1
EXHIBIT 10.24
LEASE AGREEMENT
(Industrial Gross)
BASIC LEASE INFORMATION
LEASE DATE: February 12, 1996
LESSOR: LINCOLN RIVERSIDE BUSINESS CENTER,
a California Limited Partnership
LESSOR'S ADDRESS: X.X. Xxx 00000, 00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
LESSEE: MUL ACRES, INC.,
A California Corporation
LESSEE'S ADDRESS: 0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
PREMISES: Approximately 20,487 square feet as shown on
Exhibit A
PREMISES ADDRESS: 00000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
BUILDING: 20,487 square feet
LOT (BUILDING'S TAX PARCEL): N/A
PARK: 280,354 square feet
TERM: March 1, 1996 ("Commencement Date"), through
April 30, 1999 ("Expiration Date")
BASE RENT (P3): Six Thousand Two Hundred and 00/100 Dollars
($6,200.00) per month
ADJUSTMENTS TO BASE RENT: AUGUST 1, 1996 to August 31, 1996 $0.00 Rent Waiver
Period.
October 1, 1996 to October 31, 1996 $0.00 Rent
Waiver Period.
March 1, 1997 to FEBRUARY 28, 1998 $6,510.00
per month.
MARCH 1, 1998 to April 30, 1999 $6,835.50
per month.
SECURITY DEPOSIT (P4.A): $6,200.00.
CLEANING DEPOSIT (P4.B): N/A
TRASH AND WATER CHARGE (P7): N/A
BASE YEAR FOR LESSEE'S SHARE OF EXPENSES: 1996
*LESSEE'S SHARE OF INCREASES IN OPERATING EXPENSES (P6.A): 7.31% of the
Park
*LESSEE'S SHARE OF INCREASES IN TAX EXPENSES (P6.B): 7.31% of the
Park
*LESSEE'S SHARE OF INCREASES IN COMMON AREA UTILITY COSTS (P7): 7.31% of the
Park
*The amount of Lessee's Share of the increases in expenses as referenced above
shall be subject to modification as set forth Lease.
PERMITTED USES: General office and warehouse functions of a
limousine manufacturing company.
GENERAL LIABILITY INSURANCE Bodily injury limit of not less than
AMOUNT (P12): $1,000,000.00 per occurrence;
Property damage limit of not less than
$1,000,000.00 per occurrence; Combined single
limit of not less than $1,000,000.00.
UNRESERVED PARKING SPACES: Twenty-five (25) nonexclusive and undesignated
spaces.
BROKER (P38): CB Commercial Real Estate.
EXHIBITS: Exhibit A - Premises, Building, Lot and/or
Park
Exhibit B - Tenant Improvements
Exhibit C - Rules and Regulations
Exhibit D - CC&Rs
Exhibit E - Sign Certificate
Exhibit F - Hazardous Materials Disclosure
Certificate
Exhibit G - Change of Commencement Date -
Example
Exhibit H - Guaranty of Lease
ADDENDA: None.
1
2
LEASE AGREEMENT
DATE: This Lease is made and entered into as of the Lease Date defined on
Page 1. The Basic Lease information set forth on Page 1 and this Lease
are and shall be construed as a single instrument.
1. PREMISES: Lessor hereby leases the Premises to Lessee upon the terms
and conditions contained herein. Lessor hereby grants to Lessee a revocable
license for the right to use, on a non-exclusive basis, parking areas and
ancillary facilities located within the Common Area of the Park, subject to
the terms of this Lease.
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES: If Lessor
cannot deliver possession of the Premises on the Commencement Date, Lessor
shall not be subject to any liability nor shall the validity of the Lease be
affected; provided the Lease term and the obligation to pay Rent shall commence
on the date possession is tendered and the termination date shall be extended
by a period of time equal to the period computed from the Commencement Date to
the date possession is tendered by Lessor to Lessee. In the event the
commencement date of this Lease is other than the Commencement Date provided on
Page 1, Lessor and Lessee shall execute a written amendment to this Lease,
substantially in the form of Exhibit G hereto, wherein the parties shall
specify the actual commencement date, termination date and the date on which
Lessee is to commence paying Rent. In the event that Lessor permits Lessee to
occupy the Premises prior to the Commencement Date, such occupancy shall be at
Lessee's sole risk and subject to all the provisions of this Lease, including,
but not limited to, (the requirement to pay Rent and the Security Deposit, and
to obtain the insurance required pursuant to this Lease and to deliver
insurance certificates as required herein. In addition to the foregoing,
Lessor shall have the right to impose such additional conditions on Lessee's
early entry as Lessor shall deem appropriate. By taking possession of the
Premises, Lessee shall be deemed to have accepted the Premises in a good, clean
and completed condition and state of repair, in compliance with all applicable
laws, codes, regulations, administrative orders and ordinances, and subject to
all matters of record. Lessee hereby acknowledges and agrees that neither
Lessor nor Lessor's agents or representatives has made any representations or
warranties as to the suitability, safety or fitness of the Premises for the
conduct of Lessee's business, Lessee's intended use of the Premises or for any
other purpose, and that neither Lessor nor Lessor's agents or representatives
has agreed to undertake any alterations or construct any Tenant Improvements to
the Premises except as expressly provided in this Lease. Lessee agrees that at
anytime before or during the term of this Lease, Lessor shall have the right
to relocate Lessee from the Premises described herein to other space within
the Park on substantially the same terms and conditions of this Lease provided
the other space is of comparable size.
3. RENT: On the date that Lessee executes this Lease, Lessee shall
deliver to Lessor the original executed Lease, the Base Rent (which shall be
applied against the Rent payable for the first month Lessee is required to pay
Base Rent), the Security Deposit, the Cleaning Deposit, and all insurance
certificates evidencing the insurance required to be obtained by Lessee under
Paragraph 12 of this Lease. Lessee agrees to pay Lessor, without prior notice
or demand, or abatement, offset, deduction or claim, the Base Rent described on
Page 1, payable in advance at Lessor's address shown on Page 1 on the first day
of each month throughout the term of the Lease. In addition to the Base Rent
set forth on Page 1, Lessee shall pay Lessor in advance and on the first (1st)
day of each month throughout the term of this Lease (including any extensions
of such term), as additional rent Lessee's share, as set forth on Page 1, of
Increases in Operating Expenses, Increases in Tax Expenses, Increases in Common
Area Utility Costs, administrative expenses, Trash and Water Charge and Utility
Expenses, as specified in Paragraphs 6.A., 6.B., 6.C. and 7 of this Lease,
respectively. Additionally, Lessee shall pay to Lessor as additional rent
hereunder, immediately on Lessor's demand therefore, any and all costs and
expenses incurred by Lessor to enforce the provisions of this Lease, including,
but not limited to, costs associated with any proposed assignment or subletting
of all or any portion of the Premises by Lessee, costs associated with the
delivery of notices, delivery and recordation of notice(s) of default,
attorneys' fees, expert fees, court costs and filing fees (collectively, the
"Enforcement Expenses"). The term "Rent" whenever used herein refers to the
aggregate of all these amounts. If Lessor permits Lessee to occupy the
Premises without requiring Lessee to pay rental payments for a period of time,
the waiver of the requirement to pay rental payments shall only apply to
waiver of the Base Rent and Lessee shall otherwise perform all other
obligations of Lessee hereunder, including, but not limited to paying to Lessor
any and all amounts considered additional rent, such as Lessee's share of
Increases in Operating Expenses, Increases in Tax Expenses, Increases in Common
Area Utility Costs, Trash and Water Charge, Utility Expenses, and
administrative expenses. If, at any time, Lessee is in default of or otherwise
breaches any term, condition or provision of this Lease, any such waiver by
Lessor of Lessee's requirement to pay rental payments shall be null and void
and Lessee shall immediately pay to Lessor all rental payments waived by
Lessor. The Rent for any fractional part of a calendar month at the
commencement or termination of the Lease term shall be a prorated amount of the
Rent for a full calendar month based upon a thirty (30) day month. The
prorated Rent shall be paid on the Commencement Date and the first day of the
calendar month in which the date of termination occurs, as the case may be.
4. SECURITY DEPOSIT AND CLEANING DEPOSIT:
A. Security Deposit: Upon Lessee's execution of this Lease,
Lessee shall deliver to Lessor, as a Security Deposit for the performance by
Lessee of its obligations under this Lease, the amount described on Page
2
3
1. If Lessee is in default, Lessor may, but without obligation to do so,
use the Security Deposit, or any portion thereof, to cure the default or to
compensate Lessor for all damages sustained by Lessor resulting from Lessee's
default, including, but not limited to the Enforcement Expenses. Lessee
shall, immediately on demand, pay to Lessor a sum equal to the portion of the
Security Deposit so applied or used so as to replenish the amount of the
Security Deposit held up to the amount initially deposited with Lessor.
Concurrently with any increase in the Base Rent, Lessee shall deliver to
Lessor an amount equal to such increase, which amount shall be added to the
Security Deposit being held by Lessor and be deemed a part of such Security
Deposit thereafter. At anytime after Lessee has defaulted hereunder, Lessor
may require an increase in the amount of the Security Deposit required
hereunder for the then balance of the Lease term and Lessee shall, immediately
on demand, pay to Lessor additional sums in the amount of such increase. As
soon as practicable after the termination of this Lease, Lessor shall return
the Security Deposit to Lessee, less such amounts as are reasonably necessary,
as determined solely by Lessor, to remedy Lessee's default(s) hereunder or to
otherwise restore the Premises to a clean and safe condition, reasonable went
and tear excepted. If the cost to restore the Premises exceeds the amount of
the Security Deposit, Lessee shall promptly deliver to Lessor any and all of
such excess sums as determined solely by Lessor. Lessor shall not be required
to keep the Security Deposit separate from other funds, and, unless otherwise
required by law, Lessee shall not be entitled to interest on the Security
Deposit. In no event or circumstance shall Lessee have the right to any use of
the Security Deposit and, specifically, Lessee may not use the Security
Deposit as a credit or to otherwise offset any payments requited hereunder,
including, but not limited to, Rent or any portion thereof.
B. CLEANING DEPOSIT: Upon Lessee's execution of this Lease,
Lessee shall deliver to Lessor, as a Cleaning Deposit for the performance by
Lessee of its obligations under this Lease including, but not limited to,
Paragraph 11 below, the amount described on Page 1. The Cleaning Deposit is to
be used for purposes relating to cleaning up the Premises and the area adjacent
to the Premises to the satisfaction of Lessor. If Lessee is in default, Lessor
may, but without obligation to do so, use the Cleaning Deposit, or any portion
thereof, to cure the default or to compensate Lessor for all damages sustained
by Lessor resulting from Lessee's default, including, but not limited to the
Enforcement Expenses. Lessee shall, immediately on demand, pay to Lessor a sum
equal to the portion or the Cleaning Deposit so applied or used so as to
replenish the amount of the Cleaning Deposit held up to the amount initially
deposited with Lessor. At anytime after Lessee has defaulted hereunder, Lessor
may require an increase in the amount of the Cleaning Deposit required
hereunder for the then balance of the Lease term and Lessee shall, immediately
on demand, pay to Lessor additional sums in the amount of such increase. As
soon as practicable after the termination of this Lease, Lessor shall return
the Cleaning Deposit to Lessee, less such amounts as are reasonably necessary
to remedy Lessee's default(s) hereunder or to otherwise restore the Premises to
a clean and safe condition as determined by Lessor. Lessor shall not be
required to keep the Cleaning Deposit separate from other funds, and, unless
otherwise required by law, Lessee shall not be entitled to interest on the
Cleaning Deposit. In no event or circumstance shall Lessee have the right to
any use of the Cleaning Deposit and, specifically, Lessee may not use the
Cleaning Deposit as a credit or to otherwise offset any payments required
hereunder, including, but not limited to, Rent or any portion thereof.
5. CONDITION OF PREMISES: Lessee hereby accepts the Premises in its
current "as is" condition unless otherwise specified in Exhibit B, attached
hereto and incorporated herein by this reference. If so specified in Exhibit
B hereto, Lessor or Lessee, as the case may be, shall install the improvements
("Tenant Improvements") on the Premises as described and in accordance with the
terms, conditions, criteria and provisions set forth in Exhibit B, attached and
incorporated herein by this reference. Lessee acknowledges that neither Lessor
nor any of Lessor's agents, representatives or employees has made any
representations as to the suitability or fitness of the Premises for the
conduct of Lessee's business or for any other purpose, and that neither Lessor
nor any of Lessor's agents, representatives or employees has agreed to
undertake any alterations or construct any Tenant Improvements to the Premises
except as expressly provided in Exhibit B to this Lease.
