INDUSTRIAL REAL ESTATE LEASE
CB XXXXXXX XXXXX (SINGLE-TENANT FACILITY)
BROKERAGE AND MANAGEMENT
LICENSED REAL ESTATE BROKER
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Lease between the
Landlord and Tenant named below. Other Articles, Sections and Paragraphs of the
Lease referred to in this Article One explain and define the Basic terms and are
to be read in conjunction with the Basic Terms.
Section 1.1 DATE OF LEASE: September 14, 1999
Section 1.2 LANDLORD (INCLUDE LEGAL ENTITY): Xxxxxxxxx & Xxxxx Xxxxxxxx
Address of Landlord: 000 Xxxxxxx Xxxxxx
Xxxxx Xxx Xxxxxxxxx, XX 00000
Section 1.3 TENANT (INCLUDE LEGAL ENTITY: iPrint, Inc., a California
Corporation
Address of Tenant: 0000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Section 1.4 PROPERTY: (include street address, approximate square
footage and description: 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxx. +10,540
sq. ft. of combination of office/warehouse, partial two-story concrete tilt-up
building.
APN# 00-000-000
Section 1.5 LEASE TERM: four years - months
beginning on October 1, 1999 or such other date as is specified in this
Lease, and ending on September 30, 2003
Section 1.6 PERMITTED USES: (See Article Five) Office,
administration, storage, distribution, and other legal uses.
Section 1.7 TENANT'S GUARANTOR: (If none, so state) None
Section 1.8 BROKERS: (See Article Fourteen) (If none, so state)
Landlord's Broker: CB Xxxxxxx Xxxxx, Inc.
Tenant's Broker: Xxxxxxxx Xxxx Corporate Real Estate
Section 1.9 COMMISSION PAYABLE TO LANDLORD'S BROKER: (See Article
Fourteen ) $ Per Agreement
Section 1.10 INITIAL SECURITY DEPOSIT: (See Section 3.03) $Eight
Thousand ($8,000.00)
Section 1.11 VEHICLE PARKING SPACES ALLOCATED TO TENANT: Front and rear
of property
Section 1.12 RENT AND OTHER CHARGES PAYABLE BY TENANT:
(a) BASE RENT: Seven Thousand Nine Hundred Five and 00/100
Dollars ($7,905.00) per month, for the first twelve months, as provided in
Section 3.01, and shall be increased on the first day of the 13th, 25th,
37th, month(s) after the Commencement Date, as provided in the Base
Rent Schedule.
(b) OTHER PERIODIC PAYMENTS: (i) Real Property Taxes (See
Section 4.2); (ii) Utilities (See Section 4.3); (iii) Insurance Premiums (See
Section 4.4); (iv) Impounds for Insurance Premiums and Property Taxes (See
Section 4.7); (v) Maintenance, Repairs and Alterations (See Article Six).
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Society of Industrial /s/ FN DN
and Office Realtors,
-Registered Trademark- Inc.
* CB Xxxxxxx Xxxxx, Inc.
(Single-Tenant Net Form)
Section 1.13 LANDLORD'S SHARE OF PROFIT ON ASSIGNMENT OR SUBLEASE: (See
Section 9.5) zero percent ( 0 %) of the Profit (the "Landlord's Share").
Section 1.14 RIDERS: The following Riders are attached to and made a
part of this Lease: (If none, so state)
(i) Addendum to Industrial Real Estate Lease
ARTICLE TWO: LEASE TERM
Section 2.1 LEASE OF PROPERTY FOR LEASE TERM. Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the Lease
Term. The Lease Term is for the period stated in Section 1.5 above and shall
begin and end on the dates specified in Section 1.5 above, unless the beginning
or end of the Lease Term is changed under any provision of this Lease. The
"Commencement Date" shall be the date specified in Section 1.5 above for the
beginning of the Lease Term, unless advanced or delayed under any provision of
this Lease.
Section 2.2 DELAY IN COMMENCEMENT. Landlord shall not be liable to
Tenant if Landlord does not deliver possession of the Property to Tenant on
the Commencement Date. Landlord's non-delivery of the Property to Tenant on
that date shall not affect this Lease or the obligations of Tenant under this
Lease except that the Commencement Date shall be delayed until Landlord
delivers possession of the Property to Tenant and the Lease Term shall be
extended for a period equal to the delay in delivery of possession of the
Property to Tenant, plus the number of days necessary to end the Lease Term
on the last day of a month. If Landlord does not deliver possession of the
Property to Tenant within sixty (60) days after the Commencement Date, Tenant
may elect to cancel this Lease by giving written notice to Landlord within
ten (10) days after the sixty (60) -day period ends. If Tenant gives such
notice, the Lease shall be cancelled and neither Landlord nor Tenant shall
have any further obligations to the other. If Tenant does not give such
notice, Xxxxxx's right to cancel the Lease shall expire and the Lease Term
shall commence upon the delivery of possession of the Property to Tenant. If
delivery of possession of the Property to Tenant is delayed, Landlord and
Tenant shall. upon such delivery, execute an amendment to this Lease setting
forth the actual Commencement Date and expiration date of the Lease. Failure
to execute such amendment shall not affect the actual Commencement Date and
expiration date of the Lease.
Section 2.3 EARLY 0CCUPANCY. If Tenant occupies the Property prior
to the Commencement Date, Xxxxxx's occupancy of the Property shall be subject
to all of the provisions of this Lease. Early occupancy of the Property
shall not advance the expiration date of this Lease.
Section 2.4 HOLDING OVER. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse
Landlord for and indemnity Landlord against all damages which Landlord incurs
from Xxxxxx's delay in vacating the Property. If Tenant does not vacate the
Property upon the expiration or earlier termination of the Lease and Landlord
thereafter accepts rent from Tenant, Xxxxxx's occupancy of the Property shall
be a "month-to-month" tenancy, subject to all of the terms of this Lease
applicable to a month-to-month tenancy, except that the Base Rent then in
effect shall be increased by twenty-five percent (25%).
ARTICLE THREE: BASE RENT
Section 3.1 TIME AND MANNER OF PAYMENT. Upon execution of this Lease,
Tenant shall pay Landlord the Base Rent in the amount stated in
Paragraph 1.12(a) above for the first month of the Lease Term. On the first day
of the second Lease Term and each month thereafter, Tenant shall pay Landlord
the Base Rent. in advance, without offset, deduction or prior demand. The Base
Rent shall be payable at Landlord's address or at such other place as Landlord
may designate in writing.
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and Office Realtors,
-Registered Trademark- Inc.
* CB Xxxxxxx Xxxxx, Inc.
(Single-Tenant Net Form)
Section 3.3 SECURITY DEPOSIT; INCREASES.
(a) Upon the execution of this Lease, Tenant shall deposit
with Landlord a cash Security Deposit in the amount set forth in Section 1.10
above. Landlord may apply all or part of the Security Deposit to any unpaid
rent or other charges due from Tenant or to cure any other defaults of
Tenant. If Landlord uses any part of the Security Deposit, Tenant shall
restore the Security Deposit to its full amount within ten (10) days after
Landlord's written request. Tenant's failure to do so shall be a material
default under this Lease. No interest shall be paid on the Security Deposit.
Landlord shall not be required to keep the Security Deposit separate from
its other accounts and no trust relationship is created with respect to the
Security Deposit.
(b) Each Time the Base Rent is increased, Tenant shall
deposit additional funds with Landlord sufficient to increase the Security
Deposit to an amount which bears the same relationship to the adjusted Base
Rent as the initial Security Deposit bore to the initial Base Rent.
Section 3.4 TERMINATION; ADVANCE PAYMENTS. Upon termination of this
Lease under Article Seven (Damage or Destruction). Article Eight
(Condemnation) or any other termination not resulting from Xxxxxx's default,
and after Xxxxxx has vacated the Property in the manner required by this
Lease, Landlord shall refund or credit to Tenant (or Xxxxxx's successor) the
unused portion of the Security Deposit, any advance rent or other advance
payments made by Tenant to Landlord, and any amounts paid for real property
taxes and other reserves which apply to any time periods after termination of
the Lease [WITHIN THIRTY (30) DAYS].
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
Section 4.1 ADDITIONAL RENT. All charges payable by Tenant other than
Base Rent are called "Additional Rent." Unless this Lease provides otherwise,
Tenant shall pay all Additional Rent then due with the next monthly installment
of Base Rent. The term "rent" shall mean Base Rent and Additional Rent.
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Society of Industrial /s/ FN DN
and Office Realtors,
-Registered Trademark- Inc.
* CB Xxxxxxx Xxxxx, Inc.
(Single-Tenant Net Form)
Section 4.2 PROPERTY TAXES.
