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EXHIBIT 10.2
[LOGO] AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE -- NET
(DO NOT USE THIS FORM FOR MULTI-TENANT BUILDINGS)
1. BASIC PROVISIONS ("BASIC PROVISIONS").
1.1 PARTIES: This Lease ("LEASE"), dated for reference purposes
only December 1, 1999, is made by and between NORTHPARK INDUSTRIAL, a California
General Partnership, NORTHWEST INDUSTRIAL CENTER, a California Limited
Partnership and NORTHPARK INDUSTRIAL - XXXXX DIVISION LLC., a California limited
liability company ("LESSOR") and CAPSTONE TURBINE CORPORATION, a California
corporation ("LESSEE"), (collectively the "PARTIES," or individually a "PARTY").
(See Addendum Paragraph 50)
1.2 PREMISES: That certain real property, including all improvements
therein or to be provided by Lessor under the terms of this Lease, and commonly
known as 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx 00000 located in the County of Los
Angeles, State of California and generally described as (describe briefly the
nature of the property and, if applicable, the "PROJECT", if the property is
located within a Project) a concrete tilt-up building consisting of
approximately 98,370 square feet of area, aka Xxx #0, Xxxxx #00000, City of Los
Angeles, in an MR-2 zone in Northpark Industrial Center ("PREMISES"). (See also
Paragraph 2 and Addendum Paragraph 51)
1.3 TERM: Ten (10) years and 0 months ("ORIGINAL TERM") commencing
See Addendum Paragraph 52 ("COMMENCEMENT DATE") and ending See Addendum
Paragraph 52 ("EXPIRATION DATE"). (See also Paragraph 3)
1.4 EARLY POSSESSION: See Addendum Paragraph 53 ("EARLY POSSESSION
DATE"). (See also Paragraphs 3.2 and 3.3)
1.5 BASE RENT: $60,000.00 per month ("BASE RENT"), payable on the
First (1st) day of each month commencing See Addendum Paragraph 54. (See also
Paragraph 4)
[X] If this box is checked, there are provisions in this Lease for the Base Rent
to be adjusted.
1.6 BASE RENT PAID UPON EXECUTION: $420,000.00 as Base Rent for the
period See Addendum Paragraph 54.
1.7 SECURITY DEPOSIT: $60,000.00 ("SECURITY DEPOSIT").
(See also Paragraph 5)
1.8 AGREED USE: See Addendum Paragraph 55. (See also Paragraph 6)
1.9 INSURING PARTY: Lessee is the "INSURING PARTY" unless otherwise
stated herein. (See also Paragraph 8 and Addendum Paragraph 67)
1.10 REAL ESTATE BROKERS: (See also Paragraph 15)
(a) REPRESENTATION: The following real estate brokers
(collectively, the "BROKERS") and brokerage relationships exist in this
transaction (check applicable boxes):
[ ] _________________________ represents Lessor exclusively ("LESSOR'S BROKER");
[ ] ______________________ represents Lessee exclusively ("LESSEE'S BROKER"); or
[X] The Xxxxxx Company represents both Lessor and Lessee ("DUAL AGENCY").
(b) PAYMENT TO BROKERS: Lessor shall pay to the Broker the fee
agreed to in their separate written agreement.
1.11 GUARANTOR. The obligations of the Lessee under this Lease are to
be guaranteed by _______________________________________________________________
_________________________________________ ("GUARANTOR"). (See also Paragraph 37)
1.12 ADDENDA AND EXHIBITS. Attached hereto is an Addendum or Addenda
consisting of Paragraphs 50 through 89 and Exhibits A - Lessor's Building
Improvement Plans, B - Lessee's Building Improvement Plans, C - Parking Garage
Rules, D - Form of First Amendment to Lease, E - Form of Memorandum of Lease,
all of which constitute a part of this Lease.
2. PREMISES.
2.1 LETTING. Lessor hereby leases to Lessee, and Lessee hereby
leases from Lessor, the Premises, for the term, at the rental, and upon all of
the terms, covenants and conditions set forth in this Lease. Unless otherwise
provided herein, any statement of size set forth in this Lease, or that may have
been used in calculating rental, is an approximation which the Parties agree is
reasonable and the rental based thereon is not subject to revision whether or
not the actual size is more or less.