6. EXPENSES:
A. OPERATING EXPENSES: In addition to the Base Rent set forth in
Xxxxxxxxx 0, Xxxxxx shall pay its share, which is defined on Page 1, of all
Operating Expenses in excess of the amount of said expenses for the calendar
year in which this Lease commenced ("Increases in Operating Expenses") as
additional rent. The term "Operating Expenses" as used herein shall mean the
total amounts paid or payable by Lessor in connection with the ownership,
maintenance, repair and operation of the Premises, the Building and the Lot,
and where applicable, of the Park referred to on Page 1. The amount of Lessee's
share of Increases in Operating Expenses shall be reviewed from time to time by
Lessor and shall be subject to modification by Lessor, as reasonably determined
by Lessor, including, but not limited to modifications due to the sale or
addition of a building or additional space within the Lot or the Park. These
Operating Expenses may include, but are not limited to:
(i) Lessor's cost of non-structural repairs to and
maintenance of the roof and exterior walls of (the Building;
(ii) Lessor's cost of maintaining the outside paved area,
landscaping and other common areas for the Park. The term "Common
Area" shall mean all areas and facilities within the Park exclusive of
the Premises and the other portions of the Park leased exclusively to
other tenants. The Common Area includes, but is not limited to,
interior lobbies, mezzanines, parking areas, access and perimeter
roads, sidewalks, landscaped areas and similar areas and facilities;
3
4
(iii) Lessor's annual cost of insurance insuring against
fire and extended coverage (including, if Lessor elects, "all risk"
coverage) and all other insurance, including, but not limited to,
earthquake, flood and/or surface water endorsements for the Building,
the Lot and the Park (including the Common Area), and rental value
insurance against loss of Rent in an amount equal to the amount of
Rent for a period of at least six (6) months commencing on the date of
loss;
(iv) Lessor's cost of modifications to the Building, the
Common Area and/or the Park occasioned by any rules, laws or
regulations effective subsequent to the commencement of the Lease;
(v) Lessor's cost of modifications to the Building, the
Common Area and/or the Park occasioned by any rules, laws or
regulations arising from Lessee's use of the Premises regardless of
when such rules, laws or regulations became effective;
(vi) If Lessor elects to so procure, Lessor's cost of
preventative maintenance, repair and replacement contracts including,
but not limited to, contracts for elevator systems and heating,
ventilation and air conditioning systems, and trash or refuse
collection;
(vii) Lessor's cost of security and fire protection services
for the Park, if in Lessor's sole discretion such services are
provided;
(viii) Lessor's establishment of reasonable reserves for
replacements and/or repairs of Common Area improvements, equipment and
supplies;
(ix) Lessor's cost for the creation and negotiation of, and
pursuant to, any rail spur or track agreements, licenses, easements or
other similar undertakings; and
(x) Lessor's cost of supplies, equipment, rental equipment
and other similar items used in the operation and/or maintenance of the
Park.
B. TAX EXPENSES: In addition to the Base Rent set forth in
Xxxxxxxxx 0, Xxxxxx shall pay its share, which is defined on Page 1, of all
real property taxes applicable to the land and improvements included within the
Lot on which the Premises are situated in excess of the amount of the Tax
Expenses for the calendar year in which this Lease commenced ("Increases in Tax
Expenses") and one hundred percent (100%) of all personal property taxes now or
hereafter assessed or levied against the Premises or Lessee's personal
property. The amount of Lessee's share of Increases in Tax Expenses shall be
reviewed from time to time by Lessor and shall be subject to modification by
Lessor, as reasonably determined by Lessor, including, but not limited to
modifications due to the sale or addition of a building or additional space
within the Lot or the Park. Lessee shall also pay any increase in real
property taxes attributable, in Lessor's sole discretion, to any and all
alterations, Tenant improvements or other improvements of any kind whatsoever
placed in, on or about the Premises for the benefit of, at the request of, or
by Lessee. The term "Tax Expenses" includes, but is not limited to, any form
of tax and assessment (general, special, ordinary or extraordinary), commercial
rental tax, payments under any improvement bond or bonds, license, rental tax,
transaction tax, levy, or penalty imposed by authority having the direct or
indirect power of tax (including any city, county, state or federal government,
or any school, agricultural, lighting, drainage or other improvement district
thereof) as against any legal or equitable interest of Lessor in the Premises,
Lot or Park, as against Lessor's right to rent or other income therefrom, or as
against Lessor's business of leasing the Premises or the occupancy of Lessee or
any other tax, fee, or excise, however described (excluding inheritance or
estate taxes), including any value added tax, or any tax imposed in
substitution, partially or totally, of any tax previously included within the
definition of real property taxes, or any additional tax the nature of which
was previously included within the definition of real property tax.
C. PAYMENT OF EXPENSES AND ADMINISTRATIVE EXPENSES: Lessor shall
estimate Lessee's share of the Increases in Operating Expenses and Increases in
Tax Expenses for the calendar year in which the Lease commences. Commencing
in January of the following calendar year, one-twelfth (1/12th) of this
estimated amount shall be paid by Lessee to Lessor, as additional rent, on the
first (1st) day of each month and throughout the remaining months of such
calendar year. Thereafter, Lessor may estimate such expenses as of the
beginning of each calendar year and Lessee shall pay one-twelfth (1/12th) of
such estimated amount as additional rent hereunder on the first day of each
month during such calendar year and for each ensuing calendar year throughout
the term of this Lease (including any extensions of the term). Not later than
March 31 of each of the following calendar years, or as soon thereafter as
reasonably possible, including the calendar year after the calendar year in
which this Lease terminates or the term expires, Lessor shall endeavor to
furnish Lessee with a true and correct accounting of actual Increases in
Operating Expenses and Increases in Tax Expenses. Within thirty (30) days of
Lessor's delivery of such accounting, Lessee shall pay to Lessor the amount of
any underpayment. Notwithstanding the foregoing, failure by Lessor to give
such accounting by such date shall not constitute a waiver by Lessor of its
right to collect any of Lessee's underpayment at anytime. Lessor shall credit
the amount of any overpayment by Lessee toward the next estimated monthly
installment(s) falling due, or where the term of the Lease has expired, refund
the amount of overpayment to Lessee. Lessee, at its sole cost and expense
through any certified public accountant designated by it, shall have the right
to examine and/or audit the books and records evidencing such costs and
expenses for the previous one (1) calendar year, during Lessor's reasonable
business hours and not more frequently than once during any calendar year.
Lessee's obligations to pay its share of Increased Operating Expenses and
Increased Tax Expenses shall survive the expiration or earlier termination of
this Lease.
4
5
If the term of the Lease expires prior to the annual reconciliation of
expenses, if any, Lessor shall have the right to reasonably estimate Lessee's
share of such expenses, and if Lessor determines that an underpayment is due,
Lessee hereby agrees that Lessor shall be entitled to deduct such underpayment
from Lessee's Security Deposit. If Lessor reasonably determines that an
overpayment has been made by Lessee, Lessor shall refund said overpayment
together with the return of Lessee's Security Deposit. Notwithstanding the
foregoing, failure of Lessor to accurately estimate Lessee's share of such
expenses shall not constitute a waiver of Lessor's right to collect any of
Lessee's underpayment at anytime.
In addition to the Base Rent set forth in Paragraph 3 hereof, Lessee
shall pay Lessor, without prior notice or demand, on the first (1st) day of
each month throughout the term of this Lease (including any extensions of such
term), as compensation to Lessor for accounting and management services
rendered on behalf of the Park, an amount equal to ten percent (10%) of the
aggregate of Lessee's share of (i) the total Increases in Operating Expenses
and Increases in Tax Expenses as described in Paragraphs 6.A. and 6.B. above,
respectively, and (ii) all Increases in Common Area Utility Costs for the Park
as described in Paragraph 7. Lessee's obligations to pay its share of such
administrative expenses shall survive the expiration or earlier termination of
this Lease.
7. UTILITIES: Lessee shall pay the cost of all water, sewer use and
connection fees, gas, heat, electricity, refuse pickup, janitorial service,
telephone and other utilities billed or metered separately to the Premises
and/or Lessee. Lessee shall also pay its share of any assessments or charges
for utility or similar purposes included within any tax xxxx for the Lot on
which the Premises are situated. For any such utility fees or use charges that
are not billed or metered separately to Lessee, Lessee shall pay to Lessor, as
additional rent, without prior notice or demand, on the first (1st) day of
each month throughout the term of this Lease (the amount which is attributable
to Lessee's use of the Premises as reasonably estimated and determined by
Lessor based upon factors such as size of the Premises and intensity of use of
such utilities by Lessee such that Lessee shall pay the portion of such charges
reasonably consistent with Lessee's use of such utilities ("Utility Expenses").
If Lessee disputes any such estimate or determination, then Lessee shall either
pay the estimated amount or cause the Premises to be separately metered at
Lessee's sole expense. In addition, Lessee shall pay Lessor a trash and water
charge (the "Trash and Water Charge") in the amount set forth on Page 1, as
additional rent. Lessee shall also pay to Lessor its share, which is described
on Page 1, as additional rent, of any Common Area utility costs, fees, charges
or expenses in excess of the amount of such costs, fees, charges or expenses
for the calendar year in which this Lease commenced ("Increases in Common Area
Utility Costs") within fifteen (15) days after receiving a xxxx from Lessor.
The amount of Lessee's share of Increases in Common Area Utility Costs shall be
reviewed from time to time by Lessor and shall be subject to modification by
Lessor, as reasonably determined by Lessor, including, but not limited to
modifications due to the sale or addition of a building or additional space
within the Lot or the Park. Lessee acknowledges that the Premises may become
subject to the rationing of utility services or restrictions on utility use as
required by a public utility company, governmental agency or other similar
entity having jurisdiction thereof. Notwithstanding any such rationing or
restrictions on use of any such facility services, Lessee acknowledges and
agrees that its tenancy and occupancy hereunder shall be subject to such
rationing restrictions as may be imposed upon Lessor, Lessee, the Premises,
the Building or the Park, and Lessee shall in no event be excused or relieved
from any covenant or obligation to be kept or performed by Lessee by reason of
any such rationing or restrictions. Lessee further agrees to pay and
discharge, prior to delinquency, any amount, tax, charge, surcharge, assessment
or imposition levied, assessed or imposed upon the Premises, or Lessee's use
and occupancy thereof, or as a result directly or indirectly of any such
rationing or restrictions.
8. LATE CHARGES: Lessee acknowledges that late payment (the second day of
each month or anytime thereafter) by Lessee to Lessor of Base Rent, Lessee's
share of Increases in Operating Expenses, Increases in Tax Expenses, Increases
in Common Area Utility Costs, the Trash and Water Charge, Utility Expenses or
other sums due hereunder, will cause Lessor to incur costs not contemplated by
this Lease, the exact amount of such costs being extremely difficult and
impracticable to fix. Such costs include, without limitation, processing and
accounting charges, and late charges that may be imposed on Lessor by the
terms of any note secured by any encumbrance against the Premises, and late
charges and penalties due to the late payment of real property taxes on the
Premises. Therefore, if any installment of Rent or any other sum due from
Lessee is not received by Lessor when due, Lessee shall promptly pay to Lessor
all of the following, as applicable: (a) an additional sum equal to ten
percent (10%) of such delinquent amount plus interest on such delinquent amount
at the rate equal to the prime rate plus three percent (3%) for the time
period such payments are delinquent as a late charge for every month or portion
thereof that such sums remain unpaid, (b) the amount of seventy-five dollars
($75) for each three-day notice prepared for, or served on, Lessee, (c) the
amount of fifty dollars ($50) relating to checks for which there are not
sufficient funds. The parties agree that this late charge and the other
charges referenced above represent a fair and reasonable estimate of the costs
that Lessor will incur by reason of late payment by Lessee. Acceptance of any
late charge or other charges shall not constitute a waiver by Lessor of
Lessee's default with respect to the delinquent amount, nor prevent Lessor from
exercising any of the other rights and remedies available to Lessor for any
other breach of Lessee under this Lease. If a late charge or other charge
becomes payable for any three (3) installments of Rent within any twelve (12)
month period, then Lessor, at Lessor's sole option, can either require the
Rent be paid quarterly in advance, or be paid monthly in advance by cashier's
check or by electronic funds transfer.
9. USE OF PREMISES: The Premises are to be used solely for the uses
stated on Page 1 and for no other uses or purposes without Lessor's prior
written consent. The use of the Premises by Lessee and its agents, invitees
and employees shall be subject to, and at all times in compliance with,
(a) any and all applicable laws, ordinances, statutes, orders and regulations
as same exist from time to time (collectively, the "Laws"), and (b) any and all
5
6
declarations of covenants, conditions and restrictions ("CC&Rs") and any
supplement thereto which has been or hereafter is recorded in any official or
public records with respect to the Premises, the Building, the Lot and/or the
Park, or any portion thereof.
Lessee shall not use the Premises or permit anything to be done in or
about the Premises nor keep or bring anything therein which will in any way
conflict with any of the requirements of the Board of Fire Underwriters or
similar body now or hereafter constituted or in any way increase the existing
rate of or affect any policy of fire or other insurance upon the Building or
any of its contents, or cause a cancellation of any insurance policy. Lessee
shall not do or permit anything to be done in or about the Premises which will
in any way obstruct or interfere with the rights of Lessor, other tenants or
occupants of the Building, other buildings in the Park, or other persons or
businesses in the area, or injure or annoy other tenants or use or allow the
Premises to be used for any improper, immoral, unlawful or objectionable
purpose, as determined by Lessor, in its sole discretion, for the benefit,
quiet enjoyment and use by Lessor and all other tenants or occupants of the
Building or other buildings in the Park; nor shall Lessee cause, maintain or
permit any private or public nuisance in, on or about the Premises, Building,
Park and/or the Common Area, including, but not limited to, any offensive odors,
fumes or vibrations. Lessee shall not damage or deface or otherwise commit or
suffer to be committed any waste in, upon or about the Premises. Lessee shall
not store, nor permit any other person or entity to store, any property,
equipment, materials, supplies, personal property or any other items or goods
outside of the Premises. Lessee shall not permit any animals, including, but
not limited to, any household pets, to be brought or kept in or about the
Premises. Lessee shall place no loads upon the floors, walls, or ceilings in
excess of the maximum designed load permitted by the applicable Uniform
Building Code or which may damage the Building or outside areas; nor place any
harmful liquids in the drainage systems; nor dump or store waste materials,
refuse or other such materials, or allow such to remain outside the Building
area, except in refuse dumpsters or in any enclosed trash areas provided.
Lessee shall honor the terms of all recorded CC&Rs relating to the Premises,
the Building, the Lot and/or the Park. Lessee shall honor the rules and
regulations set forth in Exhibit C, attached to and made a part of this Lease,
and any other reasonable rules and regulations of Lessor now or hereafter
enacted relating to parking and the operation of the Building and the Park.
If Lessee fails to comply with such Laws, CC&Rs, rules and regulations or the
provisions of this Lease, Lessor shall have the right to collect from Lessee a
reasonable sum as a penalty, in addition to all rights and remedies of Lessor
hereunder including, but not limited to, the payment by Lessee to Lessor of all
Enforcement Expenses and Lessor's costs and expenses, if any, to cure any of
such failures of Lessee, if Lessor, at its sole option, elects to undertake
such cure.