[TENANT SHALL NOT PAY ANY ADDITIONAL PROPERTY TAXES IN THE EVENT LANDLORD SELLS
THE PROPERTY.]
(a) REAL PROPERTY TAXES. Tenant shall pay all real properly
taxes on the Property (including any fees, taxes or assessments against, or
as a result of, any tenant improvements installed on the Property by or for
the benefit of Tenant) during the Lease Term. Subject to Paragraph 4.02(c)
and Section 4.07 below, such payment shall be made at least ten (10) days
prior to the delinquency date of the taxes. Within such ten (10) -day
period, Tenant shall furnish Landlord with satisfactory evidence that the
real property taxes have been paid. Landlord shall reimburse Tenant for any
real properly taxes paid by Tenant covering any period of time prior to or
after the Lease Term. If Tenant fails to pay the real property taxes when
due, Landlord may pay the taxes and Tenant shall reimburse Landlord for the
amount of such tax payment as Additional Rent.
(b) DEFINITION OF "REAL PROPERTY TAX." "Real property tax"
means: (i) any fee, license fee, license tax, business license fee,
commercial rental tax, levy, charge, assessment, penalty or tax imposed by
any taxing authority against the Property; (ii) any tax on the Landlord's
right to receive, or the receipt of, rent or income from the Property or
against Landlord's business of leasing the Property; (iii) any tax or charge
for fire protection, streets, sidewalks, road maintenance, refuse or other
provided to the Property by any governmental agency; (iv) any tax imposed
upon this transaction or based upon a re-assessment of the Property due to a
change of ownership, as defined by applicable law, or other transfer of all
or part of Landlord's interest in the Property; and (v) any charge or fee
replacing any tax previously included within the definition of real properly
tax. "Real property tax" does not, however, include Landlord's federal or
state income, franchise, inheritance or estate taxes.
(c) JOINT ASSESSMENT. If the Property is not separately
assessed. Landlord shall reasonably determine Xxxxxx's share of the real
property tax payable by Tenant under Paragraph 4.02(a) from the assessor's
worksheets or other reasonably available information. Tenant shall pay such
share to Landlord within fifteen (15) days after receipt of Landlord's written
statement.
(d) PERSONAL PROPERTY TAXES.
(i) Tenant shall pay all taxes charged against trade
fixtures, furnishings, equipment or any other personal property belonging to
Xxxxxx. Tenant shall try to have personal property taxed separately from the
Property.
(ii) If any of Tenant's personal property is taxed
with the Property Tenant shall pay Landlord the taxes for the personal
property within fifteen (15) days after Xxxxxx receives a written statement
from Landlord for such personal property taxes.
(e) TENANT'S RIGHT TO CONTEST TAXES. Tenant may attempt to
have the assessed valuation of the Property reduced or may initiate
proceedings to contest the real property taxes. If required by law, Landlord
shall join in the proceedings brought by Xxxxxx. However, Tenant shall pay
all costs of the proceedings, including any costs or fees incurred by
Landlord. Upon the final determination of any proceeding or contest, Xxxxxx
shall immediately pay the real property taxes due, together with all costs,
charges, interest and penalties incidental to the proceedings. Tenant does
not pay the real property taxes when due and contests such taxes, Tenant
shall not be in default under this Lease for nonpayment of such taxes if
Tenant deposits funds with Landlord or opens an interest-bearing account
reasonably acceptable to Landlord in the joint names of Landlord and Xxxxxx.
The amount of such deposit shall be sufficient to pay the real property taxes
plus a reasonable estimate of the interest, costs, charges and penalties
which may accrue if Tenant's action is unsuccessful, less any applicable tax
impounds previously paid by Tenant to Landlord. The deposit shall be applied
to the real property taxes due, as determined at such proceedings. The real
property taxes shall be paid under protest from such deposit if such payment
under protest is necessary to prevent the Property from being sold under a
"tax sale" or similar enforcement proceeding.
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Society of Industrial /s/ FN DN
and Office Realtors,
-Registered Trademark- Inc.
* CB Xxxxxxx Xxxxx, Inc.
(Single-Tenant Net Form)
Section 4.3 UTILITIES. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, water, refuse disposal and other utilities and services supplied to
the Property. However, if any services or utilities are jointly metered with
other property, Landlord shall make a reasonable determination of Tenant's
proportionate share of the cost of such utilities and services and Tenant shall
pay such share to Landlord within fifteen (15) days after receipt of Landlord's
written statement.
Section 4.4 INSURANCE POLICIES.
(a) LIABILITY INSURANCE. During the Lease Term, Tenant
shall maintain a policy of commercial general liability insurance (sometimes
known as broad form comprehensive general liability insurance) insuring
Tenant against liability for bodily injury, property damage (including loss
of use of property) and personal injury arising out of the operation, use or
occupancy of the Property. Tenant shall name Landlord as an additional
insured under such policy. The initial amount of such insurance shall be One
Million Dollars ($1,000,000) per occurrence and shall be subject to periodic
increase based upon inflation, increased liability awards, recommendation of
Landlord's professional insurance advisers and other relevant factors. The
liability insurance obtained by Tenant under this Paragraph 4D4(a) shall (i)
be primary and non-contributing; (ii) contain cross-liability endorsements;
and (iii) insure Landlord against Tenant's performance under Section 5.05, if
the matters giving rise to the indemnity under Section 5.05 result from the
negligence of Tenant. The amount and coverage of such insurance shall not
limit Tenant's liability nor relieve Tenant of any other obligation under
this Lease. Landlord may also obtain comprehensive public liability
insurance in an amount and with coverage determined by Landlord insuring
Landlord against liability arising out of ownership. operation, use or
occupancy of the Property. The policy obtained by Landlord shall not be
contributory and shall not provide primary insurance.
(b) PROPERTY AND RENTAL INCOME INSURANCE. During the
Lease Term, Landlord-shall maintain policies of insurance covering loss of or
damage to the Property in the full amount of its replacement value. Such
policy shall contain an Inflation Guard Endorsement and shall provide
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, special extended perils
(all risk), sprinkler leakage and any other perils which Landlord deems
reasonably necessary. Landlord shall have the right to obtain flood and
earthquake insurance if required by any lender holding a security interest in
the Property. Landlord shall not obtain insurance for Tenant's fixtures or
equipment or building improvements installed by Tenant on the Property.
During the Lease Term, Landlord shall also maintain a rental income insurance
policy, with loss payable to Landlord, in an amount equal to one year's Base
Rent, plus estimated real properly taxes and insurance premiums. Tenant
shall be liable for the payment of any deductible amount under Xxxxxxxx's or
Tenant's insurance policies maintained pursuant to this Section 4.04, in an
amount not to exceed Ten Thousand Dollars ($10,000). Tenant shall not do or
permit anything to be done which invalidates any such insurance policies.
(c) PAYMENT OF PREMIUMS. Subject to Section 4.07, Tenant
shall pay all premiums for the insurance policies described in Paragraphs
4.04(a) and (b) (whether obtained by Landlord or Tenant) within fifteen (15)
days after Xxxxxx's receipt of a copy of the premium statement or other
evidence of the amount due, except Landlord shall pay all premiums for
non-primary comprehensive public liability insurance which Landlord elects to
obtain as provided in Paragraph 4.04(a). If insurance policies maintained by
Landlord cover improvements on real property other than the Property,
Landlord shall deliver to Tenant a statement of the premium applicable to the
Property showing in reasonable detail how Tenant's share of the premium was
computed. If the Lease Term expires before the expiration of an insurance
policy maintained by Landlord, Tenant shall be liable for Tenant's prorated
share of the insurance premiums. Before the Commencement Date, Tenant shall
deliver to Landlord a copy of any policy of insurance which Tenant is
required to maintain under this Section 4.04. At least thirty (30) days prior
to the expiration of any such policy, Tenant shall deliver to Landlord a
renewal of such policy. As an alternative to providing a policy of
insurance, Tenant shall have the right to provide Landlord a certificate of
insurance, executed by an authorized officer of the insurance company,
showing that the insurance which Tenant is required to maintain under this
Section 4.04 is in full force and effect and containing such other
information which Landlord reasonably requires.
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Society of Industrial /s/ FN DN
and Office Realtors,
-Registered Trademark- Inc.
* CB Xxxxxxx Xxxxx, Inc.
(Single-Tenant Net Form)
(d) GENERAL INSURANCE PROVISIONS.
(i) Any insurance which Tenant is required to
maintain under this Lease shall include a provision which requires the
insurance carrier to give Landlord not less than thirty (30) days' written
notice prior to any cancellation or modification of such coverage.