2.2 CONDITION. Lessor shall deliver the Premises to Lessee broom
clean and free of debris on the Commencement Date or the Early Possession Date,
whichever first occurs ("START DATE"), and, so long as the required service
contracts described in Paragraph 7.1(b) below are obtained by Lessee within
thirty (30) days following the Start Date, warrants that the existing
electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air
conditioning systems ("HVAC"), loading doors, if any, and all other such
elements in the Premises, other than those constructed by Lessee, shall be in
good operating condition on said date and that the structural elements of the
roof, bearing walls and foundation of any buildings on the Premises (the
"BUILDING") shall be free of material defects. If a non-compliance with said
warranty exists as of the Start Date, Lessor shall, as Lessor's sole obligation
with respect to such matter, except as otherwise provided in this Lease,
promptly after receipt of written notice from Lessee setting forth with
specificity the nature and extent of such non-compliance, rectify same at
Lessor's expense. If, after the Start Date, Lessee does not give Lessor written
notice of any non-compliance with this warranty within: (i) one year as to the
surface of the roof and the structural portions of the roof, foundations and
bearing walls, (ii) six (6) months as to the HVAC systems, (iii) thirty (30)
days as to the remaining systems and other elements of the Building, correction
of such non-compliance shall be the obligation of Lessee at Lessee's sole cost
and expense. (See Addendum Paragraph 56)
2.3 COMPLIANCE. Lessor warrants that the improvements on the
Premises and Garage comply with all applicable laws, covenants or restrictions
of record, building codes, regulations and ordinances ("APPLICABLE
REQUIREMENTS") in effect on the Start Date. Said warranty does not apply to the
use to which Lessee will put the Premises or to any Alterations or Utility
Installations (as defined in Paragraph 7.3(a)) made or to be made by Lessee.
NOTE: Lessee is responsible for determining whether or not the zoning is
appropriate for Lessee's intended use, and acknowledges that past uses of the
Premises may no longer be allowed. If the Premises do not comply with said
warranty, Lessor shall, except as otherwise provided, promptly after receipt of
written notice from Lessee setting forth with specificity the nature and extent
of such non-compliance, rectify the same at Lessor's expense. If Lessee does not
give Lessor written notice of a non-compliance with this warranty within six (6)
months following the Start Date, correction of that non-compliance shall be the
obligation of Lessee at Lessee's sole cost and expense. (See Addendum Paragraph
57). If the Applicable Requirements are hereafter changed (as opposed to being
in existence at the Start Date, which is addressed in Paragraph 6.2(e) below) so
as to require during the term of this Lease the construction of an addition to
or an alteration of the Building, the remediation of any Hazardous Substance, or
the reinforcement or other physical modification of the Building ("CAPITAL
EXPENDITURE"), Lessor and Lessee shall allocate the cost of such work as
follows:
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(a) Subject to Paragraph 2.3(c) below, if such Capital
Expenditures are required as a result of the specific and unique use of the
Premises by Lessee as compared with uses by tenants in general, Lessee shall be
fully responsible for the cost thereof, provided, however that if such Capital
Expenditure is required during the last two (2) years of this Lease and the cost
thereof exceeds six (6) months' Base Rent, Lessee may instead terminate this
Lease unless Lessor notifies Lessee, in writing, within ten (10) days after
receipt of Lessee's termination notice that Lessor has elected to pay the
difference between the actual cost thereof and the amount equal to six (6)
months' Base Rent. If Lessee elects termination, Lessee shall immediately cease
the use of the Premises which requires such Capital Expenditure and deliver to
Lessor written notice specifying a termination date at least ninety (90) days
thereafter. Such termination date shall, however, in no event be earlier than
the last day that Lessee could legally utilize the Premises without commencing
such Capital Expenditure. (See Addendum Paragraph 57)
(b) If such Capital Expenditure is not the result of the specific
and unique use of the Premises by Lessee (such as governmentally mandated
seismic modifications), then Lessor and Lessee shall allocate the obligation to
pay for such costs pursuant to the provisions of Paragraph 7.1(c); provided,
however, that if such Capital Expenditure is required during the last two years
of this Lease or if Lessor reasonably determines that it is not economically
feasible to pay its share thereof, Lessor shall have the option to terminate
this Lease upon ninety (90) days prior written notice to Lessee unless Lessee
notifies Lessor, in writing, within ten (10) days after receipt of Lessor's
termination notice that Lessee will pay for such Capital Expenditure. If Lessor
does not elect to terminate, and fails to tender its share of any such Capital
