shall be binding on Tenant.
B. LESS THAN 90 DAYS. If the Premises or Building should be damaged by
fire, tornado or other casualty but only to such extent that rebuilding or
repairs can in Landlord's estimation be reasonably completed within ninety
(90) days after the date of such damage, this Lease shall not terminate,
and provided that insurance proceeds are available to fully repair the
damage, Landlord shall proceed to rebuild and repair the Premises in the
manner determined by Landlord, except that Landlord shall not be required
to rebuild, repair or replace any part of the partitions, fixtures,
additions and other leasehold improvements which may have been placed in,
on or about the Premises. If the Premises are untenantable in whole or in
part following such damage, the Rent payable hereunder during the period in
which they are untenantable shall be abated proportionately, but only to
the extent of rental abatement insurance proceeds received by Landlord
during the time and to the extent the Premises are unfit for occupancy.
C. GREATER THAN 90 DAYS. If the Premises or Building should be damaged by
fire, tornado or other casualty but only to such extent that rebuilding or
repairs can in Landlord's estimation be reasonably completed in more than
ninety (90) days but in less than one hundred eighty (180) days, then
Landlord shall have the option of either: (1) terminating the Lease
effective upon the date of the occurrence of such damage, in which event
the Rent shall be abated during the unexpired portion of the Lease; or (2)
electing to rebuild or repair the Premises to substantially the condition
in which they existed prior to such damage, provided that insurance
proceeds are available, to fully repair the damage, except that Landlord
shall not be required to rebuild, repair or replace any part of the
partitions, fixtures, additions and other improvements which
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may have been placed in, on or about the Premises. If the Premises are
untenantable in whole or in part following such damage, the Rent payable
hereunder during the period in which they are untenantable shall be abated
proportionately, but only to the extent of rental abatement insurance
proceeds received by Landlord during the time and to the extent the
Premises are unfit for occupancy. In the event that Landlord should fail
to complete such repairs and rebuilding within one hundred eighty days
(180) days after the date upon which Landlord is notified by Tenant of such
damage, such period of time to be extended for delays caused by the fault
or neglect of Tenant or because of acts of God, acts of public agencies,
labor disputes, strikes, fires, freight embargoes, rainy or stormy weather,
inability to obtain materials, supplies or fuels, or delays of the
contractors or subcontractors or any other causes or contingencies beyond
the reasonable control of Landlord, Tenant may at Tenant's option within
ten (10) days after the expiration of such one hundred eighty (180) day
period (as such may be extended), terminate this Lease by delivering
written notice of termination to Landlord as Tenant's exclusive remedy,
whereupon all rights hereunder shall cease and terminate thirty (30) days
after Xxxxxxxx's receipt of such termination notice.
D. GREATER THAN 180 DAYS. If the Premises or Building should be so
damaged by fire, tornado or other casualty that rebuilding or repairs
cannot in Landlord's estimation be completed within one hundred eighty
(180) days after such damage, this Lease shall terminate and the Rent shall
be abated during the unexpired portion of this Lease, effective upon the
date of the occurrence of such damage.
E. TENANT'S FAULT. If the Premises or any other portion of the Building
are damaged by fire or other casualty resulting from the fault, negligence,
or breach of this Lease by Tenant or any of Tenant's Parties, Base Rent and
Additional Rent shall not be diminished during the repair of such damage
and Tenant shall be liable to Landlord for the cost and expense of the
repair and restoration of the Building caused thereby to the extent such
cost and expense is not covered by insurance proceeds.
F. UNINSURED CASUALTY. Notwithstanding anything herein to the contrary,
in the event that the Premises or Building are damaged or destroyed and are
not fully covered by the insurance proceeds received by Landlord or in the
event that the holder of any indebtedness secured by a mortgage or deed of
trust covering the Premises requires that the insurance proceeds be applied
to such indebtedness, then in either case Landlord shall have the right to
terminate this Lease by delivering written notice of termination to Tenant
within thirty (30) days after the date of notice to Landlord that said
damage or destruction is not fully covered by insurance or such requirement
is made by any such holder, as the case
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may be, whereupon all rights and obligations hereunder shall cease and
terminate.