(ii) If Tenant fails to deliver any policy,
certificate or renewal to Landlord required under this Lease within the
prescribed time period or if any such policy is cancelled or modified during
the Lease Term without Landlord's consent, Landlord may obtain such
insurance, in which case Tenant shall reimburse Landlord for the cost of such
insurance within fifteen (15) days after receipt of a statement that
indicates the cost of such insurance.
(iii) Tenant shall maintain all insurance required
under this Lease with companies holding a "General Policy Rating" of A-12 or
better. as set forth in the most current issue of "Best Key Rating Guide".
Landlord and Tenant acknowledge the insurance markets are rapidly changing
and that insurance in the form and amounts described in this Section 4.04 may
not be available in the future. Tenant acknowledges that the insurance
described in this Section 4.04 is for the primary benefit of Landlord. It at
any time during the Lease Term, Tenant is unable to maintain the insurance
required under the Lease, Tenant shall nevertheless maintain insurance
coverage which is customary and commercially reasonable in the insurance
industry for Tenant's type of business, as that coverage may change from time
to time. Xxxxxxxx makes no representation as to the adequacy of such
insurance to protect Xxxxxxxx's or Xxxxxx's interests. Therefore, Tenant
shall obtain any such additional property or liability insurance which Tenant
deems necessary to protect Landlord and Tenant.
(iv) Unless prohibited under any applicable insurance
policies maintained, Landlord and Tenant each hereby waive any and all rights of
recovery against the other, or against the officers, employees, agents or
representatives of the other, for loss of or damage to its property or the
properly of others under its control, if such loss or damage is covered by any
insurance policy in force (whether or not described in this Lease) at the time
of such loss or damage. Upon obtaining the required policies of insurance,
Landlord and Tenant shall give notice to the insurance carriers of this mutual
waiver of subrogation.
Section 4.5 LATE CHARGES. Xxxxxx's failure to pay rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs
are impractical or extremely difficult to ascertain. Such costs may include,
but are not limited to, processing and accounting charges and late charges
which may be imposed on Landlord by any ground lease, mortgage or trust deed
encumbering the Property. Therefore, if Landlord does not receive any rent
payment within ten (10) days after it becomes due, Tenant shall pay Landlord
a late charge equal to [FIVE PERCENT (5%)] of the overdue amount. The
parties agree that such late charge represents a fair and reasonable estimate
of the costs Landlord will incur by reason of such late payment.
Section 4.6 INTEREST ON PAST DUE OBLIGATIONS. Any amount owned by
Tenant to Landlord which is not paid when due shall bear interest at the rate
of fifteen percent (15%) per annum from the due date of such amount.
However, interest shall not be payable on late charges to be paid by Tenant
under this Lease. The payment of interest on such amounts shall not excuse
or cure any default by Tenant under this Lease. If the interest rate
specified in this Lease is higher than the rate permitted by law, the
interest rate is hereby decreased to the maximum legal interest rate
permitted by law.
Section 4.7 IMPOUNDS FOR INSURANCE PREMIUMS AND REAL PROPERTY TAXES.
If requested by any ground lessor or lender to whom Landlord has granted a
security interest in the Property, or if Tenant is more than ten (10) days late
in the payment of rent more than once in any consecutive twelve (12) -month
period. Tenant shall pay Landlord a sum equal to one-twelfth (1/12) of the
annual real property taxes and insurance premiums payable by Tenant under this
Lease, together with each payment of Base Rent. Landlord shall hold such
payments in a non-interest bearing impound account. It unknown, Landlord shall
reasonably estimate the amount of real property taxes and insurance premiums
when due. Tenant shall pay any deficiency of funds in the impound account to
Landlord
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* CB Xxxxxxx Xxxxx, Inc.
(Single-Tenant Net Form)
upon written request. If Tenant defaults under this Lease, Landlord may
apply any funds in the impound account to any obligation then due under this
Lease.
ARTICLE FIVE: USE OF PROPERTY
Section 5.1 PERMITTED USES. Tenant may use the Property only for the
Permitted Uses set forth in Section 1.06 above.
Section 5.2 MANNER OF USE. Tenant shall not cause or permit the
Properly to be used in any way which constitutes a violation of any law,
ordinance, or governmental regulation or order, which annoys or interferes with
the rights of other tenants of Landlord, or which constitutes a nuisance or
waste. Tenant shall obtain and pay for all permits, including a Certificate of
Occupancy, required for Tenant's occupancy of the Properly and shall promptly
take all actions necessary to comply with all applicable statutes, ordinances,
rules, regulations, orders and requirements regulating the use by Tenant of the
Property, including the Occupational Safety and Health Act.
Section 5.3 HAZARDOUS MATERIALS. As used in this Lease, the term
"Hazardous Material" means any flammable items, explosives, radioactive
materials, hazardous or toxic substances, material or waste or related
materials, including any substances defined as or included in the definition
of "hazardous substances", "hazardous wastes", "hazardous materials" or
"toxic substances" now or subsequently regulated under any applicable
federal, state or local laws or regulations, including without limitation
petroleum-based products, paints, solvents, lead, cyanide, DDT, printing
inks, acids, pesticides, ammonia compounds and other chemical products,
asbestos, PCBs and similar compounds, and including any different products
and materials which are subsequently found to have adverse effects on the
environment or the health and safety of persons. Tenant shall not cause or
permit any Hazardous Material to be generated, produced, brought upon, used,
stored, treated or disposed of in or about the Property by Tenant, its
agents, employees, contractors, sublessees or invitees without the prior
written consent of Landlord. Landlord shall be entitled to take into account
such other factors or facts as Landlord may reasonably determine to be
relevant in determining whether to grant or withhold consent to Tenant's
proposed activity with respect to Hazardous Material. In no event, however,
shall Landlord be required to consent to the installation or use of any
storage tanks on the Property.
Section 5.4 SIGNS AND AUCTIONS. Tenant shall not place any signs on
the Property without Landlord's prior written consent. Tenant shall not
conduct or permit any auctions or sheriff's sales at the Property.
Section 5.5 INDEMNITY. Tenant shall indemnify Landlord against and
hold Landlord harmless from any and all costs. claims or liability arising
from: (a) Tenant's use of the Property: (b) the conduct of Tenant's business
or anything else done or permitted by Tenant to be done in or about the
Property, including any contamination of the Property or any other property
resulting from the presence or use of Hazardous Material caused or permitted
by Tenant; (c) any breach or default in the performance of Tenant's
obligations under this Lease: (d) any misrepresentation or breach of warranty
by Tenant under this Lease; or (e) other [WILLFUL OR MALICIOUS] acts or
omissions of Tenant. Tenant shall defend Landlord against any such cost,
claim or liability at Tenant's expense with counsel reasonably acceptable to
Landlord or, at Landlord's election. Tenant shall reimburse Landlord for any
legal fees or costs incurred by Landlord in connection with any such claim.
As a material part of the consideration to Landlord, Xxxxxx assumes all risk
of damage to property or injury to persons in or about the Property arising
from any cause, and Tenant hereby waives all claims in respect thereof
against Landlord, except for any claim arising out of Landlord's gross
negligence or willful misconduct. As used in this Section, the term "Tenant"
shall include Tenant's employees, agents, contractors and invitees, if
applicable.
Section 5.6 LANDLORD'S ACCESS. Landlord or its agents may enter the
Property at all reasonable times to show the Property to potential buyers,
investors or tenants or other parties; to do any other act or to inspect and
conduct tests in order to monitor Tenant's compliance with all applicable
environmental laws and all laws governing the presence and use of Hazardous
Material; or for any other purpose Landlord deems necessary. Landlord shall
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-Registered Trademark- Inc.
* CB Xxxxxxx Xxxxx, Inc.
(Single-Tenant Net Form)
give Tenant prior notice of such entry, except in the case of an emergency.
Landlord may place customary "For Sale" or "For Lease" signs on the Property.
Section 5.7 QUIET POSSESSION. If Tenant pays the rent and complies
with all other terms of this Lease. Ten and enjoy the Property for the full
Lease Term, subject to the provisions of this Lease.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.1 EXISTING CONDITIONS. Tenant accepts the Property in its
condition as of the [COMMENCEMENT DATE] of the Lease, subject to all recorded
matters, laws, ordinances, and governmental regulations and orders. Except as
provided herein. Tenant acknowledges that neither Xxxxxxxx nor any agent of
Landlord has made any representation as to the condition of the Property or the
suitability of the Property for Xxxxxx's intended use. Tenant represents and
warrants that Tenant has made its own inspection of and inquiry regarding the
condition of the Property and is not relying on any representations of Landlord
or any Broker with respect thereto. If Landlord or Landlord's Broker has
provided a Property Information Sheet or other Disclosure Statement regarding
the Property, a copy is attached as an exhibit to the Lease.
