EXHIBIT 10.17
AIRPORT BUS. CENTER
Dated: December 4, 1997
1. BASIC LEASE TERMS. For purposes of this Lease, the following terms have the
following definitions and meanings:
(a) LANDLORD: Airport Industrial Complex, a California Limited Partnership
Landlord's Address (For Notices): 00000 Xxx Xxxx Xxxx, Xxx 000,
Xxxxxx, XX 00000
or such other place as Landlord may from time to time designate by notice
to Tenant with a copy to Xxxx Management Services, X.X. Xxx 0000, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000.
(b) Tenant: Litronic Industries, Inc., a California Corporation
TENANT'S TRADE NAME: Litronic
TENANT'S ADDRESS FOR NOTICES (PREMISES):
00000 Xxx Xxxx Xxxxxx, Xxxxx X
Xxxxxx. XX 00000 Attention: Xxxx Xxxx
(c) PREMISES: Suite(s) A of building 2401 (the "Building") of AIRPORT BUS.
CENTER (the "Project"), located in the City of Irvine ("City"), County of
Orange ("County"), State of California ("State") as shown on Exhibit "A-I".
The Premises are depicted on Exhibit "A-II" and contain approximately 1,800
Rentable Square Feet (subject to adjustment as provided in this Lease).
(d) TENANT'S SHARE: 0.2%
(e) TERM: 18 Lease Months and 0 Days.
(f) COMMENCEMENT DATE: January 1, 1998.
(g) EXPIRATION DATE: June 30. 1999.
(h) INITIAL MONTHLY BASE RENT: $1,476.00, subject to adjustment as
provided in Exhibit "B" and as otherwise provided in this Lease.
(i) MONTHLY OPERATING EXPENSE CHARGE: $54.00, subject to adjustment as
provided in Exhibit "B" and as set forth in Paragraph 6.
(j) SECURITY DEPOSIT: $1,655.00.
(k) NON-REFUNDABLE CLEANING FEE PORTION OF SECURITY DEPOSIT: $125.00
(l) PERMITTED USE: General office for computer programming and
installation of computer chips and no other use without the express written
consent of Landlord, which consent Landlord may withhold in its sole and
absolute discretion.
(m) BROKER(S): Xxxx Xxxxxx, CB Commercial.
(n) GUARANTOR(S): None
(o) INTEREST RATE: The greater of ten percent (10%) per annum or two percent
(2%) in excess of the prime lending or reference rale of Xxxxx Fargo Bank
N.A. or any successor bank in effect on the twenty-fifth (25th) day of the
calendar month immediately prior to the event giving rise to the Interest
Rate imposition; provided, however, the Interest Rate will in no event
exceed the maximum interest rale permitted to be charged by applicable law.
(p) EXHIBITS: A-l through H, inclusive, which Exhibits are attached to this
Lease and incorporated herein by this reference.
This Paragraph 1 represents a summary of the basic terms and definitions of this
Lease. In the event of any inconsistency between the terms contained in this
Paragraph 1 and any specific provision of this Lease, the terms of the more
specific provision shall prevail.
2. PREMISES AND COMMON AREAS.
(a) PREMISES. Landlord hereby leases lo Tenant and Tenant hereby leases from
Landlord the Premises upon and subject to the terms, covenants and
conditions contained in this Lease to be performed by each party.
(b) TENANT'S USE OF COMMON AREAS. During the Term of this Lease, Tenant shall
have the nonexclusive right to use in common with all other occupants of
the Project, the following common areas of the Project (collectively, the
"Common Areas"): the parking facilities of the Project which serve the
Building, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, driveways, landscaped areas, and similar areas and
facilities situated within the Project and appurtenant to the Building
which are not reserved for the exclusive use of any Project occupants.
(c) LANDLORD'S RESERVATION OF RIGHTS. Provided Tenant's use of and access to
the Premises is not interfered with in an unreasonable manner, Landlord
reserves for itself and for all other owner(s) and operator(s) of the
Common Areas and the balance of the Project, the right from time to time
to: (i) install, use, maintain, repair, replace and relocate pipes, ducts,
conduits, wires and appurtenant meters and equipment above the ceiling
surfaces, below the floor surfaces and within the walls of the Building;
(ii) make changes to the design and layout of the Project, including,
without limitation, changes to buildings, driveways, entrances, loading and
unloading areas, direction of traffic, landscaped areas and walkways,
parking spaces and parking areas; and
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(iii) use or close temporarily the Common Areas, and/or other portions of
the Project while engaged In making improvements, repairs or alterations to
the Building, the Project, or any portion thereof
3. TERM. The term of this Lease ("Term") will be for the period designated in
Subparagraph 1(e), commencing on the Commencement Date, and ending on the
Expiration Date. Each consecutive twelve (12) month period of the Term of
this Lease, commencing on the Commencement Date, will be referred to herein
as a "Lease Year".
4. POSSESSION.
(a) DELIVERY OF POSSESSION. Landlord will deliver possession of the Premises to
Tenant in its current "as-is" condition with the addition of only those
items of work described on Exhibit "C" which are to be completed by
Landlord on or before the Commencement Date. If, for any reason not caused
by Tenant, Landlord cannot deliver possession of the Premises to Tenant on
the Commencement Date, this Lease will not be void or voidable, nor will
Landlord be liable to Tenant for any loss or damage resulting from such
delay, but in such event, the Commencement Date and Tenant's obligation to
pay rent will not commence until Landlord delivers possession to Tenant. If
the delay in possession is caused by Tenant, then the Term and Tenant's
obligation to pay rent will commence as of the Commencement Date even
though Tenant does not yet have possession. Notwithstanding the foregoing,
Landlord will not be obligated to deliver possession of the Premises to
Tenant (but Tenant will be liable for rent if Landlord can otherwise
deliver the Premises to Tenant) until Landlord has received from Tenant all
of the following: (i) a copy of this Lease fully executed by Tenant and
the guaranty of Tenant's obligations under this Lease, if any, executed by
the Guarantor(s), (ii) the Security Deposit and the first installment of
Monthly Rase Rent; and (iii) copies of policies of insurance or
certificates thereof as required under Paragraph 19 of this Lease.
(b) CONDITION OF PREMISES. By taking possession of the Premises, Tenant will be
deemed to have accepted the Premises in its "as-is" condition on the date
of delivery of possession and to have acknowledged that all work to be
completed by Landlord as described on Exhibit "C" has been completed and
there are no additional items needing work or repair by Landlord. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Premises, the Building, the
Project or any portions thereof or with respect to the suitability of same
for the a conduct of Tenant's business and Tenant further acknowledges that
Landlord will have no obligation to construct or complete any additional
buildings or improvements within the Project. Landlord shall deliver the
premises in a good working condition, including but not limited to the
HVAC, electrical, plumbing and mechanical systems, etc. Tenant shall have
(30) days after possession to notify Landlord.
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5. RENT
(a) MONTHLY BASE RENT. Tenant agrees to pay Landlord the Monthly Base Rent for
the Premises (subject to adjustment as hereinafter provided) in advance on
the first day of each calendar month during the Term without prior notice
or demand, except that Tenant agrees to pay the Monthly Base Rent for the
first month of the Term directly to Landlord concurrently with Tenant's
delivery of the executed Lease to Landlord. All rent must be paid to
Landlord, without any deduction or outset, in lawful money of the United
States of America, at the address designated by Landlord or to such other
person or at such other place as Landlord may from time to time designate
in writing. Monthly Base Rent will be adjusted during the Term of this
Lease as provided in Exhibit "B".
(b) ADDITIONAL RENT. All amounts and charges to be paid by Tenant hereunder,
including, without limitation, payments for Operating Expenses, insurance
and repairs, will be considered additional rent for purposes of this Lease,
and the word "rent" as used in this Lease will include all such additional
rent unless the context specifically or clearly implies that only Monthly
Base Rent is intended.
(c) LATE PAYMENTS. Late payments of Monthly Base Rent and/or any item of
additional rent will be subject to interest and a late charge as provided
in Subparagraph 22(t) below.
6. OPERATING EXPENSES.
(a) OPERATING EXPENSES. Throughout the Term of this Lease, commencing on the
Commencement Date, Tenant agrees to pay Landlord as additional rent in
accordance with the terms of this Paragraph 6, Tenant's Share of Operating
Expenses /or the taxes and insurance for the Project and all costs and
expenses of the operation, maintenance, repair, and replacement o/ the
Project including, without limitation: (i) any form of real property tax
assessment, license tee, license tax, business license fee, commercial
rental tax, levy, charge, improvement bond or similar imposition of any
kind or nature imposed by any authority having the direct power to tax,
including any city, county, state or federal government, or any school,
agricultural lighting, drainage or other improvement or special assessment
district thereof; (ii) any and all assessments under any covenants,
conditions and restrictions affecting the Project; (iii) water, sewer and
other utility charges; (iv) costs of insurance obtained by Landlord
pursuant to Paragraph 19 of the Lease; (v) waste disposal and janitorial
services; (vi) security; (vii) labor; (viii) management costs including,
without limitation: (A) wages and salaries (and payroll taxes and similar
charges) of property management employees, and (B) management office
rental, supplies, equipment and related operating expenses and management
tees; (ix) supplies, materials, equipment and tools including rental o/
personal property; (x) repair and maintenance o/ the structural portions o/
the buildings with the Project, including the plumbing, heating,
ventilating, air-conditioning and electrical systems installed or furnished
by Landlord; (xi) maintenance, costs and upkeep of ail parking and other
Common Areas; (xii) depreciation on a straight line basis and rental of
personal property used in maintenance; (xiii) amortization on a straight
line basis over the useful life [together with interest at the Interest
Rate on the unamortized balance] of all capitalized expenditures which are:
(A) reasonably intended to produce a reduction in
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operating charges or energy consumption; or (B) required under any
governmental law or regulation that was not applicable to the Project at
the time it was originally constructed; or (C) for replacement of any
Project equipment needed to operate the Project at the same quality levels
as prior to the replacement; (xiv) gardening and landscaping; (xv)
maintenance of signs (other than signs of tenant's of the Project); (xvi)
personal property taxes levied on or attributable lo personal property used
in connection with the Common Areas; (xvii) reasonable accounting, audit,
verification, legal and other consulting fees; and (xviii) costs and
expenses of repairs, resurfacing, repairing, maintenance, painting,
lighting, cleaning, refuse removal, security and similar items, including
appropriate reserves
(b) Determination of Tenant's Monthly Operating Expense Charge. Tenant's
Monthly Operating Expense Charge shall be determined as provided in
Subparagraph 1(i) of this Lease. If Tenant's Monthly Operating Expense
Charge is scheduled for each year of the Lease Term as shown on Exhibit
"B", then Subparagraphs (c) and (d) below will not apply.