X. XXXXXX. Except as otherwise provided in this Paragraph 24, Tenant
hereby waives the provisions of Sections 1932(a), 1933(4), 1941 and 1942 of
the Civil Code of California.
HOLDING OVER
25. If Tenant shall retain possession of the Premises or any portion thereof
without Landlord's consent following the expiration of the Lease or sooner
termination for any reason, then Tenant shall pay to Landlord for each day
of such retention triple the amount of the daily rental as of the last
month prior to the date of expiration or termination. Tenant shall also
indemnify, defend, protect and hold Landlord harmless from any loss,
liability or cost, including reasonable attorneys' fees, resulting from
delay by Xxxxxx in surrendering the Premises, including, without
limitation, any claims made by any succeeding tenant founded on such delay.
Acceptance of Rent by Landlord following expiration or termination shall
not constitute a renewal of this Lease, and nothing contained in this
Paragraph 25 shall waive Landlord's right of reentry or any other right.
Unless Landlord consents in writing to Xxxxxx's holding over, Xxxxxx shall
be only a Tenant at sufferance, whether or not Landlord accepts any Rent
from Tenant while Tenant is holding over without Xxxxxxxx's written
consent. Additionally, in the event that upon termination of the Lease,
Tenant has not fulfilled its obligation with respect to repairs and cleanup
of the Premises or any other Tenant obligations as set forth in this Lease,
then Landlord shall have the right to perform any such obligations as it
deems necessary at Tenant's sole cost and expense, and any time required by
Landlord to complete such obligations shall be considered a period of
holding over and the terms of this Paragraph 25 shall apply.
DEFAULT
26. A. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an event of default on the part of Tenant:
(1) ABANDONMENT. Abandonment of the Premises for a continuous period in
excess of five days. Tenant waives any right to notice Tenant may have
under Section 1951.3 of the Civil Code of the State of California, the
terms of this Paragraph 26.A. being deemed such notice to Tenant as
required by said Section 1951.3.
(2) NONPAYMENT OF RENT. Failure to pay any installment of Rent or any
other amount due and payable hereunder upon the date when said payment is
due.
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(3) OTHER OBLIGATIONS. Failure to perform any obligation, agreement or
covenant under this Lease other than those matters specified in
subparagraphs (1) and (2) of this Paragraph 26.A., such failure continuing
for fifteen (15) days after written notice of such failure.
(4) GENERAL ASSIGNMENT. A general assignment by Xxxxxx for the benefit of
creditors.
(5) BANKRUPTCY. The filing of any voluntary petition in bankruptcy by
Xxxxxx, or the filing of involuntary petition by Xxxxxx's creditors, which
involuntary petition remains undischarged for a period of thirty (30) days.
In the event that under applicable law the trustee in bankruptcy Tenant has
the right to affirm this Lease and continue to perform the obligations of
Tenant hereunder, such trustee or Tenant shall, in such time period as may
be permitted by the bankruptcy court having jurisdiction, cure all defaults
of Tenant hereunder outstanding as of the date of the affirmance of this
Lease and provide to Landlord such adequate assurances as may be necessary
to ensure Landlord of the continued performance of Tenant's obligations
under the Lease.
(6) RECEIVERSHIP. The employment of a receiver to take possession of
substantially all of Tenant's assets or the Premises, if such appointment
remains undismissed or undischarged for a period of ten (10) days after the
order therefor.
(7) ATTACHMENT. The attachment, execution or other judicial seizure of all
or substantially all of Tenant's assets or the Premises, if such attachment
or other seizure remains undismissed or undischarged for a period of ten
(10) days after the levy thereof.