Expenditure, Lessee may advance such funds and deduct same, with Interest, from
Rent until Lessor's share of such costs have been fully paid. If Lessee is
unable to finance Lessor's share, or if the balance of the Rent due and payable
for the remainder of this Lease is not sufficient to fully reimburse Lessee on
an offset basis, Lessee shall have the right to terminate this Lease upon thirty
(30) days written notice to Lessor. (See Addendum Paragraph 57)
(c) Notwithstanding the above, the provisions concerning Capital
Expenditures are intended to apply only to non-voluntary, unexpected, and new
Applicable Requirements. If the Capital Expenditures are instead triggered by
Lessee as a result of an actual or proposed change in use, change in intensity
of use, or modification to the Premises then, and in that event, Lessee shall be
fully responsible for the cost thereof, and Lessee shall not have any right to
terminate this Lease. (See Addendum Paragraph 57)
2.4 ACKNOWLEDGEMENTS. Lessee acknowledges that: (a) it has been
advised by Lessor and/or Brokers to satisfy itself with respect to the condition
of the Premises (including but not limited to the electrical, HVAC and fire
sprinkler systems, security, environmental aspects, and compliance with
Applicable Requirements), and their suitability for Lessee's intended use; (b)
Lessee has made such investigation as it deems necessary with reference to such
matters and assumes all responsibility therefor as the same relate to its
occupancy of the Premises; and (c) neither Lessor, Lessor's agents, nor any
Broker has made any oral or written representations or warranties with respect
to said matters other than as set forth in this Lease. In addition, Lessor
acknowledges that: (a) Broker has made no representations, promises or
warranties concerning Lessee's ability to honor the Lease or suitability to
occupy the Premises; and (b) it is Lessor's sole responsibility to investigate
the financial capability and/or suitability of all proposed tenants. (See
Addendum Paragraph 58)
2.5 LESSEE AS PRIOR OWNER/OCCUPANT. The warranties made by Lessor in
Paragraph 2 shall be of no force or effect if immediately prior to the Start
Date Lessee was the owner or occupant of the Premises. In such event, Lessee
shall be responsible for any necessary corrective work.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original Term
of this Lease are as specified in Paragraph 1.3. (See Addendum Paragraph 59)
3.2 EARLY POSSESSION. If Lessee totally or partially occupies the
Premises prior to the Commencement Date, the obligation to pay Base Rent shall
be abated for the period of such early possession. All other terms of this Lease
(including but not limited to the obligations to pay Real Property Taxes and
insurance premiums and to maintain the Premises) shall, however, be in effect
during such period. Any such early possession shall not affect the Expiration
Date. (See Addendum Paragraph 60)
3.3 DELAY IN POSSESSION. Lessor agrees to use its best commercially
reasonable efforts to deliver possession of the Premises to Lessee by the
Commencement Date. If, despite said efforts, Lessor is unable to deliver
possession as agreed, Lessor shall not be subject to any liability therefor, nor
shall such failure affect the validity of this Lease. Lessee shall not, however,
be obligated to pay Rent or perform its other obligations until it receives
possession of the Premises. If possession is not delivered within sixty (60)
days after the Commencement Date, Lessee may, at its option, by notice in
writing within ten (10) days after the end of such sixty (60) day period, cancel
this Lease, in which event the Parties shall be discharged from all obligations
hereunder. If such written notice is not received by Lessor within said ten (10)
day period, Lessee's right to cancel shall terminate. Except as otherwise
provided, if possession is not tendered to Lessee by the Start Date and Lessee
does not terminate this Lease, as aforesaid, any period of rent abatement that
Lessee would otherwise have enjoyed shall run from the date of delivery of
possession and continue for a period equal to what Lessee would otherwise have
enjoyed under the terms hereof, but minus any days of delay caused by the acts
or omissions of Lessee. If possession of the Premises is not delivered within
four (4) months after the Commencement Date, this Lease shall terminate unless
other agreements are reached between Lessor and Lessee, in writing. (See
Addendum Paragraph 61)
3.4 LESSEE COMPLIANCE. Lessor shall not be required to tender
possession of the Premises to Lessee until Lessee complies with its obligation
to provide evidence of insurance (Paragraph 8.5). Pending delivery of such
evidence, Lessee shall be required to perform all of its obligations under this
Lease from and after the Start Date, including the payment of Rent,
notwithstanding Lessor's election to withhold possession pending receipt of such
evidence of insurance. Further, if Lessee is required to perform any other
conditions prior to or concurrent with the Start Date, the Start Date shall
occur but Lessor may elect to withhold possession until such conditions are
satisfied.