(c) Estimate Statement. Prior to the Commencement Date and on or about March
1st of each subsequent calendar year during the Term o/ this Lease,
Landlord will endeavor to deliver to Tenant a statement ("Estimate
Statement") wherein Landlord will estimate both the Operating Expenses and
Tenant's Monthly Operating Expense Charge for the then current calendar
year. Tenant agrees to pay Landlord, as additional rent, Tenant's estimated
Monthly Operating Expense Charge each month thereafter, beginning with the
next installment of rent due, until such time as Landlord issues a revised
Estimate Statement or the Estimate Statement /or the succeeding calendar
year; except that, concurrently with the regular monthly rent payment next
due following the receipt of each such Estimate Statement, Tenant agrees to
pay Landlord an amount equal to one monthly installment of Tenant's
estimated Monthly Operating Expense Charge (less any applicable Operating
Expenses already paid) multiplied by the number of months from January, in
the current calendar year, to the month of such rent payment next due, all
months inclusive. If at any time during the Term of this Lease, but not
more often than quarterly, Landlord reasonably determines that Tenant's's
share of Operating Expenses for the current calendar year will be greater
than the amount set forth in the then current Estimate Statement, Landlord
may issue a revised Estimate Statement and Tenant agrees to pay Landlord,
within ten (10) days of receipt of the revised Estimate Statement, the
difference between the amount owed by Tenant under such revised Estimate
Statement and the amount owed by Tenant under the original Estimate
Statement for the portion o/ the then current calendar year which has
expired. Thereafter Tenant agrees to pay Tenant's Monthly Operating Expense
Charge based on such revised Estimate Statement until Tenant receives the
next calendar year's Estimate Statement or a new revised Estimate Statement
for the current calendar year.
(d) Actual Statement. By March 1st of each calendar year during the Term of
this Lease, Landlord will also endeavor to deliver to Tenant a statement
("Actual Statement") which states Tenant's Share of the actual Operating
Expenses [or the preceding calendar year. If the Actual Statement reveals
that Tenant's Share of the actual Operating Expenses is more than the total
Additional Rent paid by Tenant for Operating Expenses on account of the
preceding calendar
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year, Tenant agrees to pay Landlord the difference in a lump sum within ten
(10) days of receipt of the Actual Statement. If the Actual Statement
reveals that Tenant's Share of the actual Operating Expenses is less than
the Additional Rent paid by Tenant for Operating Expenses on account of the
preceding calendar year, Landlord will credit any overpayment toward the
next monthly installment(s) of Tenant's Share of the Operating Expenses due
under this Lease.
(e) Miscellaneous. Any delay or failure by Landlord in delivering any Estimate
Statement or Actual Statement pursuant to this Paragraph 6 will not
constitute a waiver of its right to require an increase in rent nor will it
relieve Tenant of its obligations pursuant to this Paragraph 6, except that
Tenant will not be obligated to make any payments based on such Estimate
Statement or Actual Statement unless ten (10) days after receipt of such
Estimate Statement or Actual Statement it Tenant does not object to any
Estimate Statement or Actual Statement within thirty (30) days after Tenant
receives any such statement, such statement will be deemed final and
binding on Tenant. Even though the Term has expired and Tenant has vacated
the Premises, when the final determination is made of Tenant's Share of the
actual Operating Expenses for the year in which this Lease terminates,
Tenant agrees to promptly pay any increase due over the estimated expenses
paid and, conversely, any overpayment made in the event said expenses
decrease shall promptly be rebated by Landlord to Tenant. Such obligation
will be a continuing one which will survive The expiration or termination
of This Lease. Prior to the expiration or sooner termination of the Lease
Term and Landlord's acceptance of Tenant's surrender of the Premises,
Landlord will have the right to estimate the actual Operating Expenses for
the then current Lease Year and to collect from Tenant prior to Tenant's
surrender of the Premises, Tenant's Share of any excess of such actual
Operating Expenses over the estimated Operating Expenses paid by Tenant in
such Lease Year.
7. SECURITY DEPOSIT AND CLEANING FEE. Upon Tenant's execution of This Lease,
Tenant will deposit with Landlord the Security Deposit designated in
Subparagraph 1(j). The Security Deposit will be held by Landlord as
security for the full and faithful performance by Tenant of all of the
terms, covenants, and conditions of this Lease to be kept and performed by
Tenant during the Term hereof. The Security Deposit is not, and may not be
construed by Tenant to constitute, rent for the last month or any portion
thereof. If Tenant defaults with respect to any provisions of this Lease
including, but not limited to, the provisions relating to the payment of
rent or additional rent, Landlord may (but will not be required to) use,
apply or retain all or any part of the Security Deposit for the payment of
any rent or any other sum in default, or for the payment of any other
amount which Landlord may spend by reason of Tenant's default or to
compensate Landlord for any loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion to the Security Deposit is so
used or applied, Tenant agrees, within ten (10) days after Landlord's
written demand therefor, to Deposit cash with Landlord in an amount
sufficient to restore The Security Deposit to its original amount and
Tenant's failure to do so shall constitute a default under this Lease.
Landlord is not required to keep Tenant's Security Deposit separate from
its general funds, and Tenant is not entitled to interest on such Security
Deposit. If Tenant is not in default at the expiration or termination of
this Lease, Landlord will return the Security Deposit to Tenant, less the
non-refundable Cleaning Fee
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portion designated in Subparagraph 1(k). Landlord's obligations with
respect to the Security Deposit are those of a debtor and not of a Trustee.
8. USE.
(a) TENANT'S USE OF THE PREMISES. The Premises may be used for the use or uses
set forth in Subparagraph 1(1) only, and Tenant will not use or permit the
Premises to be used for any other purpose without the prior written consent
of Landlord, which consent Landlord may not unreasonably withhold. Nothing
in this Lease will be deemed to give Tenant any exclusive right to such use
in the Project.
(b) COMPLIANCE. Al Tenant's sole cost and expense, Tenant agrees to procure,
maintain and hold available for Landlord's inspection, all governmental
licenses and permits required for the proper and lawful conduct of Tenant's
business from the Premises, it any. Tenant agrees not to use, alter or
occupy the Premises or allow the Premises to be used, altered and occupied
in violation of, and Tenant, at its sole cost and expense, agrees to use
and occupy the Premises, and cause the Premises to be used and occupied, in
compliance with: (i) any and all laws, statutes, zoning restrictions,
ordinances, rules, regulations, orders and rulings now or hereafter in
force and any requirements of any insurer, insurance authority or duly
constituted public authority having jurisdiction over the Premises, the
Building or the Project now or hereafter in force, (ii) the requirements of
the Board of Fire Underwriters and any other similar body, (iii) the
Certificate of Occupancy issued for the Building, and (iv) any recorded
covenants, conditions and restrictions and similar regulatory agreements,
if any, which affect the use, occupation or alteration of the Premises, the
Building and/or the Project. Tenant agrees to comply with the Rules and
Regulations referenced in Paragraph 28 below. Tenant agrees not to do or
permit anything to be done in or about the Premises which will in any
manner obstruct or interfere with the rights of other tenants or occupants
of the Project, or injure or unreasonably annoy them, or use or allow the
Premises to be used for any unlawful or unreasonably objectionable purpose.
Tenant agrees not to place or store any articles or materials outside of
the Premises or to cause, maintain or permit any nuisance or waste in, on,
under or about the Premises or elsewhere within the Project. Tenant shall
not use or allow The Premises to be used for lodging, bathing or the
washing of clothes.
(c) HAZARDOUS MATERIALS. Except for ordinary and general office supplies, such
as copier toner, liquid paper, glue, ink and common household cleaning
materials (some or all of which may constitute "Hazardous Materials" as
defined in this Lease), Tenant agrees not to cause or permit any Hazardous
Materials to be brought upon, stored, used, handled, generated, released or
disposed of on, in, under or about the Premises, the Building, the Common
Areas or any other portion of The Project by Tenant, its agents, employees,
subtenants, assignees, licensees, contractors or invitees (collectively,
"Tenant's Parties"), without the prior written consent of Landlord, which
consent Landlord may withhold in its sole and absolute discretion.
