EXHIBIT 10.21
12/1/92 MTIG(BY)
REVISED 10/8/97
LEASE
Calwest Industrial Properties, LLC,
a California limited liability company
Landlord
Cirilium Incorporated,
A Florida corporation
Tenant
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TABLE OF CONTENTS
Article Page
REFERENCE PAGE..................................................................
1. USE AND RESTRICTIONS ON USE................................................ 1
2. TERM....................................................................... 1
3. RENT....................................................................... 2
4. RENT ADJUSTMENTS........................................................... 2
5. SECURITY DEPOSIT........................................................... 3
6. ALTERATIONS................................................................ 4
7. REPAIR..................................................................... 4
8. LIENS...................................................................... 5
9. ASSIGNMENT AND SUBLETTING.................................................. 5
10. INDEMNIFICATION........................................................... 6
11. INSURANCE................................................................. 7
12. WAIVER OF SUBROGATION..................................................... 7
13. SERVICES AND UTILITIES.................................................... 7
14. HOLDING OVER.............................................................. 8
15. SUBORDINATION............................................................. 8
16. RULES AND REGULATIONS..................................................... 8
17. REENTRY BY LANDLORD....................................................... 8
18. DEFAULT................................................................... 9
19. REMEDIES.................................................................. 9
20. TENANTS BANKRUPTCY OR INSOLVENCY..........................................11
21. QUIET ENJOYMENT.......................................................... 12
22. DAMAGE BY FIRE, ETC...................................................... 12
23. EMINENT DOMAIN........................................................... 13
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24. SALE BY LANDLORD......................................................... 13
25, ESTOPPEL CERTIFICATES.................................................... 13
26. SURRENDER OF PREMISES.................................................... 14
27. NOTICES.................................................................. 14
28. TAXES PAYABLE BY TENANT.................................................. 14
29. RELOCATION OF TENANT..................................................... 14
30. DEFINED TERMS AND HEADINGS............................................... 15
31. TENANTS AUTHORITY........................................................ 15
32. COMMISSIONS.............................................................. 15
33. TIME AND APPLICABLE LAW.................................................. 15
34. SUCCESSORS AND ASSIGNS................................................... 15
35. ENTIRE AGREEMENT......................................................... 15
36. EXAMINATION NOT OPTION................................................... 16
37. RECORDATION.............................................................. 16
38. FINANCIAL STATEMENT...................................................... 16
39. SIGNAGE.................................................................. 16
40. RENEWAL OPTION........................................................... 16
41. RENT SCHEDULE............................................................ 16
42. LIMITATION OF LANDLORD'S LIABILITY....................................... 17
EXHIBIT A - PREMISES
EXHIBIT B - INITIAL ALTERATIONS
EXHIBIT C - RULES AND REGULATIONS
EXHIBIT D - SIGNAGE CRITERIA
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MULTI-TENANT INDUSTRIAL GROSS (BY) LEASE
REFERENCE PAGE
BUILDING: Hohokam 10 East Park
LANDLORD: Calwest Industrial Properties, LLC,
a California limited liability company
LANDLORD'S ADDRESS: c/o RREEF
0000 X. 00xx Xxxxxx, Xxxxx 0
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxxxx
LEASE REFERENCE DATE: October 3, 2001
TENANT: Cirlium, Inc.
a Florida corporation
TENANTS ADDRESS:
(a) As of beginning of Term: c/o Heritage Communications Corporation
0000 Xxxx Xxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
PREMISES IDENTIFICATION 0000 Xxxx 00xx Xxxxxx
Xxxxx 0
Xxxxx, Xxxxxxx 00000
PREMISES RENTABLE AREA: Approximately 5,636 square feet
USE: Office for engineering and sales of voice over
IP components.
SCHEDULED: October 6, 2001
TERMINATION DATE: September 30, 2003
TERM OF LEASE: One (1) year, eleven (11) months, twenty-six
(26) days, beginning on the Commencement Date
and ending on the Termination Date (unless
sooner terminated pursuant to the Lease).
INITIAL ANNUAL RENT (Article 3): $48,214.92, plus applicable rental tax.
INITIAL MONTHLY INSTALLMENT OF
ANNUAL RENT (Article 3): $4,017.91, plus applicable rental tax.
BASE YEAR (DIRECT EXPENSES): 2001
BASE YEAR (TAXES): 2001
TENANT'S PROPORTIONATE SHARE: Approximately 2.19% based on the Premises
square footage divided by the project square
footage of approximately 256,920 square feet.
SECURITY DEPOSIT: $5,100.00
ASSIGNMENT/SUBLETTING FEE: $500.00
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REAL ESTATE BROKER DUE COMMISSION: Commercial Properties, Inc. Realty Executive
The Reference Page information is incorporated into and made a part of the
Lease. In the event of any conflict between and Reference Page information and
the Lease, the Lease shall control. This Lease includes Exhibits A through C,
all of which are made a part of this Lease.
LANDLORD: TENANT:
CALWEST INDUSTRIAL PROPERTIES, LLC CIRILIUM INCORPORATED
a California limited liability company a Florida corporation
By: RREEF MANAGEMENT COMPANY
a Delaware corporation, its Property Manager
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxx
----------------------------- ------------------------------
Xxxxx X. Xxxx, CPM Xxxxxx X. Xxxx
Title: District Manager Title: President
Date: 10/5/01 Date: 10/9/2001
(Remainder of Page Left Blank Intentionally)
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LEASE
By this Lease Landlord leases to Tenant and Tenant leases from Landlord the
Premises in the Building as set forth and described on the Reference Page. The
Reference Page, including all terms defined thereon, is incorporated as part of
this lease.
1. USE AND RESTRICTIONS ON USE.
1.1 The Premises are to be used solely for the purposes stated on the
Reference Page. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building or injure, annoy, or disturb them or
allow the Premises to be used for an improper, immoral, unlawful, or
objectionable purpose. Tenant shall not do, permit or suffer in, on, or about
the Premises the sale of any alcoholic liquor without the written consent of
Landlord first obtained, or the commission of any waste. Tenant shall comply
with all governmental laws, ordinances and regulations applicable to the use of
the Premises and its occupancy and shall promptly comply with all governmental
orders and directions for the correction, prevention and abatement of any
violations in or upon, or in connection with, the Premises, all at Tenant's sole
expense. Tenant shall not do or permit anything to be done on or about the
Premises or bring or keep anything into the Premises which will in any way
increase the rate of , invalidate or prevent the procuring of any insurance
protecting against loss or damage to the Building or any of its contents by fire
or other casualty or against liability for damage to property or injury to
persons in or about the Building or any part thereof.
1.2 Tenant shall not, and shall not direct, suffer or permit any of its
agents, contractors, employees, licensees or invitees to at any time handle,
use, manufacture, store or dispose of in or about the Premises or the Building
any (collectively "Hazardous Materials") flammables, explosives, radioactive
material, hazardous wastes or materials, toxic wastes or materials, or other
similar substances, petroleum products or derivatives or any substance subject
to regulation by or under any federal, state and local laws and ordinances
relating to the protection of the environment or the keeping, use or disposition
or environmentally hazardous materials, substances, or wastes, presently in
effect or hereafter adopted, all amendments to any of them, and all rules and
regulations issued pursuant to any of such laws or ordinances (collectively
"Environmental Laws"), nor shall Tenant suffer or permit any Hazardous Materials
to be used in any manner not fully in compliance with all Environmental Laws, in
the Premises or the Building and appurtenant land or allow the environment to
become contaminated with any Hazardous Materials. Notwithstanding the foregoing,
and subject to Landlord's prior consent, Tenant may handle, store, use or
dispose of products containing small quantities of Hazardous Materials (such as
aerosol cans containing insecticides, toner for copiers, paints, paint remover
and the like) to the extent customary and necessary for the use of the Premises
for general office purposes; provided that Tenant shall always handle, store,
use, and dispose of any such Hazardous Materials in a safe and lawful manner and
never allow such Hazardous Materials to contaminate the Premises, Building and
appurtenant land or the environment. Tenant shall protect, defend, indemnify and
hold each and all of the Landlord Entities (as defined in Article 30) harmless
from and against any and all loss, claims, liability or costs (including court
costs and attorney's fees) incurred by reason of any actual or asserted failure
of Tenant to Premises of any Hazardous Materials (even thought permissible under
all applicable Environmental Laws or the Provisions of this Lease), or by reason
of any actual or asserted failure of Tenant to keep, observe, or perform any
provision of this Section 1.2.
2. TERM.
2.1 The Term of this Lease shall begin on the date ("Commencement Date")
which shall be the later of the Scheduled Commencement Date as shown on the
Reference Page and the date that Landlord shall tender possession of the
Premises to Tenant. Landlord shall tender possession of the Premises with all
the work, if any, to be performed by Landlord pursuant to Exhibit B to this
Lease substantially completed. Tenant shall deliver a punch list of items not
completed within 30 days after Landlord tenders possession of the Premises and
Landlord agrees to proceed with due diligence to perform its obligations
regarding such items. Landlord ant Tenant shall execute a memorandum setting
forth the actual Commencement Date and Termination Date.
2.2 Tenant agrees that in the event of the inability of Landlord to deliver
possession of the Premises on the Scheduled Commencement Date, Landlord shall
not be liable for any damage resulting from such inability, but Tenant shall not
be liable for any rent until the time when Landlord can, after notice to Tenant,
deliver possession of the Premises to Tenant. No such failure to give possession
on the Scheduled Commencement Date shall affect the other obligations of Tenant
under this Lease, except that if Landlord is unable to deliver possession of the
Premises within one hundred twenty (120) days of the Scheduled Commencement Date
(other than as a result of strikes, shortages of materials or similar matters)
beyond the reasonable control of
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Landlord and Tenant is notified by Landlord is writing as to such delay), Tenant
shall have the option to terminate this Lease unless said delay is as a result
of: (a) Tenant's failure to agree to plans and specifications; (b) Tenant's
request for materials, finishes or installations other than Landlord's standard
except those, if any, that Landlord shall have expressly agreed to furnish
without extension of time agreed by Landlord: (c) Tenant's change in any plans
or specifications; or (d) performance or completion by a party employed by
Tenant. If any delay is the result of any of the forgoing, the Commencement date
and the payment of rent under this Lease shall be accelerated by the number of
days of such delay.
2.3 In the event Landlord shall permit Tenant to occupy the Premises prior
to the Commencement Date, such occupancy shall be subject to all the provisions
of this Lease. Said early possession shall not advance the Termination Date.
3. RENT.
3.1 Tenant agrees to pay to Landlord the Annual Rent in effect from time to
tie by paying the Monthly Installment of Rent then in effect on or before the
first day of each full calendar month during the Term, except that the first
month's rent shall be paid upon the execution of this Lease. The Monthly
Installment of Rent in effect at any time shall be one-twelfth of the Annual
Rent in effect at such time. Rent for any period during the Term whish is less
than a full month shall be a prorated portion of the Monthly Installment of Rent
based upon a thirty (30) day month. Said rent shall be paid to Landlord, without
deduction or offset and without notice or demand, at the Landlord's address, as
set forth on the Reference Page, Or to such other person or at such other place
as Landlord may from time to time designate in writing.