4. RENT.
4.1. RENT DEFINED. All monetary obligations of Lessee to Lessor under
the terms of this Lease (except for the Security Deposit) are deemed to be rent
("RENT").
4.2 PAYMENT. Lessee shall cause payment of Rent to be received by
Lessor in lawful money of the United States, without offset or deduction (except
as specifically permitted in this Lease), on or before the day on which it is
due. Rent for any period during the term hereof which is for less than one (1)
full calendar month shall be prorated based upon the actual number of days of
said month. Payment of Rent shall be made to Lessor at its address stated herein
or to such other persons or place as Lessor may from time to time designate in
writing. Acceptance of a payment which is less than the amount then due shall
not be a waiver of Lessor's rights to the balance of such Rent, regardless of
Lessor's endorsement of any check so stating.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
the Security Deposit as security for Lessee's faithful performance of its
obligations under this Lease. If Lessee fails to pay Rent, or otherwise Defaults
under this Lease, Lessor may use, apply or retain all or any portion of said
Security Deposit for the payment of any amount due Lessor or to reimburse or
compensate Lessor for any liability, expense, loss or damage which Lessor may
suffer or incur by reason thereof. If Lessor uses or applies all or any portion
of said Security Deposit, Lessee shall within ten (10) days after written
request therefor deposit monies with Lessor sufficient to restore said Security
Deposit to the full amount required by this Lease. If the Base Rent increases
during the term of this Lease, Lessee shall, upon written request from Lessor,
deposit additional monies with Lessor so that the total amount of the Security
Deposit shall at all times bear the same proportion to the increased Base Rent
as the initial Security Deposit bore to the initial Base Rent. Should the Agreed
Use be amended to accommodate a material change in the business of Lessee or to
accommodate a sublessee or assignee, Lessor shall have the right to increase the
Security Deposit to the extent necessary, in Lessor's reasonable judgment, to
account for any increased wear and tear that the Premises may suffer as a result
thereof. If a change in control of Lessee occurs during this Lease and following
such change the financial condition of Lessee is, in Lessor's reasonable
judgment, significantly reduced, Lessee shall deposit such additional monies
with Lessor as shall be sufficient to cause the Security Deposit to be at a
commercially reasonable level based on said change in financial condition.
Lessor shall not be required to keep the Security Deposit separate from its
general accounts. Within fourteen (14) days after the expiration or termination
of this Lease, if Lessor elects to apply the Security Deposit only to unpaid
Rent, and otherwise within thirty (30) days after the Premises have been vacated
pursuant to Paragraph 7.4(c) below, Lessor shall return that portion of the
Security Deposit not used or applied by Lessor. No part of the Security Deposit
shall be considered to be held in trust, to bear interest or to be prepayment
for any monies to be paid by Lessee under this Lease. (See Addendum Paragraph
62)
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6. USE.
6.1 USE. Lessee shall use and occupy the Premises only for the
Agreed Use, or any other legal use which is reasonably comparable thereto, and
for no other purpose. Lessee shall not use or permit the use of the Premises in
a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs
owners and/or occupants of, or causes damage to neighboring properties. Lessor
shall not unreasonably withhold or delay its consent to any written request for
a modification of the Agreed Use, so long as the same will not impair the
structural integrity of the improvements on the Premises or the mechanical or
electrical systems therein, is not significantly more burdensome to the
Premises. If Lessor elects to withhold consent, Lessor shall within five (5)
business days after such request give written notification of same, which notice
shall include an explanation of Lessor's objections to the change in use.
