SUBLEASE
THIS SUBLEASE (this "Sublease") is dated as of May 31, 2000, and is made by
and between AMERICAN MICROWAVE TECHNOLOGY, a California corporation
("Sublessor"), and SPECTRIAN CORPORATION, a California corporation
("Sublessee"). Sublessor and Sublessee hereby agree as follows:
1. Recitals: This Sublease is made with reference to the fact that Sunrise
Gold , as landlord ("Master Lessor"), and Sublessor, as tenant, entered into
that certain Standard Industrial Lease (the "Master Lease") dated as of February
20, 1998, with respect to premises consisting of approximately 3,600 square
feet, located at 00000 Xxxxxxx Xxxx Xxxxxx, Xxxxx X, Xxxxxx Xxxxxxx, Xxxxxxxxxx
(the "Premises"). A copy of the Master Lease is attached hereto as Exhibit A and
incorporated by reference herein.
2. Premises: Sublessor hereby subleases to Sublessee, and Sublessee hereby
subleases from Sublessor, all of the Premises on the terms set forth herein.
Sublessor represents that, as of the Commencement Date, to the best of
Sublessor's knowledge: (i) the Premises and the Building will comply with all
applicable laws, rules, regulations, codes, ordinances, underwriters'
requirements, covenants, conditions and restrictions ("Laws"), (ii) the Premises
will be in good and clean operating condition and repair, (iii) the electrical,
mechanical, HVAC, plumbing, sewer, elevator and other systems serving the
Premises and the Building will be in good operating condition and repair, and
(iv) the roof of the Building will be in good condition and water tight.
Sublessor shall, promptly after receipt of notice from Sublessee, remedy any
non-compliance with such representations at Sublessor's sole cost and expense,
or cause Master Lessor to remedy any such non-compliance. Sublessee's acceptance
of the Premises shall not be deemed a waiver of the above representations.
Sublessee shall not be required to comply with or cause the Premises to comply
with any Laws unless such compliance is necessitated solely due to Sublessee's
particular use of the Premises.
3. Term: The term (the "Term") of this Sublease shall commence on the later
of (i) May 22, 2000, or (ii) (unless waived by Sublessee in writing) the date by
which Sublessor has delivered possession of the Premises to Sublessee in the
condition required herein, or (iii) the date on which Master Lessor's written
consent to this Sublease has been obtained (the "Commencement Date"), and shall
expire on March 29, 2001, (the "Expiration Date") unless this Sublease is sooner
terminated pursuant to its terms or the Master Lease is sooner terminated
pursuant to its terms. If the Commencement Date has not occurred for any reason
on or before July 1, 2000, then in addition to Sublessee's other rights or
remedies, Sublessee may terminate this Sublease by written notice to Sublessor,
whereupon any monies previously paid by Sublessee to Sublessor shall be
reimbursed to Sublessee, or, at Sublessee's election, the date Sublessee is
otherwise obliged to commence payment of rent shall be delayed by one (1) day
after the Commencement Date for each day that the Commencement Date is delayed
beyond such date. Sublessor shall deliver possession of the Premises to
Sublessee on May 22, 2000 in good, vacant, broom clean condition, and otherwise
in the condition as of the date hereof.
4. Rent:
A. Base Rent. Sublessee shall pay to Sublessor as base rent for the
Premises for each month during the Term the amount of Two Thousand Two Hundred
Forty-Nine Dollars ($2,249) per month ("Base Rent"). Base Rent and any other
amounts due under this Sublease shall be paid directly to Sublessor at 0000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, Attention:______________________, or
such other address as may be designated in writing by Sublessor.
B. Additional Rent. Sublessee shall also pay to Sublessor the costs for
taxes, insurance premiums and expenses for the operation, management,
maintenance and repair of the Premises due under Section 4.2 of the Master
Lease, which shall not exceed One Hundred Seventy-Five Dollars ($175) per month.
Sublessee shall pay such amounts as and when the same are due and payable to
Master Lessor under the Master Lease. Sublessee shall be entitled to all
credits, if any, given by Master Lessor to Sublessor for Sublessor's overpayment
of such amounts. Notwithstanding the foregoing, Sublessee shall not be required
to pay any Additional Rent or perform any obligation that is (i) fairly
allocable to any period of time prior to the Commencement Date of the Sublease
or following the expiration or sooner termination of the Sublease or (ii)
payable as a result of a default by Sublessor of any of its obligations under
the Master Lease.
C. Rent Abatement. Sublessee shall be entitled to, and benefit from, any
rental abatement granted Sublessor under the Master Lease for whatever reason to
the extent that such abatement relates to the Sublease term.
D. Prepayment of Rent. Upon execution hereof by Sublessee, Sublessee
shall pay to Sublessor the sum of Two Thousand Two Hundred Forty-Nine Dollars
($2,249), which shall constitute Base Rent for the first (1st) month of the
Term.
5. Security Deposit: Prior to the Commencement Date, Sublessee shall
deposit with Sublessor the sum of Two Thousand Five Hundred Dollars ($2,500)
(the "Security Deposit"), in cash, as security for the performance by Sublessee
of the terms and conditions of this Sublease. The Security Deposit shall be held
by Sublessor in accordance with the provisions of Section 5 of the Master Lease.
6. Indemnity: Sublessee shall indemnify Sublessor as set forth in Section
8.7 of the Master Lease. Notwithstanding anything to the contrary herein,
Sublessor shall not be released or indemnified from, and shall indemnify,
defend, protect and hold harmless Sublessee from, all damages, liabilities,
losses, claims, attorneys' fees, costs and expenses arising from the negligence
or willful misconduct of Sublessor or its agents, contractors, licensees or
invitees or a breach of Sublessor's obligations or representations under this
Sublease or the Master Lease.
7. Incorporation By Reference. Except as set forth below, the terms and
conditions of this Sublease shall include all of the terms of the Master Lease
and such terms are incorporated into this Sublease as if fully set forth herein,
except that: (a) each reference in such incorporated sections to "Lease" shall
be deemed a reference to "Sublease"; (b) each reference to "Lessor" and "Lessee"
shall be deemed a reference to "Sublessor" and "Sublessee", respectively, except
as otherwise expressly set forth herein; (c) the following provisions shall not
be included: Sections 1, 3, 4.1, 10.1 (except for the first line and last
sentence only), 12.5, 56, 58, 59, 65, and 67; and (d) references in the
following provisions to "Lessor" shall mean "Master Lessor" only: Sections
2.2-2.6, 4.2(b), 4.2(d), 9, 10, 14, 16(c), 17, 40, 41, 52, 61, 68, Exhibit A and
C. In the event of a conflict between the provisions of this Sublease and the
Master Lease, as between Sublessor and Sublessee, the provisions of this
Sublease shall control.
8. Sublessor's Obligations: Sublessor shall fully perform all of its
obligations under the Master Lease to the extent Sublessee has not expressly
agreed to perform such obligations under this Sublease. Sublessor shall not
terminate the Master Lease or take any actions which could give rise to a
termination of the Master Lease, amend or waive any provisions under the Master
Lease or make any elections, exercise any right or remedy or give any consent or
approval under the Master Lease without, in each instance, Sublessee's prior
written consent. Sublessor, with respect to the obligations of Master Lessor
under the Master Lease, shall use Sublessor's diligent good faith efforts to
cause Master Lessor to perform such obligations for the benefit of Sublessee.
Such diligent good faith efforts shall include, without limitation: (a) upon
Sublessee's written request, immediately notifying Master Lessor of its
nonperformance under the Master Lease, and requesting that Master Lessor perform
its obligations under the Master Lease; and (b) permitting Sublessee to commence
a lawsuit or other action in Sublessor's name to obtain the performance required
from Master Lessor under the Master Lease; provided, however, that if Sublessee
commences a lawsuit or other action, Sublessee shall pay all costs and expenses
incurred in connection therewith, and Sublessee shall indemnify
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Sublessor against, and hold Sublessor harmless from, all reasonable costs and
expenses incurred by Sublessor in connection therewith.
9. Quiet Enjoyment: Sublessee shall peacefully have, hold and enjoy the
Premises, subject to the terms and conditions of this Sublease, provided that
there is not an event of default by Sublessee. In the event, however, that
Sublessor defaults in the performance or observance of any of Sublessor's
remaining obligations under the Master Lease or fails to perform Sublessor's
stated obligations under this Sublease, then Sublessee shall give Sublessor
notice specifying in what manner Sublessor has defaulted, and if such default
shall not be cured by Sublessor within thirty (30) days thereafter (except that
if such default cannot be cured within said thirty (30) day period, this period
shall be extended for an additional reasonable time, provided that Sublessor
commences to cure such default within such thirty (30) day period and proceeds
diligently thereafter to effect such cure as quickly as possible), then
Sublessee shall be entitled to cure such default and promptly collect from
Sublessor Sublessee's reasonable expenses in so doing (including, without
limitation, reasonable attorneys' fees and court costs), or, at Sublessee's
option, to offset such reasonable expenses against all future payments of rent
due under this Sublease. Sublessee shall not be required, however, to wait the
entire cure period described herein if earlier action is required to comply with
the Master Lease or with any applicable governmental law, regulation or order.
10. Termination of Master Lease: Without limiting any other right or remedy
of Sublessee under this Sublease, if Master Lessor seeks to terminate the Master
Lease because of an event of default by Sublessor under the Master Lease,
Sublessor shall use its reasonable good faith efforts to maintain the Master
Lease in full force and effect for the benefit of Sublessee, and Sublessor shall
take all action required to reinstate the Master Lease and/or to claim and
pursue any right of redemption or relief from forfeiture of the Master Lease
(and as a consequence thereof any forfeiture of this Sublease) to which
Sublessor may be entitled at law or in equity. To the extent that the Master
Lease gives Sublessor any right to terminate the Master Lease in the event of a
casualty or condemnation affecting the Premises, Sublessor shall not cancel or
terminate the Master Lease without the prior written consent of Sublessee, in
Sublessee's sole discretion. Sublessee shall have the right to terminate the
Sublease hereunder if Sublessor has the right to terminate the Master Lease
thereunder.
11. Sublessor's Representations and Warranties: As an inducement to
Sublessee to enter into this Sublease, Sublessor represents and warrants that
(a) the Master Lease is in full force and effect, and there exists under the
Master Lease no default or event of default by either Master Lessor or
Sublessor, nor has there occurred any event which, with the giving of notice or
passage of time or both, could constitute such a default or event of default and
(b) the copy of the Master Lease attached hereto as Exhibit A is a true, correct
and complete copy of the Master Lease.
12. Authorization to Direct Sublease Payments: Sublessee shall have the
right to pay all rent and other sums owing by Sublessee to Sublessor hereunder
for those items which also are owed by Sublessor to Master Lessor under the
Master Lease directly to Master Lessor, provided (a) Sublessee reasonably
believes that Sublessor has failed to make any payment required to be made by
Sublessor to Master Lessor under the Master Lease and Sublessor fails to provide
adequate proof of payment within two (2) business days after Sublessee's written
demand requesting such proof, or (b) Sublessee reasonably believes that
Sublessor shall fail to make any payment required to be made by Sublessor to
Master Lessor under the Master Lease and Sublessor fails to provide assurance of
future performance in form reasonably satisfactory to Sublessee within two (2)
business days after Sublessee's written demand requesting such assurance.
Sublessee shall provide to Sublessor concurrently with any payment to Master
Lessor reasonable evidence of such payment. Any sums paid directly by Sublessee
to Master Lessor in accordance with this paragraph shall be credited toward the
amounts payable by Sublessee to Sublessor under this Sublease. In the event
Sublessee tenders payment directly to Master Lessor in accordance with this
paragraph and Master Lessor refuses to accept such payment,
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Sublessee shall have the right to deposit such funds in an account with a
national bank for the benefit of Master Lessor and Sublessor, and the deposit of
said funds in such account shall discharge Sublessee's obligation under this
Sublease to make the payment in question.
13. Hazardous Materials. To the best knowledge of Sublessor, (a) no
Hazardous Material is present in the Building or the soil, surface water or
groundwater thereof, (b) no underground storage tanks are present on the
Industrial Center, and (c) no action, proceeding or claim is pending or
threatened regarding the Building concerning any Hazardous Material or pursuant
to any environmental Law. Under no circumstance shall Sublessee be liable for,
and Sublessor shall indemnify, defend, protect and hold harmless Sublessee, its
agents, contractors, stockholders, directors, successors, representatives, and
assigns from and against, all losses, costs, claims, liabilities and damages
(including attorneys' and consultants' fees) of every type and nature, directly
or indirectly arising out of or in connection with any Hazardous Material
present at any time in, on or about the Building, the Industrial Center, or the
soil, air, improvements, groundwater or surface water thereof, or the violation
of any environmental Law, except to the extent that any of the foregoing
actually results from the release or emission of Hazardous Material by Sublessee
or Sublessee's Parties in violation of applicable environmental Laws.
14. Assignment of Rights: Sublessor hereby assigns to Sublessee all
warranties given and indemnities made by Master Lessor to Sublessor under the
Master Lease which would reduce Sublessee's obligations hereunder, and shall
cooperate with Sublessee to enforce all such warranties and indemnities.