3.2 Tenant recognizes that late payment of any rent or other sum due under
this Lease will result in administrative expense to Landlord, the extent of
which additional expense is extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that if rent or any other sum is not paid
when due and payable pursuant to this Lease, a late charge shall be imposed in
an amount equal to the greater of: (a) Fifty Dollars ($50.00), or (b) a sum
equal to five percent (5%) per month of the unpaid rent or other payment. The
amount of the late charge to be paid by Tenant shall be reassessed and added to
Tenant's obligation for each successive monthly period until paid. The
provisions of this Section 3.2 in no way relieve Tenant of the obligation to pay
rent or other payments on or before the date on which they are due, nor do the
terms of this Section 3.2 in any way affect Landlord's remedies pursuant to
Article 19 in the event said rent or other payment is unpaid after date due.
4. RENT ADJUSTMENTS.
4.1 For the purpose of this Article 4, the followin terms are defined as
follows:
4.1.1 Lease Year: Each calendar year fallin partly or wholly within
the Term.
4.1.2 Direct Expenses: All direct costs of operation, maintenance,
repair and management of the Building (including the amount of any credits
whish Landlord may grant to particular tenants of the Building in lieu of
providing and standard services or paying any standard costs described in
this Section 4.1.2 for similar tenants), as determined in accordance with
generally accepted accounting principles, including the following costs by
way of illustration, but not limitation: water and sewer charges; insurance
charges of or relating to all insurance policies and endorsements deemed by
Landlord to be reasonably necessary or desirable and relating in any manner
to the protection, preservation, or operation of the Building or any part
thereof; utility costs, including, but not limited to, the cost of heat,
light, power, steam, gas, and waste disposal; the cost of janitorial
service; the cost of security and alarm services (including any central
station signalling system); window cleaning costs; labor costs; costs and
expenses of managing the Building including management fees; air
conditioning maintenance costs, elevator maintenance fees and supplies;
material costs; equipment costs including the cost of maintenance, repair
and service agreements and rental and leasing costs; purchase costs of
equipment other than capital items,; current rental and leasing costs of
items which would be amortizable capital items of purchased; tool costs;
licenses, permits and inspection fees; wages and salaries; employee
benefits and payroll taxes; accounting and legal fees; any sales, use or
services taxes uncured in
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connection therewith. Direct Expenses shall not include depreciation or
amortization of the Building or equipment in the Building except as
provided herein, loan principal payments, costs of alterations of tenants'
premises, leasing commissions, interest expenses on long-tem borrowings,
advertising costs or management salaries for executive personnel other than
personnel located at the Building. In addition, Landlord shall be entitled
to amortize and include as an additional rental adjustment: (i) an
allocable portion of the cost of capital improvement items which are
reasonably calculated to reduce operating expenses; (ii) fire sprinklers
and suppression systems and other life safety systems; and (iii) other
capital expenses which are required under any governmental laws,
regulations or ordinances which were not applicable to the Building at he
time it was constructed. All such costs shall be amortized over the
reasonable life of such improvements in accordance with such reasonable
life and amortization schedules as shall be determined by Landlord in
accordance with generally accepted accounting principles, with interest on
the unamortized amount at one percent (1%) in excess of the prime lending
rate announced from time to time as such by The Northern Trust Company of
Chicago, Illinois.
4.1.3 Taxes: Real estate taxes and any other taxes, charges and
assessments which are levied with respect to the Building or the Land
appurtenant to the Building, or with respect to any improvements, fixtures
and equipment or other property of Landlord, real or personal, located in
the Building and used in connection with the operation of the Building and
said land, and payments to any ground lessor in reimbursement of tax
payments made by such lessor; and all fees, expenses and costs incurred by
Landlord in investigating , protesting, contesting or in any way seeking to
reduce or avoid increase in any assessments, levies or the tax rate
pertaining to any Taxes to be paid by Landlord in any Lease Year. Taxes
shall not include any corporate franchise, or estate, inheritance or net
income tax, or tax imposed upon any transfer by Landlord of its interest in
this Lease or the Building.
4.2 If in any Lease Year, (i) Direct Expenses paid or incurred shall exceed
Direct Expenses paid or incurred in the Base Year (Direct Expenses) and/or (ii)
Taxes paid or incurred by Landlord in any Lease Year shall exceed the amount of
such Taxes which became due and payable in the Base Year (Taxes). Tenant shall
pay as additional rent for such Lease Year Tenant's Proportionate Share of such
excess.
4.3 The annual determination of Direct Expenses shall be made by Landlord
and, if certified by a nationally recognized firm of public accountants selected
by Landlord, shall be binding upon Landlord and Tenant. Tenant may review the
books and records supporting such determination in the office of Landlord, or
Landlord's agent during normal business hours, upon giving Landlord five (5)
days advance written notice within sixty (60) days after receipt of such
determination, but in no event more often than once in any one year period. In
the event that during all or any portion of any Lease Year, the Building is not
fully rented that occupied Landlord may make any appropriate adjustment in
occupancy-related Direct Expenses for such year for the purpose of avoiding
distortion of the amount of such Direct Expenses to the attributed to Tenant by
reason of variation in total occupancy of the Building, by employing sound
accounting and management principles to determine Direct Expenses that would
have been paid or incurred by Landlord had the Building been fully rented and
occupied, and the amount so determined shall be deemed to have been Direct
Expenses for such Lease Year.
4.4 Prior to the actual determination thereof for a Lease Year, Landlord
may from time to time estimate Tenant's liability for Direct Expenses and/or
Taxes under Section 4.2, Article 6 and Article 28 for the Lease Year or portion
thereof. Landlord will give Tenant written notification of the amount of such
estimate and Tenant agrees that it will pay, by increase of its Monthly
Installments of Rent due in such Lease Year, additional rent in the amount of
such estimate. Any such increased rate of Monthly Installments of Rent pursuant
to this Section 4.4 shall remain in effect until further written notification to
Tenant pursuant hereto.
4.5 When the above mentioned actual determination of Tenant's liability for
Direct Expenses and/or Taxes is made for any Lease Year and when Tenant is so
notified in writing, then:
4.5.1 If the total additional rent Tenant actually paid pursuant to
Section 4.3 on account of Direct Expenses and/or Taxes for the Lease Year
is less than
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Tenant's liability for Direct Expenses and/or Taxes, then Tenant shall pay
such deficiency to Landlord as additional rent in one lump sum within
thirty (30) days of receipt of Landlord's xxxx therefore; and
4.5.2 If the total additional rent Tenant actually paid pursuant to
Section 4.3 on account of Direct Expenses and/or Taxes for the Lease Year
is more than Tenant's liability for Direct Expenses and/or Taxes, the
Landlord shall credit the difference against the then next due payments to
be made by Tenant under this Article 4. Tenant shall not be entitled to a
credit by reason of actual Direct Expenses and/or Taxes in any Lease Year
being less than Direct Expenses and/or Taxes in the Base Year (Direct
Expense and/or Taxes).
4.6 If the Commencement Date is other than January or if the Termination
Date is other than December 31, Tenant's liability for Direct Expenses and Taxes
for the Lease Year in which said Date occurs shall be prorated based upon a
three hundred sixty-five (365) day year.
5. SECURITY DEPOSIT.
Tenant shall deposit the Security Deposit with Landlord upon the execution
of this Lease. Said sum shall be held by Landlord as security for the faithful
performance by Tenant of all the terms, covenants and conditions of this Lease
to be kept and performed by Tenant and not as an advance rental deposit or as a
measure of Landlord's damage in case of Tenant's default. If Tenant defaults
with respect to any provision of this Lease, Landlord may use any part of the
Security Deposit for the payment of any rent or any other sum in default, or for
the payment of any amount which landlord may spend or become obligated to spend
by reason on 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
is so used, Tenant shall within five (5) days after written demand therefore,
deposit with Landlord an amount sufficient to restore the Security Deposit to
its original amount and Tenant's failure to do so shall be a material breach of
this Lease. Except to such extent, if any, as shall be required by law, Landlord
shall not be required to keep the Security Deposit separate from its general
funds, and Tenant shall not be entitled to interest on such deposit. If Tenant
shall fully and faithfully perform every provision of this Lease to be performed
by it, the Security Deposit or any balance thereof shall be returned to Tenant
at such time after termination of this Lease when Landlord shall have determined
that all of Tenant's obligations under this Lease have been fulfilled.
6. ALTERATIONS.
6.1 Except for those, if any, specifically provided for in Exhibit B to
this Lease, Tenant shall not make or suffer to be made any alterations,
additions, or improvements, including, but not limited to, the attachment of any
fixtures or equipment in, on, or to the Premises or any part thereof or the
making of any improvements as required by Article 7, without the prior written
consent of Landlord. When applying for such consent, Tenant shall, if requested
by Landlord, furnish complete plans and specifications for such alterations,
additions and improvements.
6.2 In the event Landlord consents to the making of any such alteration,
addition or improvement by Tenant, the same shall be made using Landlord's
contractor (unless Landlord agrees otherwise) at Tenant's sole cost and expense.
If Tenant shall employ any Contractor other than Landlord's Contractor and such
other Contractor or any Subcontractor of such other Contractor shall employ any
non-union labor or supplier, Tenant shall be responsible for any and all delays,
damages and extra costs suffered by Landlord as a result of any dispute with any
labor unions concerning the wage, hours, terms or conditions of the employment
of any such labor. In any event Landlord may charge Tenant a reasonable charge
to cover its overhead as it relates to such proposed work.
6.3 All alterations, additions or improvements proposed by Tenant shall be
constructed in accordance with all government laws, ordinances, rules and
regulations and Tenant shall, prior to construction, provide the additional
insurance required under Article 11 in such case, and also all such assurances
to Landlord, including but not limited to, waivers of lien, surety company
performance bonds and personal guaranties of individuals Of substance as
Landlord shall require to assure payment of the costs thereof and to protect
Landlord and the Building and appurtenant land against any loss from any
mechanic's, materialmen's or other liens. Tenant shall pay in addition to any
sums due pursuant to Article 4, any increase in real estate taxes attributable
to any such alteration, addition or improvement for so long, during the Team, as
such increase is ascertainable; at Landlord's election said sums shall be paid
in the same way as sums due under Article 4.