10. ALTERATIONS AND ADDITIONS: Lessee shall not install any signs,
fixtures, improvements, nor make or permit any other alterations or additions
to the Premises without the prior written consent of Lessor. If any such
alteration or addition is expressly permitted by Lessor, Lessee shall deliver
at least twenty (20) days prior notice to Lessor, from the date Lessee intends
to commence construction, sufficient to enable Lessor to post a Notice of
Non-Responsibility. In all events, Lessee shall obtain all permits or other
governmental approvals prior to commencing any of such work and deliver a copy
of same to Lessor. All alterations and additions shall be installed by a
licensed contractor approved by Lessor, at Lessee's sole expense in compliance
with all applicable Laws, CC&Rs, and Lessor's rules and regulations. Lessee
shall keep the Premises and the property on which the Premises are situated
free from any liens arising out of any work performed, materials furnished or
obligations incurred by or on behalf of Lessee. As a condition to Lessor's
consent to the installation of any fixtures or improvements, Lessor may require
Lessee to post and obtain a completion and indemnity bond for tip to one
hundred fifty percent (150%) of the cost of the work. Upon termination of this
Lease, Lessee shall remove all signs, fixtures, furniture and furnishings and
if requested by Lessor, remove any improvements made by Lessee and repair any
damage caused by the installation or removal of such signs, fixtures,
furniture, furnishings and improvements and leave the Premises in as good
condition as they were in at the time of the commencement of this Lease,
excepting for reasonable wear and tear. Reasonable wear and tear shall not
include any damage or deterioration that would have been prevented by proper
maintenance by Lessee or Lessee otherwise performing all of its obligations
under this Lease.
11. REPAIRS AND MAINTENANCE: Lessee shall, at Lessee's sole cost and
expense, keep and maintain the Premises and the adjacent areas in good, clean
and safe condition and repair to the satisfaction of Lessor including, but not
limited to, repairing any damage caused by Lessee or its employees,
representatives, agents, invitees, licensees or contractors. Without limiting
the generality of the foregoing, Lessee shall be solely responsible for
maintaining, repairing and replacing all interior plumbing and mechanical
systems, heating, ventilation and air conditioning systems, interior electrical
wiring and equipment, interior lighting, all interior glass, interior window
casements, partitions, tenant signage, interior doors and door closers,
fixtures, equipment, interior painting, and interior walls and floors of the
Premises. Lessee's obligation to keep, maintain, preserve and repair the
Premises and the adjacent area shall specifically extend to the cleanup and
removal of any and all Hazardous Materials (hereafter defined) occurring in, on
or about the Premises.
Subject to the provisions of Paragraphs 6 and 9 of this Lease and
except for repairs rendered necessary by the active or passive negligent acts
or emissions of Lessee, its agents, customers, employees and invitees, Lessor
agrees, at Lessor's expense, subject to reimbursement pursuant to Paragraph 6
above, to keep in good repair the plumbing and mechanical systems exterior to
the Premises, roof membranes, signage (exclusive of tenant signage), exterior
electrical wiring and equipment, exterior lighting, all exterior glass,
exterior doors and entrances, exterior window casements, exterior doors and
door closers, exterior painting, and underground utility and sewer pipes
outside the exterior walls of the Building. Lessor reserves the right, but
without the obligation, to procure and maintain the heating, ventilation and
air conditioning systems maintenance contract and if Lessor so elects, Lessee
will reimburse Lessor for the cost thereof in accordance with the provisions of
Paragraph 6 above.
6
7
Except for repairs rendered necessary by the active or passive
negligent acts or omissions of Lessee, its agents, customers, employees and
invitees, Lessor agrees, at Lessor's sole cost and expense, to keep in good
repair the structural portions of the floors, foundations, exterior walls
(exclusive of glass and exterior doors), and the structural portions of the
roof (excluding the roof membrane) of the Building.
Except for normal maintenance and repair of the items outlined above,
Lessee shall have no right of access to or right to install any device on the
roof of the Building nor make any penetrations of the roof of the Building
without the express prior written consent of Lessor. If Lessee refuses or
neglects to repair and maintain the Premises and the adjacent areas properly as
required herein and to the reasonable satisfaction of Lessor, Lessor may, but
without obligation to do so, at anytime make such repairs and/or maintenance
without Lessor having any liability to Lessee for any loss or damage that may
accrue to Lessee's merchandise, fixtures or other property, or to Lessee's
business by reason thereof. In the event Lessor makes such repairs and/or
maintenance, upon completion thereof Lessee shall pay to Lessor, as additional
rent, the Lessor's costs for making such repairs and/or maintenance, plus
twenty percent (20%) for overhead, upon presentation of a xxxx therefor, plus
any Enforcement Expenses. The obligations of Lessee hereunder shall survive
the expiration of the term of this Lease or the earlier termination thereof,
Lessee hereby waives any right to repair at the expense of Lessor under any
applicable Laws now or hereafter in effect respecting the Premises.
12. INSURANCE: Lessee shall maintain in full force and effect at all times
during the term of this Lease, at Lessee's sole cost and expense, for the
protection of Lessee and Lessor, as their interests may appear, policies of
insurance issued by a carrier or carriers acceptable to Lessor and its
lender(s) which afford the following coverages: (i) worker's compensation:
statutory limits; (ii) employer's liability: as required by law with a minimum
of $1,000,000; (iii) comprehensive general liability insurance (occurrence
form) including blanket contractual liability, broad form property damage,
premises, personal injury, completed operations, products liability, personal
and advertising coverage, a plate-glass rider to provide coverage for all glass
in, on or about the Premises including, without limitation, skylights, and fire
damage with a combined single limit of not less than (the amount set forth on
Page 1) per occurrence, and (the amount set forth on Page 1) per occurrence per
location if Lessee has multiple locations, with deletion of (a) the exclusion
for operations within fifty (50) feet of a railroad track (railroad protective
liability), if applicable, and (b) the exclusion for explosion, collapse or
underground hazard, if applicable, and if necessary, Lessee shall provide for
restoration of the aggregate limit; (iv) comprehensive automobile liability
insurance: a combined single limit of not less than $2,000,000 per occurrence
and insuring Lessee against liability for claims arising out of the ownership,
maintenance, or use of any owned, hired or non-owned automobiles; and (v) "all
risk" property insurance including boiler and machinery comprehensive form, if
applicable, covering damage to or loss of any personal property, fixtures and
equipment, including, without limitation, electronic data processing equipment,
of Lessee (and coverage for the full replacement cost thereof including
business interruption of Lessee), together with, if the property of Lessee's
invitees is to be kept in the Premises, warehouser's legal liability or bailee
customers insurance for the full replacement cost of the property belonging to
invitees and located in the Premises.
Insurance required to be maintained by Lessee shall be written by
companies licensed to do business in the State of California and having a
"General Policyholders Rating" of at least A (or such higher rating as may be
required by a lender having a lien on the Premises) as set forth in the most
current issue of "Best's Insurance Guide." Lessee shall deliver to Lessor
certificates of insurance for all insurance required to be maintained by Lessee
hereunder at the time of execution of this Lease by Lessee. Lessee shall, at
least thirty (30) days prior to expiration of each policy, furnish Lessor with
certificates of renewal or "binders" thereof. Each certificate shall expressly
provide that such policies shall not be cancelable or otherwise subject lo
modification except after thirty (30) days prior written notice to the parties
named as additional insureds as required in this Lease (except for cancellation
for nonpayment of premium, in which event cancellation shall not take effect
until at least ten (10) days' notice has been given to Lessor). If Lessee
fails to maintain any insurance required in this Lease, Lessee shall be liable
for all losses and costs resulting from such failure.
Lessor, any property management company of Lessor for the Premises,
any lender(s) of Lessor having a lien against the Premises, the Building, the
Lot or the Park, and any joint venture partners of Lessor shall be named as
additional insureds under all of the policies required in Paragraph 12.(iii)
above. Additionally, such policies shall provide for severability of interest.
All insurance to be maintained by Lessee shall, except for workers'
compensation and employer's liability insurance, be primary, without right of
contribution from insurance maintained by Lessor. Any umbrella liability
policy or excess liability policy (which shall be in "following form") shall
provide that if the underlying aggregate is exhausted, the excess coverage
will drop down as primary insurance. The limits of insurance maintained by
Lessee shall not limit Lessee's liability under this Lease.
13. LIMITATION OF LIABILITY AND INDEMNITY: Except for damage resulting
from the sole active gross negligence or willful misconduct of Lessor or its
authorized representatives, Lessee agrees to protect, defend (with counsel
acceptable to Lessor) and hold Lessor and Lessor's lender(s), partners,
employees, representatives, legal representatives, successors and assigns
(collectively, the "Indemnitees") harmless and indemnify the Indemnitees from
and against all liabilities, damages, claims, losses, judgments, charges and
expenses (including reasonable attorneys' fees, costs of court and expenses
necessary in the prosecution or defense of any litigation including the
enforcement of this provision) arising from or in any way related to, directly
or indirectly. Lessee's use of the Premises and/or the Park, or the conduct
of Lessee's business, or from any activity, work or thing done, permitted or
suffered by Lessee in or about the Premises, or in any way connected with the
Premises or with the improvements or personal property therein, including, but
not limited to, any liability for injury to person or property of Lessee,
7
8
its agents or employees or third party persons. Lessee agrees that the
obligations of Lessee herein shall survive the expiration or earlier
termination of this Lease.
Except for damage resulting from the sole active gross negligence or
willful misconduct of Lessor or its authorized representatives, Lessor shall
not be liable to Lessee for any loss or damage to Lessee or Lessee's property,
for any injury to or loss of Lessee's business or for any damage or injury to
any person from any cause whatsoever, including, but not limited to, any acts,
errors or omissions by or on behalf of any other tenants or occupants of the
Building and/or the Park. Lessee shall not, in any event or circumstance, be
permitted to offset or otherwise credit against any payments of Rent required
herein for matters for which Lessor may be liable hereunder. Lessor and its
authorized representatives shall not be liable for any interference with light
or air, or for any latent defect in the Premises or the Building. To the
fullest extent permitted by law, Lessee agrees that neither Lessor nor any of
Lessor's lender(s), partners, employees, representatives, legal
representatives, successors and assigns shall at any time or to any extent
whatsoever be liable, responsible or in any way accountable for any loss,
liability, injury, death or damage to persons or property which at any time may
be suffered or sustained by Lessee or by any person(s) whomsoever who may at
any time be using or occupying or visiting the Premises, the Building or the
Park.
14. ASSIGNMENT AND SUBLEASING:
A. PROHIBITION: Lessee shall not assign, mortgage, hypothecate,
encumber, grant any license or concession, pledge or otherwise transfer this
Lease (collectively, "assignment"), in whole or in part, whether voluntarily or
involuntarily or by operation of law, nor sublet or permit occupancy by any
person other than Lessee of all or any portion of the Premises without first
obtaining the prior written consent of Lessor, which shall not be unreasonably
withheld. If Lessee seeks to sublet or assign all or any portion of the
Premises, Lessee shall deliver to Lessor at least thirty (30) days prior to the
proposed commencement of the sublease or assignment (the "Proposed Effective
Date") the following: (i) the name of the proposed assignee or sublessee; (ii)
such information as to such assignee's or sublessee's financial responsibility
and standing as Lessor may reasonably require; and (iii) a copy of the proposed
sublease or assignment agreement and all agreements collateral thereto, which
instrument shall include a provision whereby the assignee or sublessee assumes
all of Lessee's obligations hereunder and agrees to be bound by the terms
hereof. As additional rent hereunder, Lessee shall pay to Lessor a fee in the
amount of five hundred dollars ($500) plus Lessee shall reimburse Lessor for
actual legal and other expenses incurred by Lessor in connection with any
request by Lessee for Lessor's consent to assignment or subletting. In the
event the sublease (1) by itself or taken together with prior sublease(s)
covers or totals, as the case may be, more than twenty-five percent (25%) of
the rentable square feet of the Premises or (2) is for a term which by itself
or taken together with prior or other subleases is greater than fifty percent
(50%) of the period remaining in the term of this Lease as of the time of the
Proposed Effective Date, then Lessor shall have the right, to be exercised by
giving written notice to Lessee, to recapture the space described in the
sublease. If such recapture notice is given, it shall serve to terminate this
Lease with respect to the proposed sublease space, or, if the proposed sublease
space covers all the Premises, it shall serve to terminate the entire term of
this Lease, in either case as of the Proposed Effective Date. However, no
termination of this Lease with respect to part or all of the Premises shall
become effective without the prior written consent, where necessary, of the
holder of each deed of trust encumbering the Premises or any part thereof. If
this Lease is terminated pursuant to the foregoing with respect to less than
the entire Premises, the Rent shall be adjusted on the basis of the proportion
of square feet retained by Lessee to the square feet originally demised and
this Lease as so amended shall continue thereafter in full force and effect.
Each permitted assignee or sublessee shall assume and be deemed to assume this
Lease and shall be and remain liable jointly and severally with Lessee for
payment of Rent and for the due performance of, and compliance with all the
terms, covenants, conditions and agreements herein contained on Lessee's part
to be performed or complied with, for the term of this Lease. No assignment or
subletting shall affect the continuing primary liability of Lessee (which,
following assignment, shall be joint and several with the assignee), and Lessee
shall not be released from performing any of the terms, covenants and
conditions of this Lease. For purposes hereof, in the event Lessee is a
corporation, partnership, joint venture, trust or other entity other than a
natural person, any change in the direct or indirect ownership of Lessee
(whether pursuant to one or more transfers) which results in a change of more
than fifty percent (50%) in the direct or indirect ownership of Lessee shall be
deemed to be an assignment within the meaning of this Paragraph 14 and shall be
subject to all the provisions hereof. Any and all options, first rights of
refusal, tenant improvement allowances and other similar rights granted to
Lessee in this Lease, if any, shall not be assignable by Lessee unless
expressly authorized in writing by Lessor.
