EXHIBIT 10.30
LEASE AGREEMENT
DATED: July 22, 1991
LANDLORD: GEOMAX, a California general partnership
TENANT: Dynamic Circuits, Inc., a California Corporation
1. FUNDAMENTAL LEASE PROVISIONS.
A. PREMISES: Approximately 26,760 square feet of leasable area in the
building containing approximately 39,720 leasable square feet located on a
parcel of land in the County of Santa Xxxxx, State of California, as more
particularly described in the legal description attached as Exhibit A
hereto, with a common address of 0000 Xxxxx Xxxxx, Xxxxxxxx, XX 00000. The
location of Premises is indicated on the site plan attached as Exhibit B
hereto. (Paragraph 2)
B. LEASE TERM: 120 full calendar months, plus any partial month at the
beginning of the Lease Term. (Paragraph 5)
C. COMMENCEMENT DATE: October 1, 1991
D. INITIAL BASIC RENT: (Paragraph 4.A)
Lease Months Basic Rent
(inclusive) (per leasable sq.ft.) Basic Rent (total) per mo.
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1-120 .781 $20,868.00
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E. TENANT'S SHARE: Sixty-seven and 4/10 percent (67.4%). (Paragraph 4.E)
F. PREPAID RENT: $20,868.00 for the 1st month(s) of the Lease Term.
(Paragraph 4.H)
G. BASIC RENT ADJUSTMENT: The basic rent shall be subject to a CPI adjustment
on the first day of each of the following full calendar months of the
lease term: 25, 49, 73, 97.
H. SECURITY DEPOSIT: $21,000.00. (Paragraph 4.G)
PERMITTED USE: Printed circuit board manufacturing and related uses.
(Paragraph 3)
J. NUMBER OF PARKING SPACES: 85 unreserved. (Paragraph 8)
K. ADDRESSES FOR NOTICES AND PAYMENT OF RENT (paragraphs 4.F and 36):
To Landlord: To Tenant:
GEOMAX Dynamic Circuits, Inc.
0000 Xxxxxxx Xxxxx #000 00000 Xxxxxx Xxxx Xxxx
Xxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Facsimile No.: 000-000-0000 Facsimile No.: 000-000-0000
L. TENANT'S BROKER: None (Paragraph 41)
M. BASE YEAR: January 1, 1991 to December 31, 1991, which is the calendar
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year in which the Lease term commences. (Paragraph 4)
N. GUARANTORS: See attached "Exhibit F"
O. OTHER PROVISIONS: The following Riders are added hereto and included as
part of this Lease:
Rider No. Paragraph No. Title
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1 46 Right of 1st Opportunity
2 N/A Addendum to Lease
Each reference in this Lease to any of the provisions in this Paragraph 1 shall
be construed to incorporate all of the terms of each such provision. In the
event of any conflict between this Paragraph 1 and the balance of the lease, the
balance of the lease shall control.
2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord for the term, at the Rent and upon the terms and conditions hereinafter
set forth, that certain space ("Premises") within that certain building
("Building") described in Paragraph 1.A. As used herein, the "Complex" shall
mean and include all of the land described in Exhibit A and shown on Exhibit B
attached hereto, and all of the buildings, improvements, fixtures and equipment
now or hereafter situated on said land.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth, and Tenant covenants as a material part of the
consideration for this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the conditions of such
performance and observance.
Landlord agrees to construct any improvements to the Premises ("Tenant
Improvements") as may be described in Exhibit C attached hereto and incorporated
herein by reference, upon such terms and conditions as are set forth in such
Exhibit C. The Tenant Improvements shall be deemed substantially complete when
Landlord notifies Tenant in writing that the Tenant Improvements (if any) are
substantially completed in accordance with Exhibit C, subject only to "punch
list" items that do not materially diminish the usefulness of the Premises.
3. USE. Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances and solely for the purpose
specified in Paragraph 1.1 and for no other purpose. Tenant shall not do or
permit [ILLEGIBLE] be done in or about the Premises or the Complex nor bring or
keep or permit to be brought or kept in or about the Premises or the Complex
anything which is prohibited by or will in any way increase the existing rate of
(or otherwise affect) fire or any insurance covering the Complex or any part
thereof, or any of its contents, or will cause a cancellation of any insurance
covering the Complex or any part thereof, or any of its contents. Tenant shall
not do or permit to be done anything in, on or about the Premises the
[ILLEGIBLE] which will in any way obstruct or [ILLEGIBLE] the rights of other
tenants or occupants of the Complex or injure [ILLEGIBLE], or use or allow the
Premises to [ILLEGIBLE] any improper, immoral, unlawful or objectionable
purpose, nor shall Tenant cause, maintain or permit any nuisance in [ILLEGIBLE]
or about the Premises or the Complex. No sale by auction shall be permitted on
the Premises. Tenant shall not place any loads upon the floors, walls, or
ceiling, which endanger the structure, or place any harmful fluids or other
materials in the drainage system of the Building, or overload existing
electrical or other mechanical systems. No waste materials or refuse shall be
dumped upon or permitted to remain upon any part of the Premises or outside of
the Building in which the Premises are a part, except in trash containers placed
inside exterior enclosures designated by Landlord for that purpose or inside of
the Building proper where designated by Landlord. No materials, supplies,
equipment, finished products or semi-finished products, raw
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materials or articles of any nature shall be stored upon or permitted to remain
outside the Premises or on any portion of the Common Area of the Complex. No
loudspeaker or other device, system or apparatus which can be heard outside the
Premises shall be used in or at the Premises without the prior written consent
of Landlord. Tenant shall not commit or suffer to be committed any waste in or
upon the Premises. Tenant shall indemnify, defend and hold Landlord harmless
against any loss, expense, damage, attorneys' fees, or liability arising out of
failure of Tenant to comply with any applicable law. Tenant shall comply with
any covenants, conditions, or restrictions ("CC&R's") affecting the Premises.
The provisions of this Paragraph are for the benefit of Landlord only and shall
not be construed to be for the benefit of any tenant or occupant of the Complex.
4. RENT
A. Basic Rent. Tenant agrees to pay to Landlord the sum set forth in
Paragraph 1.0 hereof as "Basic Rent", in lawful money of the United States of
America, without deduction, offset, prior notice, or demand, on the first day of
every calendar month of the term hereof, and Landlord agrees to accept such sum
as Basic Rent for the Premises.
B. Basic Rent Adjustment. On the first day of each calendar month
described in Paragraph 1.0 hereof (hereinafter referred to as an "Adjustment
Date"), the Basic Rent provided for in Paragraph 4.A above shall be adjusted in
accordance with the following formula based on the Consumer Price Index ("CPI")
for all Urban Consumers "All Items", San Francisco-Oakland San Xxxx (1982-84 =
100, standard reference base) published by the Bureau of Labor Statistics, U.S
Department of Labor (the "Index") published nearest but prior to the first day
of the Lease term or the last previous Adjustment Date, as applicable (the
"Beginning Index") and the Index which is published nearest but prior to the
current Adjustment Date, (the "Adjustment Index"). On each Adjustment Date, the
Basic Rent shall be increased by an amount equal to the product obtained by
multiplying the then current Basic Rent by a fraction, the numerator of which is
the Adjustment Index and the denominator of which is the Beginning index. On
such adjustment, the parties shall execute an amendment to the Lease stating the
new (adjusted) Basic Rent. If the Index is changed so that the Base Year of the
Index differs from that used as of the month immediately preceding the month in
which the term commences, the Index shall be converted in accordance with the
conversion factor published by the United States Department of Labor, Bureau of
Labor Statistics. If the Index is discontinued or revised during the term, such
other government Index or other computation with which it is replaced shall be
used in order to obtain substantially the same result as would be obtained if
the Index had not been discontinued or revised. In no event shall the Basic Bent
following any Adjustment Date be less than the Basic Rent in existence
immediately prior to such Adjustment Date.
C. Partial Months. In the event that the term of this Lease commences on
a date other than the first day of a calendar month, on the Commencement Date
Tenant shall pay to Landlord as rent for the period from such Commencement Date
to the first day of the first full calendar month that proportion of the monthly
rent hereunder which the number of days between such Commencement Date and the
first day of the next succeeding calendar month bears to thirty (30), and such
partial first month shall not be counted when computing the number of months in
the term of this Lease. In the event that the term of this lease for any reason
is terminated on a date other than the last day of a calendar month, on the
first day of the last calendar month of the term hereof Tenant shall pay to
Landlord as rent for the period from said first day of said last calendar month
to and including the last day of the term hereof that proportion of the monthly
rent hereunder which the number of days between said first day of said last
calendar month and the last day of the term hereof bears to thirty (30).
D. Late Charge. Notwithstanding any other provision of this Lease, if
tenant is delinquent in the payment of rental as set forth in this Paragraph 4
when due, or any part thereof, Tenant agrees to pay Landlord, in addition to the
delinquent rental due, a late charge for each rental payment which is not
received by Landlord within ten (10) days after due date for such payment. Said
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late charge shall equal ten (10%) percent of each rental payment so in default.
E. Additional Rent. Beginning with the Commencement Date of the term of
this Lease, Tenant shall pay to Landlord in addition to the Basic Rent and as
Additional Rent the following:
(1) Tenant's proportionate share ("Tenant's Share") as specified in
Paragraph 1.E., of the amount, if any, by which the Real Property taxes set
forth in Paragraph 14, in any calendar year ("Comparison Year") subsequent to
the Base Year specified in Paragraph 1.H, exceed the Real Property Taxes of the
Base Year, and
(2) Tenant's Share of the amount, if any, by which the property
insurance premiums set forth in Paragraph 15, in any Comparison Year exceed such
insurance premiums for the Base Year, and
(3) Tenant's Share of expenses for the operation, management,
maintenance and repair of the Building (including Common Areas of the Building)
and Common Areas of the Complex in which the Premises are located, as set forth
in Paragraph 9, and
(4) All charges, costs and expenses, which Tenant is required to pay
hereunder, together with all interest and penalties, costs and expenses
including attorneys' fees and legal expenses, that may accrue thereto in the
event of Tenant's failure to pay such amounts, and all damages, reasonable costs
and expenses which Landlord may incur by reason of default of Tenant or failure
on Tenant's part to comply with the terms of this Lease. In the event of
nonpayment by Tenant of Additional Rent, Landlord shall have all the rights and
remedies with respect thereto as Landlord has for nonpayment of rent.