6.4 All alterations, additions, and improvements in, on, or to the Premises
made or installed by Tenant, including carpeting, shall be and remain the
property of Tenant during the Term but, excepting furniture, furnishings,
movable partitions of less than full height from floor to ceiling and other
trade fixtures, shall become a part of the realty and belong to Landlord without
compensation to Tenant upon the expiration or sooner termination of the Term,
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at which time title shall pass to Landlord under this Lease as by a xxxx of
sale, unless Landlord elects otherwise. Upon such election by Landlord, Tenant
shall upon demand by Landlord, at Tenants sole cost and expense, forthwith and
with all due diligence remove any such alterations, additions or improvements
which are designated by Landlord to be removed, and Tenant shall forthwith and
with all due diligence, at its sole cost and expense, repair and restore the
Premises to their original condition, reasonable wear and tear and damage by
fire or other casualty excepted.
7. REPAIR.
7.1 Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises, except as specified in Exhibit B if attached to
this Lease and except that Landlord shall repair and maintain the structural
portions of the roof, walls and foundation of the Building. By taking possession
of the Premises, Tenant accepts them as being in good order, condition and
repair and in the condition in which Landlord is obligated to deliver them. It
is hereby understood and agreed that no representations respecting the condition
of the Premises or the Building have been made by Landlord to Tenant, except as
specifically set forth in this Lease. Landlord shall not be liable for any
failure to make any repairs or to perform any maintenance unless such failure
shall persist for an unreasonable time after written notice of the need of such
repairs or maintenance is given to Landlord by Tenant.
7.2 Tenant shall at its own cost and expense keep and maintain all parts of
the Premises and such portion of the Building and improvements as are within the
exclusive control of Tenant in good condition, promptly making all necessary
repairs and replacements, whether ordinary or extraordinary, with materials and
workmanship of the same character, kind and quality as the original (including,
but not limited to, repair and replacement of all fixtures installed by Tenant,
water heaters serving the Premises, windows, glass and plate glass, doors,
exterior stairs skylights, any special office entries, interior walls and finish
work, floors and floor coverings, heating and air conditioning systems serving
the Premises, electrical systems and fixtures, sprinkler systems, dock boards,
truck doors, dock bumpers, plumbing work and fixtures and performance of regular
removal of trash and debris). Tenant as part of its obligations hereunder shall
keep the Premises in a clean and sanitary condition. Tenant will, as far as
possible keep all such parts of the Premises from deterioration due to ordinary
wear and from falling temporarily out of repair, and upon termination of this
Lease in any way Tenant will yield up the Premises to Landlord in good condition
and repair, loss by fire or other casualty excepted (but not excepting any
damage to glass). Tenant shall, at its own cost and expense, repair any damage
to the Premises or the Building resulting from and/or caused in whole or in part
by the negligence or misconduct of Tenant, its agents, employees, invites, or
any other person entering upon the Premises as a result of Tenant's business
activities or caused by Tenant's default hereunder.
7.3 Except as provided in Article 22, there shall be no abatement of rent
and no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or to
fixtures, appurtenances and equipment in the Building. Except to the extent, if
any, prohibited by law, Tenant waives the right to make repairs at Landlord's
expense under any law, statute or ordinance now or hereafter in effect.
7.4 Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Landlord for servicing all heating and air conditioning systems and
equipment serving the Premises (and a copy thereof shall be furnished to
Landlord). The service contract must include all services suggested by the
equipment manufacturer in the operation/maintenance manual and must become
effective within thirty (30) days of the date Tenant takes possession of the
Premises. Landlord may, upon notice to Tenant enter into such a maintenance/
service contract on behalf of Tenant or perform the work and in either case,
charge Tenant the cost thereof along with a reasonable amount for Landlord's
overhead.
7.5 Landlord shall coordinate any repairs and other maintenance of any
railroad tracks serving the Building and, if Tenant uses such rail tracks,
Tenant shall reimburse Landlord or the railroad company form time to time upon
demand, as additional rent, for its share of the cost of such repair and
maintenance and for any other sums specified in any agreement to which Landlord
or Tenant is partly respecting such tracks, such costs to be borne
proportionately by all tenants in
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the Building using such rail tracks, based upon the actual number of rail cars
shipped and received by such tenant during each calendar year during the Term.
8. LIENS.
Tenant shall keep the Premises, the Building and appurtenant land and
Tenant's leasehold interest in the Premises fee from any liens arising out of
any services, work or materials performed, furnished, or contracted for by
Tenant, or obligations incurred by Tenant. In the event that Tenant shall not,
within ten (10) days following the imposition of any such lien, either cause the
same to be released of record or provide Landlord with insurance against the
same issued by a major title insurance company or such other protection against
the same as Landlord shall accept, Landlord shall have the right 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 such sums paid by Landlord and all
expenses incurred by it in connection therewith shall be considered additional
rent and shall be payable to it by Tenant on demand.
9. ASSIGNMENT AND SUBLETTING
9.1 Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises whether voluntarily or by operation
of law, or permit the use of occupancy of the Premises by anyone other than
Tenant, and shall not make, suffer or permit such assignment, subleasing or
occupancy, without the prior written consent of Landlord, and said restrictions
shall be binding upon any and all assignees of the Lease and subtenants of the
Premises. In the event Tenant desires to sublet, or permit such occupancy of,
the Premises, or any portion thereof, or assign this Lease, Tenant shall give
written notice thereof to Landlord at least ninety (90) days but no more than
one hundred eighty (180) days prior to the proposed commencement date of such
subletting or assignment, which notice shall set forth the name of the proposed
subtenant or assignee, the relevant terms of any sublease or assignment and
copies of financial reports and other relevant financial reports and other
relevant financial information of the proposed subtenant or assignee.
9.2 Notwithstanding any assignment or subletting, permitted or otherwise,
Tenant shall at all times remain directly, primarily and fully responsible and
liable for the payment of the rent specified in this Lease and for compliance
with all of its other obligations under the terms, provisions and covenants of
this Lease. Upon the occurrence of an Event of Default, if the Premises or any
part of them are then assigned or sublet, Landlord, in occurrence of an Event of
Default, if the Premises or any part of them are then assigned or sublet,
Landlord, in addition to any other remedies provided in this Lease or provided
by law, may, at its option, collect directly from such assignee or subtenant all
rents due and becoming due to Tenant under such assignment or sublease and apply
such rent against any sums due to Landlord form Tenant under this Lease, and no
such collection shall be construed to constitute a novation or release of Tenant
from the further performance of Tenant's obligations under this Lease.
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Insert 5 (a)
...Notwithstanding the foregoing. If any major component or any entire
unit of the heating, ventilating or air conditioning system servicing
the leased premises should fail or need replacement, the Landlord
shall have the obligation to repair and replace such component or unit
at its sole cost and expenses provided that the tenant is in full
compliance with the terms of Section 7.4 of this lease.
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9.3 In addition to Landlord's right to approve of any subtenant or
assignee. Landlord shall have the option in its sole discretion, in the event of
any proposed subletting or assignment, to terminate this Lease, or in the case
of a proposed subletting of less than the entire Premises, to recapture the
portion of the Premises to be sublet, as of the date the subletting or
assignment is to be effective. The option shall be exercised, if at all, by
Landlord giving Tenant written notice given by Landlord to Tenant within sixty
(60) days following Landlord's receipt of Tenant's written notice as required
above. If this Lease shall be terminated with respect to the entire Premises
pursuant to this Section, the Term of this Lease shall end on the date stated in
Tenant's notice as the effective date of the sublease or assignment as if that
date had been originally fixed in this Lease for the expiration for the Term. If
Landlord recaptures under this Section only a portion of the Premises, the rent
to be paid form time to time during the unexpired Term shall xxxxx
proportionately based on the proportion by which the approximate square footage
of the remaining portion of the Premises shall be less than that of the Premises
as of the date immediately prior to such recapture. Tenant shall, at Tenant's
own cost and expense, discharge in full any outstanding commission obligation on
the part of Landlord with respect to this Lease, and any commissions which may
be due and owing as a result of any proposed assignment or subletting, whether
or not the Premises are recaptured pursuant to this Section 9.3 and rented by
Landlord to the proposed tenant or any other tenant.
9.4 In the event that Tenant sells, sublets, assigns or transfers this
Lease, Tenant shall pay to Landlord as additional rent an amount equal to on
hundred percent (100%) of any Increased Rent (as defined below) when and as such
Increased Rent is received by Tenant. As such in this Section, "Increased Rent"
shall mean the excess of (i) all rent and other consideration which Tenant is
entitled to receive by reason of any sale, sublease, assignment or other
transfer of this Lease, over (ii) the rent otherwise payable by Tenant under
this Lease at such time. For purposes of the foregoing, any consideration
received by Tenant in form other than cash shall be valued at its fair market
value as determined by Landlord in good faith.
9.5 Notwithstanding any other provision hereof, Tenant shall have no right
to make (and Landlord shall have the absolute right to refuse consent to) any
assignment of this Lease or sublease of any portion of the Premises if at the
time of either Tenant's notice of the proposed assignment or sublease or the
proposed commencement date thereof, there shall exist any uncured default of
Tenant or matter which will become a default of Tenant with passage of time
unless cured, or if the proposed assignee or sublessee is and entity: (a) with
which Landlord is already in negotiation as evidenced by the issuance of a
written proposal; (b) is already an occupant of the Building unless Landlord is
unable to provide the amount of space required by such occupant; (c) is a
governmental agency; (d) is incompatible with the character of occupancy of the
Building; or (e) would subject the Premises to a use which would: (i) involve
increased personnel or wear upon the Building; (ii) violate any exclusive right
granted to another tenant of the Building; (iii) require any addition to or
modification of the Premises or the Building in order to comply with building
code or other governmental requirements; or, (iv) involve a violation of Section
1.2. Tenant expressly agrees that Landlord shall have the absolute right to
refuse consent to any such assignment or sublease and that for the purposes of
any statutory or other requirement of reasonableness on the part of the Landlord
such refusal shall be reasonable.
9.6 Upon any request to assign or sublet, Tenant will pay to Landlord the
Assignment/Subletting Fee plus, on demand, a sum equal to all of Landlord's
costs, including attorney's fees, incurred in investigating and considering any
proposed or purported assignment or pledge of this Lease or sublease of any of
the Premises, regardless of whether Landlord shall consent to refuse consent, or
determine that Landlord's consent is not required for, such assignment, pledge
or sublease. Any purported sale, assignment, mortgage, transfer of this Lease or
subletting which does not comply with the provisions of this Article 9 shall be
void.
9.7 If Tenant is a corporation, partnership or trust, any transfer or
transfers of or change or changes within any twelve month period in the number
of the outstanding voting shares of the corporation, the general partnership
interests in the partnership or the identity of the persons or entities
controlling the activities of such partnership or trust resulting in the persons
or entities owning or controlling a majority of such shares, partnership
interests or activities of such partnership or trust at the beginning of such
period no longer having such ownership or control shall be regarded as
equivalent to an assignment of this Lease to the persons or entities acquiring
such ownership or control and shall be subject to all the provisions of this
Article 9 to the same extent and for all intents and purposes as thought such an
assignment.
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10. INDEMNIFICATION.