Concurrently with the execution of this Lease, Tenant agrees to complete
and deliver to Landlord an Environmental Questionnaire in the form of
Exhibit "G" attached hereto. Upon the expiration or
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earlier termination of this Lease, Tenant agrees to promptly remove from
the Premises, the Building and the Project, at its sole cost and expense,
any and all Hazardous Materials, including any equipment or systems
containing Hazardous Materials which are installed, brought upon, stored,
used, generated or released upon, in, under or about The Premises, the
Building and/or the Project or any portion thereof by Tenant or any of
Tenant's Parties. To the fullest extent permitted by law, Tenant agrees to
promptly indemnity, protect, defend and hold harmless Landlord and
Landlord's partners, officers, directors, employees, agents, successors and
assigns (collectively, "Landlord indemnified Parties") from and against any
and all claims, damages, judgments, suits, causes of action, losses,
liabilities, penalties, fines, expenses and costs (including, without
limitation, clean-up, removal, remediation and restoration costs, sums paid
in settlement of claims, attorneys' fees, consultant lees and expert lees
and court costs) which arise or result from the presence of Hazardous
Materials on, in, under or about the Premises, the Building or any other
portion of the Project and which are caused or permitted by Tenant or any
of Tenant's Parties. Tenant agrees to promptly notify Landlord of any
release of Hazardous Materials in the Premises, the Building or any other
portion of the Project which Tenant becomes aware o/ during the Term of
this Lease, whether caused by Tenant or any other persons or entities. In
the event of any release of Hazardous Materials caused or permitted by
Tenant or any of Tenant's Parties, Landlord shall have The right, but not
the obligation, to cause Tenant to immediately take all steps Landlord
deems necessary or appropriate to remediate such release and prevent any
similar future release to the satisfaction of Landlord and Landlord's
mortgagee(s). At all times during the Term of this Lease, Landlord will
have the right, but not the obligation, to enter upon the Premises to
inspect, investigate, sample and/or monitor the Premises to determine if
Tenant is in compliance with the terms of this Lease regarding Hazardous
Materials. As used in this Lease, the term "Hazardous Materials" shall mean
and include any hazardous or toxic materials, substances or wastes as now
or hereafter designated under any law, statute, ordinance, rule,
regulation, order or ruling of any agency of the State, the United States
Government or any local governmental authority, including, without
limitation, asbestos, petroleum, petroleum hydrocarbons and petroleum based
products, urea formaldehyde foam insulation, polychlorinated biphenyls
("PCBs"), and freon and other chlorofluorocarbons. The provisions of this
Subparagraph 8(c) will survive the expiration or earlier termination o/
this Lease.
(d) Refuse and Sewage. Tenant agrees not to keep any trash, garbage, waste or
other refuse on the Premises except in sanitary containers and agrees to
regularly and frequently remove same from the Premises. Tenant shall keep
all containers or other equipment used for storage of such materials in a
clean and sanitary condition. Tenant shall properly dispose of all sanitary
sewage and shall not use the sewage disposal system for the disposal of
anything except sanitary sewage. Tenant shall keep the sewage disposal
system tree of all obstructions and in good operating condition. If the
volume of Tenant's trash becomes excessive in Landlord's judgment, Landlord
shall have the right to charge Tenant for additional trash disposal
services and/or to require that Tenant contract directly for additional
trash disposal services at Tenant's sole cost and expense.
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9. NOTICES. Any notice required or permitted to be given hereunder must be in
writing and may be given by personal delivery (including delivery by
overnight courier or an express mailing service) or by mail, if sent by
registered or certified mail. Notices to Tenant shall be sufficient if
delivered to Tenant at the Premises and notices to Landlord shall be
sufficient if delivered to Landlord at the address designated in
Subparagraph 1(a). Either party may specify a different address /or notice
purposes by written notice to the other, except that the Landlord may in
any event use the Premises as Tenant's address for notice purposes.
10. BROKERS. The parties acknowledge that the broker(s) who negotiated this
Lease are stated in Subparagraph 1(m) Landlord and Tenant each agree to
promptly indemnify, protect, defend and hold harmless the other from and
against any and all claims, damages, judgments, suits, causes of action,
losses, liabilities, penalties, fines, expenses and costs (including
attorneys' tees and court costs) resulting from any breach by the
indemnifying party of the foregoing representation, including, without
limitation, any claims that may be asserted by any broker, agent or finder
undisclosed by the indemnifying party. The foregoing mutual indemnity shall
survive The expiration or earlier termination of this Lease. Tenant agrees
that Landlord will not recognize or compensate any third party broker with
regards to any renewals and/or expansions unless such renewal or expansion
rights are included within this Lease at the time of execution by the
parties and in Landlord's commission agreement with the broker(s) specified
in Subparagraph 1(m).
11. SURRENDER; HOLDING OVER.
(a) Surrender. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not constitute a merger, and shall, at
the option of Landlord, operate as an assignment to Landlord of any or all
subleases or subtenancies. Upon The expiration or earlier termination of
this Lease, Tenant agrees to peaceably surrender the Premises to Landlord
broom clean and in a state of good order, repair and condition, ordinary
wear and tear and casually damage excepted, with all of Tenant's personal
property and alterations removed from The Premises to The extent required
under Paragraph 13 and all damage caused by such removal repaired as
required by Paragraph 13. The delivery of keys to any employee of Landlord
or to Landlord's agent or any employee thereof alone will not be sufficient
to constitute a termination of This Lease or a surrender of The Premises.
(b) Holding Over. If Tenant holds over after The expiration or earlier
termination of the Term, Landlord may, at its option, treat Tenant as a
tenant at sufferance only, and evict Tenant immediately, or consent in
writing to the continued occupancy by Tenant which shall be subject to all
of the terms, covenants and conditions of this Lease, so far as applicable,
including the payment of Operating Expenses, except that the Monthly Rase
Rent for any month or partial month during which Tenant holds over shall be
equal to one hundred fifty percent (150%) of the Monthly Base Rent in
effect under this Lease immediately prior to such holdover. Acceptance by
Landlord of rent alter such expiration or earlier termination will not
result in a renewal o/ this Lease. If Tenant fails to surrender the
Premises upon the expiration of this Lease in accordance
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with the terms of this Paragraph 11 despite demand to do so by Landlord,
Tenant agrees to promptly indemnify, protect, defend and hold Landlord
harmless from all claims, damages, judgments, suits, causes of action,
losses, liabilities, penalties, tines, expenses and costs (including
attorneys' lees and costs), including, without limitation, costs and
expenses incurred by Landlord in returning the Premises to the condition in
which Tenant was to surrender it and claims made by any succeeding tenant
founded on or resulting from Tenant's failure to surrender the Premises.
The provisions of this Subparagraph 11(b) will survive the expiration or
earlier termination of this Lease.
12. TAXES ON TENANT'S PROPERTY. Tenant agrees to pay before delinquency, all
taxes and assessments (real and personal) levied against Tenant's business
operations or any personal property, improvements, alterations, trade
fixtures or merchandise placed by Tenant in or about the Premises.
13. ALTERATIONS. Tenant shall not make any alterations to the Premises or any
other aspect of the Project, without Landlord's prior written consent,
which consent Landlord may withhold in its reasonable but subjective
discretion. All permitted alterations must be performed in compliance with
Landlord's standard rules and regulations regarding alterations. All
alterations will become the property of Landlord and will remain upon and
be surrendered with the Premises at the end of the Term o/ this Lease;
provided, however, Landlord may require Tenant to remove any or all
alterations at the end of the Term of this Lease. If Tenant fails to remove
by the expiration or earlier termination of this Lease all of its personal
property, or any alterations identified by Landlord for removal, Landlord
may, at its option, treat such failure as a hold-over pursuant to
Subparagraph 11(b) above, and/or Landlord may (without liability to Tenant
for loss thereof) treat such personal property and/or alterations as
abandoned and, at Tenant's sole cost and expense and in addition to
Landlord's other rights and remedies under this Lease, at law or in equity:
(a) remove and store such items; and/or (b) upon ten (10) days' prior
notice to Tenant, sell, discard or otherwise dispose of all or any such
items at private or public sale for such price as Landlord may obtain or by
other commercially reasonable means. Tenant shall be liable for all costs
of disposition of Tenant's abandoned property and Landlord shall have no
liability to Tenant with respect to any such abandoned property. Landlord
agrees to apply the proceeds of any sale of any such property to any
amounts due to Landlord under this Lease from Tenant (including Landlord's
attorneys' fees and other costs incurred in the removal, storage and/or
sale of such items), with any remainder to be paid to Tenant.
14. REPAIRS.
(a) LANDLORD'S OBLIGATIONS. Landlord agrees to repair and maintain the
structural portions of the Building, including the foundations, bearing and
exterior walls (excluding glass), subflooring and roof (excluding
skylights), and the unexposed electrical, plumbing and sewer systems,
including those portions of such systems which are outside the Premises,
gutters and downspouts on the Building and the heating, ventilating and air
conditioning systems which serve the Premises, unless such maintenance and
repairs are caused in part or in whole by the act,
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neglect or omission of any duty by Tenant, its agents, servants, employees
or invitees, in which case Tenant will pay to Landlord, as additional rent,
the reasonable cost of such maintenance and repairs. The costs of
maintenance and repairs performed by Landlord will be included in Operating
Expenses. Except as provided in this Subparagraph 14(a), Landlord has no
obligation to alter, remodel, improve, repair, decorate or paint the
Premises or any part thereof. Landlord will not be liable for any failure
to make any such repairs or to perform any maintenance unless such failure
shall persist for an unreasonable time after written notice of the need of
such repairs or maintenance is given to Landlord by Tenant. Tenant will not
be entitled to any abatement of rent and Landlord will not have any
liability by reason of any injury to or interference with Tenant's business
arising from the making of any repairs, alterations or improvements in or
to any portion o/ the Building or the Premises or in or to fixtures,
appurtenances and equipment therein. Tenant waives the right to make
repairs al Landlord's expense under any law, statute, ordinance, rule,
regulation, order or ruling (including, without limitation, to the extent
the Premises are located in California, the provisions of California Civil
Code Sections 1941 and 1942 and any successor statutes or laws of a similar
nature).