The Additional Rent due hereunder shall be paid to Landlord or
Landlord's agent (i) within ten (10) days for taxes and insurance and within
thirty (30) days of all other Additional Rent items after presentation of an
invoice from Landlord or Landlord's agent setting forth such Additional Rent,
and/or (ii) at the option of Landlord, Tenant shall pay to Landlord monthly, in
advance, Tenant's Share of an amount estimated by Landlord to be Landlord's
approximate average monthly expenditure for such Additional Rent items, which
estimated amount shall be reconciled at the end of each calendar year as
compared to Landlord's actual expenditure for said Additional Rent items, with
Tenant paying to Landlord, upon demand, any amount of actual expenses expended
by Landlord in excess of said estimated amount, or Landlord refunding to Tenant
(providing Tenant is not in default in the performance of any of the terms,
covenants and conditions of this Lease) any amount of estimated payments made by
Tenant in excess of Landlord's actual expenditures for said Additional Rent
items.
The respective obligations of Landlord and Tenant under this
Paragraph shall survive the expiration or other termination of the term of this
Lease, and if the term hereof shall expire or shall otherwise terminate on a day
other than the last day of a calendar year, the actual Additional Rent incurred
for the calendar year in which the term hereof expires or otherwise terminates
shall be determined and settled on the basis of the statement of actual
Additional Rent for such calendar year and shall be prorated in the proportion
which the number of days in such calendar year preceding such expiration or
termination bears to 365.
F. Place of Payment of Rent and Additional Rent. All Basic Rent hereunder
and all payments hereunder for Additional Rent shall be paid to Landlord at the
address of Landlord as specified in Paragraph 1.K or such other place as
Landlord may from time to time designate in writing.
G. Security Deposit. Concurrently with Tenant's execution of this Lease,
Tenant shall deposit with Landlord the sum specified in Paragraph 1.H hereof as
a "Security Deposit". Said sum shall be held by Landlord as a Security Deposit
for the faithful performance by Tenant of all of the terms, covenants, and
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conditions of this Lease to be kept and performed by Tenant during the Lease
Term, and shall not in any event be used or applied by Tenant as "last month's
rent." If Tenant defaults with respect to any provision of this Lease,
including, but not limited to, the provisions relating to the payment of rent
and any of the monetary sums due herewith, Landlord may (but shall not be
required to) use, apply or retain all or any part of the Security Deposit for
the payment of any other amount which Landlord may spend by reason of Tenant's
default or to compensate Landlord for any other loss or damage which Landlord
may suffer by reason of Tenant's default. If any portion of said Security
Deposit is so used or applied, Tenant shall, within ten (10) days after written
demand therefor, deposit cash with Landlord in the amount sufficient to restore
the Security Deposit to its original amount. Tenant's failure to do so shall be
a material breach of this Lease. Landlord shall not be required to keep this
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on such Security Deposit. If Tenant fully and faithfully
performs every provision of this Lease to be performed by it, the Security
Deposit or any balance thereof shall be returned to Tenant (or at Landlord's
option, to the last assignee of Tenant's interest hereunder) at the expiration
of the Lease term and after Tenant has vacated the Premises. In the event of
termination of Landlord's interest in this Lease, Landlord shall transfer said
Security Deposit to [ILLEGIBLE] in interest whereupon Landlord [ILLEGIBLE] be
released from liability for [ILLEGIBLE] return of such Security Deposit or
[ILLEGIBLE] therefor.
II. Prepaid Rent. Concurrently with Tenant's execution of this Lease,
Tenant shall pay to Landlord the sum specified in Paragraph 1.F as prepaid rent
for the months designated therein.
5. TERM. The term of this Lease shall be for a period of time specified in
Paragraphs 1.B (unless sooner terminated as hereinafter provided) and, subject
to Paragraph 6, shall commence on the commencement date ("Commencement Date")
specified in Paragraphs 1.C. Within 10 days following the Commencement Date of
the Lease Term, Tenant will execute and deliver to Landlord a certificate
substantially in the form of Exhibit D indicating any exceptions thereto which
may exist at that time. Tenant's failure to execute and deliver such certificate
within such time limit shall constitute an unqualified acceptance of the
Premises and acknowledgement that the statements contained in Exhibit D are true
and correct without exception.
6. POSSESSION. if Landlord, for any reason whatsoever, cannot deliver possession
of said Premises to Tenant on the date set forth in Paragraph 1.C or any other
date, this Lease shall not be void or voidable; no obligation of Tenant shall be
affected thereby; nor shall Landlord or Landlord's agents be liable to Tenant
for any loss or damage resulting therefrom; but in that event the commencement
and termination dates of the Lease, and all other dates affected thereby shall
be revised to conform to the date of Landlord's delivery to tenant of possession
of the Premises, and the Lease Term shall be extended for a period equal to the
delay in delivery of possession, plus the number of days necessary to end the
Lease Term on the last day of a month. The above is, however, subject to the
provision that the period of delay of delivery of the Premise shall not exceed
180 days from the date specified in Paragraph 1.C (except those delays caused by
Acts of God, strikes, war, utilities, governmental bodies, weather, unavailable
materials, said delays beyond Landlord's control shall be excluded in
calculating such period) in which instance Tenant, at its option, may, by
written notice to Landlord within ten (10) days after the end of the 180-day
period, terminate this Lease and the parties shall have no further liability
thereafter accruing under this Lease.
7. RULES AND REGULATIONS AND COMMON AREA. Subject to the terms and conditions of
this Lease and such rules and regulations as Landlord may from time to time
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prescribe, Tenant and Tenant's employees, invitees said customers shall, in
common with other occupants of the Complex in which the Premises are located,
and their respective employees, invitees and customers, and others entitled to
the use thereof, have the non-exclusive right to use the access roads, parking
areas, and facilities provided and designated by Landlord for the general use
and convenience of the occupants of the Complex in which the Premises are
located, which areas and facilities are referred to herein as "Common Area".
This right shall terminate upon the termination of this Lease. Landlord reserves
the right from time to time to make changes in the shape, size, location, amount
and extent of Common Area. Landlord further reserves the right to promulgate
such reasonable rules and regulations relating to the use of the Common Area and
any part or parts thereof, as Landlord may deem appropriate for the best
interests of the occupants of the Complex. The rules and regulations shall be
binding upon Tenant upon delivery of a copy of them to Tenant, and Tenant shall
abide by them and use its best efforts to cause its agents, employees,
contractors and invitees to cooperate in their observance. Such rules and
regulations may be amended by Landlord from time to time, with or without
advance notice, and all amendments shall be effective upon delivery of a copy to
Tenant. Landlord shall not be responsible to Tenant for the non-performance by
any other tenant or occupant of the Complex of any of said rules and
regulations.
Landlord shall operate, manage and maintain the Common Area. The manner in
which the Common Area shall be maintained and the expenditures for such
maintenance shall be at the discretion of Landlord.
8. PARKING. Tenant shall have the non-exclusive right, in common with other
tenants or occupants of the Complex, to use the number of parking spaces in the
common parking areas of the Complex as is specified in Paragraphs 1.J. Neither
Tenant nor Tenant's employees, agents, representatives and/or invitees shall use
parking spaces in excess of said number of spaces allocated to Tenant hereunder.
Tenant acknowledges that certain other tenants of the Complex may have exclusive
parking rights to certain parking spaces and the parking areas of the Complex,
and that Tenant shall give no right to use such exclusive spaces upon receiving
notice of the location of such exclusive spaces from Landlord. Landlord shall
have the right (but not the obligation), at Landlord's sole discretion, from
time to time to promulgate reasonable rules and regulations as described in
Paragraph 7 regarding the operations of the parking areas including without
limitation the specific designation of the location of Tenant's parking spaces
within the common parking areas of the Complex. Landlord shall also have the
right to implement a system of parking charges, vouchers, fines or other parking
control fees to be paid by Tenant and/or the users of the Common Areas, if so
required by any government agency having jurisdiction over the Complex.
Tenant shall not, at any time, park, or permit to be parked, any trucks or
vehicles adjacent to the loading areas so as to interfere in any way with the
use of such areas, nor shall Tenant at any time park, or permit the parking of
Tenant's trucks or other vehicles or the trucks and vehicles of Tenant's
suppliers or others, in any portion of the common area not designated by
Landlord for such use by Tenant. Tenant shall not park nor permit to be parked,
any inoperative vehicles or equipment on any portion of the common parking area
or other common areas of the Complex or use the same for storage. Tenant agrees
to assume responsibility for compliance by its employees with the parking
provisions contained herein.
If Tenant or its employees park in other than such designated parking
areas, the Landlord may charge Tenant, as an additional charge, and Tenant
agrees to pay, ten ($10.00) dollars per day for each day or partial day each
such vehicle is parked in any area other than that designated. Tenant hereby
authorizes Landlord at Tenant's sole expense to tow away from the Complex any
vehicle belonging to Tenant or Tenant's employees parked in violation of these
provisions, or to attach violation stickers or notices to such vehicles.
Landlord shall have no obligation to Tenant to police the parking areas or
enforce any private or public parking restrictions, which enforcement shall be
at Landlord's sole and absolute discretion.
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9. EXPENSES OF OPERATION AND MAINTENANCE OF THE COMPLEX. As Additional Rent and
in accordance with Paragraphs 4.E of this Lease, Tenant shall pay to Landlord
Tenant's Share of all expenses of operations, management, maintenance and repair
of the Premises, Building, Complex and Common Areas including, but not limited
to, all sums expended in connection with the Common Areas and Building exteriors
for all general maintenance and repairs; license, permit, and inspection fees;
security; utility charges associated with exterior landscaping and lighting
(including water and sewer discharges); janitorial services; trash removal; fire
protection systems; general liability insurance protection against claims
related to the condition, use or occupancy of the Common Areas (in such amounts
and providing such coverage as determined in Landlord's sole discretion);
exterior window cleaning; maintenance of landscaped areas, irrigation systems,
lakes, parking lots, sidewalks, driveways, and stairways including resurfacing
restriping, cleaning avid sweeping; maintenance, repair and replacement of all
fixtures and electrical, mechanical, and plumbing systems; repair and
replacement of roofs and structural elements of the buildings (excluding new
capital improvements); salaries and employee benefits of on-site personnel and
payroll taxes applicable thereto; amounts paid to a third party (which may be an
entity related to Landlord) for the management of the Complex, accounting,
bookkeeping and expense collection services; taxes on personal property,
equipment and machinery utilized in the operation of the Common Area; supplies,
materials, equipment and tools; reasonable reserves for roof repairs, parking
lot resurfacing and other similar items of major repair and maintenance; and the
cost of complying with rules, regulations and orders of governmental
authorities, including without limitation maintenance, alterations and repairs
required in connection therewith.
"Additional Rent" as used herein shall not include Landlord's debt
repayments; interest on charges; expenses directly or indirectly incurred by
Landlord for the benefit of any other tenant; cost for the installation of
partitioning or any other tenant improvements; cost of attracting tenants;
depreciation; interest, or executive salaries.
