Exhibit 10.71
ENGINEERING LEASE - 000 XXXXX XXXXX XXXXXXXXX,
XXXXX XXXXXX, XXXXXXXXXX
XXXX BROTHERS LEASING, L.L.C.,
Landlord
WINCUP HOLDINGS, L.P., A DELAWARE LIMITED PARTNERSHIP
Tenant
May 1, 1997
TABLE OF CONTENTS
Page
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1. PARTIES............................................................. 1
2. PREMISES............................................................ 1
3. ACCEPTANCE.......................................................... 2
4. RENT................................................................ 2
4.1 Base Rent...................................................... 2
4.2 CPI Increase................................................... 2
4.3 Late Charge.................................................... 2
5. SECURITY DEPOSIT.................................................... 3
6. TERM................................................................ 3
7. USE, PURPOSE & COMPLIANCE WITH LAW.................................. 3
8. UTILITIES........................................................... 4
9. ASSIGNMENT & SUBLETTING............................................. 5
10. CONDITION OF PREMISES & REPAIRS..................................... 6
11. ALTERATIONS......................................................... 6
12. LIENS............................................................... 7
13. SIGNS............................................................... 7
14. RIGHT OF ENTRY...................................................... 7
15. INDEMNIFICATION..................................................... 8
16. INSURANCE........................................................... 9
16.1 Liability Insurance......................................... 9
16.2 Casualty Insurance.......................................... 10
16.3 Form of Policies............................................ 10
16.4 Waiver of Subrogation....................................... 10
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17. ESTOPPEL CERTIFICATE.............................................. 11
18. COMPLIANCE WITH LAWS.............................................. 11
19. DAMAGE BY FIRE OR OTHER CASUALTY.................................. 11
20. CONDEMNATION...................................................... 12
21. INVOLUNTARY TERMINATION........................................... 13
22. DEFAULT........................................................... 13
23. ATTORNEY'S FEES................................................... 15
24. HOLDING OVER...................................................... 15
25. WAIVER............................................................ 16
26. ABANDONMENT....................................................... 16
27. PERSONAL PROPERTY, REAL PROPERTY, & OTHER TAXES................... 16
28. PLATS & RIDERS.................................................... 16
29. SALE BY LANDLORD.................................................. 17
30. RIGHT OF LANDLORD TO PERFORM...................................... 17
31. SURRENDER OF PREMISES............................................. 17
32. MORTGAGE REQUIREMENTS............................................. 17
33. NOTICES........................................................... 18
34. ENTIRE AGREEMENT.................................................. 19
35. CONSENT........................................................... 19
36. ADDITIONAL PAYMENTS............................................... 19
37. COVENANT OF QUIET ENJOYMENT....................................... 19
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38. ADDITIONAL TERMS AND CONDITIONS..................................... 19
38.1 Environmental Inspection...................................... 19
38.2 Financial Statements.......................................... 20
38.3 Brokers....................................................... 20
38.4 First Right of Negotiation to Purchase Building............... 20
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ENGINEERING LEASE - 000 XXXXX XXXXX XXXXXXXXX
XXXXX XXXXXX, XXXXXXXXXX
XXXX BROTHERS LEASING, L.L.C.,
Landlord
WINCUP HOLDINGS, L.P., A DELAWARE LIMITED PARTNERSHIP,
Tenant
May 1, 1997
1. PARTIES
1.1 This Lease is entered into in the City of Corte Madera, County of
Marin, State of California, between XXXX BROTHERS LEASING, L.L.C., Landlord, and
WINCUP HOLDINGS, L.P., A DELAWARE LIMITED PARTNERSHIP, Tenant.
1.2 Landlord's predecessor in interest, Xxxx Brothers Leasing, a
partnership, as landlord, and Xxxxx River Paper Co., Inc., a Virginia
corporation, as tenant, are parties to a lease dated November 8, 1989, as
amended in August, 1992, covering the premises leased hereunder. Tenant is a
subtenant of said premises, pursuant to a sublease entered into between Tenant
and Xxxxx River Paper Co., Inc. and pursuant to Landlord's Consent to Subleases
dated as of January 23, 1996 entered into between Landlord and Xxxxx River Paper
Company, Inc. Upon the commencement of the term hereof, said lease, sublease
and consent shall be terminated in their entirety and shall be of no further
force or effect, with the exception that Xxxxx River Paper Co., Inc. shall
continue to be obligated for all obligations accrued under said lease prior to
said termination date and Tenant shall continue to be obligated fro all
obligations accrued under said sublease prior to said termination date.
1.3 With respect to the security deposit that was delivered to Landlord at
such time as the premises were originally subleased to Tenant, said security
deposit shall be applied to the security deposit payable hereunder pursuant to
paragraph 5 hereof, and any remaining balance shall be returned to Tenant (and
not to Xxxxx River Paper Co., Inc.) upon the termination of said lease dated
November 8, 1989.
2. PREMISES
Landlord hereby leases to Tenant, and Tenant hires from Landlord, under the
terms and conditions hereinafter set forth, those certain premises situated in
the City of Corte Madera, California, commonly known as the south side of the
building located at 000 Xxxxx Xxxxx Xxxxxxxxx, consisting of approximately 6,590
square feet, as more fully described in Exhibit "A", attached hereto, and made a
part hereof (the "premises").
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3. ACCEPTANCE
Tenant accepts the premises in their "as is" condition and state of repair
and except as otherwise expressly provided herein, Landlord shall not be
required to do any work thereto.
4. RENT
4.1 Base Rent. Tenant shall pay to Landlord as rent in advance on the
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first day of each calendar month of the term of this Lease, without deduction,
offset, prior notice or demand, the sum of Thirteen Thousand Three Hundred
Thirty Dollars ($13,330) in lawful money of the United States. The rent shall
be paid at the address set out after the name of the Landlord at the end of this
Lease or such other address as shall be designated in writing by Landlord. If
the date of commencement or expiration of the term of this Lease occurs on a day
other than the first day of a calendar month, the rent at the monthly rate shall
be prorated upon the basis which the number of days of the term of this Lease of
such month bears to the total number of days in such month.