(See Addendum Paragraph 63)
6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS
SUBSTANCE" as used in this Lease shall mean any product, substance, or waste
whose presence, use, manufacture, disposal, transportation, or release, either
by itself or in combination with other materials expected to be on the Premises,
is either: (i) potentially injurious to the public health, safety or welfare,
the environment or the Premises, (ii) regulated or monitored by any governmental
authority, or (iii) a basis for potential liability of Lessor to any
governmental agency or third party under any applicable statute or common law
theory. Hazardous Substances shall include, but not be limited to, hydrocarbons,
petroleum, gasoline, and/or crude oil or any products, by-products or fractions
thereof. Lessee shall not engage in any activity in or on the Premises which
constitutes a Reportable Use of Hazardous Substances without the express prior
written consent of Lessor and timely compliance (at Lessee's expense) with all
Applicable Requirements. "REPORTABLE USE" shall mean (i) the installation or use
of any above or below ground storage tank, (ii) the generation, possession,
storage, use, transportation, or disposal of a Hazardous Substance that requires
a permit from, or with respect to which a report, notice, registration or
business plan is required to be filed with, any governmental authority, and/or
(iii) the presence at the Premises of a Hazardous Substance with respect to
which any Applicable Requirements requires that a notice be given to persons
entering or occupying the Premises or neighboring properties. Notwithstanding
the foregoing, Lessee may use any ordinary and customary materials reasonably
required to be used in the normal course of the Agreed Use, so long as such use
is in compliance with all Applicable Requirements, is not a Reportable Use, and
does not expose the Premises or neighboring property to any meaningful risk of
contamination or damage or expose Lessor to any liability therefor. In addition,
Lessor may condition its consent to any Reportable Use upon receiving such
additional assurances as Lessor reasonably deems necessary to protect itself,
the public, the Premises and/or the environment against damage, contamination,
injury and/or liability, including, but not limited to, the installation (and
removal on or before Lease expiration or termination) of protective
modifications (such as concrete encasements) and/or increasing the Security
Deposit.
(b) DUTY TO INFORM LESSOR. If Lessee knows, or has reasonable
cause to believe, that a Hazardous Substance has come to be located in, on,
under or about the Premises, other than as previously consented to by Lessor,
Lessee shall immediately give written notice of such fact to Lessor, and provide
Lessor with a copy of any report, notice, claim or other documentation which it
has concerning the presence of such Hazardous Substance. (See Addendum
Paragraph 64)
(c) LESSEE REMEDIATION. Lessee shall not cause or permit any
Hazardous Substance to be spilled or released in, on, under, or about the
Premises (including through the plumbing or sanitary sewer system) and shall
promptly, at Lessee's expense, take all investigatory and/or remedial action
reasonably recommended, whether or not formally ordered or required, for the
cleanup of any contamination of, and for the maintenance, security and/or
monitoring of the Premises or neighboring properties, that was caused or
materially contributed to by Lessee, or pertaining to or involving any Hazardous
Substance brought onto the Premises during the term of this Lease, by or for
Lessee, or any third party. (See Addendum Paragraph 64)
(d) LESSEE INDEMNIFICATION. Lessee shall indemnify, defend and
hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless
from and against any and all loss of rents and/or damages, liabilities,
judgments, claims, expenses, penalties, and attorneys' and consultants' fees
arising out of or involving any Hazardous Substance brought onto the Premises by
or for Lessee, or any third party (provided, however, that Lessee shall have no
liability under this Lease with respect to underground migration of any
Hazardous Substance under the Premises from adjacent properties). Lessee's
obligations shall include, but not be limited to, the effects of any
contamination or injury to person, property or the environment created or
suffered by Lessee, and the cost of investigation, removal, remediation,
restoration and/or abatement, and shall survive the expiration or termination of
this Lease. NO TERMINATION, CANCELLATION OR RELEASE AGREEMENT ENTERED INTO BY
LESSOR AND LESSEE SHALL RELEASE LESSEE FROM ITS OBLIGATIONS UNDER THIS LEASE
WITH RESPECT TO HAZARDOUS SUBSTANCES, UNLESS SPECIFICALLY SO AGREED BY LESSOR IN
WRITING AT THE TIME OF SUCH AGREEMENT. (See Addendum Paragraph 64)
(e) LESSOR INDEMNIFICATION. Lessor and its successors and assigns
shall indemnify, defend, reimburse and hold Lessee, its employees and lenders,
harmless from and against any and all environmental damages, including the cost
of remediation, which existed as a result of Hazardous Substances on the
Premises prior to the Start Date or which are caused by the gross negligence or
willful misconduct of Lessor, its agents or employees. Lessor's obligations, as
and when required by the Applicable Requirements, shall include, but not be
limited to, the cost of investigation, removal, remediation, restoration and/or
abatement, and shall survive the expiration or termination of this Lease.