10. ACCEPTANCE AND SURRENDER OF PREMISES. By entry hereunder, Tenant accepts the
Premises as being in good and sanitary order, condition and repair and accepts
the Building and Improvements included in the Premises in their present
condition and without representation or warranty by landlord as to the condition
of such Building, the use or occupancy which may be made thereof, or the precise
square footage of the Building or the Premises. Any exceptions to the foregoing
must be by written agreement executed by Landlord and Tenant. Tenant agrees on
the last day of the Lease Term, or on the sooner termination of this Lease, to
surrender the Premises promptly and peaceably to Landlord in good condition and
repair (damage by Acts of God, fire, and normal wear and tear excepted), with
all interior walls painted, or cleaned so that they appear freshly painted, and
repaired and replaced, if damaged; all floors cleaned and waxed; all carpets
cleaned and shampooed; the air conditioning and heating equipment serviced by a
reputable and licensed service firm and in good operating condition (provided
the maintenance of such equipment has been Tenant's responsibility during the
term of this Lease) together with all alterations, additions, and improvements
which may have been made in, to, or on the Premises (except movable trade
fixtures installed at the expense of Tenant); provided, however, that Tenant
shall ascertain from Landlord within thirty (30) days before the end of the term
of this Lease whether Landlord desires to have the Premises or any part or parts
thereof restored to their condition and configuration as when the Premises were
delivered to Tenant and if Landlord shall so desire, then Tenant shall restore
said Premises or such part or parts thereof before the end of this Lease at
Tenant's sole cost and expense. Tenant, on or before the end of the term or
sooner termination of this Lease, shall remove all of Tenant's personal property
and trade fixtures from the Premises, and all property not so removed on or
before the end of the term or sooner termination of this Lease shall be deemed
abandoned by Tenant and title to same shall thereupon pass to Landlord without
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compensation to Tenant. Landlord may [ILLEGIBLE] termination of this Lease,
remove all [ILLEGIBLE] furniture and equipment so abandoned by Tenant, at
Tenant's sole [ILLEGIBLE] and repair any damage caused by such [ILLEGIBLE] at
Tenant's sole cost. If the Premises are not surrendered at the end of the term
or sooner termination of this Lease, Tenant shall indemnify Landlord against
loss or liability resulting from the delay by tenant in so surrendering the
Premises including, without limitation, any claims made by an succeeding tenant
founded on such delay. Nothing contained herein shall be construed as an
extension of the term hereof or as a consent of Landlord to any holding over by
Tenant. The voluntary or other surrender of this Lease or the Premises by Tenant
or a mutual cancellation of this Lease shall not work as a merger and, at the
option of Landlord, shall either terminate all or any existing subleases or
subtenancies or operate as an assignment to Landlord of all or any such
subleases or subtenancies.
11. ALTERATIONS AND ADDITIONS. Tenant shall not make, or suffer to be made, any
alteration or addition to the Premises, or any part thereof without the written
consent of Landlord first had and obtained by Tenant. All work with respect to
any alteration or addition shall be done in a good and workmanlike manner,
shall be under the supervision of a competent architect or competent licensed
structural engineer, and shall be made in accordance with all applicable laws,
ordinances, codes and regulations related thereto and the plans and
specifications with respect thereto shall be approved in writing by Landlord
before commencement of work.
Tenant agrees that it will not proceed to make such alteration or
additions, without having obtained consent from Landlord to do so, and until
five (5) days after the receipt of such consent, in order that Landlord may post
appropriate notices to avoid any liability to contractors or material suppliers
for payment for Tenant's improvements. Tenant will at all times permit such
notices to be posted and to remain posted until the completion of work. Tenant
shall, if required by Landlord, secure at Tenant's own cost and expense, a
completion and lien indemnity bond, satisfactory to Landlord, for such work.
Tenant further covenants and agrees that any mechanic's lien filed against the
Premises or against the Complex for work claimed to have been done for, or
materials claimed to have been furnished to Tenant, will be discharged by
Tenant, by bond or otherwise, within test (10) days after the imposition
thereof, at the cost and expense of Tenant. Any exceptions to the foregoing must
be made in writing and executed by both Landlord and Tenant. Upon completion of
the work, Tenant shall file a Notice of Completion as permitted by law in the
Office of the County Recorder where the Premises is located.
Any addition to, or alteration of the Premises, except moveable furniture
and trade fixtures shall at once become a part of the Premises and belong to
Landlord. Tenant shall retain title to all moveable furniture and trade fixtures
placed in the Premises. All heating, lighting, electrical, air conditioning,
floor to ceiling partitioning, drapery, carpeting and floor installations made
by Tenant, together with all property that has become an integral part of the
Premises, shall not be deemed trade fixtures.
12. TENANT MAINTENANCE. Tenant shall, at its sole cost and expense, keep and
maintain the Premises (including appurtenances) and every part thereof in a high
standard of maintenance and repair, and in good and sanitary condition. Tenant's
maintenance and repair responsibilities herein referred to include, but are not
limited to, all windows, window frame, plate glass, glazing, truck doors,
plumbing systems (such as water and drain lines, sinks, toilets, faucets,
drains, showers and water fountains), electrical systems (such as panels,
conduits, outlets, lighting fixtures, lamps, bulbs, tubes, ballasts) heating and
air conditioning systems (such as compressors, fans, air handlers, ducts, mixing
boxes, thermostats, time clocks, boilers, heaters, supply and return grills),
all interior improvements within the Premises including but not limited to wall
coverings, window coverings, carpet, floor coverings, partitioning, ceilings,
doors (both, interior and exterior including closing mechanisms, latches, locks,
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skylights (if any), automatic fire extinguishing systems, and all other interior
improvements of any nature whatsoever. Tenant agrees to provide carpet xxxxxxx
under all rolling chairs or to otherwise be responsible for wear and tear of the
carpet caused by such rolling chairs if such wear and tear exceeds that caused
by normal foot traffic in surrounding areas. Areas of excessive wear in the
Premises shall be replaced at Tenant's sole expense upon Lease termination.
Tenant shall contract with a service company for the quarterly maintenance of
the heating and air conditioning equipment, with a copy of the service contract
to be furnished to Landlord within ten (10) days after opening for business, and
a copy of any subsequent contracts to be furnished from time to time; provided,
however, that, Landlord reserves the right to contract with a service company
for the quarterly maintenance of the heating and air conditioning equipment in
the Premises in which event Tenant shall reimburse the cost thereof to Landlord
upon demand therefor. Tenant hereby waives all rights under, and benefits of,
subsection 1 of Section 1932 and Section 1941 and 1942 of the California Civil
Code and under any similar law, statute or ordinance now or hereafter in effect.
13. UTILITIES. Tenant shall pay promptly, as the same become due, all charges
for water, gas, electricity, telephone, telex and other electronic
communications service, sewer service, waste pickup and any other utilities,
materials or services furnished directly to or used by Tenant on or about the
Premises during the term of this Lease, including, without limitation, any
temporary or permanent utility surcharge or other exactions whether or not
hereinafter imposed. If any such services and utilities are not separately
metered to the Premises, Tenant shall pay Landlord for the cost of installing
separate meters if requested by Landlord. Tenant shall pay on equitable portion
of all charges which are jointly altered, with the determination of Tenant's
equitable portion to be made by Landlord. Landlord shall not be liable for and
Tenant shall not be entitled to any abatement or reduction of rent by reason of
any interruption or failure of utility services to the Premises.
14. Taxes
A. As Additional Rent and in accordance with Paragraph 4.E of this Lease,
Tenant shall pay to Landlord Tenant's Share of any increases in Real Property
Taxes in any Comparison Year over those of the Base Year. The term "Real
Property Taxes," as used herein, shall mean (i) all taxes, assessments, levies
and other charges of ally kind or nature whatsoever general and special,
foreseen and unforeseen (including all installments of principal and interest
required to pay any general or special assessments (or public improvements and
any increases resulting from reassessments caused by any change in ownership of
the Complex) now or hereafter imposed by any governmental or quasi-governmental
authority or special district having the direct or indirect power to tax or levy
assessments which are levied or assessed against, or with respect to the value,
occupancy or use of, all or any portion of the Complex (as now constructed or as
may at any time hereafter be constructed, altered, or otherwise changed) or
Landlord's interest therein any improvements located within the Complex
(regardless of ownership); the fixtures, equipment and other property of
Landlord, real or personal, that are an integral part of and located in the
Complex; or parking areas, public utilities, or energy within the Complex; (ii)
all charges, levies or fees imposed by reason of environmental regulation or
other governmental control of the Complex; and (iii) all costs and fees
(including attorneys' fees) incurred by Landlord in contesting any Real Property
Tax and in negotiating with public authorities as to any Real Property Tax. If
at any time during the term of this Lease the taxation assessment of the Complex
prevailing as of the commencement date of this Lease shall be altered so that in
lieu of or in addition to any Real Property Tax described above there shall be
levied, assessed or imposed (whether by reason of a change in the method of
taxation or assessment, creation of a new tax or charge, or any other cause) an
alternate or additional tax or charge (i) on the value, use or occupancy of the
Complex or Landlord's interest therein or (ii) on or measured by the gross
receipts, income or rentals from the Complex, on Landlord's business of leasing
the Complex, or computed in any manner with respect to the operation of the
Complex, then any such tax or charge, however designated, shall be included
within the meaning of the term Property Taxes" for purposes of this Lease. If
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any Real Property Tax is based upon property or rents unrelated to the Complex,
then only that part of such real Property Tax that is fairly allocable to the
Complex shall be included within the meaning of the term "Real Property Taxes."
Notwithstanding the foregoing, the term "Real Property Taxes" shall not include
estate inheritance, gift or franchise taxes of Landlord or the federal or state
net income tax imposed on Landlord's income from all sources.
B. Taxes on Tenant's Property.
(1) Tenant shall be liable for and shall pay ten (10) days before
delinquency, taxes levied against any personal property or trade fixtures placed
by Tenant in or about the Premises, if any such taxes on Tenant's personal
property or trade fixtures are levied against Landlord or Landlord's property or
if the assessed value of the Premises is increased by the inclusion therein of a
value placed upon such personal property or trade fixtures of Tenant and if
Landlord, after written notice to Tenant, pays the taxes based on such increased
assessment which Landlord shall leave the right to do regardless of the validity
thereof (but only under proper protest if requested by Tenant), Tenant shall
upon demand, as the case may be, repay to Landlord the taxes so levied against
Landlord, or the proportion of such taxes resulting from such increase in the
assessment; provided that in any such event Tenant shall have the right, in the
name of Landlord and with Landlord's full cooperation (but without cost to
Landlord), to bring suit in any court of competent Jurisdiction to recover the
amount of any such taxes so paid under protest, and any amount so recovered
shall belong to Tenant.