15. Conditions Precedent: This Sublease and Sublessor's and Sublessee's
obligations hereunder are conditioned upon the written consent of Master Lessor
in a form reasonably satisfactory to Sublessee. If Sublessor fails to obtain
Master Lessor's consent within thirty (30) days after execution of this Sublease
by Sublessor, then Sublessee may terminate this Sublease by giving Sublessor
written notice thereof, and Sublessor shall return to Sublessee the Security
Deposit and any other amounts previously paid by Sublessee.
16. Authority to Execute: Sublessee and Sublessor each represent and
warrant to the other that each person executing this Sublease on behalf of each
party is duly authorized to execute and deliver this Sublease on behalf of that
party.
17. Counterparts: This Sublease may be executed in counterparts each of
which shall be deemed an original, but all of which together shall constitute
one and the same document.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the day
and year first above written.
SUBLESSOR: SUBLESSEE:
AMERICAN MICROWAVE SPECTRIAN CORPORATION
TECHNOLOGY, INC. a California corporation
a California corporation
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By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxx
----------------------------- ------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxxx Xxxxx
----------------------------- ------------------------------
Its: President and CEO Its: CFO
----------------------------- ------------------------------
Address: 0000 Xxxx Xxxxxxxx Xxx. Address: 000 X. Xxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: President and CEO Attn: Director of Facilities
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CONSENT TO SUBLEASE
Master Lessor hereby acknowledges receipt of a copy of this Sublease, and
consents to the terms and conditions of this Sublease. By this consent, Master
Lessor shall not be deemed in any way to have entered the Sublease or to have
consented to any further assignment or sublease.
Master Lessor further agrees that, notwithstanding anything to the contrary
in the Master Lease:
(a) Master Lessor shall deliver to Sublessee at the address set forth
in the Sublease notices of any defaults under the Master Lease at the same time
such notices are sent to Sublessor as set forth in the Master Lease and shall
permit Sublessee to cure such defaults.
(b) Master Lessor agrees that the waiver of subrogation in Section 8.6
of the Master Lease shall apply as between Master Lessor and Sublessee.
(c) In the event that the Master Lease terminates prior to the
expiration of the term thereof, the Sublease will not terminate but will instead
continue in full force and effect as a direct lease between Master Lessor and
Sublessee upon all of the terms, covenants and conditions of the Sublease.
(d) Master Lessor hereby agrees that Sublessee may assign or sublease
the Premises without Master Lessor's consent to an entity as set forth in
Section 12 of the Master Lease.
MASTER LESSOR:
CTL MANAGEMENT, INC.
A Xxxxxxx Apartment Community
By: /s/ Xxxxxx Xxxxxx Xx.
-----------------------------------
Name: Xxxxxx Xxxxxx, Xx.
-----------------------------------
Its: Property Manger
-----------------------------------
Address: 00000 Xxxxxxx Xxxx Xxxxxx, Xxxxx X
Xxxxxx Xxxxxxx, XX. 00000
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STANDARD INDUSTRIAL LEASE--MULTI-TENANT
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
[OMIT GRAPHIC]
1. Parties. This Lease, dated for reference purposes only, February 20, 1998, is
made by and between SUNRISE GOLD ASSOCIATES, A California Limited Partnership
(herein called "LESSOR") and AMERICAN MICROWAVE TECHNOLOGY, Inc., A California
Corporation (herein called "LESSEE").
2. Premises, Parking and Common Areas.
2.1 Premises. Lessor hereby leases to Lessee and Lessee leases from Lessor
for the term, at the rental, and upon all of the conditions set forth herein,
real property situated in the County of Sacramento, State of California commonly
known as 00000 Xxxxxxx Xxxx Xxxxxx, Xxxxx X, Xxxxxx Xxxxxxx, XX 00000 and
described as office/warehouse space herein referred to as the "Premises", as may
be outlined on a Exhibit attached hereto, including rights to the Common Areas
as hereinafter specified but not including any rights to the roof of the
Premises or to any Building in the Industrial Center. The Premises are portion
of a building, herein referred to as the "Building". The Premises, the Building,
the Common Areas the land upon which the same are located along with all other
buildings and improvements thereon, are herein collectively referred to as the
"Industrial Center"
2.2 Vehicle Parking. Lessee shall be entitled to common vehicle parking
spaces, unreserved and unassigned, on those portions of the Common Areas
designated by Lessor for parking. Lessee shall not use more parking spaces than
said number. Said parking spaces shall be used only for parking by vehicles no
larger than full size passenger automobiles or pick-up trucks, herein called
"Permitted Size Vehicles." Vehicles other than Permitted Size Vehicles are
herein referred to as "Oversized Vehicles."
2.2.1 Lessee shall not permit or allow any vehicles that belong to or
are controlled by Lessee or Lessee's employees, suppliers, shippers, customers,
or invitees to be loaded, or parked in areas other than those designated by
Lessor for such activities.
2.2.2 If Lessee permits or allows any of the prohibited activities
described in paragraph 2.2 of this Lease, then Lessor shall have the right,
without notice, in addition to such other rights and remedies that it may have,
to remove or tow away the vehicle involved and charge the cost to Lessee, which
cost shall be immediately payable upon demand by Lessor.
2.3 Common Areas -- Definition. The term "Common Areas" is defined as all
areas and facilities outside the Premises and within the exterior boundary line
of the Industrial Center that are provided and designated by the Lessor from
time to time for general non-exclusive use of Lessor, Lessee and of other
lessees of the Industrial Center and their respective employees, suppliers,
shippers customers and invitees, including parking areas, loading and unloading
areas, trash areas, roadways, sidewalks, walkways, parkways, driveways and
landscaped areas.
2.4 Common Areas -- Lessee's Rights. Lessor hereby grants to Lessee, for
the benefit of Lessee and its employees, suppliers, shippers, customers and
invitees, during the term of this Lease, the non-exclusive right to use, in
common with others entitled to such use, the Common Areas as they exist from
time to time, subject to any rights, powers, and privileges reserved by Lessor
under the terms hereof or under the terms of any rules and regulations or
restrictions governing the use of the Industrial Center Under no circumstances
shall the right herein granted to use the Common Areas be deemed to include the
right to store any property, temporarily or permanently, in the Common Areas.
Any such storage shall be permitted only by the prior written consent of Lessor
or Lessor's designated agent, which consent may be revoked at any time. In the
event that any unauthorized storage shall occur then Lessor shall have the
right, without notice, in addition to such other rights and remedies that it may
have, to remove the property and charge the cost to Lessee, which cost shall be
immediately payable upon demand by Lessor.
2.5 Common Areas -- Rules and Regulations. Lessor or such other person(s)
as Lessor may appoint shall have the exclusive control and management of the
Common Areas and shall have the right, from time to time, to establish, modify,
amend and enforce reasonable rules and regulations with respect thereto. Lessee
agrees to abide by and conform to all such rules and regulations, and to cause
its employees, suppliers, shippers, customers, and invitees to so abide and
conform. Lessor shall not be responsible to Lessee for the non-compliance with
said rules and regulations by other lessees of the Industrial Center.
2.6 Common Areas -- Changes. Lessor shall have the right, in Lessor's sole
discretion, from time to time:
(a) To make changes to the Common Areas, including, without limitation,
changes in the location, size, shape and number of driveways, entrances, parking
spaces, parking areas, loading and unloading areas, ingress, egress, direction
of traffic, landscaped areas and walkways; (b) To close temporarily any of the
Common Areas for maintenance purposes so long as reasonable access to the
Premises remains available; (c) To designate other land outside the boundaries
of the Industrial Center to be a part of the Common Areas; (d) To add additional
buildings and improvements to the Common Areas; (e) To use the Common Areas
while engaged in making additional improvements, repairs or alterations to the
Industrial Center, or any portion thereof; (f) To do and perform such other acts
and make such other changes in, to or with respect to the Common Areas and
Industrial Center as Lessor may, in the exercise of sound business judgment,
deem to be appropriate.
2.6.1 Lessor shall at all times provide the parking facilities
required by applicable law and in no event shall the number of parking spaces
that Lessee is entitled to under paragraph 2.2 be reduced.
3. Term.
3.1 Term. The term of this Lease shall be for thirty six months (36)
commencing on April 1 1998 and ending on March 31, 2001 unless sooner terminated
pursuant to any provision hereof.
3.2 Delay in Possession. Notwithstanding said commencement date, if for any
reason Lessor cannot deliver possession of the Premises to Lessee on said date.
Lessor shall not be subject to any liability therefor, nor shall such failure
affect the validity of this Lease or the obligations of Lessee hereunder or
extend the term hereof, but in such case. Lessee shall not be obligated to pay
rent or perform any other obligation of Lessee under the terms of this Lease,
except as may otherwise provided in this Lease, until possession of the Premises
is tendered to Lessee; provided, however, that if Lessor shall not have
delivered possession of the Premises within sixty (60) days from said
commencement date. Lessee may at Lessee's option, by notice in writing to Lessor
within ten (10) days thereafter; cancel this Lease, in which event the parties
shall be discharged from all obligations hereunder; provided further, however,
that if such written notice of Lessee is not received by Lessor within said ten
(10) day period, Lessee's right to cancel this Lease hereunder shall terminate
and be of no further force or effect.
3.3 Early Possession. If Lessee occupies the Premises prior to said
commencement date, such occupancy shall be subject to all provisions of this
Lease, such occupancy shall not advance the termination date, and Lessee shall
pay rent for such period at the initial monthly rates set forth below.
4. Rent.
4.1 Base Rent. Lessee shall pay to Lessor, as Base Rent for the Premises,
without any offset or deduction, except as may be otherwise expressly provided
in this Lease, on the first day of each month of the term hereof, monthly
payments in advance of $2,040.00 plus estimated Common Area Maintenance ("CAM')
Charges in the amount of $159.00 per month. See also paragraph 58 for Base Rent
Adjustments. Lessee shall pay Lessor upon execution hereof $8,399.00 as Base
Rent for first month's rent & CAM, SEC Dep, Sign, TI contrib. Rent for any
period during the term hereof which is for less than one month shall be a pro
rata portion of the Base Rent. Rent shall be payable in lawful money of the
United States to Lessor at the address stated herein or to such other persons or
at such other places as Lessor may designate in writing.
4.2 Operating Expenses. Lessee shall pay to Lessor during the term hereof,
in addition to the Base Rent, Lessee's Share, as hereinafter defined, of all
Operating Expenses, as hereinafter defined, during each calendar year of the
term of this Lease, in accordance with the following provisions:
(a) "Lessee's Share" is defined, for purposes of this Lease, as 3.21%
percent.
(b) "Operating Expenses" is defined, for purposes of this Lease, as all
costs incurred by Lessor, if any, for:
(i) The operation, repair and maintenance, in neat, clean, good
order and condition, of the following:
(aa) The Common Areas, including parking areas, loading and
unloading areas, trash areas, roadways, sidewalks, walkways, parkways,
driveways, landscaped areas, striping, bumpers, irrigation systems, Commons
Areas lighting facilities and fences and gates:
(bb) Trash disposal services;
(cc) Tenant directories;
(dd) Fire detection systems including sprinkler system
maintenance and repair;
Initials: HGW
BW
(ee) Security services:, management, roof repair, HVAC -
maintenance
(ff) Any other service to be provided by Lessor that is
elsewhere in this Lease stated to be an "Operating Expense."
(ii) The cost of water, gas and electricity to service the Common
Areas.
(c) The inclusion of the improvements, facilities and services set
forth in paragraph 4.2(b)(i) of the definition of Operating Expenses shall not
be deemed to impose an obligation upon Lessor to either have said improvements
or facilities or to provide those services unless the Industrial Center already
has the same. Lessor already provides the services, or Lessor has agreed
elsewhere in this Lease to provide the same or some of them.
(d) Lessee's Share of Operating Expenses shall be payable by Lessee
within ten (10) days after a reasonably detailed statement of actual expenses is
presented to Lessee by Lessor. At Lessor's option, however, an amount may be
estimated by Lessor from time to time of Lessee's Share of annual Operating
Expenses and the same shall be payable monthly or quarterly, as Lessor shall
designate, during each twelve-month period of the Lease term, on the same day as
the Base Rent is due hereunder. In the event that Lessee pays Lessor's estimate
of Lessee's Share of Operating Expenses as aforesaid, Lessor shall deliver to
Lessee within sixty (60) days after the expiration of each calendar year a
reasonably detailed statement showing Lessee's Share of the actual Operating
Expenses incurred during the preceding year. If Lessee's payments under this
paragraph 4.2(d) during said preceding year exceed Lessee's Share as indicated
on said statement, Lessee shall be entitled to credit the amount of such
overpayment against Lessee's Share of Operating Expenses next falling due. If
Lessee's payment under this paragraph during said preceding year were less than
Lessee's Share as indicated on said statement, Lessee shall pay to Lessor the
amount of the deficiency within ten (10) days after delivery by Lessor to Lessee
of said statement.