None of the Landlord Entities shall be liable and Tenant hereby waives all
claims against them for any damage to any property or any injury to any person
in or about the Premises or the Building by or from any cause whatsoever
(including without limiting the foregoing, rain or water leakage of any
character from the roof, windows, walls, basement, pipes, plumbing works or
appliances, the Building not being in good condition or repair, gas, fire, oil,
electricity or theft), except to the extent caused by or arising from the gross
negligence or willful misconduct of Landlord or its agents, employees or
contractors. Tenant shall protect, indemnify and hold the Landlord Entities
harmless from and against any and all loss, claims, liability or costs
(including court costs and attorney's fees) incurred by reason of (a) any damage
to any property (including but not limited to property of any Landlord Entity)
or any injury (including but not limited to death) to any person occurring in,
on or about the Premises or the Building to the extent that such injury or
damage shall be caused by or arise from any actual or alleged act, neglect,
fault, or omission by or of Tenant, its agents, servants, employees, invitees,
or visitors to meet any standards imposed by any duty with respect to the injury
or damage; (b) the conduct or management of any work or thing whatsoever done by
the Tenant in or about the Premises or from transactions of the Tenant
concerning the Premises; (c) Tenant's failure to comply with any and all
governmental laws, ordinances and regulations applicable to the condition or use
of the Premises or its occupancy; or (d) any breach or default on the part of
Tenant in the performance of any covenant or agreement on the part of the Tenant
to be performed pursuant to this Lease. The provisions of this Article shall
survive the termination of this Lease with respect to any claims or liability
accruing prior to such termination.
11. INSURANCE.
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial
General Liability insurance policy or policies to protect the Landlord Entities
against any liability to the public or to any invitee of Tenant or a Landlord
Entity incidental to the use of or resulting form any accident occurring in or
upon the Premises with a limit of not less than $1,000,000.00 per occurrence and
not less than $2,000,000.00 in the annual aggregate, or such larger amount as
Landlord may prudently require from time to time, covering bodily injury and
property damage liability and $1,000,000 products/completed operations
aggregate, together with additional "umbrellas" or "excess" liability coverage
with an annual aggregate limit of not less than $2,000,000.00; (b) Business Auto
Liability covering owned, non-owned and hired vehicles with a limit of not less
than $1,000,000 per accident; (c) insurance protecting against liability under
Worker's Compensation Laws with limits at least as required by statute; (d)
Employers Liability with limits of $1,000,000 each accident, $1,000,000 disease
policy limit, $1,000,000 disease--each employee; (e) All Risk or Special Form
coverage protecting Tenant against loss of or damage to Tenant's alterations,
additions, improvements, carpeting, floor coverings, panelings, decorations,
fixtures, inventory and other business personal property situated in or about
the Premises to the full replacement value of the property so insured; and, (f)
Business Interruption Insurance with limit of liability representing loss of at
least approximately six months of income.
11.2 Each of the aforesaid policies shall (a ) be provided at Tenant's
expense; (b) name the Landlord building management company, if any, as
additional insureds, as follows: CALWEST INDUSTRIAL PROPERTIES , L.L.C., a
California limited liability company, as owner, and RREEF AMERICA , L.L.C., a
Delaware limited liability company, as manager; (c) be issued by an insurance
company with a minimum Best's rating of "A:VII" during the Term; and (d) provide
that said insurance shall not be cancelled unless thirty (30) days prior written
notice (ten days for non-payment of premium) shall have been given to Landlord;
and said policy or policies or certificates thereof shall be delivered to
Landlord by Tenant upon the Commencement Date and at least thirty (30) days
prior to each renewal of said insurance.
11.3 Whenever Tenant shall undertake any alterations, additions or
improvements in, to or about the Premises ("Work") the aforesaid insurance
protection must extend to and include injuries to persons and damage to property
arising in connection with such Work, without limitation including liability
under any applicable structural work act, and such other insurance as Landlord
shall require; and the policies of or certificates evidencing such insurance
must be delivered to Landlord prior to the commencement of any such Work
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12. WAIVER OF SUBROGATION.
So long as their respective insurers so permit, Tenant and Landlord hereby
mutually waive their respective rights of recovery against each other for any
loss insured by fire, extended coverage, All Risks or other insurance now or
hereafter existing for the benefit of the respective part but only to the extent
of the net insurance proceeds payable under such policies. Each party shall
obtain any special endorsements required by their insurer to evidence compliance
with the aforementioned waiver.
13. SERVICES AND UTILITIES
Tenant shall pay for all water, gas, heat, light, power, telephone, sewer,
sprinkler system charges and other utilities and services used on or from the
Premises, together with any taxes, on penalties, and surcharges or the like
pertaining thereto and any maintenance charges for utilities. Tenant shall
furnish all electric light bulbs, tubes and ballasts, battery packs for
emergency lighting and fire extinguishers. If any such services are not
separately metered to Tenant, Tenant shall pay such proportion of all charges
jointly metered with other premises as determined by Landlord, in its sole
discretion, to be reasonable. Any such charges paid by Landlord and assessed
against Tenant shall be immediately payable to Landlord on demand and shall be
additional rent hereunder. Landlord shall in no event be liable for any
interruption or failure of utility service on or the Premises.
14. HOLDING OVER.
Tenant shall pay Landlord for each day Tenant retains possession of the
Premises or part of them after termination of this Lease by lapse of time or
otherwise at the rate ("Holdover Rate") which shall be 200% of the greater of :
(a) the amount of the Annual Rent for the last period prior to the date of such
termination plus all Rent Adjustments under Article 4; and, (b) the then market
rental value of the Premises as determined by Landlord assuming a new lease of
the Premises of the then usual duration of other terms, in either case prorated
on a daily basis, and also pay all damages sustained by Landlord by reason of
such retention. If Landlord gives notice to Tenant of Landlord' s election to
that effect, such holding over shall constitute renewal of this Lease for a
period from month to month or one year, whichever shall be specified in such
notice, in either case at the Holdover Rate, but if the Landlord does not so
elect, no such renewal shall result notwithstanding acceptance by Landlord of
any sums due hereunder after such termination; and instead a tenancy at
sufferance at the Holdover Rate shall be deemed to have been created. In any
even, no provision of this Article 14 shall be deemed to waive Landlord's right
of reentry or any other right under this Lease or at law.
15. SUBORDINATION.
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, this Lease shall be subject and
subordinate at all times to ground or underlying leases and to the lien of any
mortgages or deeds of trust now or hereafter placed on, against or affecting the
Building, Landlord's interest or estate in the Building, or any ground or
underlying lease; provided, however, that if the lessor, mortgage, trustee, or
holder of any such mortgage or deed of trust elects to have Tenant's interest in
this Lease be superior to any such instrument, then, by notice to Tenant, this
Lease shall be deemed superior, whether this Lease was executed before or after
said instrument. Notwithstanding the foregoing, Tenant covenants and agrees to
execute and deliver upon demand such further instruments evidencing such
subordination or superiority of this Lease as may be required by Landlord.
16. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with all the rules and
regulations as set forth in Exhibit C to this Lease and all reasonable
modifications of and additions to them from time to time put into effect by
Landlord. Landlord shall not be responsible to Tenant for the non-performance by
any other tenant or occupant of the Building of any such rules and regulations.
17. REENTRY BY LANDLORD.
17.1 Landlord reserves and shall at all times have the right to re-enter
the Premises to inspect the same, to show and Premises to prospective
purchasers, mortgages or tenants, and to alter, improve or repair the Premises
and any portion of the Building, without abatement of rent, and may for that
purpose erect, use and maintain scaffolding, pipes, conduits and other necessary
structures and open any wall, ceiling or floor in and through the Building and
Premises where reasonably required by the character of the work to be performed,
provided entrance to the Premises shall not be blocked thereby,
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and further provided that the business of Tenant shall not the interfered with
unreasonably.
17.2 Landlord shall have the right at any time to change the arrangement
and/or locations of entrances,, or passageways, doors and doorways, and
corridors, windows, elevators, stairs, toilets, or other public parts of the
Building and to change the name, number or designation by which the Building is
commonly known. In the event that Landlord damages any portion of any wall or
wall covering, ceiling, or floor or floor covering within the Premises, Landlord
shall repair or replace the damaged portion to match the original as nearly as
commercially reasonable but shall not be required to repair or replace more than
the portion actually damaged.
17.3 Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned by any action
of Landlord authorized by this Article 17. Tenant agrees to reimburse Landlord,
on demand, as additional rent, for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease.
17.4 For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors in the Premises,
excluding Tenant's vaults and safes or special security areas (designated in
advance), and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency to obtain entry to
any portion of the Premises. As to any portion to which access cannot be had by
means of a key or keys in Landlord's possession, Landlord is authorized to gain
access by such means as Landlord shall elect and the cost of repairing any
damage occurring in doing so shall be borne by Tenant and paid to Landlord as
additional rent upon demand.
18. DEFAULT.
18.1 Except as otherwise provided in Article 20, the following events shall
be deemed to be Events of Default under this lease:
18.1.1 Tenant shall fail to pay when due any sum of money becoming due
to be paid to Landlord under this Lease, whether such sum be any
installment of the rent reserved by this Lease, any other amount treated as
additional rent under this Lease, or any other payment or reimbursement to
Landlord required by this Lease, whether or not treated as additional rent
under this Lease, and such failure shall continue for a period of five days
after written notice that such payment was not made when due, but if any
such notice shall be given, for the twelve month period commencing with the
date of such notice, the failure to pay within five days after due any
additional sum of money becoming due to be paid to Landlord under this
Lease during such period shall be an Event of Default, without notice.
18.1.2 Tenant shall fail to comply with any term, provision or
covenant of this Lease which is not provided for in another Section of this
Article and shall not cure such failure within twenty (20) days (forthwith,
if the failure involves a hazardous condition) after written notice of such
failure to Tenant.
18.1.3 Tenant shall fail to vacate the Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon
termination of Tenant's right to possession only.
18.1.4 Tenant shall become insolvent, admit in writing its inability
to pay its debts generally as they become due, file a petition in
bankruptcy or a petition to take advantage of any insolvency statue, make
an assignment for the benefit of creditors, make a transfer in fraud of
creditors, apply for or consent to the appointment of
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a receiver of itself or of the whole or any substantial part of its
property, or file a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws, as now in effect or
hereafter amended, or any other applicable law or statute of the United
States or any state thereof
18.1.5 A court of competent jurisdiction shall enter an order,
judgment or decree adjusting Tenant bankrupt, or appointing a receiver of
Tenant, or of the whole or any substantial part of its property, without
the consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the
United States , as now in effect or hereafter amended, or any state
thereof, and such order, judgment or decree shall not be vacated or set
aside or stayed within thirty (30) days from the date of entry thereof.