B. REMEDIES UPON DEFAULT.
(1) TERMINATION. In the event of the occurrence of any event of default,
Landlord shall have the right to give a written termination notice to
Tenant, and on the date specified in such notice Tenant's right to
possession shall terminate, and this Lease shall terminate unless on or
before such date all arrears of rental and all other sums payable by Tenant
under this Lease and all cost and expenses incurred by or on behalf of
Landlord hereunder shall have been paid by Tenant and all other events of
default of this Lease by Tenant at the time existing shall have been fully
remedied to the satisfaction of Landlord. At any time after such
termination, Landlord may recover possession of the Premises or any part
thereof and expel and remove therefrom Tenant and any other person
occupying the same, by any lawful means, and again repossess and enjoy the
Premises without prejudice to any of the remedies that Landlord may have
under this Lease, or at law or equity by reason of Tenant's default or of
such termination.
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(2) CONTINUATION AFTER DEFAULT. Even though an event of default may have
occurred, this Lease shall continue in effect for so long as Landlord does
not terminate Tenant's right to possession under Paragraph 26.B.(1) hereof,
and Landlord may enforce all of Landlord's rights and remedies under this
Lease, including without limitation, the right to recover Rent as it
becomes due, and Landlord, without terminating this Lease, may exercise all
of the rights and remedies of a landlord under Section 1951.4 of the Civil
Code of the State of California or any successor code section. Acts of
maintenance, preservation or efforts to lease the Premises or the
appointment of a receiver upon application of Landlord to protect
Xxxxxxxx's interest under this Lease shall not constitute an election to
terminate Tenant's right to possession.
C. DAMAGES AFTER DEFAULT. Should Landlord terminate this Lease pursuant
to the provisions of Paragraph 26.B.(1) hereof, Landlord shall have the
rights and remedies of a landlord provided by Section 1951.2 of the Civil
Code of the State of California, or successor code sections. Upon such
termination, in addition to any other rights and remedies to which Landlord
may be entitled under applicable law, Landlord shall be entitled to recover
from Tenant: (1) the worth at the time of award of the unpaid Rent and
other amounts which had been earned at the time of termination, (2) the
worth at the time of award of the amount by which the unpaid Rent which
would have been earned after termination until the time of award exceeds
the amount of such Rent loss that Tenant proves could have been reasonably
avoided; (3) the worth at the time of award of the amount by which the
unpaid Rent for the balance of the Term after the time of award exceeds the
amount of such Rent loss that the Tenant proves could be reasonably
avoided; and (4) any other amount necessary to compensate Landlord for all
the detriment proximately caused by Xxxxxx's failure to perform Tenant's
obligations under this Lease or which, in the ordinary course of things,
would be likely to result therefrom. The "worth at the time of award" of
the amounts referred to in (1) and (2), above shall be computed at the
lesser of the "prime rate," as announced from time to time by Xxxxx Fargo
Bank, N.A. (San Francisco), plus five (5) percentage points, or the maximum
interest rate allowed by law ("Applicable Interest Rate"). The "worth at
the time of award" of the amount referred to in (3) above shall be computed
by discounting such amount at the Federal Discount Rate of the Federal
Reserve Bank of San Francisco at the time of the award. If this Lease
provides for any periods during the Term during which Tenant is not
required to pay Base Rent or if Tenant otherwise receives a Rent
concession, then upon the occurrence of an event of default, Tenant shall
owe to Landlord the full amount of such Base Rent or value of such Rent
concession, plus interest at the Applicable Interest Rate, calculated from
the date that such Base Rent or Rent concession would have been payable.
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D. LATE CHARGE. If any installment of Rent is not paid within five (5)
days promptly when due, such amount shall bear interest at the Applicable
Interest Rate from the date on which said payment shall be due until the
date on which Landlord shall receive said payment. In addition, Tenant
shall pay Landlord a late charge equal to five percent (5%) of the
delinquency, to compensate Landlord for the loss of the use of the amount
not paid and the administrative costs caused by the delinquency, the
parties agreeing that Landlord's damage by virtue of such delinquencies
would be difficult to compute and the amount stated herein represents a
reasonable estimate thereof. This provision shall not relieve Tenant of
Tenant's obligation to pay Rent at the time and in the manner herein
specified.