(See Addendum Paragraph 64)
(f) INVESTIGATIONS AND REMEDIATIONS. Lessor shall retain the
responsibility and pay for any investigations or remediation measures required
by governmental entities having jurisdiction with respect to the existence of
Hazardous Substances on the Premises prior to the Start Date, unless such
remediation measure is required as a result of Lessee's use (including
"Alterations", as defined in Paragraph 7.3(a) below) of the Premises, in which
event Lessee shall be responsible for such payment. Lessee shall cooperate fully
in any such activities at the request of Lessor, including allowing Lessor and
Lessor's agents to have reasonable access to the Premises at reasonable times in
order to carry out Lessor's investigative and remedial responsibilities.
(See Addendum Paragraph 64)
(g) LESSOR TERMINATION OPTION. If a Hazardous Substance Condition
occurs during the term of this Lease, unless Lessee is legally responsible
therefor (in which case Lessee shall make the investigation and remediation
thereof required by the Applicable Requirements and this Lease shall continue in
full force and effect, but subject to Lessor's rights under Paragraph 6.2(d) and
Paragraph 13), Lessor may, at Lessor's option, either (i) investigate and
remediate such Hazardous Substance Condition, if required, as soon as reasonably
possible at Lessor's expense, in which event this Lease shall continue in full
force and effect, or (ii) if the estimated cost to remediate such condition
exceeds twelve (12) times the then monthly Base Rent or $100,000, whichever is
greater, give written notice to Lessee, within thirty (30) days after receipt by
Lessor of knowledge of the occurrence of such Hazardous Substance Condition, of
Lessor's desire to terminate this Lease as of the date sixty (60) days following
the date of such notice. In the event Lessor elects to give a termination
notice, Lessee may, within ten (10) days thereafter, give written notice to
Lessor of Lessee's commitment to pay the amount by which the cost of the
remediation of such Hazardous Substance Condition exceeds an amount equal to
twelve (12) times the then monthly Base Rent or $100,000, whichever is greater.
Lessee shall provide Lessor with said funds or satisfactory assurance thereof
within thirty (30) days following such commitment. In such event, this Lease
shall continue in full force and effect, and Lessor shall proceed to make such
remediation as soon as reasonably possible after the required funds are
available. If Lessee does not give such notice and provide the required funds or
assurance thereof within the time provided, this Lease shall terminate as of the
date specified in Lessor's notice of termination. (See Addendum Paragraph 64)
6.3 LESSEE'S COMPLIANCE WITH APPLICABLE REQUIREMENTS. Except as
otherwise provided in this Lease, Lessee shall, at Lessee's sole expense, fully,
diligently and in a timely manner, materially comply with all Applicable
Requirements, the requirements of any applicable fire insurance underwriter or
rating bureau, and the recommendations of Lessor's engineers and/or consultants
which relate in any manner to the Premises, without regard to whether said
requirements are now in effect or become effective after the Start Date. Lessee
shall, within ten (10) days after receipt of Lessor's written request, provide
Lessor with copies of all permits and other documents, and other information
evidencing Lessee's compliance with any Applicable Requirements specified by
Lessor, and shall immediately upon receipt, notify Lessor in writing (with
copies of any documents involved) of any threatened or actual claim, notice,
citation, warning, complaint or report pertaining to or involving the failure of
Lessee or the Premises to comply with any Applicable Requirements.