19. REMEDIES.
19.1 Except as otherwise provided in Article 20, upon the occurrence of any
of the Events of Default described or referred to in Article 18, Landlord shall
have the option to pursue any one or more of the following remedies without any
notice or demand whatsoever, concurrently or consecutively and not
alternatively.
19.1.1 Landlord may, at its election, terminate this Lease or
terminate Tenant's right to possession only without terminating the Lease.
19.1.2 Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and
Tenant hereby grants to Landlord full and free license to enter into and
upon the Premises in such event and to repossess Landlord of the Premises
as of Landlord's former estate and to expel or remove Tenant and any others
who may be occupying or be within the Premises and to remove Tenant's signs
and other evidence of tenancy and all other property of Tenant therefrom
without being deemed in any manner guilty of trespass, eviction or forcible
entry or detainer, and without incurring any liability for any damage
resulting therefrom, Tenant waiving any right to claim damages for such
re-entry and expulsion, and without relinquishing Landlord's right to rent
or any other right given to Landlord under this Lease or by operation of
law.
19.1.3 Upon any termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all rent,
including any amounts treated as additional rent under this Lease, and
other sums due and payable by Tenant on the date of termination, plus as
liquidated damages and not as a penalty, an amount equal to the sum of: (a)
an amount equal to the then present value of the rent reserved in this
Lease for the residue of the stated Term of this Lease including any
amounts treated as additional rent under this Lease and all other sums
provided in this Lease to be paid by Tenant, minus the fair rental value of
the Premises for such residue (b) the value of the time and expense
necessary to obtain a replacement tenant or tenants, and the estimated
expenses described in Section 19.1.4 relating to recovery of the Premises,
preparation for reletting and for reletting itself; and (c) the cost of
performing any other covenants which would have otherwise been performed by
Tenant.
19.1.4 Upon any termination of Tenant's right to possession without
termination of the Lease:
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19.1.3.1Neither such termination of Tenant's right to possession nor
Landlord's taking and holding possession thereof as provided in Section
19.1.2 shall terminate the Lease or release Tenant, in whole or in part,
from any obligation, including Tenant's obligation to pay the rent,
including any amounts treated as additional rent, under this Lease for the
full Term, and if Landlord so elects Tenant shall pay forthwith to Landlord
the sum equal to the entire amount of the rent, including any amounts
treated as additional rent under this Lease, for the remainder of the Term
plus any other sums provided in this Lease to be paid by Tenant for the
remainder of the Term.
19.1.3.2Landlord may, but need not, relet the Premises or any part
thereof such rent and upon such terms as Landlord, in its sole discretion,
shall determine (including the right to relet the premises for a greater or
lesser term than that remaining under this Lease, the right to relet the
Premises as a part of a larger area, and the right to change the character
or use made of the Premises). In connection with or in preparation for an
reletting, Landlord may, but shall not be required to, make repairs,
alterations and additions in or to the Premises and redecorate the same to
the extent Landlord deems necessary or desirable, and Tenant shall, upon
demand, pay the cost thereof, together with Landlord's expenses of
reletting, including, without limitation, any commission incurred by
Landlord. If Landlord decides to relet the Premises or a duty to relet is
imposed upon Landlord by law, Landlord and Tenant agree that nevertheless
Landlord shall at most be required to use only the same efforts Landlord
then uses the lease premises in the Building generally and that in any case
that Landlord shall not be required to give any preference or priority to
the showing or leasing of the Premises over any other space that Landlord
may be leasing or have available and may place a suitable prospective
tenant in any such other space regardless of when such other space becomes
available. Landlord shall not be required to observe any instruction
worthiness acceptable to Landlord and leases the entire Premises upon terms
and conditions including a rate of rent (after giving effect to all
expenditures by landlord for tenant improvements, broker's commissions and
other leasing costs) all no less favorable to Landlord than as called for
in this Lease, nor shall Landlord be required to make or permit any
assignment or sublease for more than the current term or which Landlord
would not be required to permit under the provisions of Article 9.
19.1.3.3Until such time as Landlord shall elect to terminate the Lease
and shall thereupon be entitled to recover the amounts specified in such
case in Section 19.1.3, Tenant shall pay Landlord upon demand the full
amount of all rent, including any amounts treated as additional rent under
this Lease and other sums reserved in this Lease for the remaining Term,
together with the costs of repairs, alterations, additions redecorating and
Landlord's expenses of reletting and the collection of the rent accruing
thereform (including attorney's fees and broker's commissions), as the same
shall then e due or become due from time to time, less only such
consideration as Landlord may have received form any reletting of the
Premises; and Tenant agrees that Landlord may file suits from time to time
to recover any sums falling due under this Article 19 as they become due.
Any proceeds of reletting by Landlord in excess of the amount then owed by
Tenant to Landlord for time to time shall be credited against Tenant's
future obligations under this Lease but shall not otherwise be refunded to
Tenant or inure to Tenant's benefit.
19.2 Landlord may, at Landlord's option, enter into and upon the Premises
if Landlord determines in its sole discretion that Tenant is not acting within a
commercially reasonable time to maintain, repair or replace anything for which
Tenant is responsible under this Lease and correct the same, without being
deemed in any manner guilty of trespass, eviction or forcible entry and detainer
and without incurring any liability for any damage or interruption of Tenant's
business resulting therefrom. If Tenant shall have vacated the Premises,
Landlord may at Landlord's option re-enter the Premises at any time during the
last six months of the current Term of this Lease and make any and all such
changes, alterations, revisions, additions and tenant and
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other improvements in or about the Premises as Landlord shall elect, all without
any abatement of any of the rent otherwise to be paid by Tenant under this
Lease.
19.3 If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning or to enforce or defend any of Landlord's rights or remedies arising
under this Lease, Tenant agrees to pay all Landlord's attorney's fees so
incurred. Tenant expressly waives any right to: (a) trial by jury; and (b)
service of any notice required by any present or future law or ordinance
applicable to landlords or tenants but not required by the terms of this lease.
19.4 Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies provided in this Lease or any other remedies provided
by law (all such remedies being cumulative), nor shall pursuit of any remedy
provided in this Lease constitute a forfeiture or waiver of any rent due to
Landlord under this Lease or of any damages accruing to Landlord by reason of
the violation of any of the terms, provisions and covenants contained in this
Lease.
19.5 No act or thing done by Landlord or its agents during the Term shall
be deemed a termination of this Lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this Lease or accept a surrender of said
Premises shall be valid, unless in writing signed by Landlord. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants contained in this Lease shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease. Landlord's acceptance of the payment of
rental or other payments after the occurrence of an Event of Default shall not
be construed as a waiver of such Default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord in enforcing on or more of the remedies
provided in this Lease upon an Event of Default shall not be deemed or construed
to constitute a waiver of such Default or of Landlord's right to enforce any
such remedies with respect to such Default or any subsequent Default.
19.6 To secure the payment of all rentals and other sums of money becoming
due from Tenant under this Lease, Landlord shall have and Tenant grants to
Landlord a first lien upon the leasehold interest of Tenant under this Lease,
which lien may be enforced in equity, and a continuing security interest upon
all goods, wares, equipment, fixtures, furniture, inventory, accounts, contract
rights, chattel paper and other personal property of Tenant situated on the
Premises, and such property shall not be removed therefrom without the consent
of Landlord until all arrearages in rent as well as any and all other sums of
money then due to Landlord under this Lease shall first have been paid and
discharged. In the event of a Default under this Lease, Landlord shall have, in
addition to any other remedies provided in this Lease or by law, all rights n
remedies under the Uniform Commercial Code, including without limitation the
right to sell the property described in this Section 19.6 at public or private
sale upon five (5) day's notice to Tenant. Tenant shall execute all such
financing statements and other instruments as shall be deemed necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created.
19.7 Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant is
or may be entitled, may be handled, removed and/or stored, as the case may be,
by or at the direction of Landlord but at the risk, cost and expense of Tenant,
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant form storage within
thirty (30) days after removal from the Premises shall, at Landlord's option, be
deemed conveyed by Tenant to Landlord under this Lease as by a xxxx of sale
without further payment or credit by Landlord to Tenant.
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20. TENANT'S BANKRUPTCY OR INSOLVENCY.
20.1 If at any time and for so long as Tenant shall be subjected to the
provisions of the United States Bankruptcy Code or other law of the United
States or any state thereof for the protection of debtors as in effect at such
time (each a "Debtor's Law").
20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or
receiver of Tenant's assets (each a "Tenant's Representative") shall have
no greater right to assume or assign this Lease or any interest in this
Lease, or to sublease any other Premises than accorded to Tenant in Article
9, except to the extent Landlord shall be required to permit such
assumption, assignment or sublease by the provisions of such Debtor's Law.
Without limitation of the generality of the foregoing, any right of any
Tenant's Representative to assume or assign this Lease or to sublease any
of the Premises shall be subject to the conditions that:
20.1.1.1 Such Debtor's Law shall provide to Tenant's
Representative a right of assumption of this Lease which Tenant's
Representative shall have timely exercised and Tenant's Representative
shall have fully cured any default of Tenant under this Lease.
20.1.1.2 Tenant's Representative or the proposed assignee, as the
case shall be, shall have deposited with Landlord as security for the
timely payment of rent an amount equal to the larger of: (a) three
months' rent and other monetary charges accruing under this Lease; and
(b) any sum specified in Article 5; and shall have provided Landlord
with adequate other assurance of the future performance of the
obligations of the Tenant under this Lease. Without limitation, such
assurances shall include, at least in the case of assumption of this
Lease, demonstration to the satisfaction of the Landlord that Tenant's
Representative has and will continue to have sufficient unencumbered
assets after the payment of all secured obligations and administrative
expenses to assure Landlord that Tenant's Representative will have
sufficient funds to fulfill that obligations of Tenant under this
Lease; and, in the case of assignment, submission of current financial
statements of the proposed assignee, audited by an independent
certified public accountant reasonably acceptable to Landlord and
showing a net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future performance by such
assignee of all of the Tenant's obligations under this Lease.
20.1.1.3 The assumption or any contemplated assignment of this
Lease or subleasing any part of the Premises, as shall be the case,
will not breach any provision in any other lease, mortgage, financing
agreement or other agreement by which Landlord is bound.
20.1.1.4Landlord shall have, or would have had absent the Debtor's
Law, no right under Article 9 to refuse consent to the proposed assignment
or sublease by reason of the identity or nature of the proposed assignee or
sublessee or the proposed use of the Premises concerned.
21. QUIET ENJOYMENT.
Landlord represents and warrants that it has full right and authority to
enter into this Lease and that Tenant, while paying the rental and performing
its other covenants and agreements contained in this Lease, shall peaceably and
quietly have, hold and enjoy the Premises for the Term without hindrance or
molestation for Landlord subject to the terms and provisions of this Lease.
Landlord shall not be liable for any interference or disturbance by other
tenants or third persons, nor shall Tenant be released from any of the
obligations of this Lease because of such interference or disturbance.