E. REMEDIES CUMULATIVE. All rights, privileges and elections of the
parties are cumulative and not alternative, to the extent permitted by law
and except as otherwise provided herein.
LIENS
27. Tenant shall keep the Premises free from liens arising out of or related to
work performed, materials or supplies furnished or obligations incurred by
Tenant or in connection with work made, suffered or done by or on behalf of
Tenant in or on the Premises or Project. In the event that Tenant shall
not, within ten (10) days following the imposition of any such lien, cause
the same to be released of record by payment or posting of a proper bond,
Landlord shall have, in addition to all other remedies provided herein and
by law, the right, but not the obligation, to cause the same to be released
by such means as Landlord shall deem proper, including payment of the claim
giving rise to such lien. All sums paid by Xxxxxxxx on behalf of Tenant
and all expenses incurred by Landlord in connection therefor shall be
payable to Landlord by Tenant on demand with interest at the Applicable
Interest Rate. Landlord shall have the right at all times to post and keep
posted on the Premises any notices permitted or required by law, or which
Landlord shall deem proper, for the protection of Landlord, the Premises,
the Project and any other party having an interest therein, from mechanics'
and materialmen's liens, and Tenant shall give Landlord not less than ten
(10) business days prior written notice of the commencement of any work in
the Premises or Project which could lawfully give rise to a claim for
mechanics' or materialmen's liens.
TRANSFERS BY LANDLORD
28. In the event of a sale or conveyance by Landlord of the Building or a
foreclosure by any creditor of Landlord, the same shall operate to release
Landlord from any liability upon any of the covenants or conditions,
express or implied, herein contained in favor of Tenant, to the extent
required to be performed after the passing of title to Landlord's
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successor-in-interest. In such event, Xxxxxx agrees to look solely to the
responsibility of the successor-in-interest of Landlord under this Lease
with respect to the performance of the covenants and duties of "Landlord"
to be performed after the passing of title to Xxxxxxxx's successor-in-
interest. This Lease shall not be affected by any such sale and Xxxxxx
agrees to attorn to the purchaser or assignee. Xxxxxxxx's successor(s)-in-
interest shall not have liability to Tenant with respect to the failure to
perform all of the obligations of "Landlord", to the extent required to be
performed prior to the date such successor(s)-in-interest became the owner
of the Building.
RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS
29. All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of Rent. If Tenant shall fail to pay any
sum of money, other than Base Rent and Basic Operating Cost, required to be
paid by Tenant hereunder or shall fail to perform any other act on Tenant's
part to be performed hereunder, and such failure shall continue for five
(5) days after notice thereof by Landlord, Landlord may, but shall not be
obligated to do so, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment or perform any such act on
Tenant's part to be made or performed. All sums, so paid by Xxxxxxxx and
all necessary incidental costs together with interest thereon at the
Applicable Interest Rate from the date of such payment by Landlord shall be
payable to Landlord on demand, and Tenant covenants to pay such sums, and
Landlord shall have, in addition to any other right or remedy of Landlord,
the same right and remedies in the event of the non-payment thereof by
Tenant as in the case of default by Tenant in the payment of Base Rent and
Basic Operating Cost.
WAIVER
30. If either Landlord or Tenant waives the performance of any term, covenant
or condition contained in this Lease, such waiver shall not be deemed to be
a waiver of any subsequent breach of the same or any other term, covenant
or condition contained herein. The acceptance of Rent by Landlord shall
not constitute a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, regardless of Landlord's knowledge of
such preceding breach at the time Landlord accepted such Rent. Failure by
Landlord to enforce any of the terms, covenants or conditions of this Lease
for any length of time shall not be deemed to waive or to decrease the
right of Landlord to insist thereafter upon strict performance by Xxxxxx.