(b) Tenant's Obligations. Tenant agrees to keep, maintain and preserve the
Premises in a state of condition and repair consistent with the Building
and, when and if needed, at Tenant's sole cost and expense, to make all
repairs to the Premises and every part thereof including, without
limitation, all walls, storefronts, floors, ceilings, interior and exterior
doors and windows and fixtures and interior plumbing. Any such maintenance
and repairs will be performed by Landlord's contractor, or at Landlord's
option, by such contractor or contractors as Tenant may choose from an
approved list to be submitted by Landlord. Tenant agrees to pay all costs
and expenses incurred in such maintenance and repair within seven (7) days
after billing by such contractor or contractors. It Tenant refuses or
neglects to repair and maintain the Premises property as required hereunder
to the reasonable satisfaction of Landlord, Landlord, at any time following
ten (10) days from the date on which Landlord makes a written demand on
Tenant to effect such repair and maintenance, may enter upon the Premises
and make such repairs and/or maintenance, and upon completion thereof,
Tenant agrees to pay to Landlord as additional rent, Landlord's costs for
making such repairs plus an amount not to exceed ten percent (10%) of such
costs for overhead, within ten (10) days of receipt from Landlord of a
written itemized xxxx therefor. Any amounts not reimbursed by Tenant within
such ten (10) day period will bear interest at the interest Rate until paid
by Tenant.
15. LIENS. Tenant agrees not to permit any mechanic's, materialmen's or other
liens to be filed against all or any part of the Project, the Building or
the Premises, nor against Tenant's leasehold interest in the Premises, by
reason of or in connection with any repairs, alterations, improvements or
other work contracted for or undertaken by Tenant or any other act or
omission o/ Tenant or Tenant's agents, employees, contractors, licensees or
invitees. Al Landlord's request, Tenant agrees to provide Landlord with
enforceable, conditional and final lien releases (or other evidence
reasonably requested by Landlord to demonstrate protection from liens) from
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all persons furnishing labor and/or materials at the Premises. Landlord
will have the right at all reasonable times to post on the Premises and
record any notices o/ non-responsibility which it deems necessary for
protection from such liens. If any such liens are filed, Tenant will, at
its sole cost and expense, promptly cause such liens to be released of
record or bonded so that it no longer affects title to the Project, the
Building or the Premises. If Tenant fails to cause any such liens to be so
released or bonded within ten (10) days after filing thereof, such failure
will be deemed a material breach by Tenant under this Lease without the
benefit of any additional notice or cure period described in Paragraph 22
below, and Landlord may, without waiving its rights and remedies based on
such breach, and without releasing Tenant from any o/ its obligations,
cause such liens to be released by any means it shall deem proper,
including payment in satisfaction of the claims giving rise to such liens.
Tenant agrees to pay to Landlord within ten (10) days after receipt of
invoice from Landlord, any sum paid by Landlord to remove such liens,
together with interest at the Interest Rate from the xxxx of such payment
by Landlord.
16. ENTRY BY LANDLORD. Landlord and its employees and agents will at all
reasonable times have the right to enter the Premises to inspect the same,
to show the Premises to prospective purchasers or tenants, to post notices
of nonresponsibility, and/or to repair the Premises as permitted or
required by this Lease. In exercising such entry rights, Landlord will
endeavor to minimize as reasonably practicable, the interference with
Tenant's business, and will provide Tenant with reasonable advance notice
of any such entry (except in emergency situations). Landlord will at all
times have and retain a key with which to unlock all doors in the Premises,
excluding Tenant's vaults and safes. Tenant shall not alter any lock or
install any new or additional locks or bolts on any door of the Premises
without Landlord's prior written consent and without providing Landlord
with a key to all such locks. Except in the case of the gross negligence or
willful misconduct of Landlord, any entry to the Premises obtained by
Landlord will not be construed or deemed to be a forcible or unlawful entry
into the Premises, or an eviction of Tenant from the Premises and Landlord
will not be unable to Tenant for any damages or losses resulting from any
such entry.
17. UTILITIES AND SERVICES. Throughout the Term of this Lease, Tenant shall pay
directly to the utility company providing such service all costs for water,
gas, heat, light, power, sewer, electricity, telephone and other services
metered, chargeable or provided to the Premises. Landlord will not be
liable to Tenant for any failure to furnish any of the foregoing utilities
and services if such failure is caused by all or any of the following: (i)
accident, breakage or repairs' (ii) strikes, lockouts or other labor
disturbance or labor dispute of any character; (iii) governmental
regulation, moratorium or other governmental action or inaction; (iv)
inability despite the exercise of reasonable diligence to obtain
electricity, water or fuel, or (v) any other cause beyond Landlord's
reasonable control. In addition, in the event of any stoppage or
interruption of services or utilities, Tenant shall not be entitled to any
abatement or reduction of rent (except as expressly provided in
Subparagraphs 20(t) or 21(b) if such failure results from a damage or
taking described therein), no eviction of Tenant will result from such
failure and Tenant will not be relieved from the performance of any
covenant or agreement in this Lease
12
because of such failure. In the event of any failure, stoppage or
interruption thereof, Landlord agrees to diligently attempt to resume
service promptly.
18. ASSUMPTION OF RISK AND INDEMNIFICATION.
(a) Assumption of Risk. Tenant, as a material part other consideration to
Landlord, agrees that neither Landlord nor any Landlord indemnified Parties
(as defined in Subparagraph 8(c) above) will be liable to Tenant for, and
Tenant expressly assumes the risk o/ and waives any and all claims it may
have against Landlord or any Landlord Indemnified Parties with respect to,
(i) any and all damage to property or injury to persons in, upon or about
the Premises, the Building or the Project resulting /rom the act or
omission (except for the grossly negligent or intentionally wrongful act or
omission) of Landlord, (ii) any such damage caused by other tenants or
persons in or about the Building or the Project, or caused by quasi-public
work, (iii) any damage to property entrusted to employees of The Building,
(iv) any loss of or damage to property by them or otherwise, or (v) any
injury or damage to persons or property resulting from any casualty,
explosion, falling plaster or other masonry or glass, steam, gas,
electricity, water or rain which may leak /rom any part o/ the Building or
any other portion of the Project or from the pipes, appliances or plumbing
works therein or from the root, street or subsurface or from any other
place, or resulting from dampness. Neither Landlord nor any Landlord
Indemnified Parties will be liable for consequential damages arising out of
any loss of the use of the Premises or any equipment or facilities therein
by Tenant or any Tenant Parties (as defined in Subparagraph 8(c) above) or
for interference with light. Tenant agrees to give prompt notice to
Landlord in case of fire or accidents in the Premises or the Building, or
of detects therein or in the fixtures or equipment.
(b) Indemnification. Tenant will be liable for, and agrees, to the maximum
extent permissible under applicable law, to promptly indemnify, protect,
defend and hold harmless Landlord and all Landlord Indemnified Parties,
from and against, any and all claims, damages, judgments, suits, causes of
action, losses, liabilities, penalties, fines, expenses and costs,
including attorneys' tees and court costs (collectively, "Indemnified
Claims"), arising or resulting from (i) any act or omission of Tenant or
any Tenant Parties; (ii) the use of the Premises and Common Areas and
conduct of Tenant's business by Tenant or any Tenant Parties, or any other
activity, work or thing done, permitted or suffered by Tenant or any Tenant
Parties, in or about the Premises, the Building or elsewhere within the
Project and/or (iii) any default by Tenant o/ any obligations on Tenant's
part to be performed under the terms of this Lease. In case any action or
proceeding is brought against Landlord or any Landlord indemnified Parties
by reason of any such indemnified Claims, Tenant, upon notice from
Landlord, agrees to promptly defend the same at Tenant's sole cost and
expense by counsel approved in writing by Landlord, which approval Landlord
will not unreasonably withhold.
(c) Survival; No Release of Insurers. Tenant's indemnification obligations
under Subparagraph 18(b) will survive the expiration or earlier termination
of this Lease Tenant's covenants, agreements and indemnification obligation
in Subparagraphs 18(a) and 18(b) above,
13
are not intended to and will not relieve any insurance carrier of its
obligations under policies required to be carried by Tenant pursuant to the
provisions of This Lease.
19. INSURANCE.
(a) Tenant's Insurance. On or before the earlier to occur of (i) the
Commencement Date, or (ii) the date Tenant commences any work of any type
in the Premises pursuant to this Lease (which may be prior to the
Commencement Date), and continuing throughout the entire Term hereof and
any other period of occupancy, Tenant agrees to keep in full force and
effect, at its sole cost and expense, the insurance specified on Exhibit
"F" attached hereto. Landlord reserves the right to require any other form
or forms of insurance as Tenant or Landlord or any mortgagees of Landlord
may reasonably require from time to time in form, in amounts, and for
insurance risks against which, a prudent tenant would protect itself, but
only to the extent coverage for such risks and amounts are available in The
insurance market at commercially acceptable rates Landlord makes no
representation that the limits of liability required to be carried by
Tenant under the terms of this Lease are adequate to protect Tenant's
interests and Tenant should obtain such additional insurance or increased
liability limits as Tenant deems appropriate.
(b) Supplemental Tenant Insurance Requirements. All policies must be in a form
reasonably satisfactory to Landlord and issued by an insurer admitted to do
business in the State. All policies must be issued by insurers with a
policyholder rating of"A" and a financial rating of "X" in the most recent
version of Best's Key Rating Guide. AU policies must contain a requirement
to notify Landlord (and Landlord's property manager and any mortgagees or
ground lessors of Landlord who are named as additional insureds, if any) in
writing not less than thirty (30) days prior to any material change,
reduction in coverage, cancellation or other termination thereof. Tenant
agrees to deliver to Landlord, as soon as practicable after placing the
required insurance, but in any event within the time frame specified in
Subparagraph 19(a) above, certificate(s) of insurance and/or H required by
Landlord, certified copies of each policy evidencing the existence of such
insurance and Tenant's compliance with The provisions of This Paragraph 19.