5. Security Deposit. Lessee shall deposit with Lessor upon execution hereof
$2,500.00 as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder, or
otherwise defaults with respect to any provision of this Lease. Lessor may use,
apply or retain all or any portion of said deposit for the payment of any rent
or other charge in default or for the payment of any other sum to which Lessor
may become obligated by reason of Lessee's default, or to compensate Lessor for
any loss or damage which Lessor may suffer thereby. If Lessor so uses or applies
all or any portion of said deposit, Lessee shall within ten (10) days after
written demand therefor deposit cash with Lessor in an amount sufficient to
restore said deposit to the full amount then required of Lessee. If the monthly
rent shall, from time to time, increase during the term of this Lease, Lessee
shall, at the time of such increase, deposit with Lessor additional money as a
security deposit so that the total amount of the security deposit held by Lessor
shall at all times bear the same proportion to the then current Base Rent as the
initial security deposit bears to the initial Base Rent set forth in paragraph
4. Lessor shall not be required to keep said security deposit separate from its
general accounts. If Lessee performs all of Lessee's obligations hereunder, said
deposit, or so much thereof as has not therefore been applied by Lessor, shall
be returned, without payment of interest or other increment for its use, to
Lessee (or, at Lessor's option, to the last assignee, if any, of Lessee's
interest herunder) at the expiration of the term hereof, and after Lessee has
vacated the Premises. No trust relationship is created herein between Lessor and
Lessee with respect to said Security Deposit.
6. Use.
6.1 Use. The Premises shall be used and occupied only for design and
manufacture of microwave power amplifiers or any other use which is reasonably
comparable and for no other purpose.
6.2 Compliance with Law.
(a) Lessor warrants to Lessee that the Premises, in the state existing
on the date that the Lease term commences, but without regard to the use for
which Lessee will occupy the Premises, does not violate any covenants or
restrictions of record, or any applicable building code, regulation or ordinance
in effect on such Lease term commencement date. In the event it is determined
that this warranty has been violated, then it shall be the obligation of the
Lessor, after written notice from Lessee, to promptly, at Lessor's sole cost and
expense, rectify any such violation. In the event Lessee does not give to Lessor
written notice of the violation of this warranty within six months from the date
that the Lease term commences, the correction of same shall be the obligation of
the Lessee at Lessee's sole cost. The warranty contained in this paragraph
6.2(a) shall be of no force or effect if, prior to the date of this Lease,
Lessee was an owner or occupant of the Premises and, in such event, Lessee shall
correct any such violation at Lessee's sole cost.
(b) Except as provided in paragraph 6.2(a) Lessee shall, at Lessee's
expense, promptly comply with all applicable statutes, ordinances, rules,
regulations, orders, covenants and restrictions of record, and requirements of
any fire insurance underwriters or rating bureaus, now in effect or which may
hereafter come into effect, whether or not they reflect a change in policy from
that now existing, during the term or any part of the term hereof, relating in
any manner to the Premises and the occupation and use by Lessee of the Premises
and of the Common Areas. Lessee shall not use nor permit the use of the Premises
or the Common Areas in any manner that will tend to create waste or a nuissance
or shall tend to disturb other occupants of the Industrial Center.
6.3 Condition of Premises.
(a) Lessor shall deliver the Premises to Lessee clean and free of
debris on the Lease commencement date (unless Lessee is already in possession)
and Lessor warrants to Lessee that the plumbing, lighting, air conditioning,
heating, and loading doors in the Premises shall be in good operating condition
on the Lease commencement date. In the event that it is determined that this
warranty has been violated, then it shall be the obligation of Lessor, after
receipt of written notice from Lessee selling forth with specificity the nature
of the violation, to promptly, at Lessor's sole cost, rectify such violation.
Lessee's failure to give such written notice to Lessor within thirty (30) days
after the Lease commencement date shall cause the conclusive presumption that
Lessor has complied with all of Lessor's obligations hereunder. The warranty
contained in this paragraph 6.3(a) shall be of no force or effect if prior to
the date of this Lease, Lessee was an owner or occupant of the Premises.
(b) Except as otherwise provided in this Lease, Lessee hereby accepts
the Premises in their condition existing as of the Lease commencement date or
the date that Lessee takes possession of the Premises, whichever is earlier,
subject to all applicable zoning, municipal, county and state laws, ordinances
and regulations governing and regulating the use of the Premises, and any
covenants or restrictions of record, and accepts this Lease subject thereto and
to all matters disclosed thereby and by any exhibits attached hereto. Lessee
acknowledges that neither Lessor nor Lessor's agent has made any representation
or warranty as to the present or future suitability of the Premises for the
conduct of Lessee's business.
7. Maintenance, Repairs, Alterations and Common Area Services.
7.1 Lessor's Obligations. Subject to the provisions of paragraphs 4.2
(Operating Expenses), 6 (Use), 7.2 (Lessee's Obligations) and 9 (Damage or
Destruction) and except for damage caused by any negligent or intentional act or
omission of Lessee, Lessee's employers, suppliers, shippers, customers, or
invitees, in which event Lessee shall repair the damage, Lessor, at Lessor's
expense, subject to reimbursement pursuant to paragraph 4.2 shall keep in good
condition and repair the foundations, exterior walls, structural condition of
interior bearing walls, and roof of the Premises, as well as the parking lots,
walkways, driveways, landscaping, fences, signs and utility installations of the
Common Areas and all parts thereof, as well as providing the services for which
there is an Operating Expense pursuant to paragraph 4.2 Lessor shall not,
however, be obligated to paint the exterior or interior surface of exterior
walls, nor shall Lessor be required to maintain, repair or replace windows,
doors or plate glass of the Premises. Lessor shall have no obligation to make
repairs under this paragraph 7.1 until a reasonable time after receipt of
written notice from Lessee of the need for such repairs. Lessee expressly waives
the benefits of any statute now or hereafter in effect which would otherwise
afford Lessee the right to make repairs at Lessor's expense or to terminate this
Lease because of Lessor's failure to keep the Premises in good order, condition
and repair. Lessor shall not be liable for damages or loss of any kind or nature
by reason of Lessor's failure to furnish any Common Area Services when such
failure is caused by accident, breakage, repairs, strikes, lockout, or other
labor disturbances or disputes of any character, or by any other cause beyond
the reasonable control of Lessor.
7.2 Lessee's Obligations.
(a) Subject to the provisions of paragraphs 6 (Use), 7.1 (Lessor's
Obligations), and 9 (Damage or Destruction), Lessee, at Lessee's expense, shall
keep in good order, condition and repair the Premises and every part thereof
(whether or not the damaged portion of the Premises or the means of repairing
the same are reasonably or readily accessable to Lessee) including, without
limiting the generality of the foregoing, all plumbing, heating, ventilating and
air conditioning systems (Lessor shall procure and maintain, at Lessee's
expense, a ventilating and air conditioning system maintenance contract),
electrical and lighting facilities and equipment within the Premises, fixtures,
interior walls and interior surfaces of exterior walls, ceilings, windows,
doors, plate glass, and skylights located within the Premises. Lessor reserves
the right to procure and maintain the ventilating and air conditioning system
maintenance contract and if Lessor so elects, Lessee shall reimburse Lessor,
upon demand for the cost thereof. Lessee shall be responsible for all pest
control services on or about the premises, i.e., ants, rodents.
(b) If Lessee fails to perform Lessee's obligations under this
paragraph 7.2 or under any other paragraph of this Lease, Lessor may enter upon
the Premises after ten (10) days' prior written notice to Lessee (except in the
case of emergency, in which no notice shall be required), perform such
obligations on Lessee's behalf and put the Premises in good order, condition and
repair, and the cost thereof together with interest thereon at the maximum rate
then allowable by law shall be due and payable as additional rent to Lessor
together with Lessee's next Base Rent installment.
(c) On the last day of the term hereof, or on any sooner termination,
Lessee shall surrender the Premises to Lessor in the same condition as received,
ordinary wear and tear expected, clean and free of debris. Any damage or
deterioration of the Premises shall not be deemed ordinary wear and tear if the
same could have been prevented by good maintenance practices. Lessee shall
repair any damage to the Premises occasioned by the installation or removal of
Lessee's trade fixtures, alterations, furnishings and equipment. Notwithstanding
anything to the contrary otherwise stated in this Lease. Lessee shall leave the
air lines, power panels, electrical distribution systems, lighting fixtures,
space heaters, air conditioning, plumbing and fencing on the Premises in good
operating condition.
7.3 Alterations and Additions.
(a) Lessee shall not, without Lessor's prior written consent make any
alterations, improvements, additions, or Utility Installations in, on or about
the Premises, or the Industrial Center, except for nonstructural alterations to
the Premises not exceeding $2,500 in cumulative costs, during the term of this
Lease. In any event, whether or not in excess of $2,500 in cumulative cost,
Lessee shall make no change or alteration to the exterior of the Premises nor
the exterior of the Building nor the Industrial Center without Lessor's prior
written consent. As used in this paragraph 7.3 the term "Utility Installation"
shall mean carpeting, window coverings, air lines, power panels, electrical
distribution systems, lighting fixtures, space heaters, air conditioning,
plumbing, and fencing. Lessor may require that Lessee remove any or all of said
alterations, improvements,
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additions or Utility Installations at the expiration of the term, and restore
the Premises and the Industrial Center to their prior condition. Lessor may
require Lessee to provide Lessor, at Lessee's sole cost and expense, a lien and
completion bond in an amount equal to one and one-half times the estimated cost
of such improvements, to insure Lessor against any liability for mechanic's and
materialmen's liens and to insure completion of the work. Should Lessee make any
alterations, improvements, additions or Utility Installations without the prior
approval of Lessor, Lessor may, at any time during the term of this Lease,
require that Lessee remove any or all of the same.
(b) Any alterations, improvements, additions or Utility Installations
in or about the Premises or the Industrial Center that Lessee shall desire to
make and which requires the consent of the Lessor shall be presented to Lessor
in written form, with proposed detailed plans. If Lessor shall give its consent,
the consent shall be deemed conditioned upon Lessee acquiring a permit to do so
from appropriate governmental agencies, the furnishing of a copy thereof to
Lessor prior to the commencement of the work and the compliance by Lessee of
all conditions of said permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises, or the Industrial Center, or any
interest therein. Lessee shall give Lessor not less than ten (10) days notice
prior to the commencement of any work in the Premises, and Lessor shall have the
right to post notices of non-responsibility in or on the Premises or the
Building as provided by law. If Lessee shall, in good faith, contest the
validity of any such lien, claim or demand, then Lessee shall, at its sole
expense defend itself and Lessor against the same and shall pay and satisfy any
such adverse judgment that may be rendered thereon before the enforcement
thereof against the Lessor or the Premises or the Industrial Center, upon the
condition that if Lessor shall require, Lessee shall furnish to Lessor a surety
bond satisfactory in Lessor in an amount equal to such contested lien claim or
demand indemnifying Lessor against liability for the same and holding the
Premises and the Industrial Center free from the effect of such lien or claim.
In addition, Lessor may require Lessee to pay Lessor's attorneys fees and costs
in participating in such action if Lessor shall decide it is to Lessor's best
interest to do so.
(d) All alterations, improvements, additions and Utility Installations
(whether or not such Utility Installations constitute trade fixtures of Lessee),
which may be made on the Premises, shall be the property of Lessor and shall
remain upon and be surrendered with the Premises at the expiration of the Lease
term, unless Lessor requires their removal pursuant to paragraph 7.3(a).
Notwithstanding the provisions of this paragraph 7.3(d), Lessee's machinery and
equipment, other than that which is affixed to the Premises so that it cannot be
removed without material damage to the Premises, and other than Utility
Installations, shall remain the property of Lessee and may be removed by Lessee
subject to the provisions of paragraph 7.2.
7.4 Utility Additions. Lessor reserves the right to install new or
additional utility facilities throughout the Building and the Common Areas for
the benefit of Lessor or Lessee, or any other lessee of the Industrial Center,
including, but not by way of limitation, such utilities as plumbing, electrical
systems, security systems, communication systems, and fire protection and
detection systems, so long as such installations do not unreasonably interfere
with Lessee's use of the Premises.
8. Insurance; Indemnity.
8.1 Liability Insurance -- Lessee. Lessee shall, at Lessee's expenses,
obtain and keep in force during the term of this Lease a policy of Combined
Single Limit Bodily Injury and Property Damage insurance insuring Lessee and
Xxxxxxx Property Management and Lessor against any liability arising out of the
use, occupancy or maintenance of the Premises and the Industrial Center. Such
insurance shall be in an amount not less than $1,000,000 per occurrence. The
policy shall insure performance by Lessee of the indemnity provisions of this
paragraph 8. The limits of said insurance shall not, however, limit the
liability of Lessee hereunder.
8.2 Liability Insurance -- Lessor. Lessor shall obtain and keep in force
during the term of this Lease a policy of Combined Single Limit Bodily Injury
and Property Damage Insurance, insuring Lessor, but not Lessee, against any
liability arising out of the ownership use, occupancy or maintenance of the
Industrial Center in an amount not less than $500,000.00 per occurence.