Waiver by Landlord of any term, covenant or condition contained in this
Lease may only be made by a written document signed by Landlord.
-27-
NOTICES
31. Each provision of this Lease or of any applicable governmental laws,
ordinances, regulations and other requirements with reference to sending,
mailing or delivery of any notice or the making of any payment by Landlord
or Tenant to the other shall be deemed to be complied with when and if the
following steps are taken:
A. RENT. All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address set forth in
the Basic Lease Information, or at such other address as Landlord may
specify from time to time by written notice delivered in accordance
herewith. Tenant's obligation to pay Rent and any other amounts to
Landlord under the terms of this Lease shall not be deemed satisfied until
such Rent and other amounts have been actually received by Landlord.
B. OTHER. All notices, demands, consents and approvals which may or are
required to be given by either party to the other hereunder shall be in
writing and either personally delivered, sent by commercial overnight
courier, or mailed, certified or registered, postage prepaid, and addressed
to the party to be notified at the address for such party as specified in
the Basic Lease Information or to such other place as the party to be
notified may from time to time designate by at least fifteen (15) days
notice to the notifying party. Notices shall be deemed served upon receipt
or refusal to accept delivery. Tenant appoints as its agent to receive the
service of all default notices and notice of commencement of unlawful
detainer proceedings the person in charge of or apparently in charge of
occupying the Premises at the time, and, if there is no such person, then
such service may be made by attaching the same on the main entrance of the
Premises.
ATTORNEYS' FEES
32. In the event that Landlord places the enforcement of this Lease, or any
part thereof, or the collection of any Rent due, or to become due
hereunder, or recovery of possession of the Premises in the hands of an
attorney, Tenant shall pay to Landlord, upon demand, Xxxxxxxx's reasonable
attorneys' fees and court costs. In any action which Landlord or Tenant
brings to enforce its respective rights hereunder, the unsuccessful party
shall pay all costs incurred by the prevailing party including reasonable
attorneys' fees, to be fixed by the court, and said costs and attorneys'
fees shall be a part of the judgment in said action.
SUCCESSORS AND ASSIGNS
33. This Lease shall be binding upon and inure to the benefit of Landlord, its
successors and assigns, and shall be binding
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upon and inure to the benefit of Tenant, its successors, and to the extent
assignment is approved by Landlord hereunder, Xxxxxx's assigns.
FORCE MAJEURE
34. Whenever a period of time is herein prescribed for action to be taken by
Landlord, Landlord shall not be liable or responsible for, and there shall
be excluded from the computation for any such period of time, any delays
due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions or any other causes of any
kind whatsoever which are beyond the control of Landlord.
BROKERAGE COMMISSION
35. Landlord shall pay a brokerage commission to Broker in accordance with a
separate agreement between Landlord and Broker. Tenant warrants to Landlord
that Xxxxxx's sole contact with Landlord or with the Premises in connection
with this transaction has been directly with Landlord and Broker, and that
no other broker or finder can properly claim a right to a commission or a
finder's fee based upon contacts between the claimant and Tenant with
respect to Landlord or the Premises. Tenant shall indemnify, defend by
counsel acceptable to Landlord, protect and hold Landlord harmless from and
against any loss, cost or expense, including, but not limited to,
attorneys' fees and costs, resulting from any claim for a fee or commission
by any broker or finder in connection with the Premises and this Lease
other than Broker.
MISCELLANEOUS
36. A. GENERAL. The term "Tenant" or any pronoun used in place thereof shall
indicate and include the masculine or feminine, the singular or plural
number, individuals, firms or corporations, and their respective
successors, executors, administrators and permitted assigns, according to
the context hereof.
B. TIME. Time is of the essence regarding this Lease and all of its
provisions.
C. CHOICE OF LAW. This Lease shall in all respects be governed by the
laws of the State of California.