B. EXCESS SUBLEASE RENTAL OR ASSIGNMENT CONSIDERATION: In the
event of any sublease or assignment of all or any portion of the Premises
where the rent or other consideration provided for in the sublease or
assignment either initially or over the term of the sublease or assignment
exceeds the Rent or pro rata portion of the Rent, as the case may be, for such
space reserved in the Lease, Lessee shall pay the Lessor monthly, as additional
rent, at the same time as the monthly installments of Rent are payable
hereunder, fifty percent (50%) of the excess of each such payment of rent or
other consideration in excess of the Rent called for hereunder.
C. WAIVER: Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Lessor to any assignee
or sublessee, or failure by Lessor to take action against any assignee or
sublessee, Lessee waives notice of any default of any assignee or sublessee and
agrees that Lessor may, at its option, proceed against Lessee without having
taken action against or joined such assignee or sublessee, except that Lessee
shall have the benefit of any indulgences, waivers and extensions of time
granted to any such assignee or sublessee.
8
9
15. WAIVER OF SUBROGATION: Lessee waives any right to recover against
Lessor for claims for damages to Lessee's property, including, but not limited
to, personal property, fixtures and equipment, covered by insurance. This
provision is intended to waive fully, and for the benefit of Lessor, any rights
and/or claims which might give rise to a right of subrogation in favor of any
insurance carrier. The coverage obtained by Lessee pursuant to this Lease
shall include, without limitation, a waiver of subrogation endorsement attached
to the certificate of insurance.
16. AD VALOREM TAXES: Prior to delinquency, Lessee shall pay all taxes and
assessments levied upon trade fixtures, alterations, additions, improvements,
inventories and personal property located and/or installed on or in the
Premises by, or on behalf of, Lessee; and if requested by Lessor, Lessee shall
promptly deliver to Lessor copies of receipts for payment of all such taxes and
assessments. To the extent any such taxes are not separately assessed or
billed to Lessee, Lessee shall pay the amount thereof as invoiced by Lessor.
17. SUBORDINATION: Without the necessity of any additional document being
executed by Lessee for the purpose of effecting a subordination, and at the
election of Lessor or any bona fide mortgagee or dead of trust beneficiary with
a lien on all or any portion of the Premises or any ground lessor with respect
to the land of which the Premises are a part, this Lease shall be subject and
subordinate at all times to: (i) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building or the land upon
which the Building is situated or both, and (ii) the lien of any mortgage or
deed of trust which may now exist or hereafter be executed in any amount for
which the Building, the Lot, ground leases or underlying leases, or Lessor's
interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Lessor or any such ground lessor, mortgagee, or
any beneficiary 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.
If any ground lease or underlying lease terminates for any reason or any
mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure
is made for any reason, Lessee shall, notwithstanding any subordination and
upon the request of such successor to Lessor, attorn to and become the Lessee of
the successor in interest to Lessor, provided such successor in interest will
not disturb Lessee's use, occupancy or quiet enjoyment of the Premises so long
as Lessee is not in default of the terms and provisions of this Lease. The
successor in interest to Lessor following foreclosure, sale or deed in lieu
thereof shall not be (a) liable for any act or omission of any prior lessor or
with respect to events occurring prior to acquisition of ownership; (b) subject
to any offsets or defenses which Lessee might have against any prior lessor;
(c) bound by prepayment of more than one (1) month's Rent; or (d) liable to
Lessee for any Security Deposit not actually received by such successor in
interest. Lessee covenants and agrees to execute (and acknowledge if required
by Lessor, any lender or ground lessor) and deliver, within five (5) days of a
demand or request by Lessor and in the form requested by Lessor, ground lessor,
mortgagee or beneficiary, any additional documents evidencing the priority or
subordination or this Lease with respect to any such ground leases or
underlying leases or the lien of any such mortgage or deed of trust. Lessee's
failure to timely execute and deliver such additional documents shall, at
Lessor's option, constitute a material default hereunder. It is further agreed
that Lessee shall be liable to Lessor, and shall indemnify Lessor from and
against any loss, cost, damage or expense, incidental, consequential, or
otherwise, arising or accruing directly or indirectly, from any failure of
Lessee to execute or deliver to Lessor any such additional documents. Lessee
hereby irrevocably appoints Lessor as attorney-in-fact of Lessee, which
appointment is coupled with an interest, to execute, deliver and record any
such documents in the name and on behalf of Lessee.
18. RIGHT OF ENTRY: Lessee grants Lessor or its agents the right to enter
the Premises at all reasonable times for purposes of inspection, exhibition,
posting of notices, repair or alteration. At Lessor's option, Lessor shall at
all times have and retain a key with which to unlock all the doors in, upon and
about the Premises, excluding Lessee's vaults and safes. It is further agreed
that Lessor shall have the right to use any and all means Lessor deems
necessary to enter the Premises in an emergency. Lessor shall also have the
right to place "for rent" and/or "for sale" signs on the outside of the
Premises. Lessee hereby waives any claim from damages or for any injury or
inconvenience to or in reference with Lessee's business, or any other loss
occasioned thereby except for any claim for any of the foregoing arising out of
the gross active negligent acts or willful misconduct of Lessor or its
authorized representatives.
19. ESTOPPEL CERTIFICATE: Lessee shall execute (and acknowledge if
required by any lender or ground lessor) and deliver to Lessor, within not less
than five (5) days after Lessor provides such to Lessee, a statement in writing
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification), the date to which the Rent
and other charges are paid in advance, if any, acknowledging that there are
not, to Lessee's knowledge, any uncured defaults on the part of Lessor
hereunder or specifying such defaults as are claimed, and such other matters as
Lessor may reasonably require. Any such statement may be conclusively relied
upon by Lessor and any prospective purchaser or encumbrancer of the Premises.
Lessee's failure to deliver such statement within such time shall be conclusive
upon the Lessee that (a) this Lease is in full force and effect, without
modification except as may be represented by Lessor; (b) there are no uncured
defaults in Lessor's performance; and (c) not more than one month's Rent has
been paid in advance, except in those instances when Lessee pays Rent quarterly
in advance pursuant to Paragraph 8 hereof, then not more than three month's
Rent has been paid in advance. Failure by Lessee to so deliver such certified
estoppel certificate shall be a default of the provisions of this Lease.
Lessee shall be liable to Lessor, and shall indemnify Lessor from and against
any loss, cost, damage or expense, incidental, consequential, or otherwise,
arising or accruing directly or indirectly, from any failure of Lessee to
execute or deliver to Lessor any such certified estoppel certificate.
9
10
Lessee hereby irrevocably appoints Lessor as attorney-in-fact of
Lessee, which appointment is coupled with an interest, to act in Lessee's name,
place and stead to execute and deliver such estoppel certificate on behalf of
Lessee.
20. LESSEE'S DEFAULT: The occurrence of any one or more of the following
events shall, at Lessor's option, constitute a default and breach of (this
Lease by Lessee:
(i) The vacation or abandonment of the Premises by Lessee
for a period of ten (10) consecutive days, and Lessee waives any right
to notice Lessee may have under applicable law;
(ii) The failure by Lessee to make any payment of Rent or
any other payment required hereunder on the date said payment is due;
(iii) The failure by Lessee to observe, perform or comply
with any of the conditions, covenants or provisions of this Lease
(except default in the payment of Rent); provided, if such default is
susceptible of cure and Lessee has promptly commenced the cure of such
default and is diligently prosecuting such cure to completion, then
the same must remain uncured for a period, unless otherwise noted
herein, of fifteen (15) days after written notice;
(iv) The making of a general assignment by Lessee for the
benefit of creditors, the filing of a voluntary petition by Lessee or
the filing of an involuntary petition by any of Lessee's creditors
seeking the rehabilitation, liquidation, or reorganization of Lessee
under any law relating to bankruptcy, insolvency or other relief of
debtors and, in the case of an involuntary action, the failure to
remove or discharge the same within sixty (60) days of such filing,
the appointment of a receiver or other custodian to take possession of
substantially all of Lessee's assets or this leasehold, Lessee's
insolvency or inability to pay Lessee's debts or failure generally to
pay Lessee's debts when due, any court entering a decree or order
directing the winding up or liquidation of Lessee or of substantially
all of Lessee's assets, Lessee taking any action toward the
dissolution or winding up of Lessee's affairs, the cessation or
suspension of Lessee's use of the Premises, or the attachment,
execution or other judicial seizure of substantially all of Lessee's
assets or this leasehold;
(v) Lessee's use or storage of Hazardous Materials on the
Premises other than as permitted by the provisions of Paragraph 29
below;
(vi) The making of any material misrepresentation or
omission by Lessee in any materials delivered by or on behalf of
Lessee to Lessor pursuant to this Lease; or
(vii) Lessee's default or other breach of any covenant,
condition or provision of any lease agreement between Lessee or an
affiliated entity of Lessee, as the tenant, and Lessor or an
affiliated entity of Lessor, as landlord, with regard to any and all
leased premises other than the Premises as described herein.
21. REMEDIES FOR LESSEE'S DEFAULT: In the event of Lessee's default or
breach of the Lease, Lessor may terminate Lessee's right to possession of the
Premises by any lawful means in which case upon delivery of written notice by
Lessor this Lease shall terminate on the date specified by Lessor in such
notice and Lessee shall immediately surrender possession of the Premises to
Lessor. In addition, the Lessor shall have the immediate right of re-entry
whether or not this Lease is terminated, and if this right of re-entry is
exercised following abandonment of the Premises by Lessee, Lessor may consider
any personal property belonging to Lessee and left on the Premises to also have
been abandoned. No re-entry or taking possession of the Premises by Lessor
pursuant to this Paragraph 21 shall be construed as an election to terminate
this Lease unless a written notice of such intention is given to Lessee. If
Lessor relets the Premises or any portion thereof, (i) Lessee shall be liable
immediately to Lessor for all costs Lessor incurs in reletting the Premises or
any part thereof, including, without limitation, broker's commissions, expenses
of cleaning, redecorating, and further improving the Premises and other similar
costs, and (ii) the rent received by Lessor from such reletting shall be
applied to the payment of, first, any indebtedness from Lessee to Lessor other
than Base Rent, Increases in Operating Expenses, Increases in Tax Expenses,
Increases in Common Area Utility Costs, the Trash and Water Charge and Utility
Expenses; second, all costs including maintenance, incurred by Lessor in
reletting; and, third, Base Rent, Increases in Operating Expenses, Increases in
Tax Expenses, Increases in Common Area Utility Costs, the Trash and Water
Charge and Utility Expenses due under this Lease. After deducting the payments
referred to above, any sum remaining from the rental Lessor receives from
reletting shall be held by Lessor and applied in payment of future Rent as Rent
becomes due under this Lease. In no event shall Lessee be entitled to any
excess rent received by Lessor. Reletting may be for a period shorter or
longer than the remaining term of this Lease. No act by Lessor other than
giving written notice to Lessee shall terminate this Lease. Acts of
maintenance, efforts to relet the Premises or the appointment of a receiver on
Lessor's initiative to protect Lessor's interest under this Lease shall not
constitute a termination of Lessee's right to possession. So long as this
Lease is not terminated, Lessor shall have the right to remedy any default of
Lessee, to maintain or improve the Premises, to cause a receiver to be
appointed to administer the Premises and new or existing subleases and to add
to the Rent payable hereunder all of Lessor's reasonable costs in so doing,
with interest at the maximum rate permitted by law from the date of such
expenditure.
If Lessee breaches this Lease and abandons the property before the end
of the term, or if Lessee's right to possession is terminated by Lessor because
of a breach or default of the Lease, then in either such case, Lessor may
10
11
recover from Lessee all damages suffered by Lessor as a result of Lessee's
failure to perform its obligations hereunder, including, but not limited to,
the cost of any tenant improvements, and all costs Lessor incurs in reletting
the Premises or any part thereof, including without limitation, brokerage or
leasing commissions, expenses of cleaning, redecorating, and further improving
the Premises and like costs, and the worth at the time of the award (computed
in accordance with paragraph (3) of Subdivision (a) of Section 1951.2 of the
California Civil Code) of the amount by which the Rent then unpaid hereunder
for the balance of the Lease term exceeds the amount of such loss of Rent for
the same period which Lessee proves could be reasonably avoided by Lessor and
in such case, Lessor prior to the award, may relet the Premises for the purpose
of mitigating damages suffered by Lessor because of Lessee's failure to perform
its obligations hereunder; provided, however, that even though Lessee has
abandoned the Premises following such breach, this Lease shall nevertheless
continue in full force and effect for as long as Lessor does not terminate
Lessee's right of possession, and until such termination, Lessor shall have the
remedy described in Section 1951.4 of the California Civil Code (Lessor may
continue this Lease in effect after Lessee's breach and abandonment and recover
Rent as it becomes due, if Lessee has the right to sublet or assign, subject
only to reasonable limitations) and may enforce all its rights and remedies
under this Lease, including the right to recover the Rent from Lessee as it
becomes due hereunder. The "worth at the time of the award" within the meaning
of Subparagraphs (a)(1) and (a)(2) of Section 1951.2 of the California Civil
Code shall be computed by allowing interest at the rate of ten percent (10%)
per annum. Lessee waives redemption or relief from forfeiture under California
Code of Civil Procedure Sections 1174 and 1179, or under any other present or
future law, in the event Lessee is evicted or Lessor takes possession of the
Premises by reason of any default of Lessee hereunder.
The foregoing rights and remedies of Lessor are not exclusive; they
are cumulative in addition to any rights and remedies now or hereafter existing
at law, in equity by statute or otherwise, or to any equitable remedies Lessor
may have, and to any remedies Lessor may have under bankruptcy laws or laws
affecting creditor's rights generally. In addition to all remedies set forth
above, if Lessee defaults or otherwise breaches this Lease, any and all Base
Rent waived by Lessor under Paragraph 3 above shall be immediately due and
payable to Lessor and all options granted to Lessee hereunder shall
automatically terminate, unless otherwise expressly agreed to in writing by
Lessor.
The waiver by Lessor of any default or breach of any provision of this
Lease shall not be deemed or construed a waiver of any other breach or default
by Lessee hereunder or of any subsequent breach or default of this Lease,
except for the default specified in the waiver.