Tenant agrees to cause replacement policies or certificates to be delivered
to Landlord not less than thirty (30) days prior to the expiration of any
such policy or policies. If any such initial or replacement policies or
certificates are not furnished within the time(s) specified herein,
Landlord will have the right, bul not the obligation, to obtain such
insurance as Landlord deems necessary to protect Landlord's interests at
Tenant's expense. Tenant's insurance under Subparagraphs 19(a)(iii) and
(iv) must name Landlord and Landlord's property manager (and at Landlord's
request, Landlord's mortgagees and ground lessors of which Tenant has been
informed in writing) as additional insureds and must also contain a
provision that the insurance afforded by such policy is primary insurance
and any insurance carried by Landlord and Landlord's property manager or
Landlord's mortgagees or ground lessors, if any, will be excess over and
non-contributing with Tenant's insurance.
14
(c) Waiver of Subrogation. Tenant's property insurance shall contain a clause
whereby the insurer waives all rights of recovery by way of subrogation
against Landlord. Tenant shall also obtain and furnish evidence to Landlord
of the waiver by Tenant's worker's compensation insurance carrier of all
rights of recovery by way of subrogation against Landlord.
20. DAMAGE OR DESTRUCTION.
(a) Partial Destruction. If The Premises or the Building are damaged by lire or
other casualty to an extent not exceeding twenty-five percent (25%) of the
full replacement cost thereof and Landlord's contractor reasonably
estimates in a writing delivered to Landlord and Tenant that the damage
thereto may be repaired reconstructed or restored to substantially its
condition immediately prior to such damage within one hundred eighty (180)
days from the date of such casualty and Landlord will receive insurance
proceeds sufficient to cover the costs of such repairs reconstruction and
restoration (including proceeds from Tenant and/or Tenants insurance which
Tenant is required to deliver to Landlord pursuant to Subparagraph 20(d)
below to cover Tenant s obligation for the costs of repair reconstruction
and restoration of any portion of the tenant improvements and any
alterations for which Tenant is responsible under this Lease) then Landlord
agrees to commence and proceed diligently with the work of repair
reconstruction and restoration and this Lease will continue in full force
and effect.
(b) Substantial Destruction. Any damage or destruction to the Premises or the
Building which Landlord is not obligated to repair pursuant to Subparagraph
20(a) above will be deemed a substantial destruction. In the event of a
substantial destruction Landlord may elect to either: (i) repair
reconstruct and restore the portion of the Building or the Premises damaged
by such casualty in which case this Lease will continue in full force and
effect subject to Tenant s termination right contained in Subparagraph
20(c) below; or (ii) terminate this Lease effective as of the date of
Tenant's receipt of Landlord s election to so terminate.
(c) Termination Rights. It Landlord elects to repair reconstruct and restore
pursuant to Subparagraph 20(b)(i) hereinabove and if Landlord's contractor
estimates that as a result of such damage Tenant cannot be given reasonable
use of and access to the Premises within two hundred forty (240) days after
the xxxx of such damage then either Landlord or Tenant may terminate this
Lease effective upon delivery of written notice to the other within ten
(10) days after Landlord delivers notice to Tenant of its election to so
repair reconstruct or restore; provided however Tenant shall have no right
to terminate this Lease it Landlord can relocate Tenant to other comparable
Premises in the Building or the Project within one hundred eighty (180)
days after the date of such damage.
(d) Tenants Costs and Insurance Proceeds. In the event of any damage or
destruction of all or any part of the Premises Tenant agrees to immediately
(i) notify Landlord thereof and (ii) deliver to Landlord all property
insurance proceeds received by Tenant with respect to any tenant
improvements installed by or at the cost of Tenant and any alterations bul
excluding proceeds for Tenant s furniture, fixtures, equipment and other
personal property whether or not this Lease is
15
terminated as permitted in this Paragraph 20 and Tenant hereby assigns to
Landlord all rights to receive such insurance proceeds. If for any reason
(including Tenants failure to obtain required insurance) Tenant fails to
receive insurance proceeds covering the full replacement cost of any tenant
improvements and any alterations which are damaged Tenant will be deemed to
have self-insured the replacement cost oi such items and upon any damage or
destruction thereto Tenant agrees to immediately pay to Landlord the full
replacement cost of such items less any insurance proceeds actually
received by Landlord from Landlord's or Tenant's insurance with respect to
such items.
(e) Abatement of Rent. In the event of any damage repair reconstruction and/or
restoration described in this Paragraph 20 rent will be abated or reduced
as the case may be from the date of such casualty in proportion to the
degree to which Tenant s use of the Premises is impaired during such period
of repair until such use is restored. Except for abatement of rent as
provided hereinabove, Tenant will not be entitled to any compensation or
damages for loss of or interference with Tenant's business or use or access
of all or any part of the Premises or for lost profits or any other
consequential damages of any kind or nature which result from any such
damage repair reconstruction or restoration.
(f) Damage Near End of Term. Landlord and Tenant shall each have the right to
terminate this Lease if any damage to the Premises or the Building occurs
during the last twelve (12) months of the Term of this Lease where Landlord
s contractor estimates in a writing delivered to Landlord and Tenant that
the repair reconstruction or restoration of such damage cannot be completed
within sixty (60) days after the date of such casualty. If either party
desires to terminate this Lease under this Subparagraph (f) it shall
provide written notice to the other party of such election within ten (10)
days after receipt of Landlord's contractor's repair estimates.
(g) Waiver of Termination Right. Landlord and Tenant agree that the foregoing
provisions of this Paragraph 20 are to govern their respective rights and
obligations in the event of any damage or destruction and supersede and are
in lieu of The provisions of any applicable law statute ordinance rule
regulation order or ruling now or hereafter in force which provide remedies
for damage or destruction of leased premises (including without limitation
to the extent the Premises are located in California. The provisions of
California Civil Code Section 1932 Subsection 2 and Section 1933 Subsection
4 and any successor statute or laws of a similar nature).
21. EMINENT DOMAIN.
(a) Substantial Taking. If the whole of The Premises or such part hereof as
shall substantially interfere with Tenant s use and occupancy of the
Premises as contemplated by this Lease is taken for any public or quasi-
public purpose by any lawful power or authority by exercise of the right of
appropriation condemnation or eminent domain or sold to prevent such taking
either party will have the right to terminate this Lease effective as of
the date possession is required to be surrendered to such authority.
16
(b) Partial Taking; Abatement of Rent. in the event of a taking of a portion of
the Premises which does not substantially interfere with Tenant s use and
occupancy of the Premises including any temporary taking of ninety (90)
days or less then neither party will have the right to terminate this Lease
and Landlord will thereafter proceed to make a functional unit of the
remaining portion of the Premises (but only to the extent Landlord receives
proceeds therefor from the condemning authority) and rent will be abated
with respect to the part of the Premises which Tenant is deprived of on
account of such taking. Notwithstanding the immediately preceding sentence
to the contrary it any part of the Building or the Project is taken
(whether or not such taking substantially interferes with Tenant s use of
the Premises) Landlord may terminate this Lease upon thirty (30) days prior
written notice to Tenant if Landlord also terminates the leases of the
other tenants of the Building which are leasing comparably sized space for
comparable lease terms.
(c) Condemnation Award. In connection with any taking of the Premises or the
Building Landlord will be entitled to receive the entire amount of any
award which may be made or given in such taking or condemnation without
deduction or apportionment for any estate or interest of Tenant, it being
expressly understood and agreed by Tenant that no portion of any such award
will be allowed or paid to Tenant for any so-called bonus or excess value
of This Lease and such bonus or excess value will be the sole property of
Landlord. Tenant agrees not to assert any claim against Landlord or the
taking authority for any compensation because of such taking (including any
claim for bonus or excess value of this Lease); provided however, if any
portion of the Premises is taken, Tenant will have the right to recover
from the condemning authority (but not from Landlord) any compensation as
may be separately awarded or recoverable by Tenant for the taking of
Tenant's furniture, fixtures, equipment and other personal property within
the Premises for Tenant's relocation expenses and for any loss of goodwill
or other damage to Tenant's business by reason of such taking.
22. DEFAULTS AND REMEDIES.
(a) Defaults. The occurrence of any one or more of the following events will be
deemed a default by Tenant:
(i) The abandonment or vacation of the Premises by Tenant.
(ii) The failure by Tenant to make any payment of rent or additional rent or any
other payment required to be made by Tenant hereunder as and when due where
such failure continues for a period of three (3) days after written notice
thereof from Landlord to Tenant; provided however that any such notice will
be in lieu of and not in addition to any notice required under applicable
law (including without limitation to the extent the Premises are located in
California the provisions of California Code of Civil Procedure Section
1161 regarding unlawful detainer actions or any successor statute or law of
a similar nature).
17
(iii) The failure by Tenant to observe or perform any of the express or implied
covenants or provisions of this Lease to be observed or performed by
Tenant other than as specified in Subparagraph 22(a)(i) or (ii) above
where such failure continues for a period of five (5) days after written
notice thereof from Landlord to Tenant The provisions of any such notice
will be in lieu of and not in addition to any notice required under
applicable law (including without limitation to the extent the Premises
are located in California, California Code of Civil Procedure Section
1161 regarding unlawful detainer actions and any successor statute or
similar law). It the nature of Tenants default is such that more than
five (5) days are reasonably required for its cure then Tenant will not
be deemed to be in default if Tenant with Landlord's concurrence
commences such cure within such five (5) day period and thereafter
diligently prosecutes such cure to completion.
(iv) (A) The making by Tenant of any general assignment for the benefit of
creditors; (B) the Fling by or against Tenant of a petition to have
Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless in the case
of a petition filed against Tenant the same is dismissed within sixty
(60) days); (C) the appointment of a trustee or receiver to take
possession of substantially all of Tenant s assets located at the
Premises or of Tenant s interest in this Lease where possession is not
restored to Tenant within thirty (30) days; or (D) the attachment
execution or other judicial seizure of substantially all of Tenant s
assets located at the Premises or of Tenant s interest in this Lease
where such seizure is not discharged within thirty (30) days.