Section 6.2 EXEMPTION OF LANDLORD FROM LIABILITY. Landlord shall
not be liable for any damage or injury to the person, business (or any loss
of income therefrom), goods, wares, merchandise or other property of Tenant,
Tenant's employees, invitees, customers or any other person in or about the
Property, whether such damage or injury is caused by or results from: (a)
fire, steam, electricity, water, gas or rain; (b) the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures or any other cause; (c)
conditions arising in or about the Property or upon other portions of the
Project, or from other sources or places; or (d) any act or omission of any
other tenant of the Project. Landlord shall not be liable for any such
damage or injury even though the cause of or the means of repairing such
damage or injury are not accessible to Tenant. The provisions of this
Section 6.02 shall not, however, exempt Landlord from liability for
Landlord's gross negligence or willful misconduct.
Section 6.3 LANDLORD'S OBLIGATIONS. Subject to the provisions of
Article Seven (Damage or Destruction) and Article Eight (Condemnation),
Landlord shall have absolutely no responsibility to repair, maintain or
replace any portion of the Property at any time. Tenant waives the benefit
of any present or future law which might give Tenant the right to repair the
Property at Landlord's expense or to terminate the Lease due to the condition
of the Property. Landlord shall be responsible for all exterior walls,
structure and roof throughout the Lease Term.
Section 6.4 TENANT'S OBLIGATIONS.
(a) Except as provided in Article Seven (Damage or
Destruction) and Article Eight (Condemnation), Tenant shall keep all portions
of the Properly (including nonstructural, interior, and landscaped areas,
portions, systems and equipment) in good order, condition and repair
(including interior repainting and refinishing, as needed). If any portion
of the Property or any system or equipment in the Property which Tenant is
obligated to repair cannot be fully repaired or restored. Tenant shall
promptly replace such portion of the Property or system or equipment in the
Property, regardless of whether the benefit of such replacement extends
beyond the Lease Term; but if the benefit or useful life of such replacement
extends beyond the Lease Term (as such term may be extended by exercise of
any options), the useful life of such replacement shall be prorated over the
remaining portion of the Lease Term (as extended), and Tenant shall be liable
only for that portion of the cost which is applicable to the Lease Term (as
extended). Tenant shall maintain a preventive maintenance contract providing
for the regular inspection and maintenance of the heating and air
conditioning system by a licensed heating and air conditioning contractor. If
any part of the Property is damaged by any act or omission of Tenant, Tenant
shall pay Landlord the cost of repairing or replacing such damaged property,
whether or not Landlord would otherwise be obligated to pay the cost of
maintaining or repairing such property. It is the intention of Landlord and
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Tenant that at all times Tenant shall maintain the portions of the Property
which Tenant is obligated to maintain in [A SIMILAR OR BETTER CONDITION,] and
fully operative condition.
(b) Tenant shall fulfill all of Tenant's obligations under
this Section 6.04 at Tenant's sole expense. If Tenant fails to maintain,
repair or replace the Property as required by this Section 6.04, Landlord
may, upon ten (10) days' prior notice to Tenant (except that no notice shall
be required in the case of an emergency), enter the Property and perform such
maintenance or repair (including replacement, as needed) on behalf of Tenant.
In such case, Tenant shall reimburse Landlord for all costs incurred in
performing such maintenance or repair immediately upon demand.
Section 6.5 ALTERATIONS, ADDITIONS. AND IMPROVEMENTS.
(a) Tenant shall not make any alterations, additions, or
improvements to the Property without Landlord' prior written consent,
[WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD,] except for non-structural
alterations which do not exceed Ten Thousand Dollars ($10,000) in cost
cumulatively over the Lease Term and which are not visible from the outside
of any building of which the Property is part. Landlord may require Tenant
to provide demolition and/or lien and completion bonds in form and amount
satisfactory to Landlord. Tenant shall promptly remove any alterations,
additions, or improvements constructed in violation of this Paragraph 6.05(a)
upon Landlord's written request. All alterations, additions, and
improvements shall be done in a good and workmanlike manner, in conformity
with all applicable laws and regulations, and by a contractor approved by
Landlord. Upon completion of any such work, Tenant shall provide Landlord
with "as built" plans, copies of all construction contracts, and proof of
payment for all labor and materials.
(b) Tenant shall pay when due all claims for labor and
material furnished to the Property. Tenant shall give Landlord at least
twenty (20) days' prior written notice of the commencement of any work on the
Property, regardless of whether Xxxxxxxx's consent to such work is required.
Landlord may elect to record and post notices of non-responsibility on the
Property.
Section 6.6 CONDITION UPON TERMINATION. Upon the termination of the
Lease, Xxxxxx shall surrender the Property to Landlord, broom clean and in
the same condition as received except for ordinary wear and tear which Tenant
was not otherwise obligated to remedy under any provision of this Lease.
However, Tenant shall not be obligated to repair any damage which Landlord is
required to repair under Article Seven (Damage or Destruction). In addition,
Landlord may require Tenant to remove any alterations, additions or
improvements (not made with Landlord's consent) prior to the expiration of
the Lease and to restore the Property to its prior condition, all at Tenant's
expense. All alterations, additions and improvements which Landlord has not
required Tenant to remove shall become Landlord's property and shall be
surrendered to Landlord upon the expiration or earlier termination of the
Lease, except that Tenant may remove any of Tenant's machinery or equipment
which can be removed without material damage to the Property. Tenant shall
repair, at Tenant's expense, any damage to the Property caused by the removal
of any such machinery or equipment. In no event, however, shall Tenant
remove any of the following materials or equipment (which shall be deemed
Landlord's property) without Landlord's prior written consent: any power
wiring or power panels: lighting or lighting fixtures: wall coverings;
drapes, blinds or other window coverings; carpets or other floor coverings;
heaters, air conditioners or any other heating or air conditioning equipment;
fencing or security gates; or other similar building operating equipment and
decorations.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
Section 7.1 PARTIAL DAMAGE TO PROPERTY.
(a) Tenant shall notify Landlord in writing immediately
upon the occurrence of any damage to the Property. If the Property is only
partially damaged (i.e., less than fifty percent (50%) of the Property is
untenable as a result of such damage or less than fifty percent (50%) of
Tenant's operations are materially impaired)
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and if the proceeds received by Landlord from the insurance policies
described in Paragraph 4.04(b) are sufficient to pay for the necessary
repairs, this Lease shall remain in effect and Landlord shall repair the
damage as soon as reasonably possible. Landlord may elect (but is not
required) to repair any damage to Tenant's fixtures, equipment, or
improvements.
(b) If the insurance proceeds received by Landlord are not
sufficient to pay the entire cost of repair or if the cause of the damage is
not covered by the insurance policies which Landlord maintains under
Paragraph 4.04(b), Landlord may elect either to (i) repair the damage as soon
as reasonably possible, in which case this Lease shall remain in full force
and effect, or (ii) terminate this Lease as of the date the damage occurred.
Landlord shall notify Tenant within thirty (30) days after receipt of notice
of the occurrence of the damage whether Landlord elects to repair the damage
or terminate the Lease. If Landlord elects to repair the damage, Tenant
shall pay Landlord the "deductible amount" (if any) under Landlord's
insurance policies and, if the damage was due to [NEGLIGENCE OR WILLFUL
MISCONDUCT OF] Tenant, or Tenant's employees, agents, contractors or
invitees, the difference between the actual cost of repair and any insurance
proceeds received by Landlord. If Landlord elects to terminate the Lease,
Tenant may elect to continue this Lease in full force and effect, in which
case Tenant shall repair any damage to the Property and any building in which
the Property is located. Tenant shall pay the cost of such repairs, except
that upon satisfactory completion of such repairs, Landlord shall deliver to
Tenant any insurance proceeds received by Landlord for the damage repaired by
Tenant. Tenant shall give Landlord written notice of such election within
ten (10) days after receiving Landlord's termination notice.
(c) If the damage to the Property occurs during the last six
(6) months of the Lease Term and such damage will require more than thirty (30)
days to repair, either Landlord or Tenant may elect to terminate this Lease as
of the date the damage occurred, regardless of the sufficiency of any insurance
proceeds. The party electing to terminate this Lease shall give written
notification to the other party of such election within thirty (30) days after
Xxxxxx's notice to Landlord of the occurrence of the damage.