22. DAMAGE BY FIRE, ETC.
22.1 In the event the Premises or the Building are damaged by fire or other
cause and in Landlord's reasonable estimation such damage can be materially
restored within two hundred fifty (250) days, Landlord shall forthwith repair
the same and this Lease shall remain in full force and effect, except that
Tenant shall be entitled to a proportionate abatement in rent from the date of
such damage. Such abatement of rent shall be made a pro rate in accordance with
the extent to which the damage and the making of such repairs shall interfere
with the use and occupancy by Tenant of the Premises from time to time. Within
forty-five (45) days from the date of such damage, Landlord shall notify Tenant,
in writing, of Landlord's reasonable estimation of the length of time within
which material restoration can be made, and Landlord's determination shall be
binding on Tenant. For purposes of this Lease, the Building or Premises shall be
deemed "materially restored" if they are in such condition as would not prevent
or materially interfere with Tenant's use of the Premises for the purpose for
which it was being used immediately before such damage.
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22.2 If such repairs cannot, in Landlord's reasonable estimation, be made
within two hundred fifty (250) days, Landlord and Tenant shall each have the
option of giving the other, at any time within sixty (60) days after such
damage, notice terminating this Lease as of the date of such damage. In the
event of giving of such notice, this Lease shall expires and all interest of the
Tenant in the Premises shall terminate as of the date of such damage as if such
date had been originally fixed in this Lease for the expiration of the Term. In
the event that neither Landlord nor Tenant exercises its option to terminate
this Lease, then Landlord shall repair or restore such damage, this Lease
continuing in full force and effect, and the rent hereunder shall be
proportionately abated as provided in Section 22.1.
22.3 Landlord shall not be required to repair or replace any damage or loss
by or from fire or other cause to any panelings, decorations, partitions,
additions, railings, ceilings, floor coverings, office fixtures or any other
property or improvements installed on the Premises or belonging to Tenant. Any
insurance which may be carried by Landlord or Tenant against loss or damage to
the Building or Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control.
22.4 In the event that Landlord should fail to complete such repairs and
material restoration within sixty (60) days after the date estimated by Landlord
therefore as extended by this Section 22.4, Tenant may as its option and as its
sole remedy terminate this Lease by delivering written notice to Landlord,
within fifteen (15) days after the expiration of said periods of time, whereupon
the Lease shall end on the date of such notice or such later date fixed in such
notice as if the date of such notice was the date originally fixed in this Lease
for the expiration of the Term; provided, however, that if construction is
delayed because of changes, deletions or additions in construction requested by
Tenant, strikes, lockouts, casualties, Acts of God, war, material or labor
shortages, government regulation or control or other causes beyond the
reasonable control of Landlord, the period for restoration, repair or rebuilding
shall be extended for the amount of time Landlord is so delayed.
22.5 Notwithstanding anything to the contrary contained in this Article:
(a) Landlord shall not have any obligation whatsoever to repair, reconstruct, or
restore the Premises when the damages resulting from any casualty covered by the
provisions of this Article 22 occur during the last twelve (12) months of the
Term or any extension thereof, but if Landlord determines not to repair such
damages Landlord shall notify Tenant and if such damages shall render any
material portion of the Premises untenantable Tenant shall have the right to
terminate this Lease by notice to Landlord within fifteen (15) days after
receipt of Landlord's notice; and (b) in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises or
Building requires that nay insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon this Lease shall end on the date of such
damage as if the date of such damage were the date originally fixed in this
Lease for the expiration of the Term.
22.6 In the event of any damage or destruction to the Building or Premises
by any peril covered by the provisions of this Article 22, it shall be Tenant's
responsibility to properly secure the Premises and upon notice from Landlord to
remove forthwith, at its sole cost and expense, such portion of all of the
property belonging to Tenant or its licenses form such portion or all of the
Building or Premises as Landlord shall request.
23. EMINENT DOMAIN.
If all or any substantial part of the Premises shall be taken or
appropriated by any public or quasi-public authority under the power of eminent
domain, or conveyance in lieu of such appropriation, either party to this Lease
shall have the right, at its option, of giving the other, at any time within
thirty (30) days after such taking, notice terminating this Lease, except that
Tenant may only terminate this Lease by reason of taking or appropriation, if
such taking or appropriation shall be so substantial as to materially interfere
with Tenant's use and occupancy of the Premises. If neither party to this Lease
shall so elect to terminate this Lease, the rental thereafter to be paid shall
be adjusted on a fair and equitable basis under the circumstances. In addition
to the rights of Landlord above, if any substantial part of the Building shall
be taken or appropriated ay any public or quasi-public authority under the power
of eminent domain or conveyance in lieu thereof, and regardless of whether the
Premises or any part thereof are so taken or appropriated, Landlord shall have
the right, at its sole option, to terminate this Lease. Landlord shall be
entitled to any and all income, rent, award, or any interest whatsoever in or
upon any such sum, which may be paid or made in connection
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with any such public or quasi-public use or purpose, and Tenant hereby assigns
to Landlord any interest it may have in or claim to all or any part of such
sums, other than any separate award which may be made with respect to Tenant's
trade fixtures and moving expenses; Tenant shall make no claim for the value of
any unexpired Term.
24. SALE BY LANDLORD.
In the event of a sale or conveyance by Landlord of the Building, the same
shall operate to release Landlord from any future liability upon any of the
covenants or conditions, expressed or implied, contained in this Lease in favor
of Tenant, and in such event Tenant agrees to look solely to the responsibility
to the successor in interest of Landlord in and to this Lease. Except as set
forth in this Article 24, this Lease shall not be affected by any such sale and
Tenant agrees to attorn to the purchaser or assignee. If any security has been
given by Tenant to secure the faithful performance of any of the covenants of
this Lease, Landlord may transfer or delivery said security, as such, to
Landlord's successor in interest and thereupon Landlord shall be discharged from
any further liability with regard to said security.
25. ESTOPPEL CERTIFICATES.
Within ten (10) days following any written request which Landlord may make
from time to time, Tenant shall execute and deliver to Landlord or mortgage or
prospective mortgage a sworn statement certifying: (a) the date of commencement
of this Lease; (b) the fact that this Lease is unmodified and in full force and
effect (or, if there have been modifications to this Lease, that this Lease is
in full force and effect, as modified, and stating the date and nature of such
modifications); (c) the date to which the rent and other sums payable under this
Lease have been paid; (d) the fact that there are no current defaults under this
Lease by either Landlord or Tenant except as specified in Tenant's statement;
and (e) such other matters as may be requested by Landlord. Landlord and Tenant
intend that any statement delivered pursuant to this Article 25 may be relied
upon by any mortgagee, beneficiary or purchaser and Tenant shall be liable for
all loss, cost or expense resulting from the failure of any sale or funding of
any loan caused by any material misstatement contained in such estoppel
certificate. Tenant irrevocably agrees that if Tenant fails to execute and
deliver such certificate within such ten (10) day period Landlord or Landlord's
beneficiary or agent may execute and deliver such certificate on Tenant's
behalf, and that such certificate shall be fully binding on Tenant.
26. SURRENDER OF PREMISES
26.1 Tenant shall, at least thirty (30) days before the last day of the
Term, arrange to meet Landlord for a joint inspection of the Premises. In the
event of Tenant's failure to arrange such joint inspection to be held prior to
vacating the Premises, Landlord's inspection at or after Tenant's vacating the
Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
26.2 At the end of the Term or any renewal of the Term or other sooner
termination of this Lease, Tenant will peaceably deliver up to Landlord
possession of the Premises, together with all improvements or additions upon or
belonging to the same, by whomsoever made, in the same conditions received or
first installed, broom clean and free of all debris, excepting only ordinary
wear and tear and damage by fire or other casualty. Tenant may, and at
Landlord's request shall, at Tenant's sole cost, remove upon termination of this
Lease, any and all furniture, furnishings, movable partitions of less than full
height from floor to ceiling, trade fixtures and other property installed by
Tenant, title to which shall not be in or pass automatically to Landlord upon
such termination, repairing all damage cause by such removal. Property not so
removed shall, unless requested to be removed, be deemed abandoned by the Tenant
and title to the same shall thereupon pass to Landlord under this Lease as by a
xxxx of sale. All other alterations, additions and improvements in, on or to the
Premises shall be dealt with and disposed of as provided in Article 6.
26.3 All obligations of Tenant under this Lease not fully preformed as of
the expiration or earlier termination of the Term shall survive the expiration
or earlier termination of the Term. In the event that Tenant's failure to
perform prevents Landlord from releasing the Premises, Tenant shall continue to
pay rent pursuant to the provisions of Article 14 until such performance is
complete. Upon the expiration or earlier termination of the Term, Tenant shall
pay to Landlord the amount, as estimated by Landlord, necessary to repair and
restore the Premises as provided in this Lease and/or to discharge Tenant's
obligation for unpaid amounts due or to become due to Landlord. All such amounts
shall be used and held by Landlord for payment of such obligations of Tenant,
with Tenant being liable for any additional costs upon demand by Landlord, or
with any excess to be returned to Tenant after all such obligations have been
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determined and satisfied. Any otherwise unused Security Deposit shall be
credited against the amount payable by Tenant under this Lease.
27. NOTICES.
Any notice or document required or permitted to be delivered under this
Lease shall be addressed to the intended recipient, shall be transmitted
personally, by fully prepaid registered or certified United States Mail return
receipt requested, or by reputable independent contract delivery service
furnishing a written record of attempted or actual delivery, and shall be deemed
to be delivered when tendered for delivery to the addressee at its address set
for on the Reference Page, or at such other address as it has then last
specified by written notice delivered in accordance with this Article 27, or if
to Tenant at either its aforesaid address or its last known registered office or
home of a general partner or individual owner, whether or not actually accepted
or received by the audience.
28. TAXES PAYABLE BY TENANT.
In addition to rent and other charges to be paid by Tenant under this
Lease, Tenant shall reimburse to Landlord, upon demand, any and al taxes payable
by Landlord (other than net income taxes) whether or not now customary or within
the contemplation of the parties to this Lease: (a) upon, allocable to, or
measured by or on the gross or net rent payable under this Lease, including
without limitation any gross income tax or excise tax levied by the State, any
political subdivision thereof, or the Federal Government with respect to the
receipt of such rent; (b) upon or with respect to the possession, leasing
operation, management, maintenance, alteration, repair, use or occupancy of the
Premises or any portion thereof, including any sales, use or service tax imposed
as a result thereof; (c) upon or measured by the Tenant's gross receipts or
payroll or the value of Tenant's equipment, furniture, fixtures and other
personal property of Tenant or leasehold improvements, alterations or additions
located in the Premises; or (d) upon this transaction or any document to which
Tenant is a party creating or transferring any interest of Tenant in this Lease
or the Premises. In addition to the foregoing, Tenant agrees to pay before
delinquency, any and all taxes levied or assessed against Tenant and which
become payable during the term hereof upon Tenant's equipment, furniture,
fixtures and other personal property of Tenant located in the Premises.