4.2 CPI Increase. On July 1, 1998 and on each subsequent each anniversary
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of the commencement date of the term of this Lease, the base rent payable for
the upcoming year shall be increased to an amount equal to the product of the
initial base rent of $13,330 multiplied by a fraction, the denominator of which
shall be the Consumer Price Index (as hereinafter defined) figure published for
June 1997, and the numerator of which shall be the Consumer Price Index figure
for June of the adjustment year (provided that such fraction shall not in any
event be less than 1). As used herein, the term "Consumer Price Index" shall
mean the United States Department of Labor's Bureau of Labor Statistics'
Consumer Price Index, All Urban Consumers, All-Items, for the San Francisco-
Oakland-San Xxxx area (1982-84=100), or the successor of such index, or if no
successor index is designated, then such other index as Landlord reasonably
shall designate. Should Landlord lack sufficient data to make the determination
specified herein on the date of any such adjustment, Tenant shall continue to
pay the monthly rent payable immediately prior to such adjustment date. As soon
as Landlord obtains the necessary data, it shall determine the rent payable from
and after such adjustment date and shall notify Tenant of the adjustment in
writing. Should the monthly rent for the period following such adjustment date
exceed the amount previously paid by Tenant for such period, Tenant shall
forthwith pay the difference to Landlord.
4.3 Late Charge. If Tenant shall fail to pay within ten (10) days from
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when due and payable any rent or other amounts or charges which Tenant is
obligated to pay under this Lease, Tenant shall pay a late charge equal to six
percent (6%) of such amount that is due. Tenant acknowledges that any late
payments will cause Landlord to incur costs and expenses not contemplated under
the Lease, but not limited to, administrative and collection costs, the exact
amount of which is extremely difficult to fix. Therefore, Tenant agrees that
the late charge described herein represents a reasonable estimate of such costs
and expenses and is fair compensation to Landlord for the loss suffered by such
non-timely payment. Acceptance of any late charge will not constitute a waiver
of Tenant's default with respect to such non-payment by
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Tenant or prevent Landlord from exercising any rights or remedies available to
Landlord under the Lease. In addition to the late charges described herein, any
payment made more than thirty (30) days after the due date shall also bear
interest from and after the expiration of such 30 day period, until paid, at the
rate of 1-1/2% per month.
5. SECURITY DEPOSIT
Upon Tenant's execution hereof, Tenant shall deposit with Landlord a sum
equal to $13,330 as security for Tenant's faithful performance of its
obligations under the Lease. Landlord and Tenant agree that the security deposit
may be commingled with funds of Landlord and Landlord shall have no obligation
or liability for payment of interest on such deposit. Tenant shall not mortgage,
assign, transfer, or encumber the security deposit and any attempt by Tenant to
do so shall be void, without force or effect and shall not be binding upon
Landlord.
If Tenant fails to pay any amount when due and payable under the Lease, or
fails to perform any of the terms and conditions of the Lease, Landlord may
appropriate and apply or use all or any portion of the security deposit to cure
the default, and Landlord may so apply or use the deposit without prejudice to
any other remedy Landlord may have on account of Tenant's default or breach. If
Landlord so uses any of the security deposit, Tenant shall, within ten (10) days
after written demand therefor, restore the security deposit to the full amount
originally deposited; Tenant's failure to do so shall constitute an act of
default under the Lease. Within fifteen (15) days after the term of the Lease
has expired and Tenant has vacated the Premises, provided Tenant is not then in
default on any of its obligations hereunder, Landlord shall return the security
deposit to Tenant.
6. TERM
The term of this Lease shall be for a period of seven (7) years commencing
on July 1, 1997, and terminating on June 30, 2004.
7. USE, PURPOSE & COMPLIANCE WITH LAW
7.1 Tenant shall use and occupy the premises during the term for
engineering activities and research and development, and all uses reasonably
incidental thereto, and for
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no other purpose without the prior written consent of Landlord. Tenant shall
not use or permit the premises or any part thereof to be used for any purpose
other than the purpose for which the premises are leased.
7.2 No use shall be made or permitted to be made of the premises or acts
done by Tenant which will increase the existing rate of insurance on the
premises or cause the cancellation of any insurance policy covering the premises
or any part thereof. If any act on the part of Tenant or use of the premises by
Tenant shall cause any increase of Landlord's insurance, such additional expense
shall be paid by Tenant to Landlord upon demand. Tenant shall not sell or
permit to be kept, used or sold in or about the premises any article which may
be prohibited by the standard form of fire insurance policies.
7.3 Tenant shall not commit or suffer to be committed any waste upon the
premises or any public or private nuisance. Tenant shall not use the premises
or permit the premises to be used in whole or in part for any purpose or use
that is in violation of any of the laws, ordinances, regulations or rules of any
public authority or organization at any time. A judgment of any court of
competent jurisdiction or the admission by Tenant in any action or proceeding
against Tenant that Tenant has violated such laws, ordinances, regulations or
rules in the use of the premises shall be deemed to be a conclusive
determination of fact as between Landlord and Tenant.
8. UTILITIES
Landlord, at Landlord's sole cost and expense, shall furnish the premises
during normal business hours, as shall be determined by Landlord by regulations
duly adopted by Landlord, and provided Tenant is not in default under any of the
provisions of this Lease, all water, gas, heat, light (including light bulbs and
tubes), electricity, sewage, air-conditioning, and janitorial service used in
the premises. The interruption or curtailment of any such services shall not
constitute constructive eviction and shall not entitle Tenant to the abatement
of rent or to any other claim against Landlord when such failure is caused by
accident, breakage, repairs, strikes, lockouts or other labor disturbances or
labor disputes of any character, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord. Landlord shall not be liable under
any circumstances for loss of business or injury to property however occurring,
through or in connection with or incidental to failure to furnish any of the
foregoing, unless such failure is caused by the gross negligence or the willful
misconduct of Landlord. Tenant shall pay and provide for all services and
utilities not furnished by Landlord.