22. HOLDING OVER: If Lessee holds possession of the Premises after the
expiration of the term of this Lease with Lessor's consent, Lessee shall become
a tenant from month-to-month upon the terms and provisions of this Lease,
provided the monthly Base Rent during such hold over period shall be 200% of
the Base Rent due on the last month of the Lease term, payable in advance on or
before the first day of each month. Such month-to-month tenancy shall not
constitute a renewal or extension for any further term. All options, if any,
granted under the terms of this Lease shall be deemed automatically terminated
and be of no force or effect during said month-to-month tenancy. Lessee shall
continue in possession until such tenancy shall be terminated by either Lessor
or Lessee giving written notice of termination to the other party at least
thirty (30) days prior to the effective date of termination. This paragraph
shall not be construed as Lessor's permission for Lessee to hold over.
Acceptance of Base Rent by Lessor following expiration or termination of this
Lease shall not constitute a renewal of this Lease.
23. LESSOR'S DEFAULT: Lessor shall not be deemed in breach or default of
this Lease unless Lessor fails within a reasonable time to perform an
obligation required to be performed by Lessor hereunder. For purposes of this
provision, a reasonable time shall in no event be less than thirty (30) days
after receipt by Lessor of written notice specifying the nature of the
obligation Lessor has not performed; provided, however, that if the nature of
Lessor's obligation is such that more than thirty (30) days, after receipt of
written notice, is reasonably necessary for its performance, then Lessor shall
not be in breach or default of this Lease if performance of such obligation is
commenced within such thirty (30) day period and thereafter diligently pursued
to completion.
24. PARKING: Lessee shall have a license to use the number of undesignated
and nonexclusive parking spaces set forth on Page 1. Lessor shall exercise
reasonable efforts to insure that such spaces are available to Lessee for its
use, but Lessor shall not be required to enforce Lessee's right to use the
same.
25. SALE OF PREMISES: In the event of any sale of the Premises by Lessor,
Lessor shall be and is hereby entirely released from any and all of its
obligations to perform or further perform under this Lease and from all
liability hereunder as of the date of such sale; and the purchaser, at such,
sale or any subsequent sale of the Premises shall be deemed, without any
further agreement between the parties or their successors in interest or
between the parties and any such purchaser, to have assumed and agreed to carry
out any and all of the covenants and obligations of the Lessor under this
Lease. Lessee agrees to attorn to such new owner provided such new owner does
not disturb Lessee's use, occupancy or quiet enjoyment of the Premises so long
as Lessee is not in default of any of the provisions of this Lease.
26. WAIVER: No delay or omission in the exercise of any right or remedy of
Lessor on any default by Lessee shall impair such a right or remedy or be
construed as a waiver.
11
12
The subsequent acceptance of Rent by Lessor after breach by Lessee of
any covenant or term of this Lease shall not be deemed a waiver of such breach,
other than a waiver of timely payment for the particular Rent payment involved,
and shall not prevent Lessor from maintaining an unlawful detainer or other
action based on such breach.
No payment by Lessee or receipt by Lessor of a lesser amount than the
monthly Rent and other sums due hereunder shall be deemed to be other than on
account of the earliest Rent or other sums due, nor shall any endorsement or
statement on any check or accompanying any check or payment be deemed an accord
and satisfaction; and Lessor may accept such check or payment without prejudice
to Lessor's right to recover the balance of such Rent or other sum or pursue
any other remedy provided in this Lease.
27. CASUALTY DAMAGE: If the Premises or any part thereof shall be damaged
by fire or other casualty, Lessee shall give prompt written notice thereof to
Lessor. In case the Building shall be so damaged by fire or other casualty
that substantial alteration or reconstruction of the Building shall, in
Lessor's sole opinion, be required (whether or not the Premises shall have
been damaged by such fire or other casualty), Lessor may, at its option,
terminate Lease by notifying Lessee in writing of such termination within sixty
(60) days after the date of such damage, in which event the Rent shall be
abated as of the date of such damage. If Lessor does not elect to terminate
this Lease and provided insurance proceeds and any contributions from Lessee,
if necessary, are available to fully repair the damage, Lessor shall within
ninety (90) days after the date of such damage commence to repair and restore
the Building and shall proceed with reasonable diligence to restore the
Building (except that Lessor shall not be responsible for delays outside its
control) to substantially the same condition in which it was immediately prior
to the happening of the casualty; provided, Lessor shall not be required to
rebuild, repair, or replace any part of Lessee's furniture, furnishings or
fixtures and equipment removable by Lessee or any improvements, alterations or
additions installed by or for the benefit of Lessee under the provisions of
this Lease. Lessor shall not in any event be required to spend for such work
an amount in excess of the insurance proceeds and any contributions from
Lessee, if necessary, actually received by Lessor as a result of the fire or
other casualty. Lessor shall not be liable for any inconvenience or annoyance
to Lessee, injury to the business of Lessee, loss of use of any part of the
Premises by the Lessee or loss of Lessee's personal property resulting in any
way from such damage or the repair thereof, except that, subject to the
provisions of the next sentence, Lessor shall allow Lessee a fair diminution of
Rent during the time and to the extent the Premises are unfit for occupancy.
If the Premises or any other portion of the Building be damaged by fire or
other casualty resulting from the fault or active or passive negligence or
omissions of Lessee or any of Lessee's agents, employees, or invitees, the
Rent shall not be diminished during the repair of such damage and Lessee shall
be liable to Lessor 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. In the event the holder of any indebtedness secured by
the Premises requires that the insurance proceeds be applied to such
indebtedness, then Lessor shall have the right to terminate this Lease by
delivering written notice of termination to Lessee within thirty (30) days
after the date of notice to Lessee of any such event, whereupon all rights and
obligations shall cease and terminate hereunder.
Except as otherwise provided in this Xxxxxxxxx 00, Xxxxxx hereby
waives the provisions of Sections 1932(2.), 1933(4.), 1941 and 1942 of the
California Civil Code.
28. CONDEMNATION: If twenty-five percent (25%) or more of the Premises is
condemned by eminent domain, inversely condemned or sold in lieu of
condemnation for any public or quasi-public use or purpose ("Condemned"), then
Lessee or Lessor may terminate this Lease as of the date when physical
possession of the Premises is taken and title vests in such condemning
authority, and Rent shall be adjusted to the date of termination. Lessee shall
not because of such condemnation assert any claim against Lessor or the
condemning authority for any compensation because of such condemnation, and
Lessor shall be entitled to receive the entire amount of any award without
deduction for any estate of interest or interest of Lessee. If a substantial
portion of the Premises, Building or the Lot is so Condemned, Lessor at its
option may terminate this Lease. If Lessor does not elect to terminate this
Lease, Lessor shall, if necessary, promptly proceed to restore the Premises or
the Building to substantially its same condition prior to such partial
condemnation, allowing for the reasonable effects of such partial
condemnation, and a proportionate allowance shall be made to Lessee, as solely
determined by Lessor, for the Rent corresponding to the time during which, and
to the part of the Premises of which, Lessee is deprived on account of such
partial condemnation and restoration. Lessor shall not be required to spend
funds for restoration in excess of the amount received by Lessor as
compensation awarded.
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS: Concurrently with executing
this Lease, and within thirty (30) days of each anniversary of the Commencement
Date during the term of this Lease, Lessee shall execute, and deliver to
Lessor, the Hazardous Materials Disclosure Certificate in substantially the
form attached as Exhibit F, and any other reasonably necessary documents as
requested by Lessor. Subject to the remaining provisions of this paragraph,
Lessee shall be entitled to use and store only those Hazardous Materials
(defined below), that are necessary for Lessee's business and to the extent
disclosed in the Hazardous Materials Disclosure Certificate, provided that
such usage and storage is in full compliance with any and all local, state and
federal environmental, health and/or safety-related laws, statutes, orders,
standards, courts' decisions, ordinances, rules and regulations (as interpreted
by judicial and administrative decisions), decrees, directives, guidelines,
permits or permit conditions, currently existing and as amended, enacted,
issued or adopted in the future which are or become applicable to Lessee or the
Premises (collectively, the "Environmental Laws"). Lessor shall have the right
at all times during the term of this Lease to (i) inspect the Premises, (ii)
conduct tests and investigations to determine whether Lessee is in compliance
with the provisions of this paragraph, and (iii) request lists of all Hazardous
Materials used, stored or
12
13
located on, under or about the Premises; the cost of all such inspections,
tests and investigations to be borne by Lessee, if Lessor reasonably believes
they are necessary. Lessee shall give to Lessor immediate verbal and follow-up
written notice of any spills, releases or discharges of Hazardous Materials on,
under or about the Premises, or in any Common Areas or parking lots (if not
considered part of the Premises). Lessee covenants to promptly investigate,
clean up and otherwise remediate any spill, release or discharge of Hazardous
Materials caused by the acts (active or passive) or omissions of Lessee, or its
agents, employees, representatives, invitees, licensees, subtenants, customers
or contractors at Lessee's sole cost and expense; such investigation, clean up
and remediation to be performed after Lessee has obtained Lessor's written
consent, which shall not be unreasonably withheld; provided, however, that
Lessee shall be entitled to respond immediately to an emergency without first
obtaining Lessor's written consent. If Lessee fails to so promptly
investigate, clean up or otherwise remediate, Lessor may, but without
obligation to do so, take any and all steps necessary to rectify the same and
Lessee shall promptly reimburse Lessor, upon demand, for all costs and expenses
to Lessor of performing investigation and remediation work. Lessee shall
indemnify, defend (with counsel acceptable to Lessor) and hold Lessor and
Lessor's lenders, partners, property management company (if other than Lessor),
directors, officers, employees, representatives, contractors and shareholders
and each of their respective successors and assigns harmless from and against
any and all claims, judgments, damages, penalties, fines, liabilities, losses,
suits, administrative proceedings and costs (including, but not limited to,
attorneys' and consultant fees and court costs) arising at any time during or
after the term of this Lease in connection with or related to the use,
presence, transportation, storage, disposal, spill, release or discharge of
Hazardous Materials on, in or about the Premises as a result (directly or
indirectly) of the acts (active or passive) or omissions of Lessee, its agents,
employees, representatives, invitees, licensees, subtenants, customers or
contractors. Lessee shall not be entitled to install any tanks under, on or
about the Premises for the storage of Hazardous Materials without the express
written consent of Lessor, which may be given or withheld in Lessor's sole
discretion. Neither the written consent of Lessor to the presence of
Hazardous Materials on, under or about the Premises nor the strict compliance
by Lessee with all Environmental Laws shall excuse Lessee from its obligation
of indemnification pursuant hereto. As used herein, the term Hazardous
Materials shall mean (i) any hazardous or toxic wastes, materials or
substances, and other pollutants or contaminants, which are or become regulated
by any Environmental Laws; (ii) petroleum and petroleum by products; (iii)
asbestos; (iv) polychlorinated biphenyls; and (v) radioactive materials. The
provisions of this paragraph shall survive the termination of this Lease. If
it is determined by Lessor that Lessee, its use of the Premises, Building
and/or Park, or the condition of the Premises, Building and/or Park is not in
compliance with all Environmental Laws at the expiration or termination of this
Lease, then at Lessor's sole option, Lessor may require Lessee to hold over
possession of the Premises until Lessee can surrender the Premises to Lessor in
compliance with all Environmental Laws. Any such holdover by Lessee will be
with Lessor's consent, and will not be terminable by Lessee in any event or
circumstance, and will otherwise be subject to the provisions of Paragraph 22
of this Lease.
30. FINANCIAL STATEMENTS: Lessee, for the reliance of Lessor, any lender
holding or anticipated to acquire a lien upon the Premises, the Building or the
Park or any portion thereof, or any prospective purchaser of the Building or
the Park or any portion thereof, within ten (10) days after Lessor's request
therefor, but not more often than once annually so long as Lessee is not in
default of this Lease, shall deliver to Lessor the then current audited
financial statements of Lessee (including interim periods following the end of
the last fiscal year for which annual statements are available) which
statements shall be prepared or compiled by a certified public accountant and
shall present fairly the financial condition of Lessee at such dates and the
result of its operations and changes in its financial positions for the
periods ended on such dates. If an audited financial statement has not been
prepared, Lessee shall provide Lessor with an unaudited financial statement
and/or such other information, the type and form of which are acceptable to
Lessor in Lessor's reasonable discretion, which reflects the financial
condition of Lessee. If Lessor so requests, Lessee shall deliver to Lessor an
opinion of a certified public accountant, including a balance sheet and profit
and loss statement for the most recent prior year, all prepared in accordance
with generally accepted accounting principles consistently applied. Any and
all options granted to Lessee hereunder shall be subject to and conditioned
upon Lessor's reasonable approval of Lessee's financial condition at the time
of Lessee's exercise of any such option.
31. GENERAL PROVISIONS:
(i) TIME. Time is of the essence in this Lease and with
respect to each and all of its provisions in which performance is a
factor.
(ii) SUCCESSORS AND ASSIGNS. The covenants and conditions
herein contained, subject to the provisions as to assignment,apply to
and bind the heirs, successors, executors, administrators and assigns
of the parties hereto.
(iii) RECORDATION. Lessee shall not record this Lease or a
short form memorandum hereof without the prior written consent of the
Lessor.
(iv) LESSOR'S PERSONAL LIABILITY. The liability of Lessor
(which, for purposes of this Lease, shall include Lessor and the
owner of the Building if other than Lessor) to Lessee for any default
by Lessor under the terms of this Lease shall be limited to the actual
interest of Lessor and its present or future partners in the Premises
or the Building and Lessee agrees to look solely to the Premises for
satisfaction of any liability and shall not look to other assets of
Lessor nor seek any recourse against the assets of the individual
partners, directors, officers, shareholders, agents or employees of
Lessor; it being intended that Lessor and the individual partners,
directors, officers, shareholders, agents or employees of Lessor shall
not be personally liable in any manner whatsoever for any judgment or
deficiency. The liability of Lessor under this Lease is limited to
its actual period of ownership of
13
14
title to the Building, and Lessor shall be automatically released from
further performance under this Lease and from all further liabilities
and expenses hereunder upon transfer of Lessor's interest in the
Premises or the Building. Lessee agrees to attorn to any entity
purchasing or otherwise acquiring the Premises.