29. RELOCATION OF TENANT.
Landlord, at its sole expense, on a least ninety (90) days prior written
notice, may require Tenant to move from the Premises to other space or
comparable size and decor in order to permit Landlord to consolidate the space
leased to Tenant with other adjoining space leased or to be leased to another
tenant. In the event of any such relocation, Landlord will pay all expenses of
preparing and decorating the new premises so that they will be substantially
similar to the Premises for which Tenant is moving, and Landlord will also pay
the expense of moving Tenant's furniture and equipment to the relocated
premises. In such event this Lease and each and all of the terms and covenants
and conditions hereof shall remain in full force and effect and thereupon be
deemed applicable to such new space except that a revised Reference Page and a
revised Exhibit A shall become part of this Lease and shall reflect the location
of the new premises.
30. DEFINED TERMS AND HEADINGS.
The Article headings shown in this Lease are for convenience of reference
and shall in no way define, increase, limit or describe the scope or intent of
any provision of this Lease. Any indemnification or insurance of Landlord shall
apply to an inure to the benefit of all the following " Landlord Entities",
being Landlord, Landlord's investment manager, and the trustee, boards of
directors, officers, general partners, beneficiaries, stockholders, employees
and agents of each of them. Any option granted to Landlord shall also include or
be exercisable by Landlord's trustee, beneficiary, agents and employees, as the
case may be. In any case where this Lease is signed by more than one person, the
obligations under this Lease shall be joint and several. The terms "Tenant" and
"Landlord" or any pronoun used in place thereof shall indicate and include the
masculine or feminine, the singular or plural number, individuals, firms or
corporations, and each of their respective successors, executors, administrators
and permitted assigns, according to the context hereof. The term "rentable area"
shall mean the rentable area of the Premises or the Building as calculated by
the Landlord on the basis of the plans and specifications of the Building
including a proportionate share of any common areas. Tenant hereby accepts and
agrees to be bound by the figures for the rentable square footage of the
Premises and Tenant's Proportionate Share shown on the Reference Page.
31. TENANT'S AUTHORITY.
If Tenant signs as a corporation each of the persons executing this Lease
on behalf of Tenant represents and warrants that Tenant has been and is
qualified to do business in the state n which the Building is located, that the
corporation has full right and authority to enter into this Lease, and that all
persons signing on behalf of the corporation were authorized to do so by
appropriate corporate actions. If Tenant signs as a partnership, trust or other
legal entity, each
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of the persons executing this Lease on behalf of Tenant represents and warrants
that Tenant has complied with all applicable laws, xxxxx and governmental
regulations relative to its right to do business in the state and that such
entity on behalf of the Tenant was authorized to do so by any and all
appropriate partnership, trust or other actions. Tenant agrees to furnish
promptly upon request a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization of
Tenant to enter into this Lease.
32. COMMISSIONS.
Each of the parties represents and warrants to the other that it has not
dealt with any broker or finder in connection with this Lease, except as
described on the Reference Page.
33. TIME AND APPLICABLE LAW.
Time is of the essence of this Lease and all of its provisions. This Lease
shall in all respects be governed by the laws of the state in which the Building
is located.
34. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Article 9, the terms, covenants and conditions
contained in this Lease shall be binding upon and inure to the benefit of the
heirs, successors, executors, administrators and assigns of the parties to this
Lease.
35. ENTIRE AGREEMENT.
This Lease, together with its exhibits, contains all agreements of the
parties to this Lease and supersedes any previous negotiations. There have been
no representations made by the Landlord or understandings made between the
parties other than those set forth in this Lease and it exhibits. This Lease may
not be modified except by a written instrument duly executed by the parties to
this Lease.
36. EXAMINATION NOT OPTION.
Submission of this Lease shall not be deemed to be a reservation of the
Premises. Landlord shall not be bound by this Lease until it has received a copy
of this Lease duly executed by Tenant and has delivered to Tenant a copy of this
Lease duly executed by Landlord, and until such delivery Landlord reserves the
right to exhibit, and lease the Premises to other prospective tenants.
Notwithstanding anything contained in this Lease to the contrary, Landlord may
withhold delivery of possession of the Premises from Tenant until such time as
Tenant has paid to Landlord any security deposit required by Article 5, the
first month's rent as set forth in Article 3 and any sum owed pursuant to this
Lease.
37. RECORDATION.
Tenant shall not record or register this Lease or a short form memorandum
hereof without the prior written consent of Landlord, and then shall pay all
charges and taxes incident such recording or registration.
38. FINANCIAL STATEMENT.
Tenant acknowledges that it has provided Landlord with its (and, if
applicable, its guarantor's) financial statement(s) as a material inducement to
Landlord's agreement to lease the Premises to Tenant, and that Landlord had
relied on the accuracy of said financial statement (s) in entering into this
Lease. Tenant represents and warrants that the information contained in said
financial statement(s) is true, complete and correct in all material aspects,
and agrees that the foregoing representation and warranty shall be a
precondition to this Lease. At any time during the term of this Lease, within
ten days of Landlord's request, Tenant shall furnish to Landlord financial
statements of a similar nature for Tenant's most recent fiscal year available
and shall represent and warrant the accuracy of such information.
39. SIGNAGE. (Refer to Exhibit D)
39.1 At Tenant's cost, Tenant is required to install one Tenant business
identify sign.
39.2 A layout of each proposed sign copy/logo must b submitted to the
Landlord for approval prior to installation.
39.3 No window lettering is permitted except for the Tenant business name
only which may be placed in the window immediately adjacent to the main entry
door. Any and all other attachments to the glass will be in non-conformance.
Subtenant names, business services or types, and all other attachments to the
glass or glazing, except as described above, shall be considered non-conforming
and subject to removal.
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39.4 No mirrored or colored tinting will be authorized. Before any tinting
is applied to the Tenant's windows, a sample must be submitted to the Landlord
for written approval prior to installation.
39.5 This criteria establishes the uniform policies of all Tenant sign
identification. This criteria has been established for the purpose of
maintaining the overall appearance of the complex and to provide our tenants
with a consistent quality environment form which to conduct business. Any sign,
graphics or other material installed that does not conform to this criteria may
be brought into conformity by the Landlord without notice. Any cost incurred by
the Landlord to remove non- conforming signs or to correct defacement from
mounting on non-conforming signs shall be the responsibility of Tenant.
Insert 16 (a)
40. RENEWAL OPTION
Tenant shall, provided the Lease is in full force and effect and Tenant is
not in default under any of the other terms and conditions of the Lease at the
time of notification or commencement have one (1) successive option(s) to renew
this Lease for a term of one(1) year each , for the portion of the Premises
being leased by Tenant as of the date the renewal term is to commence, on the
same terms and conditions set forth in the Lease, except as modified by the
terms, covenants and conditions as set forth below:
a. If the Tenant elects to exercise said option, then Tenant shall provide
Landlord with written notice no earlier than the date which is one hundred
eighty (180) days prior to the expiration of the then current term of the
Lease but no later than the date which is ninety (90) days prior to the
expiration of the then current term of this Lease. If Tenant fails to
provide such notice, Tenant shall have no further or additional right to
extend or renew the term of the Lease.
b. The Annual Rent and Monthly Installments in effect at the expiration of
the then current term of the Lease shall be increased to reflect the
current fair market rental for comparable space in the Building and in
other similar buildings in the same rental market as of the date the
renewal term is to commence, taking into account the specific provisions of
the Lease which will remain constant. Landlord shall advise Tenant of the
new Annual Rent and Monthly Installment for the Premises no later than
thirty (30) days prior to the first date on which Tenant may exercise its
option under this Paragraph. Said notification of the new Annual Rent may
include a provision for its escalation to provide for a change in fair
market rental between the time of notification and the commencement of the
renewal term. In no event shall the Annual Rent and Monthly Installment for
any option period be less than the Annual Rent and Monthly Installment in
the preceding period.
c. This option is not transferable; the parties hereto acknowledge and
agree that they intend that the aforesaid option to renew this Lease shall
be "personal" to the Tenant as set forth above and that in no event will
any assignee or subleasee have any rights to exercise the aforesaid option
to renew.
d. As each renewal option provided for above is exercised, the number of
renewal options remaining to be exercised is reduced by one and upon
exercise of the last remaining renewal option Tenant shall have no further
right to extend the term of the Lease.
41. RENT SCHEDULE
DATES MONTHLY RENTAL* ANNUAL RENTAL*
----- --------------- --------------
October 6, 2001 - October 31, 2001 $4,017.91 $48,214.92
November 1, 2001 - September 30 2002 $4,790.60 $57,487.20
October 1, 2002-September 30, 2003 $4,959.68 $59,516.16
* plus applicable rental tax
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42. LIMITATION OF LANDLORD'S LIABILITY
Redress for any claim against Landlord under this Lease shall be limited to
and enforceable only against and to the extent of Landlord's interest in the
Building. The obligations of Landlord under this Lease are not intended to and
shall not be personally binding on, nor shall any resort be had to the private
properties of, any of its trustees or board of directors and officers, as the
case may be its investment manager, the general partners thereof, or any
beneficiaries, stockholders, employees, or agents of Landlord or the investment
manager.
LANDLORD: TENANT:
CALWEST INDUSTRIAL PROPERTIES, LLC CIRILIUM INCORPORATED
A California limited liability company a Florida corporation
By: RREEF MANAGEMENT COMPANY
A Delaware corporation, its Property Manager
By: /s/ Bref X. Xxxx By: /s/ Xxxxxx X. Xxxx
------------------------- -----------------------------
Bref X. Xxxx, CPM Xxxxxx X. Xxxx
Title: District Manager Title: President
Date: 10/5/01 Date: 10/9/2001
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EXHIBIT A
Attached to and made a part of Lease bearing the Lease Reference Date of
October 3, 2001, between Caldwest Industrial Properties, LLC, a California
limited liability company, as Landlord and Cirilium Incorporated a Florida
corporation, as Tenant
PREMISES
Exhibit A is intended only to show the general layout of the Premises as of
the beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Section 17.2 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximations.
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EXHIBIT B
Attached to and made a part of Lease bearing the Lease Reference Date of
October 3, 2001 between Calwest Industrial Properties, LLC, a California limited
liability company, as Landlord and Cirilium Incorporated , a Florida
corporation, as Tenant
INITIAL ALTERATIONS
Tenant hereby acknowledges and agrees that the Premises are being assumed
by Tenant in its as-is condition and that it will be responsible to return the
Premises to original broom clean condition at the expiration of this Lease or
any extension thereof, ordinary wear and tear and damage resulting from a fire
or other casualty excepted. ---except to the extent which may be otherwise
provided herein.