(2) If the Tenant improvements in the Premises, whether installed,
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property tax
purposes at a valuation higher than the valuation at which standard office
improvements in other space in the Complex are assessed, then the real property
taxes and assessments levied against Landlord or the Complex by reason of such
excess assessed valuation shall be deemed to be taxes levied against personal
property of Tenant and shall be governed by the provisions of Paragraph 14.B (1)
above. If the records of the Country Assessor are available and sufficiently
detailed to serve as a basis for determining whether said Tenant [ILLEGIBLE]
space in the Complex, such records shall be binding on both the Landlord and the
Tenant. If the records of the County Assessor are not available or sufficiently
detailed to serve as a basis for making said determination, the actual cost of
construction shall be used.
15. LIABILITY INSURANCE. Tenant, at Tenant's expense, agrees to obtain and keep
in force during the term of this Lease policy of comprehensive public liability
insurance with limits in the amount of not less than $1,000,000 combined single
unit coverage per occurrence for injuries to or death of persons occurring in,
on or about the Premises or the Complex, and property damage insurance with
limits of not less than $500,000. The policy or policies affecting such
insurance, certificates of which insurance shall be furnished to Landlord prior
to occupancy, shall name Landlord and the beneficiary or mortgagee of any deed
of trust or mortgage affecting the Premises as additional insureds, and shall
insure any liability of Landlord, contingent or otherwise, with respect to any
act or omission of Tenant, its agents, employees or invitees or otherwise by any
conduct or transactions of any of said persons in or about or concerning the
Premises, including any failure of Tenant to observe or perform any of its
obligations hereunder; shall be issued by an insurance company admitted to
transact business in the State of California having a rating of A or better in
"Best's Insurance Guide"; and shall provide that the insurance effected thereby
shall not be cancelled, except upon thirty (30) days' prior written notice to
Landlord. Said liability insurance shall be primary and not contributing to any
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insurance available to Landlord, and Landlord's insurance shall be in excess
thereto. If, during the term of this Lease, in the considered opinion of
Landlord's lender, insurance advisor, or counsel, the amount of insurance
described in this Paragraph 15 is not adequate, Tenant agrees to increase said
coverage to such reasonable amount as Landlord's tender, insurance advisor, or
counsel shall deem adequate.
16. TENANT'S PROPERTY INSURANCE AND WORKER'S COMPENSATION. Tenant shall maintain
a policy or policies of fire and properly damage insurance in "all risk" form
with a sprinkler leakage endorsement insuring the personal property, inventory,
trade fixtures, and leasehold improvements within the Premises for the full
replacement value thereof. The proceeds from any of such policies shall be used
for the repair or replacement of such items so insured. Tenant shall also
maintain a policy or policies of worker's compensation insurance and any other
employee benefit insurance sufficient to comply with all laws.
17. LANDLORD'S INSURANCE; WAIVER OF SUBROGATION. Landlord shall purchase and
keep in force, a policy or policies of casualty insurance covering loss or
damage to the Premises, Building and related Common Area improvements in the
amount of the full replacement value thereof, providing protection against those
perils covered by "all risk" insurance, and including such other casually
endorsements as a Landlord may elect. Landlord shall also maintain at Landlord's
election, or if required by Landlord's lender from time to time, earthquake
and/or flood damage insurance, worker's compensation insurance, sprinkler
leakage insurance and rental income insurance in the amount of one hundred
(100%) percent of twelve (12) months Basic Rent, plus sums paid as Additional
Rent. As Additional Rent and in accordance with Paragraph 4.E hereof, Tenant
shall pay to Landlord Tenant's Share of any increases in the premiums for
Landlord's insurance in any Comparison Year over those of the Base Year. If such
insurance cost is increased due to Tenant's use of the Premises or the Complex,
Tenant agrees to pay to Landlord the full cost of such increase. Tenant shall
have no interest in nor any right to the proceeds of any insurance procured by
Landlord as described in this Paragraph 17.
Landlord and Tenant do each hereby waive their respective rights of
recovery against each other to the extent of insurance coverage of the releasing
party, from any liability for loss or damage caused by fire or any of the perils
included in the releasing party's insurance policies, irrespective of the cause
of such fire or casualty; provided, however, that if the insurance policy of
either releasing party prohibits such waiver, then this waiver shall not take
effect until consent to such waiver is obtained. If such waiver is so
prohibited, the insured party affected shall promptly notify the other thereof.
18. INDEMNIFICATION; EXEMPTION OF LANDLORD FROM LIABILITY. The parties agree
that (a) neither Landlord nor its agents shall be liable to Tenant, and Tenant
hereby waives all claims against Landlord, for any injury to Tenant's business
or loss of income therefrom or for injury to or death of persons or for damage
to or destruction of property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water or rain which may leak or flow from or into any
part of the Building or Complex or from the pipes, appliances, sprinklers or
plumbing works therein or from the roof, street or subsurface or from any other
place resulting from dampness or any other cause whatsoever; (b) Landlord or its
agents shall not be liable for latent defects in the Premises, the Building, or
the Complex (c) Landlord or its agents shall not be liable for damages arising
from any act or neglect of any other tenant of the Complex; and (d) Tenant shall
indemnify, hold Landlord harmless from and defend Landlord against any and all
costs, damages, liabilities and expenses, including attorneys' fees and costs,
incurred in connection therewith, arising out of any alleged injury to or death
of any person or damage to or destruction of property which: (i) occurs in, on
or about the Premises, or any part thereof, from any cause whatsoever; (ii)
occurs outside of the Premises as a result of the negligent act or omission of
Tenant or its agents, employees, contractors or invitees; or (iii) results from
the breach by Tenant of this Lease.
19. COMPLIANCE. Tenant, at its sole cost and expense, shall promptly comply with
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all laws, statutes, ordinances and governmental rules, regulations, or
requirements now or hereafter in effect; with the requirements of any board of
fire underwriters or other similar body now or hereafter constituted; and with
any direction or occupancy certificate issued pursuant to law by any public
officer; provided, however, that no such failure shall he deemed a breach of
these provisions if Tenant, immediately upon notification, commences to remedy
or rectify said failure. The judgment of any court of competent jurisdiction or
the admission of Tenant in any action against Tenant, whether Landlord be a
party thereto or not, that Tenant has violated any such law, statute, ordinance
or governmental rule, regulation requirement, direction or provision, shall be
conclusive of that fact as between Landlord and Tenant. This Paragraph shall not
be interpreted as requiring Tenant to make structural changes or structural
improvements, except to the extent such changes or improvements are required as
a result Tenant's use of the Premises. Tenant shall, at its sole cost and
expense, comply with any and all requirements pertaining to said Premises, of
any insurance organization or company, necessary for the maintenance of
reasonable fire and public liability insurance covering the Premises.
20. LIENS. Tenant shall keep the Premises and the Complex free from any liens
arising out of any work performed, materials furnished or obligation incurred by
Tenant. In the event that Tenant shall not, within ten (10) days following the
imposition of such lien, cause the same to be released of record, Landlord shall
have, in addition to all other remedies provided herein and by law, the right
but not the obligation, to cause the same to be released by such means as it
shall deem proper, including payment of the claim giving rise to such lien. All
sums paid by Landlord for such purpose, and all expenses incurred by it in
connection therewith, shall be payable to Landlord by Tenant on demand with
interest thereon as specified in Paragraph 44 below.
21. ASSIGNMENT AND SUBLETTING.
A. Landlord's Consent Required. Tenant shall not assign, transfer, or
hypothecate the leasehold estate under this lease, or any interest herein, and
shall not sublet the Premises, or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person or entity to occupy or use the
Premises, or any portion thereof, without, in each case, the prior written
consent of Landlord, which consent will not be unreasonably withheld. Any
attempt to do so without such consent being first had and obtained shall be
wholly void and shall constitute a default by Tenant under this Lease.
B. Reasonable Consent. If Tenant complies with the following conditions,
Landlord shall not unreasonably withhold its consent to the assignment of the
Lease or the subletting of the Premises or any portion thereof: Tenant shall
submit in writing to Landlord (a) the name and legal composition of the proposed
assignee or subtenant; (b) the nature of the proposed assignee's or subtenant's
business to be carried on in the Premises; (c) the terms and provisions of the
proposed assignment or sublease; (d) such reasonable financial information as
Landlord may request concerning the proposed assignee or subtenant including,
without limitation, financial history, credit rating and business experience.
Tenant acknowledges that Landlord has entered into this Lease in reliance on the
particular skills, knowledge and experience of Tenant and/or the principal
officer of Tenant with respect to the conduct of business in the Premises.
Tenant recognizes that Landlord's willingness to put its investment in the
Premises at risk under the terms of this Lease is based upon landlord's
judgmental considerations regarding Tenant's abilities as set forth above.
Without limiting Landlord's right to refuse to give such consent on any other
reasonable grounds Landlord reserves the right to refuse to give such consent if
in Landlord's reasonable business judgment (i) the quality of operation is or
may be in any way adversely affected during the Lease term; (ii) the financial
worth of the proposed new tenant is less than that of Tenant executing this
Lease; (iii) the proposed assignee's or subtenant's use of the Premises involves
the storage, use or disposal of any Hazardous Materials; (iv) the proposed
assignee or subtenant has been required by any governmental authority to clean
up Hazardous Materials; (v) the proposed assignee or subtenant is subject to
investigation or enforcement by any governmental authority in connection with
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the use, disposal or storage of a Hazardous Material; or (vi) investigation
discloses other information reasonably unsatisfactory to Landlord.
C. No Release of Tenant. [ILLEGIBLE] by Landlord to any assignment or
[ILLEGIBLE] by Tenant shall relieve Tenant of any obligation to be performed by
Tenant under this Lease, whether occurring [ILLEGIBLE] after such consent,
assignment of the Lease or subletting of the Premises. Tenant hereby irrevocably
assigns to Landlord all rent and other sums from any assignment, transfer or
subletting of the Premises, and agrees that Landlord, as assignee and as
attorney-in-fact for Tenant, or a receiver for Tenant appointed upon Landlord's
application, may collect such Rent and other sums and apply the same as provided
in Paragraph 24 upon Tenant's default under this Lease; provided however, that
until the occurrence of any act of default by Tenant under this Lease, its
assignee, transferee or subtenant, Tenant shall have the right to collect such
sums, provided that fifty percent (50%) of all excess sums in excess of the rent
payable by Tenant to Landlord hereunder which any assignee, transferee or
subtenant covenants to pay shall belong solely and exclusively to Landlord.