Tenant will not, without the written consent of Landlord, use any apparatus
or device in the premises which will in any way increase the amount of
electricity or water usually furnished or supplied for use of the premises for
general office purposes or connect with electric current, except through
existing electrical outlets in the premises, or water pipes, any apparatus or
device for the purposes of using electric current or water. If Tenant shall
require water or electric current in excess of that customarily furnished or
supplied for general office purposes, Tenant shall first procure the consent of
Landlord, and Landlord may but shall not be required to cause
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an electric current or water meter to be installed in the premises so as to
measure the amount of excess electric current or water consumed by Tenant. The
cost of any such meter and of installation, maintenance and repair thereof shall
be paid by Landlord and Tenant agrees to pay to Landlord promptly upon demand
therefor the cost of all such excess water and electric current consumed, as
reasonably determined by Landlord or as shown by said meters, at the rates
charged for such services by the local public utility furnishing the same, plus
any additional expense incurred in keeping account of the excess electric
current or water so consumed.
9. ASSIGNMENT & SUBLETTING
9.1 Except as otherwise permitted pursuant to this paragraph 9.1, Tenant
shall not assign its interest in this Lease, without the prior written consent
of Landlord, which consent Landlord may withhold in its sole, arbitrary and
absolute discretion. Notwithstanding the foregoing, Tenant may assign its
interest in this Lease to WinCup Holdings, Inc., a Delaware corporation,
provided that such assignment is consummated in connection with the transfer of
Tenant's business to said assignee. Said assignment is conditioned on said
assignee executing an assignment document in form and substance acceptable to
Landlord and which shall provide, among other things, that said assignee shall
assume all of the obligations of Tenant hereunder, as a direct obligation to
Landlord.
9.2 Tenant shall not sublet the premises or any part thereof, without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld; provided, however, that in all events, any such subletting shall
comply with each and every one of the following standards: (i) all rent and
other sums payable under this lease must continue to be paid directly to
Landlord by Tenant, notwithstanding any such subletting; (ii) all insurance
coverage provided by Tenant hereunder shall not be adversely affected, or
changed, as a result of any such subletting; (iii) the subtenant's use of the
premises shall not be inappropriate or have any adverse impact on the premises,
all as determined by Landlord in its sole discretion; (iv) the subtenant must
have adequate financial resources, and have a good business reputation, all as
determined by Landlord in its reasonable discretion; and (v) any such subtenant
must otherwise meet the reasonable requirements of Landlord.
9.3 No consent to any assignment of this lease, or any subletting of the
premises, shall be deemed to be a consent to any subsequent assignment of this
lease or to any subletting of the premises. Any such assignment or subletting
shall be void and at the option of Landlord shall terminate this lease.
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9.4 No consent by Landlord to any assignment of this lease, or any
subletting of the premises, shall relieve Tenant of any obligation to be
performed by Tenant under this lease, whether arising before or after the
assignment or subletting.
9.5 Tenant shall reimburse Landlord on demand for all costs, expenses, and
attorneys fees, incurred by Landlord in reviewing any proposal by Tenant to
assign this lease or sublet all or any portion of the premises.
10. CONDITION OF PREMISES & REPAIRS
Tenant shall be deemed to have agreed by accepting occupancy that the
premises are in good order, condition and repair. Tenant, at Tenant's expense,
shall keep the premises in good order, condition and repair, including all
fixtures and equipment installed by Tenant; provided, however, that Landlord
shall be responsible for providing general maintenance and repair services, as
are typically provided by landlords in connection with fully serviced office
buildings. In the event Tenant fails to maintain the premises as set forth
above, Landlord shall give Tenant notice to make such repairs. In the event
Tenant fails to do so, Landlord shall have the option to make such repairs at
the expense of Tenant. It is specifically understood and agreed that Landlord
has no obligation and has made no promises to alter, remodel, improve, repair,
decorate or paint the premises or any part thereof, except as set forth above in
connection with its obligation as a landlord of a fully serviced office
building.
11. ALTERATIONS
11.1 Tenant shall not make or suffer to be made any alterations or
improvements to or of the premises or any part thereof without the written
consent of Landlord being first had and obtained. Any alterations, additions,
or improvements to or of the premises, including without limitation any
partitions (floor to ceiling), and all wall to wall installed carpeting, shall
at once become a part of the realty and belong to Landlord. Movable furniture,
equipment and trade fixtures shall remain the property of Tenant.
11.2 If Landlord consents to the making of any alterations, additions or
improvements to the premises by Tenant, the same shall be made by Tenant at
Tenant's sole cost and expense and any contractor or person elected by Tenant to
make the same must first be approved of in writing by Landlord. Upon the
expiration or sooner termination of the term, Tenant, upon demand by Landlord,
at Tenant's sole cost and expense, forthwith and with all due diligence shall
remove any alterations, additions or improvements made by Tenant or its
predecessors after June 24, 1986, together with its special equipment, including
its special computer-related air conditioning units, and designated by Landlord
to be removed, and Tenant, forthwith and with all due diligence, at its sole
cost and expense, shall repair any damage to the premises caused by such
removal.
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12. LIENS
Tenant shall keep the premises and building of which the premises are a
part free and clear from any liens from persons claiming by or through Tenant
and shall indemnify, hold harmless and defend Landlord from any liens and
encumbrances arising out of any work performed or material furnished by or at
the direction of Tenant. In the event any lien is filed, Tenant shall do all
acts necessary to discharge any liens within twenty (20) days of filing, or if
Tenant desires to contest any lien, then Tenant shall deposit with Landlord such
security as Landlord shall demand to insure the payment of the lien claim or
procure and record a lien release bond issued by a corporation authorized to
issue surety bonds in California in an amount equal to one and one-half times
the amount of the claim of lien. The bond shall meet the requirements of
California Civil Code Section 3143 and shall provide for the payment of any sums
that the claimant may recover on the claim (together with costs of suit, if it
recovers said costs in the action). In the event Tenant shall fail to pay any
lien claim when due or shall fail to provide the deposit or other security to
Landlord, then Landlord shall have the right to expend all sums necessary to
discharge the lien claim, and Tenant shall pay additional rental, when the next
rental payment is due, all sums expended by Landlord in discharging any lien,
including attorney's fees and costs.
13. SIGNS
Except for any signs presently located on the premises, Tenant shall not
place or permit to be placed in, upon, about or outside the premises any signs
without the prior written consent of Landlord.