The Landlord will provide tenant improvements at a cost not to exceed
$8,454.00. Any costs above this amount will be the sole responsibility of the
tenant. All work to be in compliance with all the terms within this lease and
specifically Section 6. Plans are to be submitted to Landlord for approval with
thirty (30) days of occupancy.
(Remainder of Page Left Blank Intentionally.)
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EXHIBIT C
Attached to and made a part of Lease bearing the Lease Reference Date of
October 3, 2001, between Calwest Industrial Properties, LLC, a California
limited liability company, as Landlord and Cirilium Incorporated, a Florida
corporation as Tenant
RULES AND REGULATIONS
1. No sign, placard, pictures, advertisement, nam or notice shall be installed
or displayed on any part of the outside or inside of the Building without
the prior written consent of the Landlord. Landlord shall have the right to
remove, at Tenant's expense and without notice, any sign installed or
displayed in violation of this rule. All approved signs or lettering on
doors and walls shall be printed, painted, affixed or inscribed at the
expense of Tenant by a person or vendor chosen by Landlord. In addition,
Landlord reserves the right to change from time to time the format of the
signs or lettering and to require previously approved signs or lettering to
be appropriately altered.
2. If Landlord objects in writing to any curtains, blinds, shades or screens
attached to or hung in or used in connection with any window or door of the
Premises, Tenant shall immediately discontinue such use. No awning shall be
permitted on any part of the Premises. Tenant shall not place anything or
allow anything to be placed against or near any glass partitions or doors
or windows which may appear unsightly, in the opinion of Landlord, from
outside the Premises.
3. Tenant shall not obstruct any sidewalk, halls, passages, exits, entrances,
or stairways of the Building. The halls, passages, exits, entrances,
shopping malls, and stairways are not for the general public, and Landlord
shall in all cases retain the right to control and prevent access to the
Building of all persons whose presence in the judgment of the Landlord
would be prejudicial to the safety, character, reputation and interests of
the Building and its tenants provided that nothing contained in this rule
shall be construed to prevent such access to persons with whom any tenant
normally deals in the ordinary course of its business, unless such persons
are engaged in illegal activities.
4. The directory of the Building will be provided exclusively for the display
of the name and location of tenants only and Landlord reserves the right to
exclude any other names therefrom.
5. Tenant shall not alter any lock or install a ne or additional lock or bolt
on any door of its Premises. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys of all doors.
6. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
in their installation.
7. Tenant shall not place a load upon any floor which exceeds the load per
square foot which such floor was designed to carry and which is allowed by
law. Landlord shall have the right to prescribe the weight, size and
position to all equipment materials, furniture or other property brought
into the Building. Heavy objects shall, stand on such platforms as
determined by Landlord to be necessary to properly distribute the weight.
Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the Building
or to any space in the Building to such a degree as to be objectionable to
Landlord or to any tenants shall be placed and maintained by Tenant, at
Tenant's expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration. The persons employed to move such equipment
in or out of the Building must be acceptable to Landlord. Landlord will not
be responsible for loss of, or damage to, any such equipment or other
property from any cause, and all damage done to the Building by maintaining
or moving such equipment or other property shall be repaired at the expense
of Tenant.
8. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord. Tenant shall not waste electricity, water or air
conditioning.
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9. Tenant shall close and lock the doors of its Premises an entirely shut off
all water faucets or other water apparatus and electricity, gas or air
outlets before Tenant and its employees leave the Premises. Tenant shall be
responsible for any damage or injuries sustained by other tenants or
occupants of the Building or by Landlord for noncompliance with this rule.
10. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were
constructed, no foreign substance of any kind whatsoever shall be thrown
iof them and the expense of any breakage, stoppage or damage resulting from
the violation of this rule shall be borne by the Tenant who, or whose
employees or invitees, shall have caused it.
11. Tenant shall not install any radio or television antenna, satellites dish,
loudspeaker or other device on the or reception from or in the Building or
elsewhere.
12. Except as approved by Landlord, Tenant shall not xxxx, drive nails, screw
or drill into the partitions, woodwork, or plaster or in any way deface the
Premises. Tenant shall not cut or bore holes for wires. Landlord. Tenant
shall repair any damage resulting from noncompliance with this rule.
13. Tenant shall store all its trash and garbage within its Premises. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of trash and time to time
by Landlord.
14. No cooking shall be permitted by any Tenant on the Premises, except by
utilizing Underwriter's Laboratory approved microwave oven or equipment for
brewing coffee, tea, hot chocolate and similar beverages ordinances, rules
and regulations.
15. Tenant shall not bring any vehicles of any kind into the Building.
16. Tenant shall not use the name of the Building in connection with or in
promoting or advertising the busiof tenant except as Tenant's address.
17. No pets of any kind shall be kept on the Premises or brought upon the
Common Areas of the Project.
18. The requirement of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anythitheir regular
duties unless under special instruction from Landlord, and no employee of
Landlord will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
19. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the
Building.
20. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of premises in the Building.
21. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the
preservation of good order in and about the Building. Tenant agrees to
abide by all such rules and regulations in this Exhibit C stated and any
additional rules and regulations which are adopted.
22. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, Customers, invitees and
guests.
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EXHIBIT D
Attended to and made a part of Lease bearing the Lease Reference Date of
October 3, 2001, between HOHOKAM 10 EAST PARK, a property of Calwest Industries
Properties, LLC a California limited liability company, as Landlord and Cirilium
Incorporated, a Florida corporation as Tenant
SIGNAGE CRITERIA
HOHOKAM 10 EAST AND WEST PARKS
TENANT IDENTIFICATION:
These signs will occur above the entry door to each suite. The signs shall be
applied to the existing sign accent panel, painted to match existing building
colors.
DIMENSIONS: The copy shall not exceed 80% of the panel area.
COPY: The copy shall be 12" tall white vinyl letter in "Palatino Bold
Italic " style.
ILLUMINATION: None allowed.
PERMIT: A sign permit will be required from the City prior to sign
installation. (East Park is Tempe, West Park is Phoenix).
WINDOW
GRAPHICS: This selection stipulates the use of window graphics as a means
of Tenant identification.
DIMENSIONS: The area for the suite number will vary. There will be tenant
copy allowed on the sidelights adjacent to the main entry. This
copy will vary in size depending on Tenant name and logo but
shall not exceed 4 square feet.
COPY: The suite number shall be "Palatino Italic" style. Tenant copy
shall be "Palatino Bold Italic". The maximum height for all copy
shall be 4" The copy will be white vinyl letters fixed to the
exterior of the glass 5'6" above the floor and 1 1/2" away from
the mullions. Rear door identification will consist of 2" white
vinyl in "Palatino Bold Italic" style.
PRICING
SCHEDULE: Each Tenant will be allowed one overhead sign location and one
window graphic per building, regardless of the number of suites
occupied, to be installed at Tenant's sole cost and expense.
Tenant is responsible for the cost to remove tenant
identification signage upon lease termination.
Please contact Universal Sign and Graphics for pricing and sign layout
information at (000) 000-0000.
The above sign criteria has been developed to allow for maximum visibility for
Tenants and potential clients set forth by RREEF Management and the Cities of
Phoenix and Tempe. The success of the sign design relies on the compliance of
these guidelines, consistently maintaining a high standard. No deviations from
this criteria may be implemented without prior written consent from Landlord.
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FIRST AMENDMENT TO LEASE
THIS AMENDMENT, dated this 16th day of June, 2003, between Calwest
Industrial Holdings, LLC, a Delaware limited liability company ("Landlord") and
Cirilium, Inc., a Florida corporation ("Tenant"), for the premises located in
the City of Tempe, County of Maricopa, State of Arizona, commonly known as
Hohokam 00 Xxxx Xxxx, 0000 Xxxx 00xx Xxxxxx, Xxxxx 0 (the "Premises").
W I T N E S S E T H:
WHEREAS, Landlord's predecessor, Calwest Industrial Properties, LLC, a
California limited liability company and Tenant, entered into that certain Lease
dated October 3, 2001 (hereinafter collectively referred to as the "Lease"); and
WHEREAS, Landlord and Tenant desire to amend the Lease as more fully set
forth below.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. Unless otherwise specifically set forth herein, all
capitalized terms herein shall have the same meaning as set forth in the
Lease.
2. AMENDMENT.
a) Effective October 1, 2003, "REFERENCE PAGE - TERMINATION DATE" shall
hereinafter be October 31, 2005
b) Effective October 1, 2003, "REFERENCE PAGE - TERM OF LEASE" shall
hereinafter be Two (2) years, one (1) month.
c) Effective October 1, 2003, "REFERENCE PAGE - BASE YEAR" shall
hereinafter be 2003.
d) ARTICLE 38. Rental Schedule: Shall be amended as follows:
* Plus applicable taxes
e) Tenant Improvements: Landlord will, at Landlor s expense, service all
HVAC units serving the Premises and make all necessary repairs and
replacements and will warranty same for ninety (90) days from Lease
extension commencement date.
3. TENANT'S AUTHORITY
If Tenant signs as a corporation each of the persons executing this
Amendment on behalf of Tenant represents and warrants that Tenant has been
and is qualified to do business in the state in which the Building is
located, that the corporation has full right and authority to enter into
this Amendment, and that all persons signing on behalf of the corporation
were
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authorized to do so by appropriate corporate actions. If Tenant signs as a
partnership, trust or other legal entity, each of the persons executing
this Amendment on behalf of Tenant represents and warrants that Tenant has
complied with all applicable laws, rules and governmental regulations
relative to its right to do business in the state and that such entity on
behalf of the Tenant was authorized to do so by any and all appropriate
partnership, trust or other actions. Tenant agrees to furnish promptly upon
request a corporate resolution, proof of due authorization by partners, or
other appropriate documentation evidencing the due authorization of Tenant
to enter into this Amendment.
4. INCORPORATION. Except as modified herein, all other terms and conditions of
the Lease between the parties above described, as attached hereto, shall
continue in full force and effect.
5. LIMITATION OF LANDLORD'S LIABILITY. Redress for any claims against Landlord
under this Amendment or under the Lease shall only be made against Landlord
to the extent of Landlord's interest in the property to which the Premises
are a part. The obligations of Landlord under this Amendment and the Lease
shall not be personally binding on, nor shall any resort be had to the
private properties of, any of its trustees or board of directors and
officers, as the case may be, the general partners thereof or any
beneficiaries, stockholders, employees or agents of Landlord, or its
investment manager.
IN WITNESS WHEREOF, Landlord and Tenant have executed the Amendment as of
the day and year first written above.
LANDLORD: TENANT:
CALWEST INDUSTRIAL HOLDINGS, LLC, CIRILIUM, INC.,
a Delaware limited liability company a Florida corporation
By: RREEF MANAGEMENT COMPANY,
a Delaware corporation, its Property Manager
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------- ------------------------
Xxxx X. Xxxx, CPM Xxxxxxx X. Xxxxxx
Its: District Manager Its: President
Date: July 22, 2003 Date: July 16, 2003
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