Landlord may at its election require as a condition to approval of a proposed
assignment, transfer or sublease that the rent due pursuant to the sublease be
paid directly to Landlord. In the event Tenant is allowed to assign, transfer or
sublet the whole or any part of the Premises, with the prior written consent of
Landlord, no assignee, transferee or subtenant shall assign or transfer this
Lease, either in whole or in part, or sublet the whole or any part of the
Premises, without also having obtained the prior written consent of Landlord. A
consent of Landlord to one assignment, transfer, hypothecation, subletting,
occupation or use by any other person shall not release Tenant from any of
tenant's obligations hereunder or be deemed to be a consent to any subsequent
similar or dissimilar assignment, transfer, hypothecation, subletting,
occupation or use by any other person. Any such assignment, transfer,
hypothecation, subletting, occupation or use without such consent shall be void
and shall constitute a breach of this Lease by Tenant and shall, at the option
of Landlord exercised by written notice to Tenant, terminate this Lease. The
leasehold estate under this Lease shall not nor shall any interest therein, be
assignable for any purpose by operation of law without the written consent of
Landlord.
D. Form of Consent; Costs. Tenant agrees to reimburse Landlord for
Landlord's expenses (including attorney's fees and costs) incurred in
conjunction with the processing and documentation of any such requested
transfer, assignment, subletting, licensing or concession agreement, change of
ownership, mortgage, or hypothecation of this Lease or Tenant's interest in and
to the Premises (collectively, "Transfer"). Each Transfer to which there has
been consent shall be by an instrument in writing in form satisfactory to
Landlord, and shall be executed by the transferor and the transferee in each
instance; and each transferee shall agree in writing, for the benefit of
Landlord, to assume, to be bound by, and to perform the terms, covenants and
conditions of this Lease of be done, kept and performed by Tenant, including the
payment of all amounts due or to become due under this Lease directly to
Landlord. An executed copy of such written instrument shall be delivered to
Landlord. Failure to first obtain in writing Landlord's consent or failure to
comply with the provisions of this Paragraph 21 shall operate to prevent any
such Transfer from becoming effective.
E. Acknowledgment of Reasonableness. Tenant agrees that the provisions of
this Paragraph 21 are not unreasonable standards or conditions for any purpose,
including for purposes of the California Civil Code Section 1951.4(b).
22. SUBORDINATION AND MORTGAGES. In the event Landlord's title or leasehold
interest is now or hereafter encumbered by a lien of any mortgage or deed of
trust, upon the interest of Landlord in the land and buildings in which the
demised Premises are located, to secure a lien from a lender (hereinafter
13
referred to as "Lender") to Landlord, Tenant shall, at the request of landlord
or Lender, execute in writing an agreement subordinating its rights under this
Lease to the lien of such mortgage or deed of trust, or if so requested,
agreeing that the lien of Lender's mortgage or deed of trust shall be or remain
subject and subordinate to the rights of Tenant under this Lease.
Notwithstanding any such subordination, Tenant's possession under this lease
shall not be disturbed if Tenant is not in default and so long as Tenant shall
pay all rent and observe and perform all of the provisions set forth in this
Lease.
23. ENTRY BY LANDLORD. Landlord reserves, and shall at all reasonable times
after 24 hours prior notice (except in emergencies) have, the right to enter the
Premises to inspect them; to perform any services to be provided by Landlord
hereunder; to submit the Premises to prospective purchasers, lenders, or
tenants; to post notices of nonresponsibility; and to alter, improve or repair
the Premises and any portion of the Complex, all without abatement of rent; and
may erect scaffolding and other necessary structures in or through the Premises
where reasonably required by the character of the work to be performed;
provided, however that the business of Tenant shall be interfered with to the
least extent that is reasonably practical. For each of the foregoing purposes,
Landlord shall at all times have and retain a key with which to unlock all of
the doors in an emergency in order to obtain entry to the Premises, and any
entry to the Premises obtained by Landlord by any of said means, or otherwise,
shall not under any circumstances be construed or deemed to be a forcible or
unlawful entry into or a detainer of the Premises or an eviction, actual or
constructive, of Tenant from the Premises or any portion thereof. Landlord shall
also have the right at any time to change the arrangement or location of
entrances or passageways, doors and doorways, and corridors, elevators, stairs,
toilets or other public parts of the Complex and to change the name, number or
designation by which the Complex is commonly known, and none of the foregoing
shall be deemed an actual or constructive eviction of Tenant, or shall entitle
Tenant to any damages or reduction of rent hereunder.
24. BANKRUPTCY; TENANT'S DEFAULT.
A. Bankruptcy. The commencement of a bankruptcy action or liquidation
action or reorganization action or insolvency action or an assignment of or by
Tenant for the benefit of creditors, or any similar action undertaken by Tenant,
or the Insolvency of Tenant, shall, at Landlord's option, constitute a breach of
this Lease by Tenant. If the trustee or receiver appointed to serve during a
bankruptcy, liquidation reorganization, insolvency or similar action elects to
reject Tenant's unexpired Lease, the trustee or receiver shall notify Landlord
in writing of its election within sixty (60) days after an order for relief in a
liquidation action or within thirty (30) days after the commencement of any
other action. Within thirty (30) days after court approval of the assumption of
this Lease, the trustee or receiver shall cure (or provide adequate assurance to
the reasonable satisfaction of Landlord that the trustee or receiver shall cure)
any and all previous defaults render the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance under said Lease to the reasonable satisfaction of Landlord.
Nothing contained in this Paragraph shall affect the existing right of
Landlord to refuse to accept an assignment upon commencement of or in connection
with a bankruptcy, liquidation, reorganization or insolvency action or an
assignment of Tenant for the benefit of creditors or other similar act. Nothing
contained in this Lease small be construed as giving or granting or creating an
equity in the demised Premises to Tenant. In no event shall the leasehold estate
under this Lease or any interest therein, be assigned by voluntary or
involuntary bankruptcy proceeding without the prior written consent of Landlord.
In no event shall this Lease or any right or privileges hereunder be an asset of
Tenant under any bankruptcy, insolvency or reorganization proceedings.
B. Tenant's Default. The failure to perform or honor any covenant,
condition or representation made under this Lease shall constitute a default
hereunder by Tenant upon expiration of the appropriate grace period hereinafter
14
provided. Tenant shall have a period of three (3) days from the date of written
notice from landlord, in the manner prescribed in Section 1162 of the
California Code of Civil Procedure, within which to cure any default in the
payment of Basic or Additional Rent or adjustment thereto. Tenant shall have a
period of thirty (30) days from the date of written notice from Landlord within
which to cure any other default under this Lease; provided, however, that if the
nature of Tenant's failure is such that more than thirty (30) days is reasonably
required to cure the same, Tenant shall not be in default so long as Tenant
commences performance within such thirty (30) day period and thereafter
prosecutes the same to completion. Upon an uncured default of this Lease by
Tenant, Landlord shall have the following rights and remedies in addition to any
other rights or remedies available to Landlord at law or in equity;
(1) The rights and remedies provided for by California Civil Code
Section 1951.2, including but not limited to, recovery of the worth at the time
of award of the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of rental loss for the same period
that Tenant proves could be reasonably avoided, as computed pursuant to
subsection (b) of said Section 1951.2. Any proof by Tenant under subparagraph
(2) and (3) of Section 1951.2 of the amount of rental loss that could be
reasonably avoided shall be made in the following manner; Landlord and Tenant
shall each select a licensed real estate broker in the business of renting
property of the same type and use as the Premises and in the same geographic
vicinity. Such two real estate brokers shall select a third licensed real estate
broker and the three licensed real estate brokers so selected shall determine
the amount of the rental loss than could be reasonably avoided from the balance
of the terms of this Lease after the time of award. The decision of the
majority of said licensed real estate brokers shall be final and binding upon
the parties hereto.
(2) The rights and remedies provided by California Civil Code
Section 1954, which allows Landlord to continue the Lease in effect after
Tenant's breach and abandonment and to enforce all of its rights and remedies
under this Lease, including the right to recover rent as it becomes due, for so
long as Landlord does not terminate Tenant's right to possession; acts of
maintenance or preservation, efforts to relet the Premises, or the appointment
of a receiver upon Landlord's initiative to protect its interest under this
Lease shall not constitute a termination of Tenant's right to possession.
(3) The right to terminate this Lease by giving notice to Tenant in
accordance with applicable law.
(4) To the extent provided by law, the right and power to enter the
premises and remove therefrom all persons and property, to store such property
in a public warehouse or elsewhere at the [ILLEGIBLE] of and for the account of
Tenant, and to sell such property and apply such proceeds therefrom pursuant to
applicable California law. Landlord may, from time to time, sublet the Premises
or any part thereof for such term or terms (which may extend beyond the term of
this Lease) and at such rent and such other terms as Landlord in its sole
discretion may deem advisable, with the right to make alterations and repairs to
the Premises. Upon such subletting, (i) Tenant shall be immediately liable to
pay Landlord, in addition to indebtedness other than rent due hereunder, the
cost of such subletting, including, but not limited to, reasonable attorneys'
fees and costs, and any real estate commissions actually paid, and the cost of
such alterations and repairs incurred by Landlord and the amount, if any, by
which the rent hereunder for the period of such subletting (to the extent such
period does not exceed the term hereof) exceeds the amount to be paid as rent
for the Premises for such period of (ii) at the option of Landlord, rents
received from such subletting shall be applied first to payment of indebtedness
other than rent due hereunder from Tenant to Landlord; second, to the payment of
any costs of such subletting and of such alterations and repairs; third to
15
payment of rent due and unpaid hereunder; and the residue, if any, shall be held
by Landlord and applied in payment of future rent as the same becomes due
hereunder. If Tenant has been credited with any rent to be received by such
subletting under option (i) and such rent shall not be promptly paid to Landlord
by the subtenant(s), or if such rentals received from such subletting under
option (ii) during any month be less than that to be paid during that month by
Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. No taking possession of the
Premises by Landlord shall be construed as an election on its part to terminate
this Lease unless a written notice of such intention be given to Tenant.
Notwithstanding any such subletting without termination, Landlord may at any
time hereafter elect to terminate this Lease for such previous breach.
(5) The right to have a receiver appointed for Tenant upon
application by Landlord, to take possession of the Premises and to apply any
rental collected from the Premises and to exercise all other rights and remedies
granted to Landlord pursuant to subparagraph 4 above.