14. RIGHT OF ENTRY
14.1 Landlord and its agents shall have the right at any reasonable time
upon giving written notice to Tenant (notice shall not be necessary in case of
an emergency) to enter upon the premises so long as it does not interfere with
the business activities of Tenant on the premises, for the purpose of
inspection, serving or posting notices, maintaining the premises, making any
necessary repairs, alterations or additions to any portion of the premises
(including the erection and maintenance of scaffolding, partitions and repair of
equipment as shall be required), complying with the laws, ordinances and
regulations, protecting the premises, or for any other lawful purpose, including
showing the premises to prospective purchasers or tenants and placing on the
premises usual "for rent" or "for lease" signs during the last nine (9) months
of the term.
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14.2 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 other loss occasioned by such entry
unless caused by Landlord's gross negligence or willful misconduct. 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, upon and about the premises, excluding
Tenant's vaults and safes, and Landlord shall have the right to use any and all
means which Landlord may deem proper to open said doors in an emergency in order
to obtain entry to the premises, and any entry to the premises obtained by
Landlord by any of said means, or otherwise, shall not under any circumstances
be construed or deemed to be a forcible or unlawful entry into or detainer of
the premises or an eviction of Tenant from the premises or any portion thereof.
15. INDEMNIFICATION
15.1 Landlord shall be free of all liabilities and claims for damage by
reason of injury or death to any person or persons, including Tenant, or
property of any kind whatsoever and to whomsoever belonging, including Tenant,
from any cause or causes whatsoever, except for any liability and claim arising
out of the gross negligence or intentional misconduct of Landlord, its agents or
servants, while in, upon, or connected in any way with the premises, during the
term of this Lease or any extension or renewal thereof, or any occupancy
hereunder, and Tenant hereby agrees to indemnify, save harmless and defend
Landlord from all liability, damages, loss, costs and obligations, including
court costs and counsel fees, on account of or arising out of or alleged to have
arisen out of, directly or indirectly, any such injuries, death or losses,
however occurring, unless the same shall have been caused by or result from the
gross negligence or intentional misconduct of Landlord, its agents or servants.
15.2 Tenant covenants and agrees to comply with all laws as hereinafter
defined relating to the storage, use, and disposal of hazardous materials on or
about the premises. For purposes of this section, "hazardous material" means
and includes any toxic or hazardous substance or waste, or ground or ground
water contamination, as defined in, or for purposes of, any federal, state, or
local statute, law, ordinance, code, rule, regulation, order, or decree, as now
or at any time hereafter in effect, regulating, relating to, or imposing
liability or standards of conduct concerning any toxic or hazardous substance or
waste (hereinafter collectively referred to as "laws"), including hazardous
material which must be removed or remediated prior to land development.
In the event Landlord or Tenant, during the term hereof, receives an
order or notification from any governmental or regulatory entity, or without an
order or notification otherwise becomes aware of the existence of a release or
threatened release of any hazardous material during the Lease term or any
extension, in, on, or about the premise, Tenant, at its sole cost and expense,
shall immediately take such action as Landlord or the applicable governmental or
regulatory entity may deem appropriate or necessary to prevent any threatened
release or to remediate any release of hazardous materials.
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Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all direct and indirect, actual and consequential, damages,
costs, expenses, losses, demands, claims, liabilities, judgments, causes of
action, proceedings or hearings, including all reasonable attorneys' fees and
costs of investigation which arise from the use, disposal, emission, discharge,
injection, spill, escape, leak, release, or threatened release of hazardous
materials on or about the premises during the term hereof or any extension
thereof.
As between Landlord and Tenant, the provisions of this section shall
survive the expiration or earlier termination of this Lease, including any Lease
extension.
16. INSURANCE
16.1 Liability Insurance. Tenant shall procure at its sole cost and
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expense and keep in full force and effect throughout the term of this Lease,
Commercial General Liability Insurance protecting Landlord and Tenant, and
covering the use and occupancy of the premises and all areas adjacent thereto,
and the business operated by Tenant therein. Such insurance (i) shall include
broad form contractual liability insurance coverage insuring all of Tenant's
indemnity obligations under this Lease, (ii) shall have a minimum combined
single limit of liability (including umbrella coverage) of at least Ten Million
Dollars ($10,000,000), (iii) shall be written to apply to all bodily injury,
property damage, personal injury and other loss, however occasioned, occurring
during the policy term, (iv) shall be endorsed to add Landlord as an additional
insured, and (v) shall provide that such coverage is primary and that any
insurance maintained by Landlord is excess insurance only. Such insurance shall
also contain endorsements: (i) deleting any employee exclusion on personal
injury coverage; (ii) including employees as additional insured; and (iii)
providing coverage for employer's automobile non-ownership liability. Tenant
shall also maintain Workers' Compensation insurance in accordance with
California law, and employers liability insurance with a limit no less than
$1,000,000 per employee and $1,000,000 per occurrence. The limits of said
Commercial General Liability insurance policy shall not limit the liability of
Tenant nor relieve Tenant of any obligations of Tenant otherwise existing under
this Lease. If at any time during the term, the amount or coverage of insurance
which Tenant is required to carry under this Section 16.1 is, in Landlord's
reasonable judgment, materially less than the amount or type of insurance
coverage typically carried by owners or lessees of properties which are similar
to and operated for similar purposes as the premises, Landlord shall have the
right to require Tenant to increase the amount or change the types of insurance
coverage required under this Section.
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16.2 Casualty Insurance. Tenant further agrees to procure at its sole cost
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and expense and keep in full force and effect throughout the term of this Lease,
a policy of "all risk" casualty insurance (ISO form CP1030 or such other form
as is reasonably acceptable to Landlord), in the name of Landlord, with loss
payable to Landlord, insuring against loss or damage to the premises. Such
insurance shall be for the full replacement cost thereof, as agreed to by
Landlord and adjusted from time to time to reflect increased replacement costs,
and shall insure against all risks of direct physical loss or damage (except the
peril of earthquake), including coverage for any additional costs resulting from
debris removal and coverage for the enforcement of any ordinance or law
regulating the reconstruction or replacement of the premises. Said policy shall
also contain an agreed valuation provision in lieu of any co-insurance clause,
and shall include coverage for the benefit of Landlord insuring the loss of the
full rental and other charges payable under this lease for not less than one
year. With respect to any deductibles, it is specifically agreed that Tenant
shall be responsible for paying all deductibles if a casualty occurs, unless
such casualty resulted from or was caused by the gross negligence or intentional
misconduct of Landlord or its agents or servants.