(v) SEPARABILITY. Any provisions of this Lease which
shall prove to be invalid, void or illegal shall in no way affect,
impair or invalidate any other provisions hereof and such other
provision shall remain in full force and effect.
(vi) CHOICE OF LAW. This Lease shall be governed by the
laws of the State of California.
(vii) ATTORNEYS' FEES. In the event any legal action is
brought to enforce or interpret the provisions of this Lease, the
prevailing party therein shall be entitled to recover all costs and
expenses including reasonable attorneys' fees.
(viii) ENTIRE AGREEMENT. This Lease supersedes any prior
agreements, representations, negotiations or correspondence between
the parties, and contains the entire agreement of the parties on
matters covered. No other agreement, statement or promise made by
any party that is not in writing and signed by all parties to this
Lease shall be binding.
(ix) WARRANTY OF AUTHORITY. Each person executing this
agreement on behalf of a party represents and warrants that (1) such
person is duly and validly authorized to do so on behalf of the
entity it purports to so bind, and (2) if such party is a
partnership, corporation or trustee, that such partnership,
corporation or trustee has full right and authority to enter into
this Lease and perform all of its obligations hereunder.
(x) NOTICES. All notices and demands required or
permitted to be sent to Lessor or Lessee shall be in writing and
shall be sent by United States mail, certified and postage prepaid,
or by personal delivery or by overnight courier, addressed to Lessor
at 00 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, or to
Lessee at the Premises, or to such other place as such party may
designate in a notice to the other party given as provided herein.
Notice shall be deemed given upon the earlier of actual receipt or
the third day following deposit in the United States mail.
(xi) JOINT AND SEVERAL. If Lessee consists of more
than one person or entity, the obligations of all such persons or
entities shall be joint and several.
(xii) COVENANTS AND CONDITIONS. Each provision to be
performed by Lessee hereunder shall be deemed to be both a covenant
and a condition.
(xiii) WAIVER OF JURY TRIAL. The parties hereto shall and
they hereby do waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way related
to this Lease, the relationship of Lessor and Lessee, Lessee's use or
occupancy of the Premises, the Building or the Park, and/or any claim
of injury, loss or damage.
(xiv) COUNTERCLAIMS. In the event Lessor commences any
proceedings for nonpayment of Rent, or any other sums or amounts due
hereunder, Lessee shall not interpose any counterclaim of whatever
nature or description in any such proceedings, provided, however,
nothing contained herein shall be deemed or construed as a waiver of
the Lessee's right to assert such claims in any separate action
brought by Lessee or the right to offset the amount of any final
judgment owed by Lessor to Lessee.
32. SIGNS: All signs and graphics of every kind visible in or from
public view or corridors or the exterior of the Premises shall be subject
to Lessor's prior written approval and shall be subject to any applicable
governmental laws, ordinances, and regulations and in compliance with
Lessor's Sign Criteria as set forth in Exhibit E hereto and made a part
hereof. Lessee shall remove all such signs and graphics prior to the
termination of this Lease. Such installations and removals shall be made in a
manner as to avoid damage or defacement of the Premises; and Lessee shall
repair any damage or defacement, including without limitation, discoloration
caused by such installation or removal. Lessor shall have the right, at its
option, to deduct from the Security Deposit such sums as are reasonably
necessary to remove such signs, including, but not limited to, the costs and
expenses associated with any repairs necessitated by such removal.
Notwithstanding the foregoing, in no event shall any: (a) neon, flashing or
moving sign(s) or (b) sign(s) which shall interfere with the visibility of
any sign, awning, canopy, advertising matter, or decoration of any kind of
any other business or occupant of the Building or the Park be permitted
hereunder. Lessee further agrees to maintain any such sign, awning, canopy,
advertising matter, lettering, decoration or other thing as may be approved
in good condition and repair at all times.
33. MORTGAGEE PROTECTION: Upon any breach or default on the part of
Lessor, Lessee will give written notice by registered or certified mail to
any beneficiary of a deed of trust or mortgagee of a mortgage covering the
Premises who has provided Lessee with notice of their interest together
with an address for receiving notice, and shall offer such beneficiary or
mortgagee a reasonable opportunity to cure the default (which, in no event
shall be less than ninety (90) days), including time to obtain possession of
the Premises by power of sale or a judicial foreclosure, if such should prove
necessary to effect a cure. If such breach or default cannot be cured within
such time period, then such additional time as may be necessary will be given
to such beneficiary or mortgagee to effect such cure so long as such
beneficiary or mortgagee has commenced the cure within the original time period
and
14
15
thereafter diligently pursues such cure to completion, in which event this
Lease shall not be terminated while such cure is being diligently pursued.
Lessee agrees that each lender to whom this Lease has been assigned by Lessor
is an express third party beneficiary hereof. Lessee shall not make any
prepayment of Rent more than one (1) month in advance without the prior
written consent of each such lender, except if Lessee is required to make
quarterly payments of Rent in advance pursuant to the provisions of
Paragraph 8 above. Lessee waives the collection of any deposit from such
lender(s) or any purchaser at a foreclosure sale of such lender(s)' deed of
trust unless the lender(s) or such purchaser shall have actually received and
not refunded the deposit. Lessee agrees to make all payments under this
Lease to the lender with the most senior encumbrance upon receiving a
direction, in writing, to pay said amounts to such lender. Lessee shall
comply with such written direction to pay without determining whether an event
of default exists under such lender's loan to Lessor.
34. QUITCLAIM: Upon any termination of this Lease, Lessee shall, at
Lessor's request, execute, have acknowledged and deliver to Lessor a
quitclaim deed of Lessee's interest in and to the Premises.
35. MODIFICATIONS FOR LENDER: If, in connection with obtaining financing
for the Premises or any portion thereof, Lessor's lender shall request
reasonable modification(s) to this Lease as a condition to such financing,
Lessee shall not unreasonably withhold, delay or defer its consent thereto,
provided such modifications do not materially adversely affect Lessee's
rights hereunder or the use, occupancy or quiet enjoyment of Lessee
hereunder.
36. WARRANTIES OF LESSEE: Lessee hereby warrants and represents to
Lessor, for the express benefit of Lessor, that Lessee has undertaken a
complete and independent evaluation of the risks inherent in the execution
of this Lease and the operation of the Premises for the use permitted
hereby, and that, based upon said independent evaluation, Lessee has elected
to enter into this Lease and hereby assumes all risks with respect thereto.
Lessee hereby further warrants and represents to Lessor, for the express
benefit of Lessor, that in entering into this Lease, Lessee has not relied
upon any statement, fact, promise or representation (whether express or
implied, written or oral) not specifically set forth herein in writing and
that any statement, fact, promise or representation (whether express or
implied, written or oral) made at any time to Lessee, which is not expressly
incorporated herein in writing, is hereby waived by Lessee.
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT: Lessor and Lessee
hereby agree and acknowledge that the Premises, the Building and/or the Park
may be subject to the requirements of the Americans with Disabilities Act (the
"ADA"), a federal law codified at 42 U.S.C. 12101 et seq, including, but
not limited to Title III thereof, all regulations and guidelines related
thereto, and any amendments thereof. Any Tenant Improvements to be
constructed hereunder shall be in compliance with the requirements of the
ADA, and all costs incurred for purposes of compliance therewith shall be a
part of and included in the costs of the Tenant Improvements. Lessee is
responsible for conducting its own independent investigation of this matter.
Except for the construction of any Tenant Improvements, for which Lessee shall
be solely responsible for compliance with the ADA, if any barrier removal work
or other work is required to the Building, the Common Area or the Park under
Title III of the ADA, then such work shall be performed by Lessor; provided,
if such work is required under the ADA as a result of Lessee's use of the
Premises or any work or alteration made to the Premises by or on behalf of
Lessee, then such work shall be performed by Lessor at the sole cost and
expense of Lessee. Except as otherwise provided in this provision, Lessee
shall be responsible at its sole cost and expense for fully and faithfully
complying with all applicable requirements of the ADA.
38. BROKERAGE COMMISSION: Lessee hereby represents and warrants to
Lessor that Lessee's sole contact with Lessor or with the Premises in
connection with this Lease has been directly with Lessor and the Broker (as
set forth on Page 1), 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 Lessee. Lessee shall indemnify, defend by counsel acceptable to
Lessor, protect and hold Lessor harmless from and against any loss,
liability, suit, judgment, cost or expense, including, but not limited to,
experts' and attorneys' fees and costs, arising from or relating to any claim
for a fee or commission by any broker or finder in connection with the
Premises and this Lease other than Broker, if any.
15
16
IN WITNESS WHEREOF, this Lease is executed on the date and year first
written above.
LESSOR: RIVERSIDE BUSINESS CENTER, a California Limited Partnership
By: LINCOLN PROPERTY COMPANY NO. 1239, Limited Partnership,
the General Partner
By: /s/ XXXX X. XXXXXX 2/16/96
-------------------------------------------------------
Xxxx X. Xxxxxx Date
a Managing General Partner
LESSEE: MUL ACRES, INC.,
A California Corporation
By: /s/ XXXXXXX XXXXXXX 2/12-96
-------------------------------------------------------
Xxxxxxx Xxxxxxx, Date
President
16
17
EXHIBIT "A"
SITE PLAN
MASTER SITE PLAN
18
EXHIBIT B - TENANT IMPROVEMENTS
1. TENANT IMPROVEMENTS:
--------------------
Lessor, at his sole cost and expense, herein agrees to complete the
following tenant improvements to the leased premises:
1. Spot paint exterior of building; scope of work to be mutually
agreed upon between Lessor and Lessee.
2. Repaint all existing office areas in Lincoln Riverside
Business Center standard colors.
3. Clean all existing office carpet areas.
4. Repair and/or replace damaged ceiling tiles throughout existing
office areas.
5. Complete enclosure of existing roll-up door along northeast
corner of building.
Lessee, at his sole cost and expense, herein reserves the right to
contract for the installation of a warehouse/shop restroom. Said
restroom shall include the following facilities: one (1) sink, one (1)
toilet, two (2) urinals.
Upon receipt of proof of payment in full for said restroom
installation by a contractor licensed and insured within the State of
California, Lessor agrees to reimburse Lessee the sum of $5,000.00.
LESSOR: RIVERSIDE BUSINESS CENTER, a California Limited Partnership
By: LINCOLN PROPERTY COMPANY NO. 1239, Limited Partnership,
the General Partner
By: /s/ Xxxx X. Xxxxxx 2/16/96
----------------------------------------------
Xxxx X. Xxxxxx, Date
a Managing General Partner
LESSEE: MUL ACRES, INC.,
A California Corporation
By: /s/ Xxxxxxx X. Xxxxxxx 2/12/96
----------------------------------------------
Xxxxxxx X. Xxxxxxx Date
19
EXHIBIT C
RULES AND REGULATIONS
1. Lessee shall not suffer or permit the obstruction of any Common Areas,
including driveways, walkways and stairways.
2. Lessor reserves the right to refuse access to any persons Lessor in good
faith judges to be a threat to the safety, reputation, or property of
the Project and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or
interfere with other lessees or persons having business within the
Project.
4. Lessee shall not keep animals or birds within the Project, and shall not
bring bicycles, motorcycles or other vehicles into areas not designated
as authorized for the same.
5. Lessee shall not make, suffer or permit litter except in appropriate
receptacles for that purpose.
6. Lessee shall not alter any lock or install new or additional locks or
bolts, without Lessor's written prior consent.
7. Lessee shall be responsible for the inappropriate use of any toilet
rooms, plumbing or other utilities. No foreign substances of any kind
are to be inserted therein.
8. Lessee shall not deface the walls, partitions or other surfaces of the
premises of the Project.
9. Lessee shall not suffer or permit any thing in or around the Premises or
Building that causes excessive vibration or floor loading in any part of
the Project.
10. Lessee shall return all keys at the termination of its tenancy and shall
be responsible for the cost of replacing any keys that are lost.
11. No window coverings, shades or awnings shall be installed or used by
Lessee, without Lessor's written prior consent.
12. No Lessee, employee or Invitee shall go upon the roof of the Building
without Lessor's written prior consent.
13. Lessee shall not suffer or permit smoking or carrying of lighted
cigars or cigarettes in areas reasonably designated by Lessor or by
applicable governmental agencies as non-smoking areas.
14. Lessee shall not use any method of heating or air conditioning other
than as provided by Lessor.
15. Lessee shall not install, maintain or operate any vending machines
upon the Premises without Lessor's written consent.
16. The Premises shall not be used for lodging, cooking or food
preparation.
17. Lessee shall comply with all safety, fire protection and evacuation
regulations established by Lessor or any applicable governmental agency.
18. Lessor reserves the right to waive any one of these rules or
regulations, and/or as to any particular Lessee, and any such waiver
shall not constitute a waiver of any other rule or regulation or any
subsequent application thereof to such Lessee.
19. Lessee assumes all risks from theft or vandalism and agrees to keep its
Premises locked as may be required.
20. Lessor reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the
appropriate operation and safety of the Project and its occupants.
Lessee agrees to abide by these and such rules and regulations.
PARKING RULES
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. Users of the parking area will obey all posted signs and park only in
the areas designated for vehicle parking.
3. Unless otherwise instructed, every person using the parking area is
required to park and lock his own vehicle. Lessor will not be
responsible for any damage to vehicles, injury to persons or loss of
property, all of which risks are assumed by the party using the
parking area.
4. The maintenance, washing, waxing or cleaning of vehicles in the Common
Area is prohibited.
5. Lessee shall be responsible for seeing that all of its employees, agents
and invitees comply with the applicable parking rules, regulations, laws
and agreements.
6. Lessor reserves the right to modify these rules and/or adopt such
other reasonable and non-discriminatory rules and regulations as it may
deem necessary for the proper operation of the parking area.