25. ABANDONMENT. Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease (except that Tenant may vacate so long as it pays
rent, provides an on-site security guard during normal business hours from
Monday through Friday, and otherwise performs its obligations hereunder), and if
Tenant shall abandon, vacate or surrender said Premises, or be dispossessed by
the process of law, or otherwise, any personal property belonging to Tenant and
left on the Premises shall be deemed to be abandoned, at the option of Landlord,
except such property as may be mortgaged to Landlord.
26. DESTRUCTION. In the event the Premises are destroyed in whole or in part
from any cause, except damage and destruction caused from vandalism or accident
for which Tenant is responsible for under Xxxxxxxxx 00, Xxxxxxxx may, at its
option:
(a) Rebuild or restore the Premises to their condition prior to the damage
or destruction, or
(b) Terminate this Lease (providing that the Premises is damaged to the
extent of 33 1/3% of the replacement cost or to any extent if the damage is not
covered by insurance).
Landlord shall give Tenant notice in writing thirty (30) days from the
destruction of the Premises of its election to either rebuild and restore them,
or to terminate this Lease. In the event Landlord agrees to rebuild or restore
the Premises, Landlord shall do so promptly at its expense. Tenant shall be
entitled to a reduction in rent while such repair is being made in the
proportion that the area of the Premises rendered untenantable by such damage
bears to the total area of the Premises. If Landlord initially estimates that
the rebuilding or restoration will exceed 180 days or if Landlord does not
complete the rebuilding or restoration within one hundred eighty (180) days
following the date of destruction (such period of time to be extended for delays
caused by the fault or neglect of Tenant or because of Acts of God, acts of
public agencies, labor disputes, strikes, tires, freight embargoes, rainy or
stormy weather, inability to obtain materials, supplies or fuels, acts of
contractors or subcontractors, or delay of the contractors or subcontractors due
to such causes or other contingencies beyond the control of Landlord), then
Tenant shall have the right to terminate this Lease by giving thirty (30) days
prior written notice to Landlord. Notwithstanding anything herein to the
contrary, Landlord's obligation to rebuild or restore shall be limited to the
Building and interior improvements constructed by Landlord as they existed as of
the commencement date of the Lease and shall not include restoration of Tenant's
trade fixtures, equipment, merchandise, or any improvements, alterations, or
additions made by Tenant to the Premises, which Tenant shall forthwith replace
or fully repair at Tenant's sole cost and expense provided this Lease is not
cancelled according to the provisions above.
Unless this Lease is terminated pursuant to the foregoing provisions, this
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Lease shall remain in full force and effect. Tenant hereby expressly waives any
statutory rights of termination which may arise by reason of any partial or
total destruction of Premises.
In the event that the Building in which the Premises are situated is
damaged or destroyed to the extent of not less than 33 1/3% of the replacement
costs thereof, Landlord may elect to terminate this Lease whether the Premises
be injured or not. In the event the destruction of the Premises is caused by
Tenant, Tenant shall pay the deductible portion of Landlord's insurance
proceeds.
27. EMINENT DOMAIN. If all or any part of the Premises shall be taken by any
public or quasi-public authority under the power of eminent domain or conveyance
in lieu thereof, this Lease shall terminate as to any portion of the Premises
so taken or conveyed on the date when title vests in the condemnor and Landlord
shall be entitled to any and all payment, income, rent, award or any interest
therein whatsoever which may be paid or made in connection with such taking or
conveyance, and Tenant shall have no claim against Landlord or otherwise for the
value or any unexpired term of this Lease. Notwithstanding the foregoing
Paragraph, any compensation specifically awarded Tenant for loss of business,
Tenant's personal property, moving cost or loss of goodwill, shall be and remain
the property of Tenant.
If (i) any action or proceeding is commenced for such taking of the
Premises or any part thereof, or if Landlord is advised in writing by any entity
or body having the right or power of condemnation of its intention to condemn
the Premises or any portion thereof, or (ii) any of the foregoing events occur
with respect to the taking of any other space in the Complex, or if any such
spaces are taken or conveyed in lieu of such taking and Landlord shall decide to
discontinue the use and operation of the Complex, or decide to demolish, alter
or rebuild the Complex, then, in any of such events Landlord shall have the
right to terminate this Lease by giving Tenant written notice thereof within
sixty (60) days of the date of receipt of said written advice, or commencement
of said action or proceeding, taking or conveyance, which termination shall take
place as of the first to occur of the last day of the calendar month next
following the month in which such notice is given or the date on which title to
the Premises shall vest in the condemnor.
In the event of a partial taking or conveyance of the Premises, if the
portion of the Premises taken or conveyed is so substantial that the Tenant can
no longer reasonably conduct its business, Tenant shall have the privilege of
terminating the Lease within sixty (60) days from the date of such taking or
conveyance upon written notice to Landlord of its intention to do so, and upon
giving of such notice this Lease shall terminate on the last day of the calendar
month next following the month in which such notice is given, upon payment by
Tenant of the rent from the date of such taking or conveyance to the date of
termination.
If a portion of the Premises be taken by condemnation or conveyance in
lieu thereof and neither Landlord nor Tenant shall terminate this Lease as
provided herein, this Lease shall continue in full force and effect as to the
part of the Premises not so taken or conveyed, and the rent herein shall be
apportioned as of the date of such taking or conveyance so that thereafter the
rent to be paid by Tenant shall be in the ratio that the area of the portion of
the Premises not so taken or conveyed bears to the total area of the Premises
prior to such taking.
28. SALE OR CONVEYANCE BY LANDLORD. In the event of a sale or conveyance of the
Complex or any interest therein by any owner of the reversion then constituting
Landlord, the transferor shall thereby be released from any further liability
upon any of the terms, covenants or conditions (express or implied) herein
contained in favor of Tenant, and in such event insofar as such transfer is
concerned, Tenant agrees to look solely to the responsibility of the successor
in interest of such transferor in and to the Complex and this Lease. This Lease
shall not be affected by any such sale or conveyance, and Tenant agrees to
17
attorn to the successor in Interest of such transferor.
29. [ILLEGIBLE] TO LENDER OR THIRD PARTY. in the event the interest of Landlord
in the land and buildings in which the leased Premises are located (whether such
interest of Landlord is a fee title interest or a leasehold) is encumbered by
deed of trust, and such interest is acquired by thee tender or any third party
through judicial foreclosure or by exercise of a power of sale at private
trustee's foreclosure sale, Tenant hereby agrees to attorn to the purchaser at
any such foreclosure sale and to recognize such purchaser as the Landlord under
this Lease. In the event the lien of the deed of trust securing the loan from a
Lender to Landlord is prior and paramount to the Lease, this Lease shall
nonetheless continue is in full force and effect for the remainder of the
unexpired term hereof, at the same rental herein reserved and upon all the other
terms, conditions and covenants herein contained.
30. HOLDING OVER. Any holding over [illegible] after expiration or other
termination [illegible] the term of this Lease with the written consent of
Landlord delivered to Tenant shall not constitute a renewal of the Lease or give
Tenant any rights to the Premises except as expressly provided in this Lease.
Any holding over after the expiration or other termination of the term of this
Lease, with the consent of Landlord, shall be construed to be a tenancy from
month to month, on the same terms and conditions herein specified insofar as
applicable except that the monthly Basic Rent shall be increased to an amount
equal to one hundred fifteen (115%) percent of the monthly Basic Rent required
during the last month of the Lease term.
31. CERTIFICATE OF ESTOPPEL. Tenant shall within ten (10) days after written
notice from Landlord at any time, execute, acknowledge and deliver to Landlord a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and the
date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, or specifying such defaults, if any are claimed.
Any such statement may be conclusively relied upon by any prospective purchaser
or encumbrancer of the Premises. Tenant's failure to deliver such statement
within such time shall be conclusive upon Tenant that this Lease is in full
force and effect, without modification except as may be represented by Landlord,
that there are no uncured defaults in Landlord's performance, and that not more
than one month's rent has been paid in advance.
32. CONSTRUCTION CHANGES. It is understood that the description of the Premises
and the location of ductwork, plumbing and other facilities therein are subject
to such minor changes as Landlord or Landlord's architect determines to be
desirable in the course of construction of the Premises, and no such changes, or
any changes in plans for any other portions of the Complex shall affect this
Lease or entitle Tenant to any reduction of rent hereunder or result in any
liability of Landlord to Tenant. Landlord does not guarantee the accuracy of any
drawings supplied to Tenant and verification of the accuracy of such drawings
rests with Tenant.
33. RIGHT OF LANDLORD TO PERFORM. All terms, covenants and conditions of the
Lease to be performed or observed by Tenant shall be performed or observed by
Tenant at Tenant's sole cost and expense and without any reduction of rent. If
Tenant shall fail to pay any sum of money, or other rent, required to be paid by
it hereunder or shall fail to perform any other term or covenant hereunder on
its part to be performed, and such failure shall continue for five (5) days
after written notice thereof by Landlord, Landlord, without waiving or releasing
Tenant from any obligation of Tenant hereunder, may, but shall not be obligated
to, make any such payment or perform any such other term or covenant on Tenant's
part to be performed. All sums so paid by Landlord and all necessary costs of
18
such performance by Landlord together with interest thereon at the rate of
interest specified in Paragraph 44 below, shall be paid (and Tenant covenants to
make such payments) to Landlord, and Landlord shall have (in addition to any
other right or remedy of Landlord) the same rights and remedies in the event of
nonpayment by Tenant as in the case of failure by Tenant in the payment of rent
hereunder.
34. ATTORNEY'S FEES. In the event that either Landlord or Tenant should bring
suit for the possession of the Premises, for the recovery of any sum due under
this Lease, or because of the breach of any provision of this Lease, or for any
other relief against the other party hereunder, then all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party therein
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. Should Landlord be named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including a
reasonable attorney's fee.
35. WAIVER. The waiver by either party of the other party's failure to perform
or observe any term, covenant or condition herein contained to be performed or
observed by such waiving party shall not be deemed to be a waiver of such term,
covenant or condition of any subsequent failure of the party failing to perform
or observe the same or any other such term, covenant or condition therein
contained, and no custom or practice which may develop between the parties
hereto during the term hereof shall be deemed a waiver of, or in any way affect,
the right of either party to insist upon performance and observance by the other
party in strict accordance with the terms hereof.
36. NOTICES. All notices, demands, requests, advises or designations
(collectively "Notices") which may be or are required to be given by either
party to the other hereunder shall be in writing. All Notices shall be
sufficiently given, made or delivered if (i) to Tenant, personally served on
Tenant by leaving the same at the Premises, or (ii) to Landlord, if personally
served on a general partner of Landlord executing this Lease. Notice shall also
be sufficiently given, made or delivered if sent by (a) postage prepaid United
States mail or overnight courier, addressed as specified in Paragraph 1,K, or
(b) facsimile transmission to the numbers specified in Paragraph 1.K, with
confirming copy sent by United States mail. Each notice referred to in this
Paragraph shall be deemed received on the date of the personal service or
facsimile transmission, the next business day after sending via overnight
courier, or on the third (3rd) day after mailing thereof by United States Mail,
as the case may be.