8.3 Property Insurance. Lessor shall obtain and keep in force during the
term of this Lease a policy or policies of insurance covering loss or damage to
the Industrial Center improvements, but not Lessee's personal property,
fixtures, equipment or tenant improvements, in an amount not to exceed the full
replacement value thereof, as the same may exist from time to time, providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, flood (in the event same is
required by a lender having a lien on the Premises) special extended perils
("all risk", as such term is used in the insurance industry), plate glass
insurance and such other insurance as Lessor deems advisable. In addition,
Lessor shall obtain and keep in force, during the term of this Lease, a policy
of rental value insurance covering a period of one year, with loss payable to
Lessor, which insurance shall also cover all Operating Expenses for said period.
8.4 Payment of Premium Increase.
(a) After the term of this Lease has commenced. Lessee shall not be
responsible for paying Lessee's Share of any increase in the property insurance
premium for the Industrial Center specified by Lessor's insurance carrier as
being caused by the use, acts or omissions of any other lessee of the Industrial
Center, or by the nature of such other lessee's occupancy which create an
extraordinary or unusual risk.
(b) Lessee, however, shall pay the entirety of any increase in the
property insurance premium for the Industrial Center over what it was
immediately prior to the commencement of the term of this Lease if the increase
is specified by Lessor's insurance carrier as being caused by the nature of
Lessee's occupancy or any act or omission of Lessee.
(c) Lessee shall pay to Lessor, during the term hereof, in addition to
the rent, Lessee's Share (as defined in paragraph 4.2(a)) of the amount of any
increase in premiums for the insurance required under Paragraph 8.2 and 8.3 over
and above such premiums paid during the Base Period, as hereinafter defined,
whether such premium increase shall be the result of the nature of Lessee's
occupancy, any act or omission of Lessee, requirements of the holder of a
mortgage or deed of trust covering the Premises, increased valuation of the
Premises, or general rate increases. In the event that the Premises have been
occupied previously, the words "Base Period" shall mean the last twelve months
of the prior occupancy. In the event that the Premises have never been occupied
previously, the premiums during the "Base Period" shall be deemed to be the
lowest premiums reasonably obtainable for said insurance assuming the most
nominal use of the Premises. Provided, however, in lieu of the Base Period, the
parties may insert a dollar amount at the end of this sentence which figure
shall be considered as the insurance premium for the Base Period: $____________.
In no event, however, shall Lessee be responsible for any portion of the premium
cost attributable to liability insurance coverage in excess of $500,000 procured
under paragraph 8.2.
(d) Lessee shall pay any such premium increases to Lessor within 30
days after receipt by Lessee of a copy of the premium statement or other
satisfactory evidence of the amount due. If the insurance policies maintained
hereunder cover other improvements in addition to the Premises, Lessor shall
also deliver to Lessee a statement of the amount of such increase attributable
to the Premises and showing in reasonable detail, the manner in which such
amount was computed. If the term of this Lease shall not expire concurrently
with the expiration of the period covered by such insurance, Lessee's liability
for premium increases shall be prorated on an annual basis.
8.5 Insurance Policies. Insurance required hereunder shall be in companies
holding a "General Policyholders Rating" of at least B plus, or such other
rating as may be required by a lender having a lien on the Premises, as set
forth in the most current issue of "Best's Insurance Guide." Lessee shall not do
or permit to be done anything which shall invalidate the insurance policies
carried by Lessor Lessee shall deliver to Lessor copies of liability insurance
policies required under paragraph 8.1 or certificates evidencing the existence
and amounts of such insurance within seven (7) days after the commencement date
of this Lease. No such policy shall be cancellable or subject to reduction of
coverage or other modification except after thirty (30) days prior written
notice to Lessor. Lessee shall, at least thirty (30) days prior to the
expiration of such policies, furnish Lessor with renewals or "binders" thereof.
8.6 Waiver of Subrogation. Lessee and Lessor each hereby release and
relieve the other, and waive their entire right of recovery against the other
for loss or damage arising out of or incident to the perils insured against
which perils occur in, on or about the Premises, whether due to the negligence
of Lessor or Lessee or their agents, employees, contractors and/or invitees.
Lessee and Lessor shall, upon obtaining the policies of insurance required
hereunder, give notice to the insurance carrier or carriers that the foregoing
mutual waiver of subrogation is contained in this Lease.
8.7 Indemnity. Lessee shall indemnify and hold harmless Lessor from and
against any and all claims arising from Lessee's use of the Industrial Center,
or from the conduct of Lessee's business or from any activity, work or things
done, permitted or suffered by Lessee in or about the Premises or elsewhere and
shall further indemnify and hold harmless Lessor from and against any and all
claims arising from any breach or default in the performance of any obligation
on Lessee's part to be performed under the terms of this Lease, or arising from
any act or omission of Lessee, or any of Lessee's agents, contractors, or
employees, and from and against all costs, attorney's fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon; and in case any action or proceeding be brought
against Lessor by reason of any such claim, Lessee upon noticed from Lessor
shall defend the same at Lessee's expense by counsel reasonably satisfactory to
Lessor and Lessor shall cooperate with Lessee in such defense, Lessee, as a
material part of the consideration to Lessor, hereby assumes all risk of damage
to property of Lessee or injury to persons, in, upon or about the Industrial
Center arising from any cause and Lessee hereby waives all claims in respect
thereof against Lessor.
8.8 Exemption of Lessor from Liability. Lessee hereby agrees that Lessor
shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee, Lessee's employees, invitees, customers, or any other person in or about
the Premises or the Industrial Center, nor shall Lessor be liable for injury to
the person of Lessee, Lessee's employees, agents or contractors, whether such
damage or injury is caused by or results from fire, steam, electricity, gas,
water or rain, or from the breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, or from any other cause, whether said damage or injury results from
conditions arising upon the Premises or upon other portions of the Industrial
Center, or from other sources or places and regardless of whether the cause of
such damage or injury or the means of repairing the same is inaccessible to
Lessee. Lessor shall not be liable for any damages arising from any act or
neglect of any other lessee, occupant or user of the Industrial Center, nor from
the failure of Lessor to enforce the provisions of any other lease of the
Industrial Center.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean if the Premises are damaged or
destroyed to the extent that the cost of repair is less than fifty percent of
the then replacement cost of the Premises.
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(b) "Premises Total Destruction" shall mean if the Premises are damaged
or destroyed to the extent that the cost of repair is fifty percent or more of
the then replacement cost of the Premises.
(c) "Premises Building Partial Damage" shall mean if the Building of
which the Premises are a part is damaged or destroyed to the extent that the
cost to repair is less than fifty percent of the then replacement cost of the
Building.
(d) "Premises Building Total Destruction" shall mean if the Building of
which the Premises are a part is damaged or destroyed to the extent that the
cost to repair is fifty percent or more of the then replacement cost of the
Building.
(e) "Industrial Center Building" shall mean all of the buildings on the
Industrial Center site.
(f) "Industrial Center Buildings Total Destruction" shall mean if the
Industrial Center Buildings are damaged or destroyed to the extent that the cost
of repair is fifty percent or more of the then replacement cost of the
Industrial Center Buildings.
(g) "Insured Loss" shall mean damage or destruction which was caused by
an event required to be covered by the insurance described in paragraph 8 The
fact that an insured Loss has a deductible amount shall not make the loss an
uninsured loss.
(h) "Replacement Cost" shall mean the amount of money necessary to be
spent in order to repair or rebuild the damaged area to the condition that
existed immediately prior to the damage occurring excluding all improvements
made by lessees.
9.2 Premises Partial Damage; Premises Building Partial Damage.
(a) Insured Loss: Subject to the provisions of paragraph 9.4 and 9.5,
if at any time during the term of this Lease there is damage which is an Insured
Loss and which falls into the classification of either Premises Partial Damage
or Premises Building Partial Damage, then Lessor shall, at Lessor's expense,
repair such damage to the Premises, but not Lessee's fixtures, equipment or
tenant improvements, as soon as reasonably possible and this Lease shall
continue in full force and effect.
(b) Uninsured Loss: Subject to the provisions of paragraphs 9.4 and
9.5, if at any time during the term of this Lease there is damage which is not
an Insured Loss and which falls within the classification of Premises Partial
Damage or Premises Building Partial Damage, unless caused by a negligent or
willful act of Lessee (in which event Lessee shall make the repairs at Lessee's
expense), which damage prevents Lessee from using the Premises, Lessor may at
Lessor's option either (i) repair such damage as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full force and
effect, or (ii) give written notice to Lessee within thirty (30) days after the
date of the occurrence of such damage of Lessor's intention to cancel and
terminate this Lease as of the date of the occurrence of such damage. In the
event Lessor elects to give notice to give written notice to Lessor of Lessee's
intention to repair such damage at Lessee's expense, without reimbursement from
Lessor, in which event this Lease shall continue in full force and effect, and
Lessee shall proceed to make such repairs as soon as reasonably possible. If
Lessee does not give such notice within such 10-day period this Lease shall be
cancelled and terminated as of the date of the occurrence of such damage.
9.3 Premises Total Destruction; Premises Building Total Destruction;
Industrial Center Buildings Total Destruction.
(a) Subject to the provisions of paragraphs 9.4 and 9.5, if at any time
during the term of this Lease there is damage, whether or not it is an Insured
Loss, and which falls into the classifications of either (i) Premises Total
Destruction, or (ii) Premises Building Total Destruction, or (iii) Industrial
Center Buildings Total Destruction, then Lessor may at Lessor's option either
(i) repair such damage or destruction, but not Lessee's fixtures, equipment or
tenant improvements, as soon as reasonably possible at Lessor's expense, and
this Lease shall continue in full force and effect, or (ii) give written notice
to Lessee within thirty (30) days after the date of occurrence of such damage of
Lessor's intention to cancel and terminate this Lease, in which case this Lease
shall be cancelled and terminated as of the date of the occurrence of such
damage.
9.4 Damage Near End of Term.
(a) Subject to paragraph 9.4(b), if any time during the last six months
of the term of this Lease there is substantial damage, whether or not an Insured
Loss, which falls within the classification of Premises Partial Damage, Lessor
may at Lessor's option cancel and terminate this Lease as of the date of
occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within 30 days after the date of occurrence of such damage.
(b) Notwithstanding paragraph 9.4(a), in the event that Lessee has an
option to extend or renew this Lease, and the time within which said option may
be exercised has not yet expired, Lessee shall exercise such option, if it is to
be exercised at all, no later than twenty (20) days after the occurrence of an
Insured Loss falling within the classification of Premises Partial Damage during
the last six months of the term of this Lease. If Lessee duly exercises such
option during said twenty (20) day period, Lessor shall, at Lessor's expense,
repair such damage, but not Lessee's fixtures, equipment or tenant improvements,
as soon as reasonably possible and this Lease shall continue in full force and
effect. If Lessee fails to exercise such option during said twenty (20) day
period, then Lessor may at Lessor's option terminate and cancel this Lease as of
the expiration of said twenty (20) day period by giving written notice to Lessee
of Lessor's election to do so within ten (10) days after the expiration of said
twenty (20) day period, notwithstanding any term or provision in the grant of
option to the contrary.
9.5 Abatement of Rent; Lessee's Remedies.
(a) In the event Lessor repairs or restores the Premises pursuant to
the provisions of this paragraph 9, the rent payable hereunder for the period
during which such damage, repair or restoration continues shall be abated in
proportion to the degree to which Lessee's use of the Premises is impaired.
Except for abatement of rent, if any, Lessee shall have no claim against Lessor
for any damage suffered by reason of any such damage, destruction, repair or
restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this paragraph 9 and shall not commence such repair or
restoration within ninety (90) days after such obligation shall accrue. Lessee
may at Lessee's option cancel and terminate this Lease by giving Lessor written
notice of Lessee's election to do so at any time prior to the commencement of
such repair or restoration. In such event this Lease shall terminate as of the
date of such notice.
9.6 Termination -- Advance Payments. Upon termination of this Lease
pursuant to this paragraph 9, an equitable adjustment shall be made concerning
advance rent and any advance payments made by Lessee to Lessor. Lessor shall, in
addition, return to Lessee so much of Lessee's security deposit as has not
theretofore been applied by Lessor.
9.7 Waiver. Lessor and Lessee waive the provisions of any statute which
relate to termination of leases when leased property is destroyed and agree that
such event shall be governed by the terms of this Lease.
10. Real Property Taxes.
10.1 Payment of Tax Increase. Lessor shall pay the real property tax, as
defined in paragraph 10.3, applicable to the Industrial Center; provided,
however, that Lessee shall pay, in addition to rent, Lessee's Share (as defined
in paragraph 4.2(a)) of the amount, if any, by which real property taxes
applicable to the Premises increase over the fiscal real estate tax year
1997-1998. Such payment shall be made by Lessee within thirty (30) days after
receipt of Lessor's written statement setting forth the amount of such increase
and the computation thereof. If the term of this Lease shall not expire
concurrently with the expiration of the tax fiscal year, Lessee's liability for
increased taxes for the last partial lease year shall be prorated on an annual
basis.