6.4 INSPECTION; COMPLIANCE. Lessor and Lessor's "Lender" (as defined
in Paragraph 30 below) and consultants shall have the right to enter into
Premises at any time, in the case of an emergency, and otherwise at reasonable
times, for the purpose of inspecting the condition of the Premises and for
verifying compliance by Lessee with this Lease. The cost of any such inspections
shall be paid by Lessor, unless a violation of Applicable Requirements, or a
contamination is found to exist or be imminent, or the inspection is requested
or ordered by a governmental authority. In such case, Lessee shall upon request
reimburse Lessor for the cost of such inspections, so long as such inspection is
reasonably related to the violation or contamination. (See Addendum Paragraph
65)
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7. MAINTENANCE; REPAIRS, UTILITY INSTALLATIONS; TRADE FIXTURES AND
ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS.
(a) IN GENERAL. Subject to the provisions of Paragraph 2.2
(Condition), 2.3 (Compliance), 6.3 (Lessee's Compliance with Applicable
Requirements), 7.2 (Lessor's Obligations), 9 (Damage or Destruction), and 14
(Condemnation), Lessee shall, at Lessee's sole expense, keep the Premises,
Utility Installations, and Alterations in good order, condition and repair
(whether or not the portion of the Premises requiring repairs, or the means of
repairing the same, are reasonably or readily accessible to Lessee, and whether
or not the need for such repairs occurs as a result of Lessee's use, any prior
use, the elements or the age of such portion of the Premises), including, but
not limited to, all equipment or facilities, such as plumbing, heating,
ventilating, air-conditioning, electrical, lighting facilities, boilers,
pressure vessels, fire protection system, fixtures, walls (interior and
exterior), foundations, ceilings, roofs, floors, windows, doors, plate glass,
skylights, landscaping, driveways, parking lots, fences, retaining walls, signs,
sidewalks and parkways located in, on, or adjacent to the Premises. Lessee, in
keeping the Premises in good order, condition and repair, shall exercise and
perform good maintenance practices, specifically including the procurement and
maintenance of the service contracts required by Paragraph 7.1(b) below.
Lessee's obligations shall include restorations, replacements or renewals when
necessary to keep the Premises and all improvements thereon or a part thereof in
good order, condition and state of repair. Lessee shall, during the term of this
Lease, keep the exterior appearance of the Building in a first-class condition
consistent with the exterior appearance of other similar facilities of
comparable age and size in the vicinity, including, when necessary, the exterior
repainting of the Building. (See Addendum Paragraph 66)
(b) SERVICE CONTRACTS. Lessee shall, at Lessee's sole expense,
procure and maintain contracts, with copies to Lessor, in customary form and
substance for, and with contractors specializing and experienced in the
maintenance of the following equipment and improvements, if any, if and when
installed on the Premises: (i) HVAC equipment, (ii) boiler, and pressure
vessels, (iii) fire extinguishing systems, including fire alarm and/or smoke
detection, (iv) landscaping and irrigation systems, (v) roof covering and
drains, (vi) driveways and parking lots, (vii) clarifiers (viii) basic utility
feed to the perimeter of the Building, and (ix) any other equipment, if
reasonably required by Lessor. (See Addendum Paragraph 66)
(c) REPLACEMENT. Subject to Lessee's indemnification of Lessor as
set forth in Paragraph 8.7 below, and without relieving Lessee of liability
resulting from Lessee's failure to exercise and perform good maintenance
practices, if the Basic Elements described in Paragraph 7.1(b) cannot be
repaired other than at a cost which is in excess of 50% of the cost of replacing
such Basic Elements, then such Basic Elements shall be replaced by Lessor, and
the cost thereof shall be prorated between the Parties and Lessee shall only be
obligated to pay, each month during the remainder of the term of this Lease, on
the date on which Base Rent is due, an amount equal to the product of
multiplying the cost of such replacement by a fraction, the numerator of which
is one, and the denominator of which is the number of months of the useful life
of such replacement as such useful life is specified pursuant to Federal income
tax regulations or guidelines for depreciation thereof (including interest on
the unamortized balance as is then commercially reasonable in the judgment of
Lessor's accountants), with Lessee reserving the right to prepay its obligation
at any time. (See Addendum Paragraph 66)
7.2 LESSOR'S OBLIGATIONS. Subject to the provisions of Paragraphs
2.2 (Condition), 2.3 (Compliance), 9 (Damage or Destruction) and 14
(Condemnation), it is intended by the Parties hereto that Lessor have no
obligation, in any manner whatsoever, to repair and maintain the Premises, or
the equipment therein, all of which obligations are intended to be that of the
Lessee. It is the intention of the Parties that the terms of this Lease govern
the respective obligations of the Parties as to maintenance and repair of the
Premises, and they expressly waive the benefit of any statute now or hereafter
in effect to the extent it is inconsistent with the terms of this Lease.