Section 7.2 SUBSTANTIAL OR TOTAL DESTRUCTION. If the Property is
substantially or totally destroyed by any cause whatsoever (i.e., the damage
to the Properly is greater than partial damage as described in Section 7.01),
and regardless of whether Landlord receives any insurance proceeds, this
Lease shall terminate as of the date the destruction occurred Notwithstanding
the preceding sentence, if the Property can be rebuilt within six (6) months
after the date of destruction. Landlord may elect to rebuild the Property at
Landlord's own expense, in which case this Lease shall remain in full force
and effect. Landlord shall notify Tenant of such election within thirty (30)
days after Xxxxxx's notice of the occurrence of total or substantial
destruction. If Landlord so elects, Landlord shall rebuild the Property at
Landlord's sole expense, except that if the destruction was caused by an
[NEGLIGENCE OR WILLFUL MISCONDUCT] of Tenant. Tenant shall pay Landlord the
difference between the actual cost of rebuilding and any insurance proceeds
received by Landlord.
Section 7.3 TEMPORARY REDUCTION OF RENT. If the Property is
destroyed or damaged and Landlord or Tenant repairs or restores the Property
pursuant to the provisions of this Article Seven, any rent payable during the
period of such damage, repair and/or restoration shall be reduced according
to the degree, if any, to which Xxxxxx's use of the Property is impaired.
However, the reduction shall not exceed the sum of one year's payment of Base
Rent, insurance premiums and real property taxes. Except for such possible
reduction in Base Rent, insurance premiums and real property taxes. Tenant
shall not b compensation, reduction, or reimbursement from Landlord as a
result of any damage, destruction. repair, of or to the Property.
Section 7.4 WAIVER. Tenant waives the protection of any statute, code or
judicial decision which grants a tenant the right to terminate a lease in the
event of the substantial or total destruction of the leased property. Tenant
agrees that the provisions of Section 7.02 above shall govern the rights and
obligations of Landlord and Tenant in the event of any substantial or total
destruction to the Property.
[TENANT MAY TERMINATE THE LEASE IF LANDLORD CANNOT REBUILD THE PREMISES WITHIN
180 DAYS, EXCEPT IF DESTRUCTION WAS
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CAUSED BY A WILLFUL ACT OR GROSS OMISSION OF TENANT.]
ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Property is taken under the power of
eminent domain or sold under the threat of that power (all of which are
called "Condemnation"), this Lease shall terminate as to the part taken or
sold on the date the condemning authority takes title or possession,
whichever occurs first. If more than twenty percent (20%) of the floor area
of the building in which the Property is located, or which is located on the
Property, is taken, either Landlord or Tenant may terminate this Lease as of
the date the condemning authority takes title or possession, by delivering
written notice to the other within ten (10) days after receipt of written
notice of such taking (or in the absence of such notice, within ten (10) days
after the condemning authority takes title or possession). It neither
Landlord nor Tenant terminates this Lease, this Lease shall remain in effect
as to the portion of the Property not taken, except that the Base Rent and
Additional Rent shall be reduced in proportion to the reduction in the floor
area of the Property. Any Condemnation award or payment shall be distributed
in the following order: (a) first, to any ground lessor, mortgagee or
beneficiary under a deed of trust encumbering the Property, the amount of its
interest in the Property; (b) second, to Tenant, only the amount of any award
specifically designated for loss of or damage to Tenant's trade fixtures or
removable personal property; and (c) third, to Landlord, the remainder of
such award, whether as compensation for reduction in the value of the
leasehold, the taking of the fee, or otherwise. If this Lease is not
terminated, Landlord shall repair any damage to the Properly caused by the
Condemnation, except that Landlord shall not be obligated to repair any
damage for which Xxxxxx has been reimbursed by the condemning authority. If
the severance damages received by Landlord are not sufficient to pay for such
repair, Landlord shall have the right to either terminate this Lease or make
Such repair at Landlord's expense.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.1 LANDLORD'S CONSENT REQUIRED. No portion of the Property
or of Tenant's interest in this Lease may be acquired by any other person or
entity, whether by sale, assignment, mortgage, sublease, transfer, operation
of law, or act of Tenant, without Xxxxxxxx's prior written consent, except as
provided in Section 9.02 below. Landlord has the right to grant or withhold
its consent as provided in Section 9.05 below Any attempted transfer without
consent shall be void and shall constitute a non-curable breach of this
Lease. If Tenant is a partnership, any cumulative transfer of more than
twenty percent (20%) of the partnership interests shall require Landlord's
consent. If Tenant is a corporation. any change in the ownership of a
controlling interest of the voting stock of the corporation shall require
Landlord's consent.
Section 9.2 TENANT AFFILIATE. Tenant may assign this Lease or
sublease the Property, without Landlord's consent, to any corporation which
controls, is controlled by or is under common control with Tenant, or to any
corporation resulting from the merger of or consolidation with Tenant
("Tenant's Affiliate"). In such case, any Tenant's Affiliate shall assume in
writing all of Tenant's obligations under this Lease.
Section 9.3 NO RELEASE OF TENANT. No transfer permitted by this
Article Nine, whether with or without Landlord's consent, shall release Tenant
or change Tenant's primary liability to pay the rent and to perform all other
obligations of Tenant under this Lease. Xxxxxxxx's acceptance of rent from any
other person is not a waiver of any provision of this Article Nine. Consent to
one transfer is not a consent to any subsequent transfer. If Xxxxxx's
transferee defaults under this Lease, Landlord may proceed directly against
Tenant without pursuing remedies against the transferee. Landlord may consent
to subsequent assignments or modifications of this Lease by Xxxxxx's transferee,
without notifying Tenant or obtaining its consent. Such action shall not
relieve Xxxxxx's liability under this Lease.
Section 9.4 OFFER TO TERMINATE. If Tenant desires to assign the
Lease or sublease the Property, Tenant shall have the right to offer, in
writing, to terminate the Lease as of a date specified in the offer. If
Landlord elects in writing to accept the offer to terminate within twenty
(20) days after notice of the offer, the Lease shall terminate as of the date
specified and all the terms and provisions of the Lease governing termination
shall apply. If Landlord
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does not so elect, the Lease shall continue in effect until otherwise
terminated and the provisions of Section 9.05 with respect to any proposed
transfer shall continue to apply.
Section 9.5 LANDLORD'S CONSENT.
(a) Xxxxxx's request for consent to any transfer described
in Section 9.01 shall set forth in writing the details of the proposed
transfer, including the name, business and financial condition of the
prospective transferee, financial details of the proposed transfer (e.g., the
term of and the rent and security deposit payable under any proposed
assignment or sublease), and any other information Landlord deems relevant.
Landlord shall have the right to withhold consent, if reasonable, or to grant
consent, based on the following factors: (i) the business of the proposed
assignee or subtenant and the proposed use of the Property; (ii) the net
worth and financial reputation of the proposed assignee or subtenant; (iii)
Tenant's compliance with all of its obligations under the Lease; and (iv)
such other factors as Landlord may reasonably deem relevant. If Landlord
objects to a proposed assignment solely because of the net worth and/or
financial reputation of the proposed assignee. Tenant may nonetheless
sublease (but not assign), all or a portion of the Property to the proposed
transferee, but only on the other terms of the proposed transfer.
(b) If Tenant assigns or subleases, the following shall
apply:
(i) Tenant shall pay to Landlord as Additional Rent
under the Lease the Landlord's Share (stated in Section 1.13) of the Profit
(defined below) on such transaction as and when received by Xxxxxx, unless
Xxxxxxxx gives written notice to Xxxxxx and the assignee or subtenant that
Landlord's Share shall be paid by the assignee or subtenant to Landlord
directly. The "Profit" means (A) all amounts paid to Tenant for such
assignment or sublease, including "key" money, monthly rent in excess of the
monthly rent payable under the Lease, and all fees and other consideration
paid for the assignment or sublease, including fees under any collateral
agreements, less (B) costs and expenses directly incurred by Tenant in
connection with the execution and performance of such assignment or sublease
for real estate broker's commissions and costs of renovation or construction
of tenant improvements required under such assignment or sublease. Tenant is
entitled to recover such costs and expenses before Tenant is obligated to pay
the Landlord's Share to Landlord. The Profit in the case of a sublease of
less than all the Property is the rent allocable to the subleased space as a
percentage on a square footage basis.
(ii) Tenant shall provide Landlord a written
statement certifying all amounts to be paid from any assignment or sublease
of the Property within thirty (30) days after the transaction documentation
is signed, and Landlord may inspect Tenant's books and records to verify the
accuracy of such statement. On written request, Tenant shall promptly
furnish to Landlord copies of all the transaction documentation, all of which
shall be certified by Tenant to be complete, true and correct. Xxxxxxxx's
receipt of Landlord's Share shall not be a consent to any further assignment
or subletting. The breach of Tenant's obligation under this Paragraph
9.05(b) shall be a material default of the Lease.