D. ENTIRE AGREEMENT. This Lease, together with its Exhibits, contains all
the agreements of the parties hereto and supersedes any previous
negotiations. There have been no representations made by the Landlord or
understandings made between the parties other than those set forth in this
Lease and its exhibits.
-29-
E. MODIFICATION. This Lease may not be modified except by a written
instrument by the parties hereto.
F. SEVERABILITY. If, for any reason whatsoever, any of the provisions
hereof shall be unenforceable or ineffective, all of the other provisions
shall be and remain in full force and effect.
G. RECORDATION. Tenant shall not record this Lease or a short form
memorandum hereof.
H. EXAMINATION OF LEASE. Submission of this Lease to Tenant does not
constitute an option or offer to lease and this Lease is not effective
otherwise until execution and delivery by both Landlord and Tenant.
I. ACCORD AND SATISFACTION. No payment by Tenant of a lesser amount than
the Rent nor any endorsement on any check or letter accompanying any check
or payment of Rent shall be deemed an accord and satisfaction of full
payment of Rent, and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of such Rent or to pursue other
remedies.
J. EASEMENTS. Landlord may grant easements on the Project and dedicate
for public use portions of the Project without Tenant's consent; provided
that no such grant or dedication shall substantially interfere with
Xxxxxx's use of the Premises. Upon Xxxxxxxx's demand, Xxxxxx shall
execute, acknowledge and deliver to Landlord documents, instruments, maps
and plats necessary to effectuate Tenant's covenants hereunder.
X. DRAFTING AND DETERMINATION PRESUMPTION. The parties acknowledge that
this Lease has been agreed to by both the parties, that both Landlord and
Tenant have consulted with attorneys with respect to the terms of this
Lease and that no presumption shall be created against Landlord because
Landlord drafted this Lease. Except as otherwise specifically set forth in
this Lease, with respect to any consent, determination or estimation of
Landlord required in this Lease or requested of Landlord, Xxxxxxxx's
consent, determination or estimation shall be made in Landlord's good faith
opinion, whether objectively reasonable or unreasonable.
L. EXHIBITS. Exhibits A and B attached hereto are hereby incorporated
herein by this reference.
M. NO LIGHT, AIR OR VIEW EASEMENT. Any diminution or shutting off of
light, air or view by any structure which may be erected on lands adjacent
to or in the vicinity of the Building shall in no way affect this Lease or
impose any liability on Landlord.
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N. NO THIRD PARTY BENEFIT. This Lease is a contract between Landlord and
Xxxxxx and nothing herein is intended to create any third party benefit.
ADDITIONAL PROVISIONS
37. Exhibits A and B and Paragraphs 38, 39 and 40
---------------------------------------------
Exhibit A - Site Plan
Exhibit B - Personal Guaranty
Paragraph 38 - Base Rent
Paragraph 39 - Tenant Improvements
Paragraph 40 - Designated Parking
Paragraph 38. Base Rent
------------------------
Base rent for the Premises shall be as follows:
1-15 $2,640.00 per month
16-30 $2,723.00 per month
Paragraph 39. Tenant Improvements
----------------------------------
Xxxxxx agrees to accept the Premises substantially in an "as-is" condition
except for the following improvements:
. Paint office walls.
. Patch office walls.
. Clean carpet.
. Replace damaged or stained ceiling tiles.
. Remove plywood phone panels.
. Designate two (2) parking spaces.
These improvements shall be constructed at Landlord's sole cost and
expense.
Paragraph 40. Designated Parking
---------------------------------
Landlord will label two (2) parking spaces in front of Tenant's premises
for Xxxxxx's use. Landlord will in no way be responsible for the policing
of such spaces or the ability of Tenant to maintain "reserved" parking
through the term of the lease. Currently, the City of Xxxxxx City does not
permit designated parking. Tenant's ability to maintain designated parking
will in no way affect the rest of Tenant's obligations under this Lease.