37. EXAMINATION OF LEASE. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for a lease,
and this instrument is not effective as a lease or otherwise until its execution
and delivery by both Landlord and Tenant.
38. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in no
event earlier than thirty (30) days after written notice by Tenant to Landlord
and to other holder of any first mortgage or deed of trust covering the Premises
whose name and address shall have heretofore been furnished to Tenant in
writing, specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of Landlord's obligations is such that
more than thirty (30) days are required for performance, then Landlord shall not
be in default if Landlord commences performance within such thirty (30) day
period and thereafter diligently prosecutes the same to completion.
39. CORPORATE AUTHORITY. If Tenant is a corporation (or a partnership) each
individual executing this Lease on behalf of said corporation (or partnership)
represents and warrants that he or she is duly authorized to execute and deliver
this Lease on behalf of said corporation (or partnership) in accordance with the
19
by-laws of said corporation (or partnership in accordance with the partnership
agreement) and that this Lease is binding upon said corporation (or partnership)
in accordance with its terms. If Tenant is a corporation, Tenant shall, within
thirty (30) days after execution of this Lease, deliver to Landlord a certified
copy of the resolution of the Board of Directors of said corporation authorizing
or ratifying the execution of this Lease.
40. LIMITATION OF LIABILITY. In consideration of the benefits accruing
hereunder, Tenant and all successors and assigns covenant and agree that, in the
event of any actual or alleged failure, breach or default hereunder by Landlord:
(i) the sole and exclusive remedy shall be against Landlord and
Landlord's assets;
(ii) no partner of Landlord shall be sued or named as a party in
any suit or action (except as may be necessary to secure jurisdiction of the
partnership);
(iii) no service of process shall be made against any partner of
Landlord (except as may be necessary to secure jurisdiction of the partnership);
(iv) no partner of Landlord shall be required to answer or
otherwise plead to any service of process;
(v) no judgment will be taken against any partner of Landlord;
(vi) any judgment taken against any partner of Landlord may be
vacated and set aside at any time without hearing;
(vii) no unit of execution will ever be levied against the assets
of any partner of Landlord;
(viii) these covenants and agreements are enforceable both by
Landlord and also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall be
applicable to any covenant or agreement either expressly contained in this Lease
or imposed by statute or at common law.
41. BROKERS. Tenant warrants that it had dealings with only the real estate
broker(s) or agent(s) specified in Paragraph 1.L in connection with the
negotiation of this Lease and that it knows of no other real estate broker or
agent who is entitled to a commission in connection with this Lease. Tenant
agrees to indemnify Landlord for any and all costs, expenses and damages
(including attorney's fees and costs) arising out of any allegations or claim by
any third party for a commission or fee in connection with the negotiation of
this Lease.
42. SIGNS. No sign, placard, picture, advertisement, name or notice shall be
installed, displayed or printed or affixed on or to any part of the outside of
the Premises or any exterior windows of the Premises without the written consent
of Landlord first had and obtained and Landlord shall have the right to remove
any such sign, placard, picture, advertisement, name or notice without notice to
and at the expense of Tenant. If Tenant is allowed to print or affix or in any
way place a sign in, on or about the Premises, upon expiration or other sooner
termination of this Lease, Tenant at Tenant's sole cost and expense shall both
remove such sign and repair all damage in such manner as to restore all aspects
of the appearance of the Premises to the condition prior to the placement of
said sign.
All approved signs or lettering on outside doors shall be printed,
20
painted, affixed or inscribed at the expense of Tenant by a person approved of
by Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door partition or wall partition which may, in Landlord's
judgment, appear unsightly from outside the Premises.
43. HAZARDOUS MATERIALS.
A. Definitions. As used herein, the term "Hazardous Material" shall mean
any substance or material which has been determined by any state, federal, or
local government authority to be capable of posing a risk of injury to health,
safety or property including all of those materials and substances designated as
hazardous or toxic by the Environmental Protection Agency, the California Water
Quality Control Board, the Department of Labor, the California Department of
Industrial Relations, the Department of Transportation, the Department of
Agriculture, the Department of Human Services, the Food and Drug Agency or any
other governmental agency which regulates hazardous or toxic substances in the
environment. Without limiting the generality of the foregoing, the term
"Hazardous Materials" shall include all of those materials and substances
defined as "Toxic Materials" in Sections 66680 through 66685 of Title 22 of the
California Administrative Code, Division 4, Chapter 30, as the same shall be
amended from time to time.
B. Use Restriction. Subject to the terms and conditions set forth herein,
Landlord acknowledges that so long as the original party named herein as Tenant
remains the Tenant under this Lease, Tenant shall be permitted to use and store
in the Premises only the substances listed on Exhibit E attached hereto
(however, the inclusion of Exhibit E shall in no way be deemed to create any
obligation on Landlord's part to review the list of Hazardous Materials for
conformity to laws). Except as specifically allowed in this Lease, Tenant shall
not cause or permit any Hazardous Material to be used, stored, or disposed of in
or about the Premises, or any other land or improvements in the vicinity of the
Premises. The appearance of any Hazardous Material that is not permitted by this
Lease in or about the Premises shall be deemed an event of default. Without
limiting the generality of the foregoing, Tenant, at its sole cost, shall comply
with all laws relating to the storage, use and disposal of Hazardous Materials.
If the presence of Hazardous Materials on the Premises caused or permitted by
Tenant results in contamination of the Premises or any soil in or about the
Premises, Tenant, at its expense, shall promptly take all actions necessary to
return the same to the condition existing prior to the appearance of such
Hazardous Material.
Tenant shall defend, hold harmless and indemnify Landlord and its agents
and employees with respect to all claims, damages and liabilities arising out of
or in connection with any storage, use or disposal of Hazardous Materials in or
about the Premises. Tenant shall not suffer any lien to be recorded against the
Premises as a consequence of a Hazardous Material, including any so-called
state, federal or local "super fund" lien related to the "clean up" of a
Hazardous Material in or about the Premises.
C. Compliance. Tenant shall immediately notify Landlord of any inquiry,
test, investigation, or enforcement proceeding by or against Tenant or the
Premises concerning a Hazardous Material. Tenant acknowledges that Landlord, as
the owner of the Premises, at its election, shall have the sole right, at
Tenant's expense, to negotiate, defend, approve and appeal any action taken or
order issued with regard to a Hazardous Material by an applicable governmental
authority. Landlord shall have the right to appoint a consultant, at Tenant's
expense, to conduct an investigation to determine whether Hazardous Materials
are being used, stored and disposed of in an appropriate matter. Tenant, at its
expense, shall comply with all recommendations of the consultant.
D. Certification Upon Termination of Lease. Upon the expiration or earlier
termination of the Lease, Tenant, at its sole cost, shall remove all Hazardous
Materials from the Premises and shall provide a certificate to Landlord at
21
Landlord's request certifying that there is no contamination of soil in or about
the Premises and that there is no other contamination of Hazardous Materials in
the Premises. If Tenant fails to so surrender the Premises, Tenant shall
indemnify and hold Landlord harmless from all damages resulting from Tenant's
failure to surrender the Premises as required by this Paragraph, including
without limitation any claims or damages in connection with the condition of the
Premises such as damages occasioned by the inability to relet the Premises or a
reduction in the fair market and/or rental value of the Premises by reason of
the existence of any Hazardous Materials in or around the Premises.
E. Clean-Up Activities. If any action is required to be taken by a
governmental authority to clean-up Hazardous Materials from the Premises and
such action is not completed prior to the expiration or earlier termination of
the Lease, Tenant shall be deemed to have impermissibly held over until such
time as such required action is completed, and in addition to the requirements
of Xxxxxxxxx 00, Xxxxxxxx shall be entitled to all damages directly or
indirectly incurred in connection with such holding over, including without
limitation, damages occasioned by the inability to re-let the Premises or a
reduction of the fair market and/or rental value of the Premises.
44. INTEREST. Any sum accruing to Landlord under the provisions of this Lease
which shall not be paid by Tenant within thirty (30) days after such sum becomes
due, shall bear interest from the expiration of such 30 day period, until paid,
at the rate of twelve percent (12%) per annum.
45. MISCELLANEOUS AND GENERAL PROVISIONS.
A. Use of Building Name. Tenant shall not, without the written consent of
Landlord, use the name of the Building for any purpose other than as the address
of the business conducted by Tenant in the Premises.
B. Governing Law; Partial Invalidity. This Lease shall in all respects be
governed by and construed in accordance with the laws of the State of
California. If any provision of this Lease shall be invalid, unenforceable or
ineffective for any reason whatsoever, all other provisions hereof shall be and
remain in full force and effect.
C. Definitions; Binding Effect. The term "Premises" includes the space
leased hereby and any improvements now or hereafter installed therein or
attached thereto. The term "Landlord" or any pronoun used in place thereof
includes the plural as well as the singular and the successors and assigns of
Landlord. The term "Tenant" or any pronoun used in place thereof includes the
plural as well as the singular and individuals, firms, associations,
partnerships and corporations, and their and each of their respective heirs,
executors, administrators, successors and permitted assigns, according to the
context hereof, and the provisions of the Lease shall inure to the benefit of
and bind such heirs, executors, administrators, successors and permitted
assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used in
any gender include other genders. If there be more than one Tenant, the
obligations of Tenant hereunder are joint and several. The paragraph headings of
the Lease are for convenience of reference only and shall have no effect upon
the construction or interpretation of any provision hereof.
D. Time of the Essence. Time is of the essence of this Lease and of each
and all of its provisions.
E. Quitclaim of Leasehold Interest. At the expiration or earlier
termination of this Lease, Tenant shall execute, acknowledge and deliver to
Landlord, within ten (10) days after written demand from Landlord to Tenant, any
quitclaim deed or other document required by any reputable title company
licensed to operate in the State of California, to remove the cloud or
encumbrance created by this Lease from the real property of which Tenant's
22
Premises are a part.
F. Entire Agreement. This instrument along with any exhibits, riders and
attachments hereto constitutes the entire agreement between Landlord and Tenant
relative to the Premises and this agreement and the exhibits and attachments may
be altered, amended or revoked only by an instrument in writing signed by both
Landlord and Tenant. Landlord and Tenant agree hereby that all prior or
contemporaneous oral agreements between and among themselves and their agents or
representatives relative to the leasing of the Premises are merged in or revoked
by this agreement.