Section 9.6 NO MERGER. No merger shall result from Xxxxxx's
sublease of the Property under this Article Nine, Xxxxxx's surrender of this
Lease or the termination of this Lease in any other manner. In any such
event, Landlord may terminate any or all subtenancies or succeed to the
interest of Xxxxxx as sublandlord under any or all subtenancies.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.1 COVENANTS AND CONDITIONS. Xxxxxx's performance of each of
Tenant's obligations under this Lease is a condition as well as a covenant.
Xxxxxx's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants
and conditions.
Section 10.2 DEFAULTS. Tenant shall be in material default under this
Lease:
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(a) If Tenant abandons the Property or if Xxxxxx's
vacation of the Property results in the cancellation of any insurance
described in Section 4.04; for more than 30 days
(b) If Tenant fails to pay rent or any other charge when
due; within ten (10) days after receiving notice from Landlord
(c) If Tenant fails to perform any of Xxxxxx's
non-monetary obligations under this Lease for a period of thirty (30) days
after written notice from Landlord; provided that if more than thirty (30)
days are required to complete such performance, Tenant shall not be in
default it Tenant commences such performance within the thirty (30) -day
period and thereafter diligently pursues its completion. However, Landlord
shall not be required to give such notice if Xxxxxx's failure to perform
constitutes a non-curable breach of this Lease. The notice required by this
Paragraph is intended to satisfy any and all notice requirements imposed by
law on Landlord and is not in addition to any such requirement.
(d) (i) If Tenant makes a general assignment or general
arrangement for the benefit of creditors; (ii) if a petition for adjudication of
bankruptcy or for reorganization or rearrangement is filed by or against Tenant
and is not dismissed within thirty (30) days: (iii) if a trustee or receiver is
appointed to take possession of substantially all of Tenant's assets located at
the Property or of Tenant's interest in this Lease and possession is not
restored to Tenant within thirty (30) days; or (iv) if substantially all of
Tenant's assets located at the Property or of Tenant's interest in this Lease is
subjected to attachment, execution or other judicial seizure which is not
discharged within thirty (30) days. If a court of competent jurisdiction
determines that any of the acts described in this subparagraph (d) is not a
default under this Lease, and a trustee is appointed to take possession (or if
Tenant remains a debtor in possession) and such trustee or Tenant transfers
Tenant's interest hereunder, then Landlord shall receive, as Additional Rent,
the excess, if any, of the rent (or any other consideration) paid in connection
with such assignment or sublease over the rent payable by Tenant under this
Lease.
(e) If any guarantor of the Lease revokes or otherwise
terminates, or purports to revoke or otherwise terminate, any guaranty of all or
any portion of Tenant's obligations under the Lease. Unless otherwise expressly
provided, no guaranty of the Lease is revocable.
Section 10.3 REMEDIES. On the occurrence of any material default by
Tenant, Landlord may at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have:
(a) Terminate Xxxxxx's right to possession of the Property
by any lawful means, in which case this Lease shall terminate and Tenant
shall immediately surrender possession of the Property to Landlord. In such
event, Landlord shall be entitled to recover from Tenant all damages incurred
by Landlord by reason of Tenant's default, including (i) the worth at the
time of the award of the unpaid Base Rent, Additional Rent and other charges
which Landlord had earned at the time of the termination; (ii) the worth at
the time of the award of the amount by which the unpaid Base Rent, Additional
Rent and other charges which Xxxxxxxx would have earned after termination
until the time of the award exceeds the amount of such rental loss that
Tenant proves Landlord could have reasonably avoided; (iii) the worth at the
time of the award of the amount by which the unpaid Base Rent. Additional
Rent and other charges which Xxxxxx would have paid for the balance of the
Lease Term after the time of award exceeds the amount of such rental loss
that Tenant proves Landlord could have reasonably avoided; and (iv) any other
amount necessary to compensate Landlord for all the detriment proximately
caused by Xxxxxx's failure to perform its obligations under the Lease or
which in the ordinary course of things would be likely to result therefrom,
including, but not limited to, any costs or expenses Landlord incurs in
maintaining or preserving the Property after such default, the cost of
recovering possession of the Property, expenses of reletting, including
necessary renovation or alteration of the Property. Xxxxxxxx's reasonable
attorneys' fees incurred in connection therewith, and any real estate
commission paid or payable. As used in subparts (i) and (ii) above, the
"worth at the time of the award" is computed by allowing interest on unpaid
amounts at the rate of fifteen percent (15%) per annum, or such lesser amount
as may then be the maximum lawful rate. As used in subpart (iii) above, the
"worth at
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the time of the award" is computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of the award,
plus one percent (1%). It Tenant has abandoned the Property, Landlord shall
have the option of (i) retaking possession of the Property and recovering
from Tenant the amount specified in this Paragraph 10.03(a), or (ii)
proceeding under Paragraph 10.03(b);
(b) Maintain Tenant's right to possession, in which case
this Lease shall continue in effect whether or not Tenant has abandoned the
Properly. In such event, Landlord shall be entitled to enforce all of
Landlord's rights and remedies under this Lease, including the right to
recover the rent as it becomes due;
(c) Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the state in which the
Property is located.
Section 10.5 AUTOMATIC TERMINATION. Notwithstanding any other term
or provision hereof to the contrary, the Lease shall terminate on the
occurrence of any act which affirms the Landlord's intention to terminate the
Lease as provided in Section 10.03 hereof, including the filing of an
unlawful detainer action against Tenant. On such termination, Xxxxxxxx's
damages for default shall include all costs and fees, including reasonable
attorneys' fees that Landlord incurs in connection with the filing,
commencement, pursuing and/or defending of any action in any bankruptcy court
or other court with respect to the Lease; the obtaining of relief from any
stay in bankruptcy restraining any action to evict Tenant; or the pursuing of
any action with respect to Landlord's right to possession of the Property.
All such damages suffered (apart from Base Rent and other rent payable
hereunder) shall constitute pecuniary damages which must be reimbursed to
Landlord prior to assumption of the Lease by Tenant or any successor to
Xxxxxx in any bankruptcy or other proceeding.
Section 10.6 CUMULATIVE REMEDIES. Xxxxxxxx's exercise of any right or
remedy shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.1 SUBORDINATION. Landlord shall have the right to
subordinate this Lease to any ground lease, deed of trust or mortgage
encumbering the Property, any advances made on the security thereof and any
renewals, modifications, consolidations, replacements or extensions thereof,
whenever made or recorded. Tenant shall cooperate with Landlord and any
lender which is acquiring a security interest in the Property or the Lease.
Tenant shall execute such further documents and assurances as such lender may
require, provided that Tenant's obligations under this Lease shall not be
increased in any material way (the performance of ministerial acts shall not
be deemed material), and Tenant shall not be deprived of its rights under
this Lease, Xxxxxx's right to quiet possession of the Property during the
Lease Term shall not be disturbed if Tenant pays the rent and performs all of
Tenant's obligations under this Lease and is not otherwise in default. If
any ground lessor, beneficiary or mortgagee elects to have this Lease prior
to the lien of its ground lease, deed of trust or mortgage and gives written
notice thereof to Tenant, this Lease shall be deemed prior to such ground
lease, deed of trust or mortgage whether this
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Lease is dated prior or subsequent to the date of said ground lease, deed of
trust or mortgage or the date of recording thereof.
Section 11.2 ATTORNMENT. If Xxxxxxxx's interest in the Property is
acquired by any groundless or beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, Tenant shall attorn to the transferee of or
successor to Xxxxxxxx's interest in the Property and recognize such transferee
or successor as Landlord under this Lease. Tenant waives the protection of any
statute or rule of law which gives or purports to give Tenant any right to
terminate this Lease or surrender possession of the Property upon the transfer
of Landlord's interest.
Section 11.3 SIGNING OF DOCUMENTS. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such
attornment or subordination or agreement to do so. It Tenant fails to do so
within ten (10) days after written request, Tenant hereby makes, constitutes
and irrevocably appoints Landlord, or any transferee or successor of
Landlord, the attorney-in-fact of Tenant to execute and deliver any such
instrument or document.
Section 11.4 ESTOPPEL CERTIFICATES.
(a) Upon Landlord's written request, Tenant shall execute,
acknowledge and deliver to Landlord a written statement certifying: (i) that
none of the terms or provisions of this Lease have been changed (or if they
have been changed, stating how they have been changed); (ii) that this Lease
has not been cancelled or terminated; (iii) the last date of payment of the
Base Rent and other charges and the time period covered by such payment;
(iv) that Landlord is not in default under this Lease (or, if Landlord is
claimed to be in default, stating why); and (v) such other representations or
information with respect to Tenant or the Lease as Landlord may reasonably
request or which any prospective purchaser or encumbrancer of the Property
may require. Tenant shall deliver such statement to Landlord within ten (10)
days after Xxxxxxxx's request. Landlord may give any such statement by
Tenant to any prospective purchaser or encumbrancer of the Property. Such
purchaser or encumbrancer may rely conclusively upon such statement as true
and correct.