10.2 Additional Improvements. Lessee shall not be responsible for paying
Lessee's Share of any increase in real property tax specified in the tax
assessor's records and work sheets as being caused by additional improvements
placed upon the Industrial Center by other lessees or by Lessor for the
exclusive enjoyment of such other lessees. Lessee shall, however, pay to Lessor
at the time that Operating Expenses are payable under paragraph 4.2(c) the
entirety of any increase in real property tax if assessed solely by reason of
additional improvements placed upon the Premises by Lessee or at Lessee's
request.
10.3 Definition of "Real Property Tax." As used herein, the term "real
property tax" shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income
or estate taxes) imposed on the Industrial Center or any portion thereof by any
authority having the direct or indirect power to tax, including any city,
county, state or federal government, or any school, agricultural, sanitary,
fire, street, drainage or other improvement district thereof, as against any
legal or equitable interest of Lessor in the Industrial Center or in any portion
thereof, as against Lessor's right to rent or other income therefrom, and as
against Lessor's business of leasing the Industrial Center. The term "real
property tax" shall also include any tax, fee, levy, assessment or charge (i) in
substitution of, partially or totally, any tax, fee, levy assessment or charge
hereinabove included within the definition of "real property tax," or (ii) the
nature of which was hereinbefore included within the definition of "real
property tax," or (iii) which is imposed for a service or right not charged
prior to June 1, 1978, or, if previously charged, has been increased since June
1, 1978, or (iv) which is imposed as a result of a transfer, either partial or
total, of Lessor's interest in the Industrial Center or which is added to a tax
or charge hereinbefore included within the definition of real property tax by
reason of such transfer, or (v) which is imposed by reason of this transaction,
any modifications or changes hereto, or any transfers hereof.
10.4 Joint Assessment. If the Industrial Center is not separately assessed,
Lessee's Share of the real property tax liability shall be an equitable
proportion of the real property taxes for all of the land and improvements
included within the tax parcel assessed, such proportion to be determined by
Lessor from the respective valuations assigned in the assessor's work sheets or
such other information as may be reasonably available. Lessor's reasonable
determination thereof, in good faith, shall be conclusive.
10.5 Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other personal
property of Lessee contained in the Premises or elsewhere. When possible, Lessee
shall cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay to Lessor the taxes attributable to
Lessee within ten (10) days after receipt of a written statement setting forth
the taxes applicable to Lessee's property.
11. Utilities. Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises, together
with any taxes thereon. If any such services are not separately metered to the
Premises, Lessee shall pay at Lessor's option, either Lessee's Share or a
reasonable proportion to be determined by Lessor of all charges jointly metered
with other premises in the Building.
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12. Assignment and Subletting.
12.1 Lessor's Content Required. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's Interest in the Lease or in the Premises,
without Lessor's prior written consent, which Lessor shall not encumber all or
any part of Lessee's interest in the Lease or in the Premises, without Lessor's
prior written consent, which Lessor shall not unreasonably withhold. Lessor
shall respond to Lessee's request for consent hereunder in a timely manner and
any attempted assignment, transfer, mortgage, encumbrance or subletting without
such consent shall be void, and shall constitute a breach of this Lease without
the need for notice to Lessee under paragraph 13.1.
12.2 Lessee Affiliate. Notwithstanding the provisions of paragraph 12.1
hereof, Lessee may assign or sublet the Premises, or any portion thereof,
without Lessor's consent, to any corporation which controls, is controlled by or
is under common control with Lessee, or to any corporation resulting from the
merger or consolidation with Lessee, or to any person or entity which acquires
all the assets of Lessee as a going concern of the business that is being
conducted on the Premises, all of which are referred to as "Lessee Affiliate,"
provided that before such assignment shall be effective said assignee shall
assume, in full, the obligations of Lessee under this Lease. Any such assignment
shall not, in any way, affect or limit the liability of Lessee under the terms
of this Lease even if after such assignment or subletting the terms of this
Lease are materially changed or altered without the consent of Lessee, the
consent of whom shall not be necessary.
12.3 Terms and conditions of Assignment. Regardless of Lessor's consent, no
assignment shall release Lessee of Lessee's obligations hereunder or alter the
primary liability of Lessee to pay the Base Rent and Lessee's Share of Operating
Expenses, and to perform all other obligations to be performed by Lessee
hereunder Lessor may accept rent from any person other than Lessee pending
approval or disapproval of such assignment. Neither a delay in the approval or
disapproval of such assignment nor the acceptance of rent shall constitute a
waiver or estoppel of Lessor's right to exercise its remedies for the breach of
any of their terms or conditions of this paragraph 12 or this Lease. Consent to
one assignment shall not be deemed consent to any subsequent assignment in the
event of default by any assignee of Lessee or any successor of Lessee, in the
performance of any of the terms hereof. Lessor may proceed directly against
Lessee without the necessity of exhausting remedies against said assignee.
Lessor may consent to subsequent assignments of this Lease or amendments or
modifications to this Lease with assignees of Lessee, without notifying Lessee,
or any successor of Lessee, and without obtaining its or their consent thereto
and such action shall not relieve Lessee of liability under this Lease.
12.4 Terms and Conditions Applicable to Subletting. Regardless of Lessor's
consent, the following terms and conditions shall apply to any subletting by
Lessee of all or any part of the Premises and shall be included in subleases:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease heretofore or
hereafter made by Lessee, and Lessor may collect such rent and income and apply
same toward Lessee's obligations under this Lease; provided, however, that until
a default shall occur in the performance of Lessee's obligations under this
Lease, Lessee may receive, collect and enjoy the rents accruing under such
sublease. Lessor shall not, by reason of this or any other assignment of such
sublease to Lessor nor by reason of the collection of the rents from a
sublessee, be deemed liable to the sublessee for any failure of Lessee to
perform and comply with any of Lessee's obligations to such sublessee under such
sublease. Lessee hereby irrevocably authorizes and directs any such sublessee,
upon receipt of a written notice from Lessor stating that a default exists in
the performance of Lessee's obligations under this Lease, to pay to Lessor the
rents due and to become due under the sublease. Lessee agrees that such
sublessee shall have the right to rely upon any such statement and request from
Lessor, and that such sublessee shall pay such rents to Lessor without any
obligation or right to inquire as to whether such default exists and
withstanding any notice from or claim from Lessee to the contrary. Lessee shall
have no right or claim against such sublessee or Lessor for any such rents so
paid by said sublessee to Lessor.
(b) No sublease entered into by Lessee shall be effective unless and
until has been approved in writing by Lessor. In entering into any sublease,
Lessee shall use only such form of sublease as is satisfactory to Lessor, and
once approved by Lessor, such sublease shall not be changed or modified without
Lessor's prior written consent. Any sublessee shall, by reason of entering into
a sublease under this Lease, be deemed, for the benefit of Lessor, to have
assumed and agreed to conform and comply with each and every obligation herein
to be performed by Lessee other than such obligations as are contrary to or
inconsistent with provisions contained in a sublease to which Lessor has
expressly consented in writing.
(c) If Lessee's obligations under this Lease have been guaranteed by
third parties, then a sublease, and Lessor's consent thereto, shall not be
effective unless said guarantors give their written consent to such sublease and
the terms thereof.
(d) The consent by Lessor to any subletting shall not release Lessee
from its obligations or alter the primary liability of Lessee to pay the rent
and perform and comply with all of the obligations of Lessee to be performed
under this Lease.
(e) The consent by Lessor to any subletting shall not constitute a
consent to any subsequent subletting by Lessee or to any assignment or
subletting by the sublessee. However, Lessor may consent to subsequent
sublettings and assignments of the sublease or any amendments or modifications
thereto without notifying Lessee or anyone else liable on the Lease or sublease
and without obtaining their consent and such action shall not relieve such
persons from liability.
(f) In the event of any default under this Lease, Lessor may proceed
directly against Lessee, any guarantors or anyone else responsible for the
performance of this Lease, including the sublessee, without first exhausting
Lessor's remedies against any other person or entity responsible therefor to
Lessor, or any security held by Lessor or Lessee.
(g) In the event Lessee shall default in the performance of its
obligations under this Lease, Lessor, at its option and without any obligation
to do so, may require any sublessee to attorn to Lessor, in which event Lessor
shall undertake the obligations of Lessee under such sublease from the time of
the exercise of said option to the termination of such sublease; provided,
however, Lessor shall not be liable for any prepaid rents or security deposit
paid by such sublessee to Lessee or for any other prior defaults of Lessee under
such sublease.
(h) Each and every consent required of Lessee under a sublease shall
also require the consent of Lessor.
(i) No sublessee shall further assign or sublet all or any part of the
Premises without Lessor's prior written consent.
(j) Lessor's written consent to any subletting of the Premises by
Lessee shall not constitute an acknowledgment that no default then exists under
this Lease of the obligations to be performed by Lessee nor shall such consent
be deemed a waiver of any then existing default, except as may be otherwise
stated by Lessor at the time.
(k) With respect to any subletting to which Lessor has consented,
Lessor agrees to deliver a copy of any notice of default by Lessee to the
sublessee. Such sublessee shall have the right to cure a default of Lessee
within ten (10) days after service of said notice of default upon such
subelessee, and the sublessee shall have the right of reimbursement and offset
from and against Lessee for any such defaults cured by the sublessee.
12.5 Attorney's Fees. In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment or subletting or if
Lessee shall request the consent of Lessor for any act Lessee proposes to do
then Lessee shall pay Lessor's reasonable attorneys fees incurred in connection
therewith, such attorneys fees not to exceed $350.00 for each such request.
13. Default; Remedies.
13.1 Default. The occurence of any one or more of the following events
shall constitute a material default of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder, as and when due, where such a
failure shall continue for a period of three (30) days after written notice
thereof form Lessor to Lessee. In the event that Lessor serves Lessee with a
Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes
such Notice to Pay Rent or Quit shall also constitute the notice required by
this subparagraph.
(c) Except as otherwise provided in this Lease, the failure by Lessee
to observe or perform any of the covenants, conditions or provisions of this
Lease to be observed or performed by Lessee, other than described in paragraph
(b) above, where such failure shall continue for a period of thirty (30) days
after written notice thereof from Lessor to Lessee; provided, however, that if
the nature of Lessee's noncompliance is such that more than thirty (30) days are
reasonably required for its cure, then Lessee shall not be deemed to be in
default if Lessee commenced such cure within said thirty (30) day period and
thereafter dilligently prosecutes such cure to completion. To the extent
permitted by law, such thirty (30) day notice shall constitute the sole and
exclusive notice required to be given to Lessee under applicable Unlawful
Detainer statutes.
(d) (i) The making by Lessee of any general arrangement or general
assignment for the benefit of creditors: (ii) Lessee becomes a "debtor" as
defined in 11 U.S.C. s.s. 101 or any successor statute thereto (unless, in the
case of a petition filed against Lessee, the same is dismissed within sixty (60)
days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within thirty
(30) days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within thirty (30)
days. In the event that any provision of this paragraph 13.1(d) is contrary to
any applicable law, such provision shall be of no force or effect.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee, any assignee of Lessee, any subtenant or Lessee, any successor
in interest of Lessee or any guarantor of Lessee's obligation hereunder, was
materially false.
13.2 Remedies. In the event of any such material default by Lessee, Lessor
may at any time thereafter, with or without notice or demand and without
limiting Lessor in the exercise of any right or remedy which Lessor may have by
reason of such default:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case the Lease and the term hereof shall terminate and
Lessee shall immediately surrender possession of the Premises to Lessor. In such
event Lessor shall be entitled to recover from Lessee all damages incurred by
Lessor by reason of Lessee's default including, but not limited to, the cost of
recovering possession for the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorney's fees,
and any real estate commission actually paid; the worth at the time of award by
the court having jurisdiction thereof of the amount by which the unpaid rent for
the balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Lessee proves could be reasonably avoided;
that portion of the leasing commission paid by Lessor pursuant to paragraph 15
applicable to the unexpired term of this Lease.
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(b) Maintain Lessee's right to possession in which case this Lease
shall continue in effect whether or not Lessee shall have vacated or abandoned
the Premises. In such event Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor under
the laws or judicial decisions of the state where in the Premises are located.
Unpaid installments of rent and other unpaid monetary obligations of Lessee
under the terms of this Lease shall bear interest from the date due at the
maximum rate then allowable by law.
13.3 Default by Lessor. Lessor shall not be in default unless Lessor fails
to perform obligations required of Lessor within a reasonable time, but in no
event later than thirty (30) days after written notice by Lessee to Lessor and
to the holder of any first mortgage or deed of trust covering the Premises whose
name and address shall have theretofore been furnished to Lessee in writing,
specifying wherein Lessor has failed to perform such obligation; provided,
however, that if the nature of Lessor's obligation is such that more than thirty
(30) days are required for performance then Lessor shall not be in default if
Lessor commences performance within such thirty (30) day period and thereafter
dilligently prosecutes the same to completion.