(b) Landlord's Remedies; Termination. In the event of any default by Tenant in
addition to any other remedies available to Landlord at law or in equity
under applicable law (including without limitation to the extent the
Premises are located in California the remedies of Civil Code Section
1951.4 and any successor statute or similar law) Landlord will have the
immediate right and option to terminate this Lease and all rights of Tenant
hereunder. If Landlord elects to terminate this Lease, then to the extent
permitted under applicable law Landlord may recover from Tenant: (i) the
worth at the lime of award of any unpaid rent which had been earned at the
time of such termination plus (ii) the worth at the time of award of the
amount by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such rent loss
that Tenant proves could have been reasonably avoided; plus (iii) the worth
at the lime of award of the amount by which the unpaid rent for the balance
of the Term after the time of award exceeds the amount of such rent loss
that Tenant proves could be reasonably avoided plus (iv) any other amount
necessary to compensate Landlord for all the detriment proximately caused
by Tenant's failure to perform its obligations under this Lease or which in
the ordinary course of things results therefrom including but not limited
to: attorneys fees and costs; brokers commissions; the costs of
refurbishment alterations renovation and repair of the Premises and removal
(including the repair of any damage caused by such removal) and storage (or
disposal) of Tenant's personal property equipment fixtures alterations the
Tenant improvements and any other items which Tenant is required under this
Lease to remove but does not remove as well as the unamortized value of any
tree rent reduced rent free parking reduced rate parking and any tenant
improvement allowance or other costs or economic concessions
18
provided paid granted or incurred by Landlord pursuant to this Lease. As
used in Subparagraphs 22(b)(i) and (ii) above the worth at the time of
award is computed by allowing interest at the interest Rate. As used in
Subparagraph 22(b)(iii) above the worth at the time of award is computed by
discounting such amount al the discount rate of the Federal Reserve Bank of
San Francisco at the time of award plus one percent (1%).
(c) Landlord s Remedies; Re-Entry Rights. In the event of any default by Tenant
in addition to any other remedies available to Landlord under {his Lease at
law or in equity Landlord will also have the right with or without
terminating this Lease to re-enter the Premises and remove all persons and
property from the Premises; such property may be removed and stored in a
public warehouse or elsewhere and/or disposed of at the sole cost and
expense of and for the account of Tenant in accordance with the provisions
of Paragraph 13 of this Lease or any other procedures permitted by
applicable law. No reentry or taking possession of the Premises by Landlord
pursuant to this Subparagraph 22(c) will be construed as an election to
terminate this Lease unless a written notice of such intention is given to
Tenant or unless the termination thereof is decreed by a court of competent
jurisdiction.
(d) Landlord s Remedies; Re-Letting. If Landlord does not elect to terminate
this Lease Landlord may from time to time without terminating this Lease
either recover all rent as If becomes due or relate the Premises or any
part thereof on terms and conditions as Landlord in its sole and absolute
discretion may deem advisable with the right to make alterations and
repairs to the Premises in connection with such reletting. If Landlord
elects to relet the Premises then rents received by Landlord from such
reletting will be applied: first to the payment of any indebtedness other
than rent due hereunder from Tenant to Landlord; second to the payment of
any cost of such reletting; third to the payment of the cost of any
alterations and repairs to the Premises incurred in connection with such
reletting; fourth to the payment of rent due and unpaid hereunder and the
residue if any will be held by Landlord and applied to payment of future
rent as the same may become due and payable hereunder. Should that portion
of such rents received from such reletting during any month which is
applied to the payment of rent hereunder be less than the rent payable
during that month by Tenant hereunder then Tenant agrees to pay such
deficiency to Landlord immediately upon demand therefor by Landlord. Such
deficiency will be calculated and paid monthly.
(e) Landlord's Remedies; Performance for Tenant. All covenants and agreements
to be performed by Tenant under any of the terms of this Lease are to be
performed by Tenant al Tenant s sole cost and expense and without any
abatement of rent. If Tenant fails to pay any sum of money owed to any
party other than Landlord for which it is liable under this Lease or it
Tenant fails to perform any other act on its part to be performed hereunder
and such failure continues for ten (10) days after notice thereof by
Landlord, Landlord may without waiving or releasing Tenant from its
obligations but shall not be obligated to make any such payment or perform
any such other act to be made or performed by Tenant. Tenant agrees to
reimburse Landlord upon demand for all sums so paid by Landlord and all
necessary incidental costs together with interest thereon at the Interest
Rate from the date of such payment by Landlord
19
until reimbursement by Tenant. This remedy shall be in addition to any
other right or remedy of Landlord set forth in this Paragraph 22.
(f) Late Payment. If Tenant fails to pay any installment of rent within seven
(7) days when due or fi Tenant fails to make any other payment for which
Tenant is obligated under this Lease when due, such late amount will accrue
interest at the Interest Rate until such amount is paid by Tenant to
Landlord. In addition Tenant agrees to pay to Landlord concurrently with
such late payment amount as additional rent, a late charge equal to ten
percent (10%) of the amount due to compensate Landlord for the extra costs
Landlord will incur as a result of such late payment. Landlord and Tenant
agree that such late charge represents a fair and reasonable estimate of
the costs that Landlord will incur by reason of any such late payment.
Acceptance of any such interest and late charge will not constitute a
waiver of the Tenant's default with respect to the overdue amount or
prevent Landlord from exercising any of the other rights and remedies
available to Landlord. If Tenant incurs a late charge more than three (3)
times in any period of twelve (12) months during the Lease Term then
notwithstanding that Tenant cures the late payments for which such late
charges are imposed Landlord will have the right to require Tenant
thereafter to pay all installments of Monthly Base Rent quarterly in
advance in the form of a cashiers check throughout the remainder of the
Lease Term. Any payments of any kind returned for insufficient funds will
be subject to an additional handling charge of $25.00 and thereafter
Landlord may require Tenant to pay all future payments of rent or other
sums due by money order or cashier's check.
(g) Rights and Remedies Cumulative. All rights options and remedies of Landlord
contained in this Lease will be construed and held to be cumulative and no
one of them will be exclusive of the other and Landlord shall have the
right to pursue any one or all of such remedies or any other remedy or
relief which may be provided by law or in equity whether or not stated in
this Lease. Nothing in this Paragraph 22 will be deemed to limit or
otherwise affect Tenant's indemnification of Landlord pursuant to any
provision of This Lease.
23. LANDLORD'S DEFAULT. Landlord will not be in default in the performance of
any obligation required to be performed by Landlord under this Lease unless
Landlord fails to perform such obligation within thirty (30) days after the
receipt of written notice from Tenant specifying in detail Landlord's
failure to perform; provided however that it the nature of Landlord's
obligation is such that more than thirty (30) days are required for
performance, then Landlord will not be deemed in default if it commences
such performance within such thirty (30) day period and thereafter
diligently pursues the same to completion. Upon any default by Landlord
Tenant may exercise any of its rights provided at law or in equity subject
to the limitations on liability set forth in Paragraph 35 of This Lease.
24. ASSIGNMENT AND SUBLETTING.
(a) Restriction on Transfer. Except as expressly provided in this Paragraph 24
Tenant will not either voluntarily or by operation of law assign or
encumber this Lease or any interest herein
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or sublet the Premises or any part thereof or permit the use or occupancy
of the Premises by any party other than Tenant (any such assignment
encumbrance sublease or the like will sometimes be referred to as a
Transfer) without the prior written consent of Landlord, which consent
Landlord will not unreasonably withhold. For purposes of this Paragraph 24
it Tenant is a corporation partnership or other entity any transfer
assignment, encumbrance or hypothecation of fifty percent (50%) or more
(individually or in the aggregate) of any stock or other ownership interest
in such entity and/or any transfer, assignment, hypothecation or
encumbrance of any controlling ownership or voting interest in such entity
will be deemed a Transfer and will be subject to all of the restrictions
and provisions contained in this Paragraph 24; provided however, this
provision will not apply to public corporations the stock of which is
traded through a public stock exchange or over the counter system.
(b) Transfer Notice. If Tenant desires to elect a Transfer, then at least
thirty (30) days prior to the date when Tenant desires the Transfer to be
effective (the Transfer Date) Tenant agrees to give Landlord a notice (the
Transfer Notice ) stating the name address and business of the proposed
assignee sublessee or other transferee (sometimes referred to hereinafter
as Transferee) reasonable information (including references) concerning the
character ownership and financial condition of the proposed Transferee the
Transfer Date any ownership or commercial relationship between Tenant and
the proposed Transferee and the consideration and all other material terms
and conditions of the proposed Transfer all in such detail as Landlord may
reasonably require.
(c) Landlords Options. Within fifteen (15) days of Landlords receipt of any
Transfer Notice and any additional information requested by Landlord
concerning the proposed Transferee's financial responsibility, Landlord
will notify Tenant of its election to do one of the following: (i) consent
to the proposed Transfer subject to such reasonable conditions as Landlord
may impose in providing such consent; (ii) refuse such consent which
refusal shall be on reasonable grounds; or (iii) terminate this Lease as to
all or such portion of the Premises which is proposed to be sublet or
assigned and recapture all or such portion of the Premises for reletting by
Landlord.