16.3 Form of Policies. All insurance policies required to be carried
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under this Lease shall be written by companies (i) rated A or better in "Best's
Insurance Guide" and (ii) authorized to do business in California, and shall
name any lenders or parties designated by Landlord as additional insureds. Any
deductible amounts under any insurance policies required hereunder shall be
subject to Landlord's prior written approval. Tenant shall deliver to Landlord
on or before the Commencement Date, and thereafter at least thirty (30) days
before the expiration date of expiring policies, or whenever there is a change
of insurers or insurance coverage, and at such other times as Landlord may
reasonably request, certified complete copies of its insurance policies, or, if
acceptable to Landlord, a certificate evidencing the same issued by the insurer
thereunder; and, in the event Tenant shall fail to procure such insurance, or to
deliver such policies or certificates to Landlord in a prompt and timely manner,
Landlord may, at its option and in addition to Landlord's other remedies in the
event of a default by Tenant hereunder, procure the same for the account of
Tenant, and the cost thereof shall be paid to Landlord as additional rent.
Any policy required to be maintained by Tenant under this Lease may be
maintained under a so-called "blanket policy" insuring other parties and/or
other locations, so long as the amount of insurance and type of coverage
required to be provided hereunder is not thereby diminished, changed or
adversely affected.
16.4 Waiver of Subrogation. Tenant and Landlord hereby release each
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other and their respective officers, agents and employees from any and all
claims and demands for loss, damage, expense or injury to the premises, as well
as the furnishings, fixtures and equipment located on the premises, which is
caused by or results from events or happenings which are the subject of casualty
insurance carried by the respective parties in force at the time of any such
loss.
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17. ESTOPPEL CERTIFICATE
Tenant and Landlord shall execute, acknowledge and deliver to the other
party at any time within ten (10) days after request by such party, a statement
in writing certifying, if such be the case, that this Lease is unmodified and in
full force and effect (or if there have been modifications that the same is in
full force and effect as modified), the date of commencement of this Lease, the
dates on which rent has been paid, and such other information as the requesting
party shall reasonably request.
18. COMPLIANCE WITH LAWS
Tenant, at Tenant's sole cost, shall comply with all laws, ordinances,
orders and regulations of all governmental authorities with respect to Tenant's
use and occupation of the premises. Landlord shall comply at its expense with
such items not related to Tenant's particular use of the Premises. A judgment
of any court of competent jurisdiction or the admission by Tenant in any action
or proceeding against Tenant that Tenant has violated any such laws, ordinances,
orders or regulations, shall be deemed to be conclusive as to Landlord and
Tenant.
19. DAMAGE BY FIRE OR OTHER CASUALTY
19.1 Except as otherwise provided herein, in the event of any damage
causing a partial or total destruction of the premises during the term of this
Lease from any cause that is an insured risk and provided the repairs can be
made under the applicable laws and regulations of governmental authorities,
Landlord shall repair said damage promptly; provided, however, that if such
destruction or damage is "major destruction or damage," Landlord may terminate
this Lease on 90 days' notice to Tenant. "Major destruction or damage"
hereunder shall refer to destruction of or damage to the premises, the
reasonable cost of repair of which exceeds two hundred fifty thousand dollars
($250,000). During any repair or restoration this Lease shall remain in full
force and effect and the rent payable under this Lease shall only be abated to
the extent such rent abatements are covered by insurance proceeds.
19.2 If the cause of such damage is not an insured risk, was not caused by
the gross negligence or intentional misconduct of Landlord, its agents or
servants, and the cost of repair is less than or equal to One Hundred Thousand
Dollars ($100,000.00) and provided such repairs can be made under the applicable
laws and regulations of governmental authorities, Tenant shall pay to Landlord
the cost of repairing such damage and Landlord shall cause such repair to be
made. If the cause of such damage is not an insured risk, was not caused by the
gross negligence or intentional misconduct of Landlord, its agents or servants,
and the cost of repair is more than One Hundred Thousand Dollars ($100,000.00),
Tenant may elect not to pay the cost to repair such damage by giving at any time
within thirty (30) working days after the date of such damage and terminating
this Lease as of a date to be specified in such notice, which date shall not be
less than thirty (30) nor more than sixty (60) working days after the giving of
such notice; provided, however, if Landlord elects to pay the additional cost
over $100,000 to complete the repairs, Landlord shall proceed to make the
repairs and the Lease shall remain in full force and effect. In
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the event of the giving of such notice of termination, this Lease and all
interest of Tenant in the premises shall terminate on the date so specified in
such notice, and the rent shall be paid up to date on such termination. Landlord
agrees to refund to Tenant any rent theretofore paid for any period of time
subsequent to such date. Landlord shall not be required to repair any injury or
damage by fire or other cause to the property of Tenant, or to make any repairs
to or replacements of any panelings, decorations, railing, floor coverings or
any improvements installed on the premises by Tenant. Landlord shall be
responsible for repairing all uninsured damage that was caused by or resulted
from the gross negligence or intentional misconduct of Landlord, its agents or
servants.
19.3 All proceeds from any insurance policy or policies referred to in
Section 16 hereof, and any amounts agreed to as deductibles thereunder, payable
pursuant to this Section 19 shall be paid by Tenant to Landlord within ten (10)
days following the receipt of such proceeds by Tenant and before Landlord is
required to make any of the repairs.
19.4 In respect of any damage or destruction which Landlord is obligated to
repair or may elect to repair under the terms of this paragraph, the provisions
of any statute or law permitted Tenant to terminate this Lease are waived by
Tenant, and Tenant specifically waives the provisions of Sections 1932,
Subdivision 2, and 1933, Subdivision 4, of the Civil Code of California.
20. CONDEMNATION
20.1 If the whole or any part of the premises shall be taken for public or
quasi-public use by right of eminent domain, with our without litigation, or
transferred by agreement in connection with such public or quasi-public use,
this Lease, as to the part so taken or condemned or transferred, shall terminate
as to the date title shall vest in the condemnor and the rent payable hereunder
shall be adjusted so that Tenant shall be required to pay for the remainder of
the term only such portion of the rent as the area in the part remaining after
the taking or condemnation bears to the area of the entire premises as of the
date title shall vest in condemnor.