LESSOR'S INITIALS: [SIG]
-----------
LESSEE'S INITIALS: [SIG]
-----------
20
EXHIBIT D
COVENANT AND AGREEMENT AND
DECLARATION OF RESTRICTIONS
This Covenant and Agreement and Declaration of Restriction is made and
entered into this l7th day of October, 1986, by LINCOLN RIVERSIDE BUSINESS
CENTER, a California Limited Partnership, the owner of record of the following
described real property situated in the City of Riverside, County of Riverside,
State of California:
Parcels 1, 2 and 3 of Parcel Map 21191 as shown by map on file in Book
134 of Parcel Maps at Pages 33 through 34 thereof, Records of
Riverside County, California,
which property is referred to herein as Parcels 1, 2 or 3 or collectively as
the property.
WHEREAS the undersigned desires to divide the property into three
parcels, as described above, pursuant to tentative Parcel Map 21191; and
WHEREAS the undersigned desires to establish a common driveway to
serve Parcels 1, 2 and 3; and
WHEREAS the undersigned desires to restrict the property with the
nonexclusive, reciprocal easements and the obligations contained herein;
NOW, THEREFORE, the undersigned hereby covenants and agrees with the
City of Riverside as follows:
1. A nonexclusive, reciprocal easement for ingress and egress is
hereby established over and across the northeasterly 15 feet
and the southeasterly 13 1/2 feet of Parcel 1 for the use and
benefit of Parcels 2 and 3.
2. A nonexclusive, reciprocal easement for ingress and egress is
hereby established over and across the southwesterly 15 feet
and the southeasterly 13 1/2 feet of Parcel 2 for the use and
benefit of Parcels 1 and 3.
3. A nonexclusive, reciprocal easement for ingress and egress is
hereby established over and across the northwesterly 13 1/2
feet of Parcel 3 for the use and benefit of Parcels 1 and 2.
4. The easement areas described above are planned to be developed
as a common driveway and shall be kept in a free and open
condition at all times to permit unimpeded access to parcels
1, 2 and 3 and Magnolia Avenue, Xxxxxx Street and Merced
Drive. No structure shall be placed or constructed in the
easement areas. No parking of vehicles shall be permitted in
the easement areas. Each easement area shall be maintained in
accordance with the standards of the City of Riverside for
private driveways and in a good, usable and safe condition at
all times by the fee owner of such easement area.
5. In the event any of the property is sold or leased or the
ownership is otherwise changed, as the parcels are conveyed,
the grantor shall grant and/or reserve, as appropriate, the
above-described nonexclusive, reciprocal easements for ingress
and egress. This easement shall include all rights deemed
reasonable and necessary for the construction, maintenance and
use of common driveway facilities.
6. The terms of this Covenant and Agreement and Declaration of
Restrictions may be enforced by the City of Riverside, its
successors or assigns, or by any owner or tenant of any of the
property. Should the City or any owner or tenant bring an
action to enforce any of the terms of this Covenant and
Agreement and Declaration of Restrictions, the prevailing
party shall be entitled to reasonable attorneys' fees, expert
witnesses' fees and reasonable costs of unit.
7. This Covenant and Agreement and Declaration of Restrictions
shall run with the land and shall be binding upon the
undersigned, its successors and assigns and shall continue in
effect until such time as it is released by the City Council
of the City of Riverside.
21
EXHIBIT E
RIVERSIDE BUSINESS CENTER
SIGN CRITERIA
MULTI-TENANT AND INDUSTRIAL SUITES
All Tenants are required to install signage at the Tenant's expense and in
accordance with the sign criteria.
All signs shall be approved by the Landlord and properly permitted by local
governing authorities prior to installation.
I. TYPE
A. Multi-Tenant Buildings 1-10, 12 and 13 - Tenants leasing less
than 3,000 square feet may have a fiberglass mounted wall sign
with a maximum 1-1/2" thick x 16" high x 5' long sign
dimensions, Tenants leasing 3,000 square feet or greater may
have the aforementioned sign or individually cut foam letters
which are 2" thick and 24" high, with a maximum sign width
which is equal to no more than 75% of lineal leased frontage.
B. Industrial Buildings 14-19 - Maximum width shall be equal to
no more than 75% of lineal leased frontage, 24" maximum
channel-lite letters.
II. DESIGN
A. Channel Letters: 8" (maximum) thick internally illuminated
channel letters, with 60 mi. amp. neon tubing, shall be
composed of red faces (211-1 Acrylite Red, same as 2283 Red).
B. Foam Letters: 2" thick non-illuminated foam letters composed
of "Profound Blue" #260 (Ameritone) faces and "Badger Gray"
#298 returns for Buildings 1-10, 12 and 13 and 14-19 with over
3,000 square feet of Tenant lease space.
C. Wall Mounted Fiberglass Plaques: Non-illuminated wall mounted
fiberglass identifications sign shall be composed of "Profound
Blue" #260 background and white copy #AGB-225D for Buildings
1-10, 12 and 13 less than 3,000 square feet of Tenant lease
space.
Tenants with two (2) frontage on a public street, parking lot or mall shall be
allowed two (2) wall signs.
III. GENERAL SPECIFICATIONS
A. No animated, flashing or audible signs will be permitted.
B. No exposed lamps or tubing will be permitted.
C. No exposed crossovers, raceways or conduit will be permitted.
D. Painted lettering will not be permitted.
E. Each Tenant shall be permitted to place upon each entrance of
its demised premises not more than 144 square inches of vinyl,
white lettering not to exceed two (2) inches in height,
indicating hours of business, emergency telephone numbers,
approved credit cards, etc.
F. Special event or sales advertising may be placed in or on the
interior windows for a maximum of 30 days, otherwise, no
advertising place cards, flags, balloons, banners, etc., shall
be affixed or maintained upon either the interior or exterior
of the glass panes and supports of the show windows and doors,
or upon the exterior wall of the buildings.
G. Each Tenant who has a non-customer door for receiving
merchandise may have uniformly applied on said door in
location, as directed by Landlord, in 2" high block letters,
the Tenant's name and address. Color letter shall be
"Profound Blue" #260.
H. At the termination of Tenant's Lease, Tenant shall be required
to remove his signs and patch the area to match the
surrounding area.
1
22
EXHIBIT F
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Lessor (identified below) to evaluate and finalize a lease agreement
with you as lessee. After a lease agreement is signed by you and the Lessor
(the "Lease Agreement"), on an annual basis in accordance with the provisions
of Paragraph 29 of the signed Lease Agreement, you are to provide an update to
the information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Lessor subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchaser(s) of all or any portion of the property on which the
Premises are located, (iii) Lessor to defend itself or its lenders, partners or
representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders; decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which
are not otherwise defined herein, shall have the same meaning ascribed to such
term in the signed Lease Agreement. Any questions regarding this certificate
should be directed to, and when completed, the certificate should be delivered
to:
Lessor: LINCOLN XXXXXXXXX XXXXXXXX XXXXXX
X.X. Xxx 00000
30 Executive Park, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xx. Xxxx X. Xxxxxx
Phone: (000) 000-0000
Name of Lessee: MUL ACRES, INC.,
A California Corporation
Mailing Address: 00000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Contact Person, Title and Telephone Number(s): Xxxxxxx X. Xxxxxxx:
(000) 000-0000
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):
Same as above.
--------------
Address of Premises: Same.
Length of initial Term: 38 months.
--------------------------------------------------------------------------------
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or
about the Premises, including, without limitation, principal products
processed, manufactured or assembled services and activities to be
provided or otherwise conducted. Existing lessees should describe any
proposed changes to on-going operations.
-----------------------------------------------------------------------
-----------------------------------------------------------------------
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated, stored or
disposed of in, on or about the Premises? Existing lessees
should describe any Hazardous Materials which continue to be
used, generated, stored or disposed of in, on or about the
Premises.
Wastes Yes [ ] No [ ]
Chemical Products Yes [ ] No [ ]
Other Yes [ ] No [ ]
If Yes is marked, please explain:
----------------------------
---------------------------------------------------------------
2.2 If Yes is marked in Section 2.1, attach a list of any
Hazardous Materials to be used, generated, stored or disposed
of in, on or about the Premises, including the applicable
hazard class and an estimate of the quantities of such
Hazardous Materials at any given time; estimated annual
throughput; the proposed
23
location(s) and method of storage (excluding nominal amounts of
ordinary household cleaners and janitorial supplies which are not
regulated by any Environmental Laws); and the proposed location(s) and
method of disposal for each Hazardous Material, including, the
estimated frequency, and the proposed contractors or subcontractors.
Existing lessees should attach a list setting forth the information
requested above and such list should include actual data from on-going
operations and the identification of any variations in such
information from the prior year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps
proposed in, on or about the Premises? Existing lessees
should describe any such actual or proposed activities.
Yes [ ] No [ ]
If Yes, please explain:
---------------------------------------------------------------
---------------------------------------------------------------
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number? Existing lessees should describe any additional
identification numbers issued since the previous certificate.
Yes [ ] No [ ]
4.2 Has your company filed a biennial or quarterly reports as a
hazardous waste generator? Existing lessees should describe
any new reports filed.
Yes [ ] No [ ]
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
______ storm drain? ______ sewer?
______ surface water? ______ no wastewater or other
wastes discharged.
Existing lessees should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
---------------------------------------------------------------
---------------------------------------------------------------
5.2 Will any such wastewater or waste be treated before discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to be
conducted. Existing lessees should describe the actual
treatment conducted.
---------------------------------------------------------------
---------------------------------------------------------------
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be
used in your company's operations in, on or about the Premises
that will discharge into the air; and will such air emissions
be monitored? Existing lessees should indicate whether or not
there are any such air filtration systems or stacks in use in,
on or about the Premises which discharge into the air and
whether such air emissions are being monitored.
Yes [ ] No [ ]
If yes, please describe:
---------------------------------------------------------------
---------------------------------------------------------------
24
6.2 Do you propose to operate any of the following types of
equipment, or any other equipment requiring an air emissions
permit? Existing lessees should specify any such equipment
being operated in, on or about the Premises.
______ Spray booth(s) ______ Incinerator(s)
______ Dip tank(s) ______ Other (Please describe)
______ Drying oven(s) ______ No Equipment Requiring
Air Permits
If yes, please describe:
---------------------------------------------------------------
---------------------------------------------------------------
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("Management Plan")
pursuant to Fire Department or other governmental or
regulatory agencies' requirements? Existing lessees should
indicate whether or not a Management Plan is required and has
been prepared.
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing
lessees should attach a copy of any required updates to the
Management Plan.
7.2 Are any of the Hazardous Materials, and in particular
chemicals, proposed to be used in your operations in, on or
about the Premises regulated under Proposition 65? Existing
lessees should indicate whether or not there are any new
Hazardous Materials being so used which are regulated under
Proposition 65.
Yes [ ] No [ ]
If yes, please explain:
---------------------------------------------------------------
---------------------------------------------------------------
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has
your company ever been subject to any agency enforcement
actions, administrative orders, or consent decrees or has your
company received requests for information, notice or demand
letters, or any other inquiries regarding its operations?
Existing lessees should indicate whether or not any such
actions, orders or decrees have been, or are in the process of
being, undertaken or if any such requests have been received.
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any
continuing compliance obligations imposed as a result of these
actions, orders or decrees and also describe any requests,
notices or demands, and attach a copy of all such documents.
Existing lessees should describe and attach a copy of any new
actions, orders, decrees, requests, notices or demands not
already delivered to Lessor pursuant to the provisions of
Paragraph 29 of the signed Lease Agreement.
---------------------------------------------------------------
---------------------------------------------------------------
8.2 Have there ever been, or are there now pending, any lawsuits
against your company regarding any environmental or health and
safety concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other
documents related thereto as requested by Lessor. Existing
lessees should describe and attach a copy of any new
complaint(s), cross-complaint(s), pleadings and other related
documents not already delivered to Lessor pursuant to the
provisions of Paragraph 29 of the signed Lease Agreement.
---------------------------------------------------------------
---------------------------------------------------------------
25
8.3 Have there been any problems or complaints from adjacent
tenants, owners or other neighbors at your company's current
facility with regard to environmental or health and safety
concerns? Existing lessees should indicate whether or not
there have been any such problems or complaints from adjacent
tenants, owners or other neighbors at, about or near the
Premises.
Yes [ ] No [ ]
If yes, please describe. Existing lessees should describe any
such problems or complaints not already disclosed to Lessor
under the provisions of the signed Lease Agreement.
---------------------------------------------------------------
---------------------------------------------------------------
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
issued to your company with respect to its proposed
operations in, on or about the Premises, including, without
limitation, any wastewater discharge permits, air emissions
permits, and use permits or approvals. Existing lessees
should attach copies of any new permits and licenses as well
as any renewals of permits or licenses previously issued.
The undersigned hereby acknowledges and agrees that this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Lessor in connection with the evaluation and finalization of a Lease
Agreement and will be attached thereto as an exhibit. The undersigned further
acknowledges and agrees that this Hazardous Materials Disclosure Certificate is
being delivered in accordance with, and as required by, the provisions of
Paragraph 29 of the Lease Agreement. The undersigned further acknowledges and
agrees that the Lessor and its partners, lenders and representatives may, and
will, rely upon the statements, representations, warranties, and certifications
made herein and the truthfulness thereof in entering into the Lease Agreement
and the continuance thereof throughout the term, and any renewals thereof, of
the Lease Agreement. I (Xxxxxxx X. Xxxxx), acting with full authority to bind
the (proposed) Lessee and on behalf of the (proposed) Lessee, certify,
represent and warrant that the information contained in this certificate is
true and correct.
LESSEE:
MUL ACRES, INC.,
A California Corporation
By: /s/ XXXXXXX X. XXXXXXX Date: 2-12-96
------------------------------------ ------------------
Xxxxxxx X. Xxxxxxx, President
26
SAMPLE
EXHIBIT G
CHANGE OF COMMENCEMENT DATE
FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement (the "Amendment") is made as of _______
by and between __________________, ("Lessor") and ________________, ("Lessee")
with reference to that certain Lease Agreement (the "Lease"), dated____________,
by and between Lessor and Lessee for the leasing of certain premises (the
"Premises") located at ____________________________________________________.