(b) If Tenant does not deliver such statement to Landlord
within such ten (10)-day period, Landlord, and any prospective purchaser or
encumbrancer, may conclusively presume and rely upon the following facts:
(i) that the terms and provisions of this Lease have not been changed except
as otherwise represented by Landlord: (ii) that this Lease has not been
cancelled or terminated except as otherwise represented by Landlord;
(iii) that not more than one month's Base Rent or other charges have been
paid in advance; and (iv) that Landlord is not in default under the Lease.
In such event, Tenant shall be estopped from denying the truth of such facts.
Section 11.5 TENANT'S FINANCIAL CONDITION. Within ten (10) days
after written request from Landlord, Tenant shall deliver to Landlord such
financial statements as Landlord reasonably requires to verity the net worth
of Tenant or any assignee, subtenant, or guarantor of Tenant. In addition.
Tenant shall deliver to any lender designated by Landlord any financial
statements required by such lender to facilitate the financing or refinancing
of the Property. Tenant represents and warrants to Landlord that each such
financial statement is a true and accurate statement as of the date of such
statement. All financial statements shall be confidential and shall be used
only for the purposes set forth in this Lease.
ARTICLE TWELVE: LEGAL COSTS
Section 12.1 LEGAL PROCEEDINGS. If Tenant or Landlord shall be in
breach or default under this Lease, such party (the "Defaulting Party") shall
reimburse the other party (the "Nondefaulting Party") upon demand for any
costs or expenses that the Nondetaulting Party incurs in connection with any
breach or default of the Defaulting Party under this Lease, whether or not
suit is commenced or judgment entered. Such costs shall include legal fees
and costs incurred for the negotiation of a settlement, enforcement of rights
or otherwise. Furthermore, if any action for breach of or to enforce the
provisions of this Lease is commenced, the court in such action shall award
to the party in whose favor a judgment is entered, a reasonable sum as
attorneys' fees and costs. The losing party in such
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action shall pay such attorneys' fees and costs. Tenant shall also indemnify
Landlord against and hold Landlord harmless from all costs, expenses, demands
and liability Landlord may incur if Landlord becomes or is made a party to
any claim or action (a) instituted by Tenant against any third party, or by
any third party against Tenant, or by or against any person holding any
interest under or using the Property by license of or agreement with Tenant;
(b) for foreclosure of any lien for labor or material furnished to or for
Tenant or such other person; (c) otherwise arising out of or resulting from
any act or transaction of Tenant or such other person; or (d) necessary to
protect Landlord's interest under this Lease in a bankruptcy proceeding, or
other proceeding under Title 1.1 of the United States Code, as amended.
Tenant shall defend Landlord against any such claim or action at Tenant's
expense with counsel reasonably acceptable to Landlord or, at Landlord's
election. Tenant shall reimburse Landlord for any legal fees or costs
Landlord incurs in any such claim or action.
Section 12.2 LANDLORD'S CONSENT. Tenant shall pay Landlord's
reasonable attorneys' fees incurred in connection with Xxxxxx's request for
Xxxxxxxx's consent under Article Nine (Assignment and Subletting), or in
connection with any other act which Xxxxxx proposes to do and which requires
Xxxxxxxx's consent.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.1 NON-DISCRIMINATION. Tenant promises, and it is a
condition to the continuance of this Lease, that there will be no
discrimination against, or segregation of, any person or group of persons on
the basis of race, color, sex, creed, national origin or ancestry in the
leasing, subleasing, transferring, occupancy, tenure or use of the Property
or any portion thereof.
Section 13.2 LANDLORD'S LIABILITY; CERTAIN DUTIES.
(a) As used in this Lease, the term "Landlord" means
only the current owner or owners of the fee title to the Property or the
leasehold estate under a ground lease of the Property at the time in
question. Each Landlord is obligated to perform the obligations of Landlord
under this Lease only during the time such Landlord owns such interest or
title. Any Landlord who transfers its title or interest is relieved of all
liability with respect to the obligations of Landlord under this Lease to be
performed on or after the date of transfer. However, each Landlord shall
deliver to its transferee all funds that Tenant previously paid if such funds
have not yet been applied under the terms of this Lease.
(b) Tenant shall give written notice of any failure by
Landlord to perform any of its obligations under this Lease to Landlord and
to any ground lessor, mortgagee or beneficiary under any deed of trust
encumbering the Property whose name and address have been furnished to Tenant
in writing. Landlord shall not be in default under this Lease unless Landlord
(or such ground lessor, mortgagee or beneficiary) fails to cure such
non-performance within thirty (30) days after receipt of Tenant's notice.
However if such non-performance reasonably requires more than thirty (30)
days to cure, Landlord shall not be in default if such cure is commenced
within such thirty (30) -day period and thereafter diligently pursued to
completion.
(c) Notwithstanding any term or provision herein to the
contrary the liability of Landlord for the performance of its duties and
obligations under this Lease is limited to Landlord's interest in the Property,
and neither the Landlord nor its partners, shareholders, officers or other
principals shall have any personal liability under this Lease.
Section 13.3 SEVERABILITY. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect.
Section 13.4 INTERPRETATION. The captions of the Articles or
Sections of this Lease are to assist the parties in reading this Lease and
are not a part of the terms or provisions of this Lease. Whenever required
by the context of this Lease, the singular shall include the plural and the
plural shall include the singular. The masculine,
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(Single-Tenant Net Form)
feminine and neuter genders shall each include the other. In any provision
relating to the conduct, acts or omissions of Tenant, the term "Tenant" shall
include Tenant's agents, employees. contractors, invitees. successors or
others using the Property with Xxxxxx's expressed or implied permission.
Section 13.5 INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This
Lease is the only agreement between the parties pertaining to the lease of
the Property and no other agreements are effective. All amendments to this
Lease shall be in writing and signed by all parties. Any other attempted
amendment shall be void.
Section 13.6 NOTICES. All notices required or permitted under this
Lease shall be in writing and shall be personally delivered or sent by
certified mail, return receipt requested, postage prepaid. Notices to Tenant
shall be delivered to the address specified in Section 1.03 above, except
that upon Xxxxxx's taking possession of the Property, the Property shall be
Tenant's address for notice purposes. Notices to Landlord shall be delivered
to the address specified in Section 1.02 above. All notices shall be
effective upon delivery. Either party may change its notice address upon
written notice to the other party.
Section 13.7 WAIVERS. All waivers must be in writing and signed by
the waiving party. Landlord's failure to enforce any provision of this Lease
or its acceptance of rent shall not be a waiver and shall not prevent
Landlord from enforcing that provision or any other provision of this Lease
in the future. No statement on a payment check from Tenant or in a letter
accompanying a payment check shall be binding on Landlord. Landlord may,
with or without notice to Tenant, negotiate such check without being bound to
the conditions of such statement.
Section 13.8 NO RECORDATION. Tenant shall not record this Lease
without prior written consent from Landlord. However, either Landlord or
Tenant may require that a "Short Form" memorandum of this Lease executed by
both parties be recorded. The party requiring such recording shall pay all
transfer taxes and recording fees.
Section 13.9 BINDING EFFECT; CHOICE OF LAW. This Lease binds any
party who legally acquires any rights or interest in this Lease from Landlord
or Tenant. However, Landlord shall have no obligation to Xxxxxx's successor
unless the rights or interests of Xxxxxx's successor are acquired in
accordance with the terms of this Lease. The laws of the state in which the
Property is located shall govern this Lease.
Section 13.10 CORPORATE AUTHORITY; PARTNERSHIP AUTHORITY. If Tenant
is a corporation. each person signing this Lease on behalf of Xxxxxx
represents and warrants that he has full authority to do so and that this
Lease binds the corporation. If Xxxxxx is a partnership, each person or
entity signing this Lease for Tenant represents and warrants that he or she
is a general partner of the partnership, that he or it has full authority to
sign for the partnership and that this Lease binds the partnership and all
general partners of the partnership. Tenant shall give written notice to
Landlord of any general partner's withdrawal or addition. Within thirty (30)
days after this Lease is signed, Xxxxxx shall deliver to Landlord a copy of
Xxxxxx's recorded statement of partnership or certificate of limited
partnership.
Section 13.11 JOINT AND SEVERAL LIABILITY. All parties signing this
Lease as Tenant shall be jointly and severally liable for all obligations of
Tenant.