20.2 Except as herein provided, all compensation of any form awarded upon
such condemnation or taking shall go to Landlord and Tenant shall have no claim
thereto, and Tenant hereby irrevocably assigns and transfers to Landlord any
right to compensation or damages to which Landlord may become entitled during
the term hereof by reason of the condemnation of all or part of the premises.
Notwithstanding the foregoing, Tenant reserves the right to file a separate
claim for moving expenses and any other compensation it is entitled to receive
as a result of such taking or condemnation and (i) which is not related to its
leasehold estate and (ii) does not reduce the compensation otherwise payable to
Landlord. Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease.
20.3 In the event any such taking or condemnation shall materially
interfere with Tenant's use of the premises, Tenant, upon not less and 60 days'
written notice to Landlord,
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shall have the right to terminate this Lease and rent shall be payable only to
the date Tenant vacates the premises.
21. INVOLUNTARY TERMINATION
This Lease, at the option of Landlord and after the expiration of any
applicable cure period, shall immediately cease and terminate upon the happening
of any of the following events:
(a) The filing of a petition for any proceeding under the Bankruptcy Act or
any amendment thereto by Tenant.
(b) A finding or judgment of insolvency of Tenant which has become final.
(c) A general assignment for the benefit of creditors by Tenant.
(d) The levying of a writ of execution on a substantial portion of the
assets of Tenant located on the premises, which is not discharged within sixty
(60) days after the date of said levying.
Upon the happening of any such event and the expiration of the applicable
cure period, this Lease shall terminate five (5) days after written notice of
termination from Landlord to Tenant. In no event shall this Lease be assigned
or assignable by reason of any voluntary or involuntary bankruptcy proceedings
nor shall any rights or privileges hereunder be as asset of Tenant in any
bankruptcy, insolvency or reorganization proceedings.
22. DEFAULT
22.1 If (a) Tenant's interest or any part of his interest, in this Lease be
assigned or transferred, either voluntarily or by operation of law, except with
Landlord's consent, or as provided in paragraph 9, or (b) Tenant, after notice
fails to remedy any default (1) in the payment of any sum due under this Lease
for ten (10) days, or (2) in the keeping of any other term, covenant or
condition of this Lease with all reasonable dispatch (within thirty (30) days or
such longer period as is reasonably necessary), then, in addition to any other
remedy Landlord may have by operation of law, Landlord shall have the right,
without any further demand or notice, either to terminate Tenant's right to
possession of the premises and thereby terminate this Lease or to have this
Lease continue in full force and effect with Tenant at all times having the
right to possession of the premises.
22.2 (A) Should Landlord elect to terminate Tenant's right to possession
of the premises and terminate this Lease, then Landlord shall have the immediate
right of entry and may remove all persons and property from the premises. Such
property to be removed may be stored in a public warehouse or elsewhere at the
cost and for the account of Tenant. Upon such
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termination, Landlord, in addition to any other rights and remedies, shall be
entitled to recover from Tenant:
(1) The worth at the time of award of the unpaid rent which had
been earned at the time of termination;
(2) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided;
(3) The worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award exceeds the
amount of such rental loss for such period that Tenant proves could be
reasonably avoided;
(4) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform his obligations
under this Lease, or which in the ordinary course of things would be likely to
result therefrom.
Any proof by Tenant under Subparagraphs (2) or (3) of Subdivision
(a) of Section 1951.2 of the California Civil Code of the amount of rental loss
that could be reasonably avoided shall be made in the following manner: Landlord
and Tenant shall each select a licensed real estate broker in the business of
renting property of the same type and use as the premises and in the same
geographic vicinity and such two real estate brokers shall select a third
licensed real estate broker and the three licensed real estate brokers so
selected shall determine the amount of rental loss that could be reasonably
avoided for the balance of the term of this Lease after the time of award. The
decision of the majority of said licensed real estate brokers shall be final and
binding upon the parties hereto. As used herein, the term "time of award" shall
mean either the date upon which Tenant pays to Landlord the amount recoverable
by Landlord as hereinabove set forth or the date of entry of any determination,
order or judgment of any court or other legally constituted body, or of any
arbitrators determining the amount recoverable, whichever first occurs.
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(B) Should Landlord, following any breach or default of this Lease by
Tenant, elect to keep this Lease in full force and effect, with Tenant retaining
the right to possession of the premises (notwithstanding the fact that Tenant
may have abandoned the leased premises), then Landlord, besides all other rights
and remedies Landlord may have at law or in equity, shall have the right to
relet the premises, or any part of the premises, as the agent and for the
account of Tenant upon such terms and conditions as Landlord may deem advisable,
in which event the rents received on such reletting shall be applied first to
the expenses of such reletting and collection, including necessary renovation
and alteration of the premises, reasonable attorney's fees, any real estate
commissions paid, and thereafter to payment of all sums due or to become due
Landlord under this Lease, and if a sufficient sum shall not be thus realized to
pay such sums and other charges, Tenant shall pay Landlord any deficiency
monthly, notwithstanding Landlord may have received rental in excess of the
rental stipulated in this Lease in previous or subsequent months, and Landlord
may bring an action therefore as such monthly deficiency shall arise.
Notwithstanding any such election to have this Lease remain in full force and
effect, Landlord may at any time thereafter elect to terminate Tenant's right to
possession of said premises and thereby terminate this Lease for any previous
breach or default which remains uncured, or for any subsequent breach or
default.
22.3 The "worth at the time of award" of the amount referred to in
subparagraphs (1) and (2) above is computed by allowing interest at the rate of
10% per annum. The worth at the time of award of the amount referred to in
subparagraph (3) above is computed by discounting such amount at the discount
rate of Federal Reserve Bank of San Francisco at the time of award, plus one
percent (1%).