Paragraph 41. Tenant's Repairs
-------------------------------
Landlord warrants that all building systems are in good working condition
at the time of lease commencement.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year
first above written.
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"Landlord"
0000 XXXXX XXXXX XXXXXXX XXXXXXXXXXX, A TEXAS LIMITED PARTNERSHIP
By:_______________________________
Vice President
Its:______________________________
"Tenant"
DEPOMED SYSTEMS, INC., A CALIFORNIA CORPORATION
By:_______________________________
Vice President
Its:______________________________
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EXHIBIT A
EXHIBIT B
Guaranty of Lease Agreement
---------------------------
Xx. Xxxx X. Xxxxx ("Guarantor"), whose address is 000 Xxxxxxxxxx Xxxxx,
Xxxxxxxxxxxx, XX 00000, as a material inducement to and in consideration of 0000
Xxxxx Xxxxx Limited Partnership, a Texas Limited Partnership ("Landlord")
entering into this Lease with DepoMed Systems, Inc., a California Corporation
("Tenant"), unconditionally guarantees and promises to and for the benefit of
Landlord that Tenant shall perform its obligations under the Lease that Tenant
is to perform.
Guarantor waives the benefit of any statute of limitations affecting Guarantor's
liability under this guaranty.
The provisions of the Lease may be changed by agreement between Landlord and
Tenant at any time, or by course of conduct, without the consent of or without
notice to the Guarantor. This guaranty shall guarantee the performance of the
Lease as changed. Assignment of the Lease shall not affect this guaranty.
This guaranty shall not be affected by Landlord's failure to delay to enforce
any of its rights.
If Tenant defaults under the Lease, Landlord can proceed immediately against the
Guarantor or Tenant, or both, or Landlord can enforce against the Guarantor or
Tenant, or both, any rights that it has under the Lease, or pursuant to
applicable laws.
The Guarantor waives the right to require Landlord to (1) proceed against
Tenant; (2) proceed against or exhaust any security that Landlord holds from
Tenant; or (3) pursue any other remedy in Landlord's power. The Guarantor
waives any defense by reason of any disability of Tenant, and waives any other
defense based on the termination of Tenant's liability from any cause. Until
all Tenant's obligations to Landlord have been discharged in full, the Guarantor
has no right of subrogation against Tenant. The Guarantor waives any right to
participate in any security now or later held by Landlord. The Guarantor waives
all presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, and notices of acceptance of this
guaranty, and waives all notices of the existence, creation, or incurring of new
or additional obligations.
The Guarantor agrees that this guaranty shall be construed as an absolute,
unconditional, continuing and unlimited obligation of Guarantor without regard
to the regularity, validity or enforceability of any liability or obligation
hereby guaranteed. Without limiting the generality of the foregoing, the
obligations of Guarantor hereunder shall in no way be released, diminished or
otherwise affected by reason of any voluntary or involuntary proceedings by or
against Tenant in bankruptcy or for an
arrangement or reorganization or for any other relief under any provision of the
Bankruptcy Act as from time to time in effect.
The Guarantor further agrees that if any of their obligations hereunder shall be
held to be unenforceable, the remainder of this guaranty and its application to
all obligations than those with respect to which it is held unenforceable shall
not be affected thereby and shall remain in full force and effect.
If Landlord is required to enforce the Guarantor's obligations by legal
proceedings, the Guarantor shall pay to Landlord all costs incurred, including,
without limitation, reasonable attorneys' fees.
Guarantor's obligations under this guaranty shall be binding on Guarantor's
successors.
IN WITNESS WHEREOF, the Guarantor has executed this guaranty this 3rd day of
September 1992 with the intent to be legally bound thereby.
"GUARANTOR"
-----------------------------------
Xxxx X. Xxxxx
-----------------------------------
Address
-----------------------------------
Driver's License Number
-----------------------------------
Bank Account Number
-----------------------------------
Date