13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee
to Lessor of Base Rent, Lessee's Share of Operating Expenses or other sums due
hereunder will cause Lessor to incur costs not contemplated by this Lease, the
exact amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges, and late
charges which may be imposed on Lessor by the terms of any mortgage or trust
deed covering the Industrial Center. Accordingly, if any installment of Base
Rent, Operating Expenses, or any other sum due from Lessee shall not be received
by Lessor or Lessor's designee within five (5) days after such amount shall be
due, then, without any requirement for notice to Lessee, Lessee shall pay to
Lessor a late charge equal to 6% of such overdue amount. The parties hereby
agree that such late charge represents a fair and reasonable estimate of the
costs Lessor will incur by reason of late payment by Lessee. Acceptance of such
late charge by Lessor shall in no event constitute a waiver of Lessee's default
with respect to such overdue amount, nor prevent Lessor from exercising any of
the other rights and remedies granted hereunder. In the event that a late charge
is payable hereunder, whether or not collected, for three (3) consecutive
installments of any of the aforesaid monetary obligations of Lessee, then Base
Rent shall automatically become due and payable quarterly in advance, rather
than monthly, notwithstanding paragraph 4.1 or any other provision of this Lease
to the contrary.
14. Condemnation. If the Premises or any portion thereof or the Industrial
Center are taken under the power of eminent domain, or sold under the threat of
the exercise of said power (all of which are herein called "condemnation"), this
Lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever first occurs. If more than ten
percent of the floor area of the Premises, or more than twenty-five percent of
that portion of the Common Areas designated as parking for the Industrial Center
is taken by condemnation, Lessee may, at Lessee's option, to be exercised in
writing only within ten (10) days after Lessor shall have given Lessee written
notice of such taking (or in the absence of such notice, within ten (10) days
after the condemning authority shall have taken possession) terminate this Lease
as of the date the condemning authority takes such possession. If Lessee does
not terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the premises remaining,
except that the rent shall be reduced in the proportion that the floor area of
the Premises taken bears to the total floor area of the Premises. No reduction
of rent shall occur if the only area taken is that which does not have the
Premises located thereon. Any award for the taking of all or any part of the
Premises under the power of eminent domain or any payment made under threat of
the exercise of such power shall be the property of Lessor, whether such award
shall be made as compensation for diminution in value of the leasehold or for
the taking of the fee, or as severance damages; provided, however, that Lessee
shall be entitled to any award for loss of or damage to Lessee's trade fixtures
and removable personal property. In the event that this Lease is not terminated
by reason of such condemnation, Lessor shall to the extent of severance damages
received by Lessor in connection with such condemnation, repair any damage to
the Premises caused by such condemnation except to the extent that Lessee has
been reimbursed therefor by the condemning authority. Lessee shall pay any
amount in excess of such severance damages required to complete such repair.
16. Estoppel Certificate.
(a) Each party (as "responding party") shall at any time upon not less than
ten (10) days' prior written notice from the other party ("requesting party")
execute, acknowledge and deliver to the requesting party a statement in writing
(i) certifying that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
rent and other charges are paid in advance, if any, and (ii) acknowledging that
there are not, to the responding party's knowledge, any uncured defaults on the
part of the requesting party, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by any prospective purchaser
or encumbrancer of the Premises or of the business of the requesting party.
(b) At the requesting party's option, the failure to deliver such statement
within such time shall be a material default of this Lease by the party who is
to respond, without any further notice to such party, or it shall be conclusive
upon such party that (i) this Lease is in full force and effect, without
modification except as may be represented by the requesting party, (ii) there
are no uncured defaults in the requesting party's performance, and (iii) if
Lessor is the requesting party, not more than one month's rent has been paid in
advance.
(c) If Lessor desires to finance, refinance, or sell the Industrial Center,
or any part thereof, Lessee hereby agrees to deliver to any lender or purchaser
designated by Lessor such financial statements of lessee as may be reasonably
required by such lender or purchaser. Such statements shall include the past
three (3) years' financial statements of Lessee. All such financial statements
shall be received by Lessor and such lender or purchaser in confidence and shall
be used only for the purposes herein set forth.
17. Lessor's Liability. The term "Lessor" as used herein shall mean only the
owner or owners, at the time in question, of the fee title or a lessee's
interest in a ground lease of the Industrial Center, and except as expressly
provided in paragraph 15, in the event of any transfer of such title or
interest, Lessor herein named (and in case of any subsequent transfers then the
grantor) shall be relieved from and after the date of such transfer of all
liability as respects Lessor's obligations thereafter to be performed, provided
that any funds in the hands of Lessor or the then grantor at the time for such
transfer, in which Lessee has an interest, shall be delivered to the grantee.
The obligations contained in this Lease to be performed by Lessor shall, subject
as aforesaid, be binding on Lessor's successors and assigns, only during their
respective periods of ownership.
18. Severability. The invalidity of any provision of this Lease as determined by
a court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
19. Interest on Past-due Obligations. Except as expressly herein provided, any
amount due to Lessor not paid when due shall bear interest at the maximum rate
then allowable by law from the date due. Payment of such interest shall not
excuse or cure any default by Lessee under this Lease; provided, however, that
interest shall not be payable on late charges incurred by Lessee nor on any
amounts upon which late charges are paid by Lessee.
20. Time of Essence. Time if of the essence with respect to the obligations to
be performed under this Lease.
21. Additional Rent. All monetary obligations of Lessee to Lessor under the
terms of this Lease, including but not limited to lessee's Share of Operating
Expenses and insurance and tax expenses payable shall be deemed to be rent.
22. Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
or contemporaneous agreement or understanding pertaining to any such matter
shall be effective. This Lease may be modified in writing only, signed by the
parties in interest at the time of the modification. Except as otherwise stated
in this Lease. Lessee hereby acknowledges that neither the real estate broker
listed in paragraph 15 hereof nor any cooperating broker on this transaction nor
the Lessor or any employee or agents of any of said persons has made any oral or
written warranties or representations to Lessee relative to the condition or use
by Lessee of the Premises or the Industrial Center and Lessee acknowledges that
Lessee assumes all responsibility regarding the Occupational Safety Health Act,
the legal use and adaptability of the Premises and the compliance thereof with
all applicable laws and regulations in effect during the term of this Lease
except as otherwise specifically stated in this Lease.
23. Notices. Any notice required or permitted to be given hereunder shall be in
writing and may be given by personal delivery or by certified mail, and if given
personally or by mail, shall be deemed sufficiently given if addressed to Lessee
or to Lessor at the address noted below the signature of the respective parties,
as the case may be. Either party may by notice to the other specify a different
address for notice purposes except that upon Lessee's taking possession of the
Premises, the Premises shall constitute Lessee's address for notice purposes. A
copy of all notices required or permitted to be given to Lessor hereunder shall
be concurrently transmitted to such party or parties at such addresses as Lessor
may from time to time hereafter designate by notice to Lessee.
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24. Waivers. No waiver by Lessor or any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provision. Lessor's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Lessor's consent to
or approval of any subsequent act by Lessee. The acceptance of rent hereunder by
Lessor shall not be a waiver of any preceding breach by Lessee of any provision
hereof, other than the failure of Lessee to pay the particular rent so accepted,
regardless of Lessor's knowledge of such preceding breach at the time of
acceptance of such rent.
25. Recording. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a "short form" memorandum of this
Lease for recording purposes.
26. Holding Over. If Lessee, with Lessor's consent, remains in possession of the
Premises or any part thereof after the expiration of the term hereof, such
occupancy shall be a tenancy from month to month upon all the provisions of this
Lease pertaining to the obligations of Lessee, but all Options, if any, granted
under the terms of this Lease shall be deeded terminated and be of no further
effect during said month to month tenancy.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, whatsoever possible, be cumulative with all other remedies
at law or in equity.
28. Covenants and Conditions. Each provision of this Lease performable by Lessee
shall be deemed both a covenant and a condition.
29. Binding Effect; Choice of Law. Subject to any provisions hereof restricting
assignment or subletting by Lessee and subject to the provisions of paragraph
17, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
where the Industrial Center is located and any litigation concerning this Lease
between the parties hereto shall be initiated in the county in which the
Industrial Center is located.
30. Subordination.
(a) This Lease, and any Option granted hereby, at Lessor's option, shall be
subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation or security now or hereafter placed upon the Industrial Center and
to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgage, trustee or ground lessor shall elect to have this Lease and any
Options granted hereby prior to the lien of its mortgage, deed of trust or
ground lease, and shall give written notice thereof to Lessee, this Lease and
such Options shall be deemed prior to such mortgage, deed or trust or ground
lease, whether this Lease or such Options are dated prior to subsequent to the
date of said mortgage, deed of trust or ground lease or the date of recording
thereof.
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease or any Option granted herein
prior to the lien of any mortgage, deed of trust or ground lease, as the case
may be. Lessee's failure to execute such documents within ten (10) days after
written demand shall constitute a material default by Lessee hereunder without
further notice to Lessee or, at Lessor's option, Lessor shall execute such
documents on behalf of Lessee as Lessee's attorney-in-fact, Lessee does hereby
make, constitute and irrevocably appoint Lessor as Lessee's attorney-in-fact and
in Lessee's name, place and stead, to execute such documents in accordance with
this paragraph 30(b).
31. Attorney's Fees. If either party or the broker(s) named herein bring an
action to enforce the terms hereof or declare rights hereunder, the prevailing
party in any such action, on trial or appeal, shall be entitled to his
reasonable attorney's fees to be paid by the losing party as fixed by the court.
The provisions of this paragraph shall inure to the benefit of the broker named
herein who seeks to enforce a right thereunder.
32. Lessor's Access. Lessor and Lessor's agents shall have the right to enter
the Premises at reasonable times for the purpose of inspecting the same, showing
the same to prospective purchasers, lenders, or lessees, and making such
alterations, repairs, improvements or additions to the Premises or to the
Industrial Center as Lessor may deem necessary or desirable. Lessor may at any
time place on or about the Premises or the Building any ordinary "For Sale"
signs and Lessor may at any time during the last 120 days of the term hereof
place on or about the Premises any ordinary "For Lease" signs. All activities of
Lessor pursuant to this paragraph shall be without abatement of rent, nor shall
Lessor have any liability to Lessee for the same.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises or the Common Areas
without first having obtained Lessor's prior written consent. Notwithstanding
anything to the contrary in this Lease, Lessor shall not be obligated to
exercise any standard of reasonableness in determining whether to grant such
consent.
34. Signs. Lessee shall not place any sign upon the Premises or the Industrial
Center without Lessor's prior written consent. Under no circumstances shall
Lessee place a sign on any roof of the Industrial Center.
35. Merger. The voluntary or other surrender of this Lease by Lessee, or a
mutual cancellation thereof, or a termination by Lessor, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to Lessor
of any or all of such subtenencies.
36. Consents. Except for paragraph 33 hereof, wherever in this Lease the consent
of one party is required to an act of the other party such consent shall not be
unreasonably withheld or delayed.
37. Guarantor. In the event that there is a guarantor of this Lease, said
guarantor shall have the same obligations as Lessee under this Lease.
38. Quiet Possession. Upon Lessee paying the rent for the Premises and observing
and performing all of the covenants, conditions and provisions on Lessee's part
to be observed an performed hereunder, Lessee shall have quiet possession of the
Premises for the entire term hereof subject to all of the provisions of this
Lease. The individuals executing this Lease on behalf of Lessor represent and
warrant to Lessee that they are fully authorized and legally capable of
executing this Lease on behalf of Lessor and that such execution is binding upon
all parties holding an ownership interest in the Industrial Center.
39. Options.
39.1 Definition. As used in this paragraph the word "Option" has the
following meaning: (1) the right or option to extend the term of this Lease or
to renew this Lease or to extend or renew any Lease that Lessee has on other
property of Lessor, (2) the option or right of first refusal to lease the
Premises or the right of first offer to lease the Premises or the right of first
refusal to lease other space within the Industrial Center or other property of
Lessor or the right of first offer to lease other space within the Industrial
Center or other property of Lessor, (3) the right or option to purchase the
Premises or the Industrial Center, or the right of first refusal to purchase the
Premises or the Industrial Center, or the right of first offer to purchase the
Premises or the Indudtrial Center or the right of option to purchase other
property of Lessor or the right of first refusal to purchase other property of
Lessor or the right of first offer to purchase other property.
39.2 Options Personal. Each Option granted to Lessee in this Lease is
personal to the original Lessee and may be exercised only by the original Lessee
while occupying the Premises who does so without the intent of thereafter
assigning this Lease or subletting the Premises or any portion thereof, and may
not be exercised or be assigned, voluntarily or involuntarily, by or to any
person or entity other than Lessee, provided, however, that an Option may be
exercised by or assigned to any Lessee Affiliate as defined in paragraph 12.2 of
this Lease. The Options, if any, herein granted to Lessee are not assignable
separate and apart from this Lease, nor may any Option be separated from this
Lease in any manner, either by reservation or otherwise.