(d) Additional Conditions. A condition to Landlord's consent to any transfer of
this Lease will be the delivery to Landlord of a true copy of the fully
executed instrument of assignment, sublease, transfer or hypothecation in
form and substance reasonably satisfactory to Landlord. Tenant agrees to
pay to Landlord as additional rent all sums and other consideration payable
to and for the benefit of Tenant by the assignee or sublessee in excess of
the rent payable under this Lease for the same period and portion of the
Premises. In calculating excess rent or other consideration which may be
payable to Landlord under this paragraph Tenant will be entitled to deduct
commercially reasonable third party brokerage commissions and attorneys
fees and other amounts reasonably and actually expended by Tenant in
connection with such assignment or subletting if acceptable written
evidence of such expenditures is provided to Landlord. No Transfer will
release Tenant of Tenant's obligations under This Lease or alter the
primary liability of Tenant to pay the rent and to perform all other
obligations to be performed by Tenant hereunder. Landlord may require that
any Transferee remit directly to Landlord on a monthly
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basis all monies due Tenant by said Transferee. Consent by Landlord to one
Transfer will not be deemed consent to any subsequent Transfer. In the
event of default by any Transferee of Tenant or any successor of Tenant in
the performance of any of the terms hereof, Landlord may proceed directly
against Tenant without the necessity of exhausting remedies against such
Transferee or successor. If Tenant effects a Transfer or requests the
consent of Landlord to any Transfer (whether or not such Transfer is
consummated), then, upon demand, Tenant agrees to pay Landlord a non-
refundable administrative fee of not less than One Hundred Dollars
($100.00) and actual expenses incurred, plus Landlord's reasonable
attorneys' fees.
25. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination and at the
election of Landlord or any mortgagee or beneficiary with a deed of trust
encumbering the Building and/or the Project or any lessor of a ground or
underlying lease with respect to the Building, this Lease will be subject
and subordinate at all times to: (i) all ground leases or underlying leases
which may now exist or hereafter be executed affecting the Building; and
(ii) the lien of any mortgage or deed of trust which may now exist or
hereafter be executed for which the Building, the Project or any leases
thereof or Landlord's interest and estate in any of said items is specified
as Security. Notwithstanding the foregoing, Landlord reserves the right to
subordinate any such ground leases or underlying leases or any such liens
to This Lease. If any such ground lease or underlying lease terminates for
any reason or any such mortgage or deed of trust is foreclosed or a
conveyance in lieu of foreclosure is made for any reason, at the election
of Landlord's successor in interest, Tenant agrees to attorn to and become
the tenant of such successor in wich event Tenant s right to possession of
The Premises will not be disturbed as long as Tenant is not in default
under this Lease. Tenant hereby waives its rights under any law which gives
or purports to give Tenant any right to terminate or otherwise adversely
affect this Lease and the obligations of Tenant hereunder in the event of
any such foreclosure proceeding or sale. Tenant covenants and agrees to
execute and deliver upon demand by Landlord and in the form reasonably
required by Landlord any additional documents evidencing the priority or
subordination of this Lease and Tenant's attornment agreement with respect
to any such ground lease or underlying leases or the lien of any such
mortgage or deed of trust. If Tenant fails to sign and return any such
documents within ten (10) days of receipt, Tenant will be in default
hereunder.
26. ESTOPPEL CERTIFICATE. Within ten (10) days following any written request
which Landlord may make from time to time, Tenant agrees to execute and
deliver to Landlord an estoppel certificate in Landlord's standard form or
as may reasonably be required by Landlord's lender. Landlord and Tenant
intend that any Statement delivered pursuant to this Paragraph 26 may be
relied upon by any mortgagee , purchaser or prospective purchaser of the
Building or any interest therein. Tenant's failure to deliver such
statement within such time will be conclusive upon Tenant (i) that this
Lease is in full force and effect without modification except as may be
represented by Landlord (ii) that there are no uncured defaults in
Landlord's performance and (iii) that not more than one (1) month's rent
has been paid in advance. Without limiting the foregoing if Tenant fails to
deliver any such statement within such ten (10) day period Landlord may
deliver to Tenant an additional request for such Statement and Tenant's
failure to deliver
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such Statement to Landlord within ten (10) days after delivery of such
additional request will constitute a default under this Lease. Tenant
agrees to indemnify and protect Landlord from and against any and all
claims, damages, losses, liabilities and expenses (including attorneys fees
and costs) attributable to any failure by Tenant to timely deliver any such
estoppel certificate to Landlord as required by this Paragraph 26.
27. BUILDING PLANNING. If Landlord requires the Premises for use in conjunction
with another suite or for other reasons connected with the planning program
for the Building or the Project, Landlord will have the right upon sixty
(60) days prior written notice to Tenant to move Tenant to other space in
the Building of substantially similar size as the Premises and with tenant
improvements of substantially similar age, quality and layout as then
existing in the Premises. Any such relocation will be at Landlord's cost
and expense including the cost of providing such substantially similar
tenant improvements (but not any furniture or personal property) and
Tenant's reasonable moving, telephone installation and stationary
reprinting costs. If Landlord so relocates Tenant, the terms and conditions
of this Lease will remain in full force and effect and apply to the new
space except that (a) a revised Exhibit A will become part of this Lease
and will reflect the location of the new space, (b) Paragraph 1 of This
Lease will be amended to include and state all correct data as to the new
space, (c) the new space will thereafter be deemed to be the Premises and
(d) all economic terms and conditions (e.g. rent, total Operating Expense
Allowance, etc.) will be adjusted on a per square foot basis based on the
total number of rentable square feel of area contained in the new space.
Landlord and Tenant agree to cooperate fully with one another in order to
minimize the inconvenience to Tenant resulting from any such relocation.
28. RULES AND REGULATIONS. Tenant agrees to faithfully observe and comply with
the Rules and Regulations, a copy of which is attached hereto and
incorporated herein by this reference as Exhibit E, and all reasonable and
nondiscriminatory modifications thereof and additions thereto from time to
time put into effect by Landlord. Landlord will not be responsible to
Tenant for the violation or non-performance by any other tenant or occupant
of the Building of any of the Rules and Regulations.
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS. Tenant
within ten (10) days after request therefor agrees to execute any
reasonable amendments to this Lease which may be requested by any lender or
ground lessor of the Project provided any such amendments do not increase
the obligations of Tenant under this Lease or adversely affect the
leasehold estate created by this Lease. In the event of any default on the
part of Landlord Tenant will give notice by registered or certified mail to
any beneficiary of a deed of trust or mortgage covering The Premises or
ground lessor of Landlord whose address has been furnished to Tenant and
Tenant agrees to offer such beneficiary, mortgagee or ground lessor a
reasonable opportunity to cure The default (including with respect to any
such beneficiary or mortgagee time to obtain possession of the Premises
subject to This Lease and Tenant's rights hereunder by power of sale or a
judicial foreclosure if such should prove necessary to effect a cure).
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30. DEFINITION OF LANDLORD. The term Landlord as used in this Lease, so far as
covenants or obligations on the part of Landlord are concerned, means and
includes only the owner or owners at the time in question of the fee title
of the Premises or the lessees under any ground lease if any. In the event
of any transfer assignment or other conveyance or transfers of any such
title (other than a transfer for security purposes only) Landlord herein
named (and in case of any subsequent transfers or conveyances, the then
grantor) will be automatically relieved from and after the date of such
transfer, assignment or conveyance of all liability as respects. The
performance of any covenants or obligations on the part of Landlord
contained in this Lease thereafter to be performed so long as the
transferee assumes in writing all such covenants and obligations of
Landlord arising after the date of such transfer. Landlord and Landlord's
transferees and assignees have the absolute right to transfer all or any
portion of their respective title and interest in the Project, the
Building, the Premises and/or this Lease without the consent of Tenant and
such transfer or subsequent transfer will not be deemed a violation on
Landlord's part of any of the terms and conditions of This Lease.
31. WAIVER. The waiver by either party of any breach or any term, covenant or
condition herein contained will not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition
herein contained, nor will any custom or practice which may develop between
the parties in the administration of the terms hereof be deemed a waiver of
or in any way affect the right of either party to insist upon performance
in strict accordance with said terms. The subsequent acceptance of rent or
any other payment hereunder by Landlord will not be deemed to be a waiver
of any preceding breach by Tenant of any term covenant or condition of this
Lease other than the failure of Tenant to pay the particular rent so
accepted regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent. No acceptance by Landlord of a lesser sum
than the basic rent and additional rent or other sum then due will be
deemed to be other than on account of the earliest installment of such rent
or other amount due nor will any endorsement or statement on any check or
any letter accompanying any check be deemed an accord and satisfaction and
Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such installment or other amount or pursue
any other remedy provided in This Lease. The consent or approval of
Landlord to or of any act by Tenant requiring Landlord's consent or
approval will not be deemed to waive or render unnecessary Landlord's
consent or approval to or of any subsequent similar acts by Tenant.
32. PARKING. So long as this Lease is in effect and provided Tenant is not in
default hereunder, Landlord grants to Tenant, Tenant's visitors and guests
a non-exclusive license to use the parking areas which serve the Building
subject to the terms and conditions of this Paragraph 32 and the Rules and
Regulations regarding parking contained in Exhibit E attached hereto.
Tenant will not use or allow any of Tenant's employees or guests to use any
parking spaces which have been specifically assigned by Landlord to other
tenants or occupants or for other uses such as visitor parking or which
have been designated by any governmental entity as being restricted to
certain uses. Landlord may assign any unreserved and unassigned parking
spaces and/or make all or any portion of such spaces reserved if Landlord
reasonably determines that it
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is necessary for orderly and efficient parking or for any other reasonable
reason. Tenant agrees to cause its employees subtenants, assignees,
contractors, suppliers, customers and invitees to comply with the Rules and
Regulations. Landlord reserves the right from time to lime to modify and/or
adopt such other reasonable and non-discriminatory rules and regulations
for the parking facilities as if deems reasonably necessary for the
operation of the parking facilities.
33. FORCE MAJEURE. If either Landlord or Tenant is delayed hindered in or
prevented from the performance of any act required under this Lease by
reason of strikes, lock-outs, labor troubles, inability to procure standard
materials, failure of power, restrictive governmental laws, regulations or
orders or governmental action or inaction (including failure, refusal or
delay in issuing permits, approvals and/or authorizations which is not the
result of the action or inaction of the party claiming such delay), riots,
civil unrest or insurrection, war, fire, earthquake, flood or other natural
disaster, unusual and unforeseeable delay which results from an
interruption of any public utilities (e.g., electricity, gas, water,
telephone) or other unusual and unforeseeable delay not within the
reasonable control of the party delayed in performing work or doing acts
required under the provisions of this Lease, then performance of such act
will be excused for the period of the delay and the period for the
performance of any such act will be extended for a period equivalent to the
period of such delay. The provisions of this Paragraph 33 will not operate
to excuse Tenant from prompt payment of rent or any other payments required
under the provisions of this Lease.