23. ATTORNEY'S FEES
Tenant agrees that if Landlord is involuntarily made a defendant to any
litigation concerning this Lease or the premises by reason of any act or
omission of Tenant and not because of any act or omission of Landlord, then
Tenant shall hold harmless Landlord from all liability by reason thereof,
including reasonable attorney's fees incurred by Landlord, in such litigation
and all taxable court costs. If legal action shall be brought by either of the
parties hereto for the unlawful detainer of the premises, for the recovery of
any rent due under the provisions of this Lease, or because of any breach of any
term, covenant or provision hereof, the party prevailing in said action
(Landlord or Tenant as the case may be) shall be entitled to recover from the
party not prevailing costs of suit and a reasonable attorney's fee which shall
be fixed by the Judge of the Court.
24. HOLDING OVER
Any holding over after the expiration of the term of this Lease by Tenant
shall be deemed to be a tenancy from month to month upon the same terms and
conditions set forth herein, except that the monthly rent payable hereunder
pursuant to paragraph 4 shall be increased to 125% of such amount during any
such holding-over period.
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25. WAIVER
No covenant, term or condition or the breach thereof shall be deemed
waived, except by written consent of Landlord, and any waiver or the breach of
any covenant, term or condition shall not be deemed to be a waiver of any
preceding or succeeding breach of the same or any other covenant, term or
condition. Acceptance of all or any portion of rent at any time shall not be
deemed to be a waiver of any covenant, term or condition except as to the rent
payment accepted, regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such rent.
26. ABANDONMENT
Tenant shall not vacate or abandon the premises at any time during the term
hereof, and if Tenant shall abandon, vacate or surrender the premises, or be
dispossessed by process of law, or otherwise, any personal property belonging to
Tenant and left on the premises shall be deemed to be abandoned, at the option
of Landlord, except such property as may be mortgaged to Landlord.
27. PERSONAL PROPERTY, REAL PROPERTY, & OTHER TAXES
Tenant shall pay, before delinquency any and all taxes levied or assessed
and which become payable during the term hereof upon Tenant's equipment,
furniture, fixtures and other personal property located in the premises,
including carpeting installed by Tenant even though said carpeting has become
part of the leased premises; and any and all taxes or increases therein levied
or assessed on Landlord or Tenant by virtue of alterations, additions or
improvements to the premises made by Tenant after the date hereof. In the event
said taxes are charged to or paid or payable by Landlord, then Tenant shall
reimburse Landlord for all such taxes paid by Landlord.
28. PLATS & RIDERS
Clauses, plats and riders, if any, signed by Landlord and Tenant and
endorsed on or affixed to this Lease are a part hereof.
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29. SALE BY LANDLORD
In the event of a sale or conveyance by Landlord of the premises, the same
shall operate to release Landlord from any liability for any of the covenants or
conditions, express or implied, herein contained in favor of Tenant arising
after the date of such sale or conveyance, and in such event Tenant agrees to
look solely to the responsibility of the successor in interest of Landlord in
and to this Lease. If any security be given by Tenant to secure the faithful
performance of all or any of the covenants of this Lease on the part of Tenant,
Landlord may transfer and/or deliver the security, as such, to the successor in
interest of Landlord, and thereupon Landlord shall be discharged from any
further liability in reference thereto.
30. RIGHT OF LANDLORD TO PERFORM
All covenants and agreements to be kept or performed by Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent, except as otherwise expressly
provided herein. If Tenant shall fail to pay any sum of money, other than rent,
required to be paid by it hereunder or shall fail to perform any other act on
its part to be performed hereunder, and such failure shall continue for thirty
(30) days after notice thereof by Landlord, Landlord may, but shall not be
obligated to, and without waiving any default of Tenant or releasing Tenant from
any obligations of Tenant hereunder, make any such payment or perform any such
act on Tenant's part to be made or performed as in this Lease provided. All
sums so paid by the Landlord and all necessary incidental costs, together with
interest thereon at 12% per annum from the date of such payment by the Landlord,
shall be paid to Landlord forthwith on demand, and Landlord shall have (in
addition to any other right or remedy of Landlord) the same rights and remedies
in the event of nonpayment thereof by Tenant as in the case of default by Tenant
in the payment of rent.
31. SURRENDER OF PREMISES
The voluntary and other surrender of this Lease by Tenant or a mutual
cancellation thereof shall not work a merger, and, at the option of Landlord
shall terminate all or any existing subleases or subtenancies, or at the option
of Landlord may operate as an assignment to Landlord of any or all such
subleases or subtenancies.
32. MORTGAGE REQUIREMENTS
Landlord represents to Tenant that on the date this Lease is executed, the
premises are not encumbered by or subject to any mortgages, deeds of trust, or
ground leases. This Lease shall, however, be subject and subordinate at all
times to all ground or underlying leases which may hereafter be executed
affecting the building and/or the land upon which the building is situated and
to the lien of any mortgages or deeds of trust in any amount or amounts
whatsoever hereafter placed on or against said building and/or land or on or
against the Landlord's interest or estate therein or on or against any ground or
underlying lease without the necessity of having further instruments on the part
of Tenant to effectuate such subordination. Notwithstanding the
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foregoing, Tenant covenants and agrees to execute and deliver, upon demand, such
further reasonable instruments evidencing such subordination of this Lease to
such ground or underlying leases and to the lien of any such mortgages or deeds
of trust as may be required by Landlord. Tenant hereby irrevocably appoints
Landlord the attorney in fact of the Tenant to execute and deliver any such
instrument or instruments for or in the name of Tenant. In the event any
mortgagee shall elect to have this Lease a prior lien to its mortgage, then and
in such event, upon such mortgagee notifying the Tenant in writing to that
effect, this Lease shall have priority of the lien of such mortgage to the same
extent as if the sane have been placed on record prior to such mortgage. In the
event of any sale, assignment or hypothecation of the building of which the
demised premises are a part, and/or of any leasehold interest therein by
Landlord, a statement shall be required from Tenant as to offsets against the
Landlord, Tenant agrees to furnish said statement to the party demanding the
same accurately and promptly. In the event of termination of any ground or
underlying lease, or in the event of sale, foreclosure or exercise of any power
of sale under any mortgage or deed of trust superior to this Lease or to which
this Lease is subject or subordinate, Tenant covenants and agrees that it will,
upon request by the purchaser, attorn to the purchaser upon any foreclosure or
sale and recognize such purchaser as the Landlord under this Lease, it being the
intent hereof that if this Lease should be terminated by such foreclosure or
sale, it shall, upon request by the purchaser be reinstated as a Lease between
the purchaser and the Tenant. Tenant, upon request of any party in interest,
shall execute such reasonable instrument or instruments as shall be requested to
carry out the requirements of this paragraph. Landlord will obtain non-
disturbance agreements from all parties to whose interest this Lease may
hereafter be subordinated.