G. Recording of Lease. Neither Landlord nor Tenant shall record this Lease
or a short form memorandum hereof without the consent of the other.
H. Amendments Required by Lender. Tenant further agrees to execute any
amendments required by a lender to enable Landlord to obtain financing, so long
as Tenant's rights hereunder are not substantially affected.
I. Air Rights Retained by Landlord. Tenant covenants and agrees that no
diminution or shutting off of light, air or view by any structure which may be
hereafter erected (whether or not by Landlord) shall in any way affect this
Lease, entitle Tenant to any reduction of rent hereunder or result in any
liability of Landlord to Tenant.
J. Early Occupancy. If Tenant occupies the Premises prior to the
Commencement Date, such occupancy shall be subject to all of the provisions of
this Lease, and Tenant shall pay Base Rent, Additional Rent and all other
charges specified in this Lease for the early occupancy period. Early occupancy
of the Premises by Tenant shall not advance the termination date of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
Lease as of the day and year first above written.
This agreement is subject to obtaining releases from previous lease with SMTC
and Shamrock Technology on the premises.
LANDLORD: TENANT:
By Xxxxxx X. Xxxxx Xx. By Xxxxxxx X. Xxxxxx
------------------------------- -------------------------------
Print Name Print Name
/s/ Xxxxxx X. Xxxxx Xx. /s/ Xxxxxxx X. Xxxxxx
------------------------------- -------------------------------
Signature Signature
Partner President
------------------------------- -------------------------------
Title of Signatory Title of Signatory
By XXXXXXX XXXXXXXXX By XXXXXX X. XXXXX
------------------------------- -------------------------------
Print Name Print Name
23
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Signature Signature
Partner SEC
------------------------------- -------------------------------
Title of Signatory Title of Signatory
EXHIBIT A
LEGAL DESCRIPTION OF COMPLEX
The real property referred to in this Lease as the "Complex" shall mean and
include all that certain real property situated in the County of Santa Xxxxx,
State of California, more particularly described as follows:
The land referred to herein is situated in the State of California, County of
Santa Xxxxx, City of Milpitas (and is described as follows)
PARCEL 6, as shown on that certain Map entitled, "Parcel Map", which May was
filed for record in the office of the Recorder of the County of Santa Xxxxx,
State of California on November 28, 1978 in Book 431 of Maps, at page(s) 2 and
3.
EXHIBIT B
SITE PLAN OF COMPLEX AND BUILDING
[GRAPHIC]
EXHIBIT C
TENANT IMPROVEMENTS WORKLETTER
All interior improvements are in and completed and are taken "as is" by Tenant.
RIDER 1
This Rider shall serve and add the following provision to the Lease
Agreement entered into between GEOMAX, a California general partnership
("Landlord"), and Dynamic Circuits, Inc., a California corporation ("Tenant")
dated July 22, 1991 (the "Lease"). This Rider shall be effective as of the date
of the Lease. All capitalized terms not specifically defined herein shall have
the definitions given in the Lease.
Right of First Opportunity
Landlord hereby grants to Tenant the right of first opportunity ("Right of
First Opportunity") to lease additional space in the Complex as hereinafter
provided. If at any time during the Lease term prior to September 1998 Landlord
desires to lease 0000 Xxxxx Xxxxx, Xxxxxxxx, adjacent 12,960 sq. ft. space.
("First Opportunity Premises"), Landlord shall notify Tenant in writing of the
basic business terms upon which Landlord if prepared to lease such First
Opportunity Premises. Tenant shall have a right, for a period of ten (10) days
24
from and after the giving of such notice, within which to notify Landlord that
it will lease such First Opportunity Premises on the same business terms as
those contained in Landlord's notice, in which event Landlord and Tenant shall
proceed to finalize and execute such lease. The First Opportunity Premises shall
be leased upon the same terms, covenants and conditions as contained in this
Lease except for the business terms contained in Landlord's notice. If Tenant
fails to notify Landlord in writing that it will accept such First Opportunity
Premises within the prescribed ten (10) day period, or if Tenant is in default
of this Lease, or if Landlord and Tenant, after using good faith efforts, fail
to agree on the terms of the new lease within ten (10) days after Tenant's
notice of its election to lease such First Opportunity Premises, then Landlord
may lease such First Opportunity Premises to another tenant, free of rights of
Tenant and without any obligation to offer or re-offer to lease such space to
Tenant. This Right of First opportunity is unique to Tenant and shall not be
transferrable to any sublessee, assignee or transferee of Tenant.
LANDLORD TENANT:
By Xxxxxx X. Xxxxx, Xx. By Xxxxxxx X. Xxxxxx
--------------------------- --------------------------
Print Name Print Name
/s/ Xxxxxx X. Xxxxx, Xx. /s/ Xxxxxxx X. Xxxxxx
--------------------------- --------------------------
Signature Signature
Partner President
--------------------------- --------------------------
Title of Signatory Title of Signatory
By Xxxxxxx X. Xxxxxxxxx By Xxxxxx X. [ILLEGIBLE]
--------------------------- --------------------------
Print Name Print Name
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. [ILLEGIBLE]
--------------------------- --------------------------
Signature Signature
Partner SEC.
--------------------------- --------------------------
Title of Signatory Title of Signatory
EXHIBIT D
ACKNOWLEDGEMENT OF COMMENCEMENT
LandLord: GEOMAX
Tenant: Dynamic Circuits, Inc.
Complex: Tarob 6
Premises: 0000 Xxxxx Xxxxx, Xxxxxxxx, XX 00000
for the Lease dated July 22, 1991, the undersigned hereby certifies:
I. That the undersigned Tenant occupies the above-described Premises
consisting of approximately 26,760 square feet.
25
II. That the initial Lease term commenced on October 1, 1991 and will
terminate on September 30, 2001.
III. That Tenant's obligation to pay monthly Basic Rent in amount of $
20,868.00 commenced or will commence on October 1, 1991.
IV. That a security deposit of $21,000.00 has been paid by Tenant to
Landlord.
V. That all construction to be performed by Landlord is complete and
has been accepted by Tenant.
Dated as of this 30th day of October , 1991.
LANDLORD TENANT:
By Xxxxxx X. Xxxxx, Xx. By Xxxxxxx X. Xxxxxx
--------------------------- --------------------------
Print Name Print Name
/s/ Xxxxxx X. Xxxxx, Xx. /s/ Xxxxxxx X. Xxxxxx
--------------------------- --------------------------
Signature Signature
Partner President
--------------------------- --------------------------
Title of Signatory Title of Signatory
By Xxxxxxx X. Xxxxxxxxx By Xxxxxx X. [ILLEGIBLE]
--------------------------- --------------------------
Print Name Print Name
Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. [ILLEGIBLE]
--------------------------- --------------------------
Signature Signature
Partner SEC/TREAS
--------------------------- --------------------------
Title of Signatory Title of Signatory
DO NOT EXECUTE UNTIL THE EXACT COMMENCEMENT DATE HAS
BEEN ESTABLISHED PURSUANT TO PARAGRAPH 5 OF THE LEASE
Rider 2
ADDENDUM TO LEASE
This is an Addendum to the Lease entered into between GEOMAX ("Landlord") and
Dynamic Circuits, Inc., ("Tenant"). This addendum adds terms to, clarifies and
otherwise modifies the Lease, and by this reference becomes a part thereof. If
there is any discrepancy between the Lease and this Addendum, the terms of this
Addendum shall be controlling.
1. Landlord shall and hereby does indemnify, defend and hold harmless
Tenant from all claims, losses, costs, fees and liabilities, due to
damage or injuries to person or property arising from or related to
the presence of any hazardous or toxic substances not caused or
permitted in or about the premises by Tenant, or tenant's employees,
invitees, guests, agents or contractors.
2. Paragraph 18 shall be amended to provide that the Exemption from
Liability found in Section 18 shall not apply to claims or losses
26
arising out of the wilful acts or omissions of Lessor. Lessor
hereby indemnifies Lessee for claims or losses or injuries to person
or property arising out of Lessor's wilful acts or omissions.
3. Tenant's indemnity agreement in Paragraph 43 (B) shall apply only to
the storage, use or disposal of Hazardous Materials caused or
permitted by Tenant, tenant's employees, invitees, guests, agents or
contractors.
4. Tenant's Certification Upon Termination of Lease pursuant to
Xxxxxxxxx 00 (X) shall certify that neither Tenant nor tenant's
employees, invitees, guests, agents or contractors have created or
allowed any contamination of soil or other contamination of
Hazardous Materials in or about the Premises.
5. The indemnity agreements in this addendum and the lease shall
survive termination of the lease.
RIDER 3
ADDENDUM 2 TO LEASE ENTERED INTO BETWEEN GEOMAX (LANDLORD)
AND DYNAMIC CIRCUITS, INC. (TENANT). THIS ADDENDUM
ADDS TO AND MODIFIES THE LEASE AND BY THIS REFERENCE BECOMES A
PART THEREOF. THE LEASE IS DATED JULY 22, 1991, AND COVERS
0000 XXXXX XXXXX, XXXXXXXX, XX.
The following changes shall apply:
1. Premises will expand by 12,960 square feet to include 100% of the building
the Tenant presently occupies. (See attached diagram.)
2. The commencement date for this new leased space will be Jan. 1, 1995.
3. Rent for the new space will be charged on the same Modified Gross basis as
for the old space. Rates will be as follows:
January 1, 1995 - October 31, 1997 $7,322.40
November 1, 1997 - October 31, 1999 7,322.40 + CPI adj.
November 1, 1999 - October 31, 2001 " + "
4. Adjustment date for CPI (per Lease Paragraph 4B) will be January 1, 1995.
5. Base year for taxes and insurance will be same as existing lease 1/1/91 -
12/31/91
6. Tenant shall have an Option to Extend the Lease for the entire building
for any additional 10 years from November 1, 2001 to October 31, 2011.
Said option will be priced at the final rent paid + CPI Adjustment or
market price (determined by appraisal) whichever is higher. The Tenant
must give written notice at least six (6) months prior to November 1,
2001. This new extension will have one cost-of-living adjustment on
November 1, 2006.
All other terms and conditions will remain the same as under the existing Lease.
APPROVED
GEOMAX DYNAMIC CIRCUITS, INC.
/s/ Xxxxxx X. Xxxxx, Xx 12-17-93 /s/ Xxxxx Xxxxxx 12-3-93
---------------------------- --------- ------------------------ --------
Xxxxxx X. Xxxxx, Xx. Date Xxxxx Xxxxxx Date
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Partner President
/s/ Xxxxxxx X. Xxxxxxxxx Dec 17, 93
------------------------ -----------
Xxxxxxx X. Xxxxxxxxx Date
Partner
[GRAPHIC]
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