34. SIGNS. Landlord will designate the location on the Premises it any for one
or more Tenant identification sign(s). Tenant has no right to install
Tenant identification signs in any other location in on or about the
Premises or the Project and will not display or erect any other signs,
displays or other advertising materials that are visible from the exterior
of the Building or from within the Building in any interior or exterior
common areas. The size design color and other physical aspects of any and
all permitted sign(s) will be subject to (i) Landlord's written approval
prior to installation which approval may be withheld in Landlord s
discretion (ii) any covenants conditions or restrictions and sign criteria
governing the Project and (iii) any applicable municipal or governmental
permits and approvals. Tenant will be solely responsible for all costs for
installation, maintenance, repair and removal of any Tenant identification
sign(s). If Tenant fails to remove Tenant's sign(s) upon termination of
this Lease and repair any damage caused by such removal, Landlord may do so
at Tenant's sole cost and expense. Tenant agrees to reimburse Landlord for
all costs incurred by Landlord to effect any installation, maintenance or
removal on Tenant's account, which amount will be deemed additional rent
and may include without limitation all sums disbursed, incurred or
deposited by Landlord, including Landlord's costs, expenses and actual
attorneys fees with interest thereon at the Interest Rate from the date of
Landlord's demand until paid by Tenant. Any sign rights granted to Tenant
under this Lease are personal to Tenant and may not be assigned transferred
or otherwise conveyed to any assignee or subtenant of Tenant without
Landlord's prior written consent, which consent Landlord may withhold in
its sole and absolute discretion.
25
35. LIMITATION ON LIABILITY. In consideration of the benefits accruing
hereunder Tenant on behalf of itself and all successors and assigns of
Tenant covenants and agrees that in the event of any actual or alleged
failure breach or default hereunder by Landlord: (a) Tenant's recourse
against Landlord for monetary damages will be limited to Landlord's
interest in the Building including subject to the prior rights of any
Mortgagee Landlord's interest in the rents of the Building and any
insurance proceeds payable to Landlord; (b) except as may be necessary to
secure jurisdiction of the partnership no partner of Landlord shall be sued
or named as a party in any suit or action and no service of process shall
be made against any partner of Landlord; (c) no partner of Landlord shall
be required to answer or otherwise plead to any service of process; (d) no
judgment will be taken against any partner of Landlord and any judgment
taken against any partner of Landlord may be vacated and set aside at any
time after the fact; (e) no writ of execution will be levied against the
assets of any partner of Landlord; (t) the obligations under this Lease do
not constitute personal obligations of the individual partners, directors,
officers or shareholders of Landlord and Tenant shall not seek recourse
against the individual partners, directors, officers or shareholders of
Landlord or any of their personal assets for satisfaction of any liability
in respect to this Lease; and (g) these covenants and agreements are
enforceable both by Landlord and also by any partner of Landlord.
36. FINANCIAL STATEMENTS. Prior to the execution of this Lease by Landlord and
at any time during the Term of this Lease upon ten (10) days prior written
notice from Landlord Tenant agrees to provide Landlord with a current
financial statement for Tenant and any guarantors of Tenant and financial
statements for the two (2) years prior to the current financial statement
year for Tenant and any guarantors of Tenant. Such statements are to be
prepared in accordance with generally accepted accounting principles and,
if such is the normal practice of Tenant audited by an independent
certified public accountant.
37. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that upon Tenant
paying the rent required under this Lease and paying all other charges and
performing all of the covenants and provisions on Tenant's part to be
observed and performed under this Lease Tenant may peaceably and quietly
have hold and enjoy the Premises in accordance with This Lease.
38. MISCELLANEOUS.
(a) Conflict of Laws. This Lease shall be governed by and construed solely
pursuant to the laws of the State without giving effect to choice of law
principles thereunder.
(b) Successors and Assigns. Except as otherwise provided in this Lease all of
the covenants conditions and provisions of this Lease shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
heirs personal representatives successors and assigns.
(c) Professional Fees and Costs. If either Landlord or Tenant should bring suit
against the other with respect to this Lease, then all costs and expenses,
including without limitation, actual professional fees and costs such as
appraisers, accountants and attorneys fees and costs incurred
26
by the party which prevails in such action, whether by final judgment or
out of court settlement, shall be paid by the other party, which obligation
on the part of the other party shall be deemed to have accrued on the date
of the commencement of such action and shall be enforceable whether or not
the action is prosecuted to judgment. As used herein attorneys fees and
costs shall include without limitation attorneys fees costs and expenses
incurred in connection with any (i) post-judgment motions; (ii) contempt
proceedings; (iii) garnishment levy and debtor and third party examination;
(iv) discovery; and (v) bankruptcy litigation. Tenant agrees to pay all
collection agency fees and attorneys lees charged to Landlord in connection
with any late payment or non-payment of rent or any other amounts due under
this Lease including without limitation a fee of $75.00 for the preparation
of any demand for delinquent rent or any notice to pay rent or quit.
(d) Terms and Headings. The words Landlord and Tenant as used herein shall
include The plural as well as the singular. Words used in any gender
include other genders. The paragraph headings of this Lease are not a part
of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
(e) Time. Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
(f) Prior Agreement; Amendments. This Lease constitutes and is intended by the
parties to be a final, complete and exclusive statement of their entire
agreement with respect to the subject matter of this Lease. This Lease
supersedes any and all prior and contemporaneous agreements and
understandings of any kind relating to the subject matter of this Lease.
There are no other agreements, understandings, representations, warranties
or statements, either oral or in written form, concerning the subject
matter of this Lease. No alteration modification amendment or
interpretation of this Lease shall be binding on the parties unless
contained in a writing which is signed by both parties.
(g) Separability. The provisions of this Lease shall be considered separable
such that it any provision or part of this Lease is ever held to be
invalid, void or illegal under any law or ruling all remaining provisions
of this Lease shall remain in full force and effect to the maximum extent
permitted by law.
(h) Recording. Neither Landlord nor Tenant shall record this Lease nor a short
form memorandum thereof without the consent of the other.
(i) Counterparts. This Lease may be executed in one or more counterparts, each
of which shall constitute an original and all of which shall be one and the
same agreement.
(j) Nondisclosure of Lease Terms. Tenant acknowledges and agrees that the terms
of this Lease are confidential and constitute proprietary information of
Landlord. Disclosure of the terms could adversely affect the ability of
Landlord to negotiate other leases and impair Landlords relationship with
other tenants. Accordingly, Tenant agrees that it, and its partners,
27
officers, directors, employees, agents and attorneys, shall not
intentionally and voluntarily disclose the terms and conditions of this
Lease to any newspaper or other publication or any other Tenant or apparent
prospective tenant of the Building or other portion of the Project, or real
estate agent, either directly or indirectly, without the prior written
consent of Landlord, provided, however, that Tenant may disclose the terms
to prospective subtenants or assignees under this Lease.
(k) Non-Discrimination. Tenant acknowledges and agrees that there shall be no
discrimination against, or segregation of, any person, group of persons, or
entity on the basis of race, color, creed, religion, age, sex, marital
status, national origin, or ancestry in the leasing, subleasing,
transferring, assignment, occupancy, tenure, use, or enjoyment of the
Premises, or any portion thereof.
39. EXECUTION OF LEASE.
(a) Joint and Several Obligations. If more than one person executes this Lease
as Tenant, their execution of this Lease will constitute their covenant and
agreement that (i) each of them is jointly and severally liable for the
keeping, observing and performing of all of the terms, covenants,
conditions, provisions and agreements of this Lease to be kept, observed
and performed by Tenant, and (ii) the term Tenant as used in this Lease
means and includes each of them jointly and severally.
The act of or notice from, or notice or refund to, or the signature of any
one or more of them, with respect to the tenancy of this Lease, including,
but not limited to, any renewal, extension, expiration, termination or
modification of this Lease, will be binding upon each and all of the
persons executing this Lease as Tenant with the same force and effect as if
each and all of them had so acted or so given or received such notice or
refund or so signed.
(b) Tenant as Corporation or Partnership. If Tenant executes this Lease as a
corporation or partnership, then Tenant and the persons executing this
Lease on behalf of Tenant represent and warrant that such entity is duly
qualified and in good standing to do business in California and that the
individuals executing this Lease on Tenant's behalf are duly authorized to
execute and deliver this Lease on its behalf, and in the case of a
corporation, in accordance with a duly adopted resolution of the board of
directors of Tenant, a copy of which is to be delivered to Landlord on
execution hereof, if requested by Landlord, and in accordance with the by-
laws of Tenant, and, in the case of a partnership, in accordance with the
partnership agreement and the most current amendments thereto, if any,
copies of which are to be delivered to Landlord on execution hereof, if
requested by Landlord, and that this Lease is binding upon Tenant in
accordance with its terms.
(c) Examination of Lease. Submission of this instrument by Landlord to Tenant
for examination or signature by Tenant does not constitute a reservation of
or option for lease, and it
28
is not effective as a lease or otherwise until execution by and delivery to
both Landlord and Tenant.
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed by
their duly authorized representatives as of the date first above written.
TENANT: LANDLORD:
Litronic Industries, Inc., Airport Industrial Complex,
a California Corporation a California Limited Partnership
By: /S/ XXXX XXXX By: /S/ XXXXX XXXXX
------------------------------- -------------------------
Name: Xxxx Xxxx Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer Title: Senior Manager
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