39.3 Multiple Options. In the event that Lessee has any multiple options to
extend or renew this Lease a later option cannot be exercised unless the prior
option to extend or renew this Lease has been so exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option, notwithstanding any
provision in the grant of Option to the contrary, (i) during the time commencing
from the date Lessor gives to Lessee a notice of default pursuant to paragraph
13.1(b) or 13.1(c) and continuing until the noncompliance alleged in said notice
of default is cured, or (ii) during the period of time commencing on the date
after a monetary obligation to Lessor is due from Lessee and unpaid (without any
necessity for notice thereof to Lessee) and continuing until the obligation is
paid, or (iii) at any time after the event of default described in paragraphs
13.1(a), 13.1(d), or 13.1(e) (without any necessity of Lessor to give notice of
such default to Lessee), or (iv) in the event that Lessor has given to lessee
three or more notices of default under paragraph 13.1(b), or paragraph 13.1(c),
whether or not the defaults are cured, during the 12 month period of time
immediately prior to the time that Lessee attempts to exercise the subject
Option.
(b) The period of time within which an Option may be exercised shall not be
extended or enlarged by reason of Lessee's inability to exercise an Option
because of the provisions of paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall terminate
and be of no further force or effect, notwithstanding Lessee's due and timely
exercise of the Option, if, after such exercise and during the term of this
Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee for a
period of thirty (30) days after such obligation becomes due (without any
necessity of Lessor to give notice thereof to Lessee), or (ii) Lessee fails to
commence to cure a default specified in paragraph 13.1(c) within thirty (30)
days after the date that Lessor gives notice to Lessee of such default and/or
Lessee fails thereafter to diligently prosecute said cure to completion, or
(iii) Lessee commits a default described in paragraph 1.31(a), 13.1(d) or
13.1(e) (without any necessity of Lessor to give notice of such default to
Lessee), or (iv) Lessor gives to Lessee three or more notices of default under
paragraph 13.1(b), or paragraph 13.1(c), whether or not the defaults are cured.
40. Security Measures. Lessee hereby acknowledges that Lessor shall have no
obligation whatsoever to provide guard service or other security measures for
the benefit of the Premises or the Industrial Center. Lessee assumes all
responsibility for the protection of Lessee, its agents, and invitees and the
property of Lessee and of Lessee's agents and invitees from acts of third
parties. Nothing herein contained shall prevent Lessor, at Lessor's sole option,
from providing security protection for the Industrial Center or any part
thereof, in which event the cost thereof shall be included within the definition
of Operating Expenses, as set forth in paragraph 4.2(b);
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-7-
41. "Easements" Lessor reserves to itself the right, from time to time, to grant
such easements, rights and dedications that lessor deems necessary or desirable,
and to cause the recordation of Parcel Maps and restrictions, so long as such
easements, rights, dedications, Maps and restrictions do not unreasonably
interfere with the use of the Premises by Lessee. Lessee shall sign any of the
aforementioned documents upon request of Lessor and failure to do so shall
constitute a material default of this Lease by Lessee without the need for
further notice to Lessee.
42. Performance Under Protest. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one party to the other under the provisions
hereof, the party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment, and there shall survive the right on the part
of said party to institute suit for recovery of such sum. If it shall be
adjudged that there was no legal obligation on the part to said party to pay
such sum or any part thereof, said party shall be entitled to recover such sum
or so much thereof as it was not legally required to pay under the provisions of
this Lease.
43. Authority. If Lessee is a corporation, trust, or general or limited
partnership, each individual executing this Lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and deliver
this Lease on behalf of said entity. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after execution of this
Lease, deliver to Lessor evidence of such authority satisfactory to Lessor.
44. Conflict. Any conflict between the printed provisions of this Lease and the
typewritten or handwritten provisions, if any, shall be controlled by the
typewritten or handwritten provisions.
45. Offer. Preparation of this Lease by Lessor or Lessor's agent and submission
of same to Lessee shall not be deemed an offer to lease. This Lease shall become
binding upon Lessor and Lessee only when fully executed by Lessor and Lessee.
46. Addendum. Attached hereto is an addendum or addends containing paragraphs 47
through 66 which constitute a part of this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED
AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS
LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND
EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
THIS LEASE HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR
APPROVAL, NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKER OR ITS
AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX
CONSEQUENCES OF THIS LEASE OR THE TRANSACTION RELATING THERETO: THE
PARTIES SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL AS
TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
LESSOR LESSEE
SUNRISE GOLD ASSOCIATES, A California AMERICAN MICROWAVE TECHNOLOGIES, A
Limited Partnership California Corporation
By /s/ Xxxxx X. Xxxxxxxx By /s/ Hans Xxxxxxx Xxxx
----------------------------------- ---------------------------------
Xxxxx X. Xxxxxxxx, General Partner Hans Xxxxxxx Xxxx, Vice President
& Chief Financial Officer
By By
----------------------------------- ---------------------------------
Executed on 3/3/98 Executed on 2-26-98
-------------------------- ------------------------
(Corporate Seal) (Corporate Seal)
ADDRESS FOR NOTICES AND RENT ADDRESS
0000 Xxxx Xxxxxx, Xxxxx 000 0000 Xxxx Xxxxxxxx Xxxxxx
-------------------------------------- ------------------------------------
Xxxxxxx Xxxxx, XX 00000 Xxxxxxx, XX 00000
-------------------------------------- ------------------------------------
-------------------------------------- ------------------------------------
American Industrial Real Estate Association, Los Angeles, CA (000)000-0000
47. Outside Storage. No items shall be allowed to be left outside of the
building or on any of the common areas as pertains to landscaping, driveways,
parking lots, fences and all sidewalks and parkways adjacent to the Premises.
This includes, but is not limited to, supplies, materials, goods, pallets,
dunnage and equipment. No vehicles, including boats and trailers, may be parked
or stored outside the building overnight. Violation of this Paragraph shall
constitute a material breach of this Lease.
48. Outside Work. No work shall be permitted on the sidewalks, roofs, streets,
driveways, parking, outside roll up doors, or landscaped areas. This includes,
but is not limited to, assembly, construction, mechanical work, painting,
drying, layout, cleaning, or repair of goods or materials. Violation of this
Paragraph shall constitute a material breach of this Lease.
49. Service Fees. Without altering Paragraph 13.1, Lessee agrees to reimburse
Lessor Fifty Dollars ($50.00) each time Lessor serves Lessee a Three Day Notice
to Pay Rent or Quit, an amount acknowledged as a reasonable minimum charge.
Further, in addition to the remedies outlined in Paragraph 13.2, Lessee agrees
to pay to Lessor Thirty Five Dollars ($35.00) each time a payment is returned by
his bank for any reason, such as insufficient funds.
50. Occupancy Type. Should any governmental authority require any additional
improvements, modifications, licenses and/or permits of any kind, including but
not limited to, a conditional use permit due to Lessee's use and/or occupancy of
the Premises, it shall be provided by Lessee, at Lessee's sole expense. It is
Lessor's understanding that Lessee will not be using flammable solvents or
utilizing the Premises in any way that would cause Lessee's occupancy to be
considered anything other than a B-1 or B-2 type occupant.
In the event that Lessee is classified under any other occupancy type (such as
an H-2 or H-3 type for example) which requires any additional improvements to
the space (i.e., additional fire sprinkler drops, ventilation equipment and/or
ducting, additional Sheetrock, etc.), or by Lessee's use of the Premises,
increases the fire insurance premiums on the building, Lessee shall be
responsible to pay for and/or provide the same.
51. Asphalt/Concrete. Lessee agrees to use only forklifts equipped with
pneumatic tires in order to minimize the wear and tear on asphalt areas. Any
wear and tear to the asphalt or concrete areas inside or outside of roll up door
area shall be maintained and repaired at Lessee's sole cost and expense.
52. Re-keying of Locks. Lessee acknowledges that the Trade Center Associates is
set up on a "Master Key" lock system. In the event Lessee desires to re-key the
locks after lease execution, then Lessee shall use only Professional Lock and
Safe, Fair Oaks, (000) 000-0000, to perform said locksmith service. Lessee shall
have all locks keyed to Lessor's master key system and pay all costs associated
herein directly to Professional Lock and Safe. Lessor shall not incur any cost
related thereto. At the end of the Lease term, Lessor shall have the premises
rekeyed at Lessee's expense.
53. Telephone Line Capacity. Lessee shall not be entitled to more than his
proportionate share, (see paragraph 1.6(b)) for share) of the building's
telephone line capacity.
54. Application of Late Payments. In the event Lessee is late on any rental
payments required under the terms of this Lease, Lessor shall apply any moneys
received by Lessee first to any outstanding payments due, including, but not
limited to, any legal fees, court costs, late charges, CAM charges, etc. The
balance of said funds shall be applied to rent.
If Lessor receives two (2) late payments, or one (1) Non-Sufficient Fund check
throughout the lease term, then Lessor may elect to have all future rental
payments paid by Cash, Cashier's Check or Money Order for the balance of the
lease term.
55. Smoke Free Environment. Lessee acknowledges that the building, in which the
premises is a part, has been designated a "smoke free environment" in accordance
with Sacramento County Smoking Pollution Control Ordinance.
56. Tenant Improvements. Lessor, at Lessor's expense, shall complete the
following tenant improvements prior to the commencement date:
A. Install standard grade industrial carpet, color to be selected by Tenant
(See Exhibit A)
B. Install new VCT, color to be selected by Tenant (See Exhibit B)
C. Paint throughout (See Exhibit C)
D. Replace any stained ceiling tiles
E. Modify existing layout (See Exhibit D)
F. Clean & paint all HVAC covers
Upon lease execution Lessee shall submit to Lessor, three thousand four hundred
and no/100 dollars ($3,400.00) as Lessee's contribution towards the Tenant
Improvements shown above.
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57. Tenant Improvement Construction Specifications. Subject to Lessor's
improvements per Xxxxxxxxx 00, Xxxxxx hereby accepts the premises in an "AS IS"
condition. Lessee may do construction, within in the Premises, upon obtaining a
building permit, submission of a plan, and written approval from Lessor. Any
alterations, improvements, and additions shall be according to all appropriate
governmental agencies, at Lessee's sole expense. Any Tenant Improvements shall
conform to Lessor's existing standard. All alterations, improvements and
additions shall become the property of Lessor at the expiration of the Lease
term or earlier termination of the Lease and shall be surrendered with the
Premises.
A. Office partitions shall be metal or wood studs 2" X 4" at 16" on center
covered each side with 5/8" thick drywall. Taped, light texture, and
painted to match existing. All concrete walls shall be furred out.
B. All walls shall have R-11 insulation and all ceiling shall have R-19
insulation throughout.
C. Doors shall be 3'0" X 6'8" hollow core to match existing.
D. Ceiling shall be a suspended T-Bar system; using 2' X 4' white acoustic
tile with black grids throughout office areas.
E. Ceiling height to be 8'0 in private offices and general office areas.
F. Electrical and telephone outlets shall be installed in metal conduit at
a minimum of one (1) pair per wall section or every 8' whichever is less.
No electrical or telephone outlets shall be surface mounted on interior
office/bathroom walls.
G. Floor coverings in office areas shall be carpeted with Lessor's standard
Light Xxxx, 4' Rubber Base shall be light xxxx to match.
H. Lessee acknowledges that window and door coverings can have a major
impact on how a business is perceived by customers and other visitors to
surrounding businesses, therefore, Lessee agrees to the following
conditions:
1. Lessee must have Lessor's prior written approval of all window and
door coverings prior to installation.
2. Window and door coverings shall be 1" mini-blinds installed inside
each individual window section; color to match existing or light beige
only. no wrought iron shall be added to the exterior of the building,
nor mounted into any interior or exterior window frame (mullion).
3. Any windows installed shall be 4' wide X 3' tall (tempered glass),
installed at 42" above finished floor. The opening shall be drywall and
textured to match the existing drywall surfaces with a 1" black
aluminum frame installed in the middle of the window opening.
4. Office shall have a Central HVAC system. HVAC unit is to be located
on roof in a location approved by Lessor.
58. Base Rent Adjustments. The minimum monthly Base Rent during the second
twelve (12) months of this lease shall be two thousand one hundred forty two and
no/100 dollars (2,142.00), plus Common Area Maintenance Charges ("CAM") not to
exceed the amount of one hundred sixty seven and no/100 dollars ($167.00).
The minimum monthly Base Rent during the third twelve (12) months of this lease
shall be two thousand two hundred forty nine and no/100 dollars ($2,249.00),
plus Common Area Maintenance Charges ("CAM") not to exceed the amount of one
hundred seventy five and no/100 dollars ($175.00).
59. Option to Extend. If Lessee is not in default in performing any of its
obligations under the Lease, Lessee shall have and is hereby granted an option
to extend the term of this Lease for one additional three year period, to begin
upon the expiration of the term of this Lease upon the same terms, provisions
and conditions as contained in this Lease, except the rental payable during such
option period. Notice of the exercise of any options to extend shall be in
writing and shall be given in the manner provided in the Lease for the giving of
notices not less than three (3) months prior to the expiration of the then term
in effect.
The rental to be paid by Lessee during the first twelve (12) months of the
option term shall be two thousand three hundred sixty one and no/100 dollars
($2,361.00) commencing April 1, 2001 and ending March 31, 2002.
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The rental to be paid by Lessee during the second twelve (12) months of the
option term shall be two thousand four hundred seventy nine and no/100 dollars
($2,479.00) commencing April 1, 2002 and ending March 31, 2003.