33. NOTICES
All notices or demands of any kind required or desired to be given to
Landlord or Tenant hereunder shall be in writing and shall be deemed delivered
twenty-four (24) hours after the notice or demand is deposited in the United
States mail, postage prepaid, and addressed to Tenant at the address of the
premises, whether or not Tenant has departed therefrom, abandoned or vacated the
premises and as to Landlord at the address designated after the name of the
Landlord at the end of this Lease, or such other address as shall be designated
by either party in compliance with the provisions of this paragraph.
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34. ENTIRE AGREEMENT
This Lease constitutes the entire agreement between Landlord and Tenant and
no promises or representations, express or implied, either written or oral, not
herein set forth shall be binding upon or inure to the benefit of Landlord or
Tenant. This Lease shall not be modified by any oral agreement, either express
or implied, and all modifications shall be in writing and signed by both
Landlord and Tenant.
35. CONSENT
Except as otherwise specifically set forth herein, whenever Landlord's
consent shall be required herein, such consent shall not be unreasonably
withheld or delayed.
36. ADDITIONAL PAYMENTS
Wherever Tenant is called upon to make additional payments under this Lease
in addition to those specified in paragraph 4, Landlord will deliver with the
invoice or xxxx therefor adequate detail showing Tenant's pro rata share.
37. COVENANT OF QUIET ENJOYMENT
Landlord covenants that Tenant will quietly and peaceably have, hold and
enjoy the premises in accordance with the terms of this Lease throughout the
term from any person or entity claiming by or through Landlord, so long as
Tenant is not in default hereunder.
38. ADDITIONAL TERMS AND CONDITIONS
38.1 Environmental Inspection. Tenant shall, at its sole expense, submit
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to periodic inspections by Landlord or its agents, on reasonable notice, to
assure compliance by Tenant with all of the terms and conditions of the Lease,
including but not limited to, all laws, ordinances, and regulations applicable
to Tenant in its operation at the premises, and including, but not limited to,
those concerning environmental matters. In the event any "Phase 1" or
equivalent environmental inspection commissioned by Landlord shall disclose a
possibility of environmental inspection commissioned by Landlord shall disclose
a possibility of environmental contamination for which Tenant would be
responsible, Tenant shall (i) reimburse Landlord for the cost of such
inspection, (ii) pay for such additional inspections as may be necessary, and
(iii) pay for all costs and expenses as may be necessary, and (iii) pay for all
costs and expenses as may be necessary to cause Tenant to comply with this
paragraph and paragraph 15.2. In the event any "Phase 1" or equivalent
environmental inspection concludes that Tenant is in compliance with its
environmental obligations under this Lease and that no further investigation is
required, the cost of such inspection shall be paid for Landlord.
38.2 Financial Statements. Tenant shall provide Landlord with its
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quarterly financial statements, and audited annual financial statements,
throughout the term of this Lease. Said
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quarterly statements shall be delivered to Landlord within thirty (30) days
after the end of the applicable quarter and said audited annual financial
statements shall be delivered to Landlord within sixty (60) days after the end
of the applicable fiscal year.
38.3 Brokers. Tenant represents and warrants that it has not dealt with
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any broker or agent in connection with the leasing transaction described herein.
Tenant covenants and agrees to pay, hold harmless, and indemnify Landlord from
and against any and all costs, expenses or liabilities for any compensation,
commission and charges claimed by any broker or agent with respect to this Lease
or the negotiation hereof with whom Tenant had dealings.
38.4 First Right of Negotiation to Purchase Building. Provided Tenant is
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not then in default beyond any applicable notice or grace periods under this
Lease, Tenant shall have a first right of negotiation to purchase the building
in which the premises are located ("Building") during the Term of this Lease on
the and conditions set forth herein.
In the event Landlord desires to sell the Building, either separately
or in combination with other properties owned by Landlord and which are leased
by Tenant, Landlord shall notify Tenant of such desire. Upon receiving such
notice, Tenant shall have thirty (30) days within which to negotiate with
Landlord for the purchase of the Building (or combination of Buildings) on such
terms and conditions as are acceptable to Landlord, and which may involve, among
other things, Tenant cooperating with Landlord so as to consummate the
transaction as a like-kind exchange to Landlord. In the event a written
agreement for the purchase and sale is not entered into within said thirty (30)
day period, Tenant shall have no further right of first negotiation (this
paragraph thereafter being null, void and of no further force or effect) and
Landlord shall be entitled to sell the Building to any other party on any other
terms in order to allow Landlord to maximize its return from its ownership of
the Building. It is specifically understood and agreed that Landlord may
thereafter enter into transactions on terms and conditions that are different
than those proposed to or by Tenant without incurring any liability or
obligation to Tenant. This first right of negotiation is intended solely to
allow the parties an opportunity to negotiate for the sale of the Building to
Tenant and is not intended to restrict the rights of either party in the event a
final and binding agreement does not result within the above-described thirty
(30) day time period as a result of negotiations initiated pursuant to this
paragraph. Landlord and Tenant do, however, agree that the above-referenced
negotiations shall be conducted in good faith and with due diligence.
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IN WITNESS WHEREOF Landlord and Tenant have executed this Lease the day and year
first above written.
LANDLORD TENANT
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XXXX BROTHERS LEASING, LLC WinCup Holdings, L.P., a Delaware Limited
Partnership
By: [SIGNATURE APPEARS HERE] By: WinCup Holdings, Inc.
--------------------------
General Partner
Landlord's Address for Notice:
By: [SIGNATURE APPEARS HERE]
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000 Xxxxx Xxxxx, Xxxxx 000 , Xxxxxxxxx
Xxxxx Xxxxxx, XX 00000
By: [SIGNATURE APPEARS HERE]
-----------------------------
, Secretary
Approved as Paragraphs 1.2 and 1.3:
Xxxxx River Paper Co., Inc.
By: [SIGNATURE APPEARS HERE]
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EXHIBIT A
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[Map of Leased Premises Appears Here]
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