A. Lessor and Lessee hereby agree that the Lease shall be amended as
follows:
1. The Commencement Date shall be ______________________________.
2. The last date of the term of the Lease shall be _____________.
3. The rent start date shall be ________________________________.
4. The dates on which the Base Rent will be adjusted are:
X. Xxxxxx and Lessee hereby further agree that the Lease is in full
force and effect, and that the terms and provisions of the Lease shall remain
unchanged except as modified in this Amendment.
LESSOR:
RIVERSIDE BUSINESS CENTER, a California Limited Partnership
By: LINCOLN PROPERTY COMPANY NO. 1239, Limited Partnership,
the General Partner
By: ______________________________________________
Xxxx X. Xxxxxx, Date
a Managing General Partner
Date: ________________________________
LESSEE:
27
EXHIBIT H
GUARANTY
IN CONSIDERATION of and as an inducement for the granting, execution and
delivery by LINCOLN RIVERSIDE BUSINESS CENTER, a California Limited
Partnership, as Lessor ("Lessor"), of the Lease Agreement (the "Lease") dated
February 12, 1996 with MUL ACRES, INC., a California Corporation, as Lessee
("Lessee"), relating to the leasing and use of those certain premises located
at 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, as more particularly
described in the Lease (the "Premises"), the undersigned, Xxxxxxx X. Xxxxxxx
("Guarantor"), hereby covenants and agrees as follows:
1. Guarantor unconditionally and irrevocably guarantees to Lessor the
full and prompt payment of Rent (as such term is defined in the Lease) and any
and all other sums and charges payable by Lessee under the Lease, and hereby
unconditionally and irrevocably guarantees the full, faithful and timely
performance and observance of all the covenants, terms, conditions and
agreements required to be performed and observed by Lessee under the Lease and
any amendment, modification or renewal thereof.
2. Guarantor hereby covenants and agrees to and with Lessor that if a
default shall at any time be made by Lessee in the payment of any such Rent or
other such sums and charges payable by Lessee under the Lease, or if Lessee
should default in the performance and observance of any of the terms,
covenants, provisions or conditions contained in the Lease or, should Rent or
other sums and charges not be paid or terms, covenants, provisions and
conditions not be performed in the event of a Financial Proceeding (as defined
in Xxxxxxxxx 00 xxxxx), Xxxxxxxxx shall and forthwith pay such Rent and other
such sums and charges and any arrears thereof (including, without limitation,
damages, interest, costs, fees, attorneys' fees and expenses) (collectively,
the "Lease Amounts"), and shall and will forthwith pay all Lease Amounts that
(a) may arise in connection with or otherwise relate to any default by Lessee
under the Lease and/or any enforcement of this Guaranty, or (b) would have
accrued under the Lease but for the commencement of a Financial Proceeding.
3. Guarantor's obligations under this Guaranty shall be binding on
Guarantor's successors and assigns. All references in this Guaranty (a) to
Lessor and Lessee shall include their successors, assigns or subtenants, as
the case may be, (b) to Lessee, shall also include any entity created by or
pursuant to any Financial Proceeding; and (c) to Lessee, shall include any
successors in interest to Lessee (whether or not directly succeeding Lessee),
by reason of an Event of Reorganization (as defined in Paragraph 10 below).
4. The provisions of the Lease may be changed by agreement between
Lessor and Lessee without the consent of or notice to Guarantor. The
provisions of the Lease may be changed by agreement between Lessor and any
permitted assignee of Lessee or any subsequent assignee without the consent of
or notice to Guarantor. The Lease may be assigned by Lessor or Lessee, and the
Premises, or a portion thereof, may be sublet by Lessee, all in accordance with
the provisions of the Lease, without the consent of or notice to Guarantor.
This Guaranty shall guarantee the performance of the Lease so assigned.
Without limiting the generality of the foregoing, Guarantor waives the rights
and benefits of California Civil Code Sections 2819 and 2820 with respect to
any change to the Lease between Lessor and Lessee, and with respect to any
change to the Lease between Lessor and any permitted assignee of Lessee or any
subsequent assignees, and agrees that by doing so Guarantor's liability shall
continue even if (a) Lessor and Lessee alter any Lease obligations, or Lessor
and any permitted assignee of Lessee or any subsequent assignees alter the
Lease obligation, or (b) Guarantor's remedies or rights against Lessee are
impaired or suspended without Guarantor's consent by such alteration of Lease
obligations.
5. This Guaranty shall not be modified or affected by Lessor's failure or
delay from time to time to enforce any of its rights under either the Lease or
this Guaranty.
1
28
6. If Lessee breaches or otherwise is in default under the Lease, Lessor
may proceed against either Guarantor or Lessee, or both, or Lessor may enforce
against Guarantor or Lessee any rights that Lessor has under the Lease, in
equity or under applicable law. If the Lease terminates and Lessor has any
rights against Lessee after termination, Lessor may enforce those rights
against Guarantor, without giving previous notice to Lessee or Guarantor.
Guarantor hereby agrees that no notice of default need be given to Guarantor,
it being specifically agreed and understood that this Guaranty of the
undersigned is a continuing guarantee under which Lessor may proceed forth with
and immediately against Lessee or against Guarantor following any breach or
default by Lessee.
7. Guarantor hereby waives all benefits and defenses under California
Civil Code Sections 2845, 2848, 2849 and 2850, including without limitation:
(a) (the right to require Lessor to proceed against Lessee, proceed against or
exhaust any security that Lessor holds from Lessee, or pursue any other remedy
in Lessor's power; (b) any defense to its obligations hereunder based on the
termination of Lessee's liability; (c) all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices
of dishonor, and notices of acceptance of this Guaranty; and (d) all notices of
the existence, creation, or incurring of new or additional obligations. Lessor
shall have the right to enforce this Guaranty regardless of the acceptance of
additional security from Lessee and regardless of the release or discharge of
Lessee by Lessor or by others, or by operation of any law.
8. The obligations of Lessee under the Lease to execute and deliver
estoppel certificates and applicable financial statements, if any, shall be
interpreted to also require such documents from Guarantor with respect to this
Guaranty within the same time periods prescribed in the Lease, except that such
certificates and statements shall be with regard to the Guaranty, not the
Lease.
9. Guarantor's liability hereunder shall continue until all sums due and
owing Lessor under the Lease have been paid and all obligations of Lessee to be
performed under the Lease have been performed, all to the satisfaction of
Lessor.
10. The obligations of Guarantor under this Guaranty shall remain in full
force and effect and Guarantor shall not be discharged by any of the following
events with respect to Lessee or Guarantor: (a) insolvency, bankruptcy,
reorganization arrangement, adjustment, composition, assignment for the benefit
of creditors, liquidation, winding up or dissolution (each, a "Financial
Proceeding"); (b) any merger, acquisition, consolidation or change in entity
structure, or any sale, lease, transfer, or other disposition of any entity's
assets, or any sale or other transfer of interests in the entity (each, an
"Event of Reorganization"); or (c) any sale, exchange, assignment,
hypothecation or other transfer, in whole or in part, of Lessor's interest in
the Premises or the Lease. Nothing in this Paragraph 10 shall diminish the
effect of any subsequent written agreement between Guarantor and Lessor.
11. Guarantor hereby represents and warrants that it has executed this
Guaranty based solely on its independent investigation of Lessee's financial
condition. Guarantor hereby assumes responsibility for keeping informed of
Lessee's financial condition and all other circumstances affecting Lessee's
performance of its obligations under the Lease. Absent a written request for
such information by Guarantor, Lessor shall have no duty to advise Guarantor of
any information known to it regarding such financial condition or
circumstances.
12. Guarantor further agrees that it may be joined in any action against
Lessee in connection with the said obligations of Lessee and recovery may be
had against Guarantor in any such action. Guarantor hereby expressly waives
the benefits and defenses under California Civil Code Sections 2821, 2839,
2847, 2848, 2849 and 2855 to the fullest extent permitted by applicable law.
Guarantor agrees not to exercise any of its rights of subrogation or
reimbursement against Lessee until after all amounts due and owing under the
Lease have been paid. If the foregoing waiver is determined by a court of
competent jurisdiction to be void or voidable, Guarantor agrees to subordinate
its rights of subrogation and reimbursement against Lessee to Lessor's rights
against Lessee under the Lease.
13. Guarantor hereby represents and warrants that, as of the date of the
execution of this Guaranty by Guarantor, there is no action or proceeding
pending or, to Guarantor's knowledge after due inquiry, threatened against
Guarantor before any court or administrative agency which could adversely
affect the Guarantor's financial condition. The foregoing representation and
warranty shall survive the execution and delivery of this Guaranty and is
expressly made for the benefit of Lessor, and Lessor's partners, lenders,
representatives, successors and assigns.
2
29
14. This Guaranty shall be one of payment and performance and not of
collection. If there is more than one undersigned Guarantor, the term
Guarantor, as used herein, shall include and be binding upon each and every
one of the undersigned, and each of the undersigned shall be jointly and
severally liable hereunder. If there is more than one undersigned Guarantor,
Lessor shall have the right to join one or all of them in any proceeding or to
proceed against them in any order.
15. Guarantor shall indemnify, defend (with counsel acceptable to Lessor),
protect and hold harmless Lessor, and Lessor's partners, lenders,
representatives, successors and assigns from and against all liabilities,
losses, claims, demands, judgments, expenses and costs (including all
attorneys' fees and costs to enforce any of the terms of this Guaranty or
otherwise awarded hereunder) arising from or in any way related to any failure
by Lessee or Guarantor to pay Rent and any and all other sums and charges
payable by Lessee under the Lease, or to fully, faithfully and timely perform
and observe all the covenants, terms, conditions and agreements required to be
performed and observed by Lessee under the Lease.
16. The term "Lease" whenever used in this Guaranty shall be deemed, and
interpreted so as, to also include any renewals or extensions of the initial
or renewal term(s), as the case may be, and any holdover periods thereunder.
17. All demands, notices and other communications under or pursuant to
this Guaranty shall be in writing, and shall be deemed to have been duly given
when personally delivered, or three (3) days after the date deposited in the
United States Postal Service, first-class postage prepaid, certified with
return receipt requested, or the delivery date designated for overnight courier
services (e.g. Federal Express), addressed to the party at the address set
forth below, or at such other address as may be hereafter designated in writing
by either party to the other.
LESSOR:
LINCOLN RIVERSIDE BUSINESS CENTER, a California Limited Partnership
c/o Lincoln Property Company, N.C., Inc.
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx
GUARANTOR:
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
18. Guarantor hereby represents and warrants that he is duly authorized
to execute and deliver this Guaranty; that this Guaranty is binding on
Guarantor in accordance with its terms; that the terms and provisions of this
Guaranty are intended to be valid and enforceable in accordance with its terms;
and that the signatory to this Guaranty is duly authorized to bind Guarantor
and execute this Guaranty on Guarantor's behalf.
19. Lessor may assign this Guaranty in conjunction with the assignment of
all or any portion of Lessor's interest in the Lease, without the necessity of
obtaining Guarantor's consent thereto, and any such assignment shall not
affect, or otherwise relieve, Guarantor from its obligations or liability
hereunder. Guarantor may not assign or otherwise delegate any of its rights or
obligations hereunder without first obtaining Lessor's written consent thereto,
which consent may be withheld in Lessor's sole discretion. The terms and
provisions of this Guaranty shall inure to the benefit of Lessor and Lessor's
partners, lenders, representatives, successors and assigns. Guarantor hereby
acknowledges that Lessor is relying upon Guarantor's covenants, representations
and warranties contained in this Guaranty in entering into the Lease with
Lessee, and Guarantor hereby undertakes to perform its obligations hereunder
promptly and in good faith.
20. If all or any portion of the obligations guaranteed hereunder are
paid or performed and all or any part of such payment or performance is
avoided or recovered, directly or indirectly, from Lessor as a preference,
fraudulent transfer or otherwise, then Guarantor's obligations hereunder shall
continue and remain in full force and effect as to any such avoided or
recovered payment or performance.
3
30
21. All representations and warranties by Guarantor contained herein or
made in writing pursuant to this Guaranty are intended to and shall remain true
and correct as of the time of execution of this Guaranty, shall be deemed to be
material, shall survive the execution and delivery of this Guaranty, and shall
be relied upon by Lessor and Lessor's partners, lenders, representatives,
successors and assigns.
22. This Guaranty shall be governed by and construed in accordance with
the laws of the State of California, irrespective of its conflict of law rules.
Guarantor hereby consents to the jurisdiction of the courts of the State of
California. This Guaranty shall be subject to all valid applicable laws and
official orders, rules and regulations, and, in the event this Guaranty or any
portion thereof is found to be inconsistent with or contrary to any such laws
or official orders, rules or regulations, the latter shall be deemed to
control, and this Guaranty shall be regarded as modified and shall continue in
full force and effect; provided, however, that nothing herein contained shall
be construed as a waiver of any right to question or contest any such law,
order, rule or regulation in any forum having jurisdiction in the Premises.
23. This Guaranty and any exhibits hereto constitute the entire agreement
between the parties with respect to the matters covered herein and supersedes
all prior agreements and understandings between the parties hereto relating to
the subject matter hereof.
24. In the event Guarantor fails to perform any of its obligations under
this Guaranty or in the event a dispute arises concerning the meaning or
interpretation of any provision of this Guaranty, the defaulting party or the
party not prevailing in such dispute, as the case may be, shall pay any and all
costs and expenses incurred by the other party in enforcing or establishing its
rights hereunder, including, without limitation, court costs, expert fees, and
reasonable attorneys' fees.
25. In the event of the death of Guarantor, all parties herein acknowledge
that this Guaranty shall become null and void.
26. Time is of the essence of this Guaranty.
This guaranty is valid for 12 months only.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be signed by
its duly authorized representative or officer as of the date set forth below.
GUARANTOR:
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
Date: 2-12-96
-------------------------
4