The rental to be paid by Lessee during the third twelve (12) months of the
option term shall be two thousand six hundred three and no/100 dollars
($2,603.00) commencing April 1, 2003 and ending March 31, 2004.
60. Overhead Doors. Lessor warrants overhead doors to be in proper working order
at the time of occupancy. Notwithstanding any warranties by the overhead door
manufacturer, Lessee hereby agrees to maintain, in proper working order during
the term of the lease, the overhead doors, and all associated hardware, brackets
and mechanisms associated with their operation. Lessor shall have no
responsibility to repair, replace or maintain the overhead doors. Lessee also
warrants that said overhead doors shall be in proper working order at such time
as Lessee vacates the Premises.
61. Lessor Partnership. Lessor hereby advises Lessee that Lessor is a
partnership (the "Partnership"). Lessee hereby agrees that, if a claim of any
kind arising out of this Lease or Lessee's use or occupancy of the Premises is
made by or on behalf of Lessee, Lessee will (a) look solely to the assets of the
Partnership and not the assets of the partners of the Partnership, for the
satisfaction of the claim and (b) not name any of the partners of the
Partnership in any litigation arising out of any such claim. The word "claim" is
used herein in its broadest sense and shall cover (a) assertion of damages based
on any acts or omissions of Lessor or the partners of the Partnership, (b) all
types of damages including, but not limited to, compensatory, consequential and
exemplary (punitive) damages and (c) all nature of damages, whether to persons
or property. Lessor has entered into this Lease in specific reliance on the
foregoing agreements by Lessee.
62. No Warranty As To Use or Zoning. Lessee hereby acknowledges that lessor has
not made any representation or warranty to Lessee with regard to the suitability
of the Premises for Lessee's intended use, or the applicability of any zoning or
other land use law, regulation or other restrictions which may be applicable to
Lessee's intended use of the Premises.
This Lease, and Lessee's leasehold interest in the Premises, are subject to all
easements and other matters of record as of the date of this Lease.
63. Hazardous Substances. Lessee agrees to comply, at Lessee's expense, with all
laws and regulations (Federal, State and Local) relating to Lessee's storage or
use of hazardous substances, materials, waste and toxic substances (as such are
described, defined and identified in the laws and regulations regarding such
substances now or in force during any portion of the Lease Term). "Compliance"
includes obtaining and maintaining all required permits from the appropriate
authorities.
Upon termination of this Lease, Lessee agrees, at Lessee's expense, to remove
and, if necessary, transport all such material from the Premises, conforming in
such removal to the requirements of the applicable laws and regulations. Lessee
shall not take any remedial action (including consent decrees, settlement
agreements or compromises) without giving reasonable written notice to Lessor to
afford Lessor the opportunity to protect Lessor's interest. Lessee shall give
Lessor prompt written notice of any enforcement activity (threatened or
otherwise) by and enforcement agency; any claim for damages made against Lessee
and any report to any environmental agency regarding Lessee's activities or use
of these substances.
Lessee will indemnify and defend (by counsel reasonably acceptable to Lessor)
Lessor, Lessor's partners, employees, agents, attorneys' and successors and
assigns, and to hold them free and harmless from all claims for damages,
penalties and forfeitures for Lessee's violation, or alleged, violation of any
such law or regulation. Indemnification shall include the cost of any required
or necessary repair, cleanup, removal, detoxification or decontamination of the
Premises to completion. The acts of omissions of Lessee's agent, employees,
assignees, contractors or subcontractors (of Lessee or others), whether
negligent, intentional or unlawful, shall be strictly attributable to Lessee.
The provisions of this Paragraph shall survive the expiration or termination of
this Lease. Lessor shall have the right to require Lessee to provide reasonable
security for the performance of Lessee's obligations under this Paragraph.
64. Mezzanine Storage. The Premises consists of office and warehouse areas. The
stairs and upstairs office area (the "Mezzanine") above the ground level office
area, was designed and constructed by a previous tenant. Lessee has asked Lessor
for it's consent to utilize the Mezzanine in connection with Lessee's use of the
Premises without additional charge and Lessor has agreed to do so in reliance on
the following acknowledgments and agreements by Lessee:
A. Lessee acknowledges that Lessor has made no representation as to the
suitability of the Mezzanine for any potential use thereof by Lessee.
B. Lessee acknowledges that Lessor has made no investigation concerning the
load capacity
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of the Mezzanine. Lessee agrees to use discretion and care in the selection
and distribution of items to be stored on the Mezzanine. Heavy loads shall
not be permitted.
C. Lessee assumes all responsibility for the use of the Mezzanine and
agrees to indemnify and hold Lessor free and harmless from any and all
costs, liabilities and claim, whether to persons or property, arising out
of or connected with Lessee's use of the Mezzanine or the stairs to the
Mezzanine.
65. First Right of First Offer. At any time during the term of this Lease, so
long as Lessee is not in default under the terms and conditions thereof, and
additional space in 00000 Xxxxxxx Xxxx Xxxxxx should become available, adjacent
to Lessee's existing space, then, and in that event, Lessor shall advise Lessee
of said availability. Said notice shall contain the terms and conditions under
which said space is, or will become available, at which time Lessee shall have
five (5) business days within which to advise Lessor of its intent to lease said
space. In the event Lessee chooses not to lease said space, the space will be
made available through Lessor's marketing program and Lessee shall continue to
have the same rights as any other potential tenant to lease said space.
66. Maintenance, Repairs, Utility Installations, Trade Fixtures and Alterations.
Paragraph 7.1 shall be modified as follows regarding the HVAC units. Lessor
shall be responsible for the replacement of condensers, compressors or new HVAC
units. Lessee shall be responsible for all other repair and maintenance of the
units not covered by Lessor's HVAC Maintenance contract.
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10D
SIGN CRITERIA - SUNRISE BUSINESS PARK
--------------------------------------------------------------------------------
This Sign Criteria has been established for the mutual benefit of all Lessees
and to maintain a professional business complex appearance. Compliance will be
strictly enforced. Any non-conforming or unapproved signs must be brought into
conformance with this Criteria, at the Lessee's expense.
1. All costs incurred in the making, installation and removal of Lessee's
initial sign lettering shall be at Lessee's expense, which is currently
$300, and which shall be due upon execution of this Lease.
2. As outlined in Paragraph 34, sign dimensions, color, location and design
shall be determined by Lessor and may be changed at any time at the
discretion and sole cost of Lessor. Lessee shall be responsible only for
the initial cost of installing sign and any cost of alterations initiated
by Lessee.
3. Any damage caused to the sign will be repaired by Lessee. If Lessee refuses
to make repairs upon notice by Lessor, Lessor may make repairs and change
Lessee the cost, in accordance with Paragraph 13.1.c.
4. The sign canister and sign blank shall remain the property of Lessor.
5. Except as provided herein, no advertising placards, banners, pennants,
names, insignias or trademarks or other descriptive material, nor any
security insignias or decals, shall be affixed or maintained upon the glass
panes or exterior walls or doors of the building or in the landscaped
areas, or affixed to automobiles, trucks or trailers in the parking areas.
This restriction does not apply to magnetic or painted identification signs
placed on company or private vehicles for use in the normal course of
business.
--------------------------------------
AMERICAN MICROWAVE TECHNOLOGY
--------------------------------------
EXHIBIT A
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[GRAPHIC OMITTED]
EXHIBIT B
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RULES AND REGULATIONS
(SUPPLEMENTAL TO LEASE PROVISIONS)
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside
or inside of the Building without the written consent of Lessor. Lessor
shall have the right to remove any such sign, placard, picture,
advertisement, name or notice without notice to and at the expense of
Lessee.
2. All approved signs or lettering on doors shall be printed, painted, affixed
or inscribed at the expense of Lessee by a person approved of by Lessor.
Lessee shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly
from outside the Premises as determined by Lessor; provided, however, that
Lessor may furnish and install a Building Standard window covering at all
exterior windows. Lessee shall not without prior written consent of Lessor
cause or otherwise sunscreen any window.
3. To keep common area maintenance charges ("CAM") to a minimum, there is no
window washing service provided. It is, therefore, the Tenant's
responsibility to keep windows clean, both inside and out.
4. The sidewalks, exits, entrances, and driveways shall not be obstructed by
any of the Lessees, or used by them for any purpose other than for ingress
and egress from their respective Premises. No work related to the Tenant's
business shall be performed outside of Tenant's space. Do not park cars or
dumpsters in these areas. Automobiles illegally parked will be towed at the
Owner of the vehicle's sole cost and expense.
5. Lessee shall not alter any lock or install any new or additional locks or
any bolts on any doors or windows of the Premises. Should you need to
rekey, please call the management.
6. The toilet rooms, urinals, wash bowls and other apparatus shall not be used
for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein and the
expense of any breakage, stoppage or damage resulting from the violation of
this rule shall be borne by the Lessee, who, or whose employees or invitees
shall have caused it.
7. Lessee shall not in any way deface the Premises or any part thereof.
8. Lessee shall not use; keep or permit to be used or kept any foul or noxious
gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to the Lessor or
other occupants of the Building by reason of noise, odors, and/or
vibrations, or interfere in any way with other Lessees or those having
business therein, nor shall any animals or birds to brought in or kept in
or about the Premises of the Building.
9. Lessee shall not use or keep in the Premises or Building any kerosene,
gasoline or inflammable or combustible fluid or material, or use any method
of heating or air conditioning other than that supplied by Lessor.
10. Lessor reserves the right to exclude or expel from the Premises any person
who, in the judgment of Lessor, is intoxicated or under the influence of
liquor or drugs, or who shall in any manner do any act in violation of any
of these Rules and Regulations.
11. Lessor shall have the right, exercisable without notice and without
liability to Lessor to change the name and street address of the Building
of which the Premises are a part.
12. Lessee shall not disturb, solicit, or canvass any occupant of the Building
and shall cooperate to prevent same.
13. Without the written consent of Lessor, Lessee shall not use the name of the
Building in connection with or in promoting or advertising the business of
Lessee except as Lessee's address.
14. Dumpsters are available for Lessee's office-related garbage, and are not be
used for Lessee's business related garbage, i.e., a landscaper may not use
the dumpster to dispose of lawn and grass clippings generated by his
business. All garbage and refuse, generated by Lessee's office use, shall
be placed by Lessee in containers or dumpsters. To keep the dumpster areas
clean, all cardboard boxes must be broken down and placed inside the
dumpster with the lids closed. If the dumpster is full, management should
be notified. Do not leave anything outside of the dumpster. All tenants are
expected to assist in keeping the dumpster areas clean.
15. No aerial, satellite dish or antenna shall be erected on the roof or
exterior walls of the Leased Premises, or on the grounds, without, in each
instance, the written consent of Lessor first being obtained. Any aerial or
antenna so installed without such written consent shall be subject to
removal by lessor at any time without notice.
16. No loud speakers, television, phonographs, radios or other devices shall be
used in a manner so as to be heard or seen outside of the Leased Premises
without the prior written consent of Lessor.
17. The outside areas immediately adjoining the Leased Premises shall be kept
clean and free from dirt and rubbish by Lessee, to the satisfaction of the
Lessor, and Lessee shall not place or permit any obstruction or materials
in such areas. No exterior storage shall be allowed including, without
limitation, the storage of motor vehicles, trucks, boats, trailers,
pallets, drums, or equipment of any kind or nature, without the prior
written consent of Lessor.
18. Lessee shall use, at Lessee's cost, such pest extermination contractor as
Lessor may direct and at such intervals as Lessor may require.
19. Lessee shall not burn any trash or garbage of any kind in or about the
Leased Premises or the Project.
20. No residential uses, including, without limiting the generality of the
foregoing, residing, sleeping or cooking are permitted on the premises or
anywhere on the Project.
21. No animals of any type, including, without limiting the generality of the
foregoing, pets, guard dogs, exotic animals, reptiles or birds, are
permitted on the Premises or anywhere on the Project.
22. As a courtesy to your neighbors who wish to leave the parking spaces
directly in front of their premises open for their customers, we ask that
you and your employees use only those parking areas that are directly in
front of your own space. Should you need additional parking there is always
plenty of additional parking behind the buildings.
EXHIBIT C-1
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Sunrise Gold Business Park
EXISTING LAYOUT
MAP OF EXISTING LAYOUT
00000 Xxxxxxx Xxxx Xxxxxx Xxxxx X
EXHIBIT D
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EXHIBIT A
TENANT IMPROVEMENT
Sunrise Gold Business Park
MAP OF NEW CARPET
00000 Xxxxxxx Xxxx Xxxxxx Xxxxx X
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EXHIBIT B
TENANT IMPROVEMENT
Sunrise Gold Business Park
MAP OF NEW VCT FLOORING
11315 Sunrise Gold Circle Suite I
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EXHIBIT C
TENANT IMPROVEMENT
Sunrise Gold Business Park
MAP OF NEW PAINT
00000 Xxxxxxx Xxxx Xxxxxx Xxxxx X
Initials: HGW
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EXHIBIT D
TENANT IMPROVEMENT
Sunrise Gold Business Park
MAP OF PROPOSED LAYOUT
00000 Xxxxxxx Xxxx Xxxxxx Xxxxx X
Initials: HGW
BW