Section 13.12 FORCE MAJEURE. It Landlord cannot perform any of its
obligations due to events beyond Landlord's control, the time provided for
performing such obligations shall be extended by a period of time equal to the
duration of such events. Events beyond Landlord's control include. but are not
limited to, acts of God, war, civil commotion, labor disputes, strikes, fire,
flood or other casualty, shortages of labor or material, government regulation
or restriction and weather conditions.
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Section 13.13 EXECUTION OF LEASE. This Lease may be executed in
counterparts and, when all counterpart documents are executed, the
counterparts shall constitute a single binding instrument. Xxxxxxxx's
delivery of this Lease to Tenant shall not be deemed to be an offer to lease
and shall not be binding upon either party until executed and delivered by
both parties.
Section 13.14 SURVIVAL. All representations and warranties of Landlord
and Tenant shall survive the termination of this Lease.
ARTICLE FOURTEEN: BROKERS
Section 14.1 BROKER'S FEE. When this Lease is signed by and
delivered to both Landlord and Tenant, Landlord shall pay a real estate
commission to Landlord's Broker named in Section 1.08 above, if any, as
provided in the written agreement between Landlord and Xxxxxxxx's Broker, or
the sum stated in Section 1.09 above for services rendered to Landlord by
Landlord's Broker in this transaction. Landlord shall pay Landlord's Broker
a commission if Tenant exercises any option to extend the Lease Term or to
buy the Property, or any similar option or right which Landlord may grant to
Tenant, or if Landlord's Broker is the procuring cause of any other lease or
sale entered into between Landlord and Tenant covering the Property. Such
commission shall be the amount set forth in Landlord's Broker's commission
schedule in effect as of the execution of this Lease. If a Tenant's Broker
is named in Section 1.08 above, Xxxxxxxx's Broker shall pay an appropriate
portion of its commission to Tenant's Broker if so provided in any agreement
between Xxxxxxxx's Broker and Xxxxxx's Broker. Nothing contained in this
Lease shall impose any obligation on Landlord to pay a commission or tee to
any party other than Landlord's Broker.
Section 14.2 PROTECTION OF BROKERS. If Landlord sells the Property,
or assigns Landlord's interest in this Lease, the buyer or assignee shall, by
accepting such conveyance of the Property or assignment of the Lease, be
conclusively deemed to have agreed to make all payments to Landlord's Broker
thereafter required of Landlord under this Article Fourteen. Xxxxxxxx's
Broker shall have the right to bring a legal action to enforce or declare
rights under this provision. The prevailing party in such action shall be
entitled to reasonable attorneys' fees to be paid by the losing party. Such
attorneys' fees shall be fixed by the court in such action. This Paragraph
is included in this Lease for the benefit of Landlord's Broker.
Section 14.3 Agency Disclosure; No Other Brokers.
Landlord and Tenant each warrant that they have dealt with no other real estate
broker(s) in connection with this transaction except: ,
who represents Landlord and Xxxxxxxx Xxxx Corporate Real Estate,
who represents .
In the event that represents both Landlord and Tenant,
Landlord and Xxxxxx hereby confirm that they were timely advised of the dual
representation and that they consent to the same, and that they do not expect
said broker to disclose to either of them the confidential information of the
other party.
ARTICLE FIFTEEN: COMPLIANCE
The parties hereto agree to comply with all applicable federal, state and
local laws, regulations, codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject matter of this Agreement,
including, but not limited to, the 1964 Civil Rights Act and all amendments
thereto, the Foreign Investment In Real Property Tax Act, the Comprehensive
Environmental Response Compensation and Liability Act, and The Americans With
Disabilities Act.
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ADDITIONAL PROVISIONS MAY BE SET FORTH IN A RIDER OR RIDERS ATTACHED
HERETO OR IN THE BLANK SPACE BELOW. IF NO ADDITIONAL PROVISIONS ARE INSERTED.
PLEASE DRAW A LINE THROUGH THE SPACE BELOW.
Landlord and Xxxxxx have signed this Lease at the place and on the
dates specified adjacent to their signatures below and have initialed all
Riders which are attached to or incorporated by reference in this Lease.
"LANDLORD"
Signed on , 19 Xxxxxxxxx & Xxxxx Xxxxxxxx
----------------------- --- -------------------------------
at
------------------------------------- -------------------------------
By: /s/ Xxxxxxxxx Xxxxxxxx
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Xxxxxxxxx Xxxxxxxx
Its:
------------------------------
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Its:
------------------------------
"TENANT"
Signed on September 21, 1999 iPrint, Inc.
------------------------ ------------------------------
at Redwood City, CA a California Corporation
------------------------------ ------------------------------
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Its: Vice President Operations
------------------------------
By:
-------------------------------
Its:
------------------------------
IN ANY REAL ESTATE TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT
WITH A PROFESSIONAL, SUCH AS A CIVIL ENGINEER, INDUSTRIAL HYGIENIST OR OTHER
PERSON WITH EXPERIENCE IN EVALUATING THE CONDITION OF THE PROPERTY, INCLUDING
THE POSSIBLE PRESENCE OF ASBESTOS, HAZARDOUS MATERIALS AND UNDERGROUND
STORAGE TANKS.
THIS PRINTED FORM LEASE HAS BEEN DRAFTED BY LEGAL COUNSEL AT THE
DIRECTION OF THE SOUTHERN CALIFORNIA CHAPTER OF THE SOCIETY OF INDUSTRIAL AND
OFFICE REALTORS-Registered Trademark- INC. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY THE SOUTHERN CALIFORNIA CHAPTER OF THE SOCIETY OF
INDUSTRIAL AND OFFICE REALTORS-Registered Trademark- INC., ITS LEGAL
COUNSEL, THE REAL ESTATE BROKERS NAMED HEREIN, OR THEIR EMPLOYEES OR AGENTS.
AS M THE LEGAL SUFFICIENCY, LEGAL EFFECT OR TAX CONSEQUENCES OF THIS LEASE OR
OF THIS TRANSACTION. LANDLORD AND TENANT SHOULD RETAIN LEGAL COUNSEL TO
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ADVISE THEM ON SUCH MATTERS AND SHOULD RELY UPON THE ADVICE OF SUCH LEGAL
COUNSEL.
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(Single-Tenant Net Form)
CB XXXXXXX XXXXX
ADDENDUM TO INDUSTRIAL REAL ESTATE LEASE PAGE 1 OF 1
This Addendum One is made a part of the Lease dated September 14, 1999 by and
between Xxxxxxxxx & Xxxxx Xxxxxxxx as Landlord and iPrint, Inc., a California
Corporation as Tenant, for the premises commonly known as 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx.
16. BASE RENT SCHEDULE
Months 1 - 12: $0.75/sq. ft./mo. NNN
Months 13 - 24: $0.80/sq. ft./mo. NNN
Months 25 - 36: $0.85/sq. ft./mo. NNN
Months 37 - 48: $0.90/sq. ft./mo. NNN
17. OPERATING EXPENSES AND REAL ESTATE TAXES
1999 ESTIMATED OPERATING EXPENSES $0.10 per sq. ft. per month
Property Taxes $8,559.30
Property Insurance $2,634.00
Common Area: $960.00
18. EARLY ENTRY TO PREMISES
Tenant shall have a right to enter the Premises prior to the lease
commencement for the purpose of space planning, tenant improvements and
the installation of telephones and electronic communication equipment
related to operating its business.
19. TENANT IMPROVEMENT ALLOWANCE
Landlord to provide the space in an "As-Is" condition. All construction
shall be subject to the reasonable approval of Landlord. Landlord
represents that the premises including but not limited to HVAC,
electrical and lighting shall be in good working order at the
commencement of this Lease. Tenant anticipates spending $150,000.00 -
$200,000.00 towards tenant improvements work for the property. Any and
all improvements must be to applicable City codes and must be done by
permits with the City of Redwood City.
20. SIGNAGE
Landlord shall allow, at Tenant's sole cost and expense, the installation
of building and monument signage subject to Landlord's and the City of
Redwood City's approval which consent shall not be unreasonable withheld.
21. LANDLORD'S OBLIGATIONS
Landlord shall be solely responsible to maintain and repair building,
structure, exterior walls, and roof throughout the Lease Term.
If any conflicts exist between the Lease and this Addendum, the terms of this
Addendum shall govern.
Landlord: Xxxxxxxxx & Xxxxx Xxxxxxxx Tenant: iPrint, Inc.
a California Corporation
By: /s/ Xxxxxxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxxx
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Its: /s/ Xxxxx Xxxxxxxx Its: VP Operations
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Date: Date: 9/21/99
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