7.3 UTILITY INSTALLATIONS; TRADE FIXTURES; ALTERATIONS.
(See Addendum Paragraph 66)
(a) DEFINITIONS; CONSENT REQUIRED. The term "UTILITY
INSTALLATIONS" refers to all floor and window coverings, air lines, power
panels, electrical distribution, security and fire protection systems,
communication systems, lighting fixtures, HVAC equipment, plumbing, and fencing
in or on the Premises. The term "TRADE FIXTURES" shall mean Lessee's machinery
and equipment that can be removed without doing material damage to the Premises.
The term "ALTERATIONS" shall mean any modification of the improvements, other
than Utility Installations or Trade Fixtures, whether by addition or deletion.
"LESSEE OWNED ALTERATIONS AND/OR UTILITY INSTALLATIONS" are defined as
Alterations and/or Utility Installations made by Lessee that are not yet owned
by Lessor pursuant to Paragraph 7.4(a). Lessee shall not make any Alterations or
Utility Installations to the Premises without Lessor's prior written consent.
Lessee may, however, make non-structural Utility Installations to the interior
of the Premises (excluding the roof) without such consent but upon notice to
Lessor, as long as they are not visible from the outside, do not involve
puncturing, relocating or removing the roof or any existing walls, and the
cumulative cost thereof during this Lease as extended does not exceed $50,000 in
the aggregate or $10,000 in any one year.
(b) CONSENT. Any Alterations or Utility Installations that Lessee
shall desire to make and which require the consent of the Lessor shall be
presented to Lessor in written form with detailed plans. Consent shall be deemed
conditioned upon Lessee's: (i) acquiring all applicable governmental permits,
(ii) furnishing Lessor with copies of both the permits and the plans and
specifications prior to commencement of the work, and (iii) compliance with all
conditions of said permits and other Applicable Requirements in a prompt and
expeditious manner. Any Alterations or Utility Installations shall be performed
in a workmanlike manner with good and sufficient materials. Lessee shall
promptly upon completion furnish Lessor with as-built plans and specifications.
For work which costs an amount equal to the greater of one month's Base Rent, or
$10,000, Lessor may condition its consent upon Lessee providing a lien and
completion bond in an amount equal to one and one-half times the estimated cost
of such Alteration or Utility Installation and/or upon Lessee's posting an
additional Security Deposit with Lessor.
(c) INDEMNIFICATION. Lessee shall pay, when due, all claims for
labor or materials furnished or alleged to have been furnished to or for Lessee
at or for use on the Premises, which claims are or may be secured by any
mechanic's or materialmen's lien against the Premises or any interest therein.
Lessee shall give Lessor not less than ten (10) days' notice prior to the
commencement of any work in, on or about the Premises, and Lessor shall have the
right to post notices of non-responsibility. If Lessee shall contest the
validity of any such lien, claim or demand, then Lessee shall, at its sole
expense defend and protect itself, Lessor and the Premises against the same and
shall pay and satisfy any such adverse judgment that may be rendered thereon
before the enforcement thereof. If Lessor shall require, Lessee shall furnish a
surety bond in an amount equal to one and one-half times the amount of such
contested lien, claim or demand, indemnifying Lessor against liability for the
same. If Lessor elects to participate in any such action, Lessee shall pay
Lessor's attorneys' fees and costs.
7.4 OWNERSHIP; REMOVAL; SURRENDER; AND RESTORATION.
(See Addendum Paragraph 66)
(a) OWNERSHIP. Subject to Lessor's right to require removal or
elect ownership as hereinafter provided, all Alterations and Utility
Installations made by Lessee shall be the property of Lessee, but considered a
part of the Premises. Lessor may, at any time, elect in writing to be the owner
of all or any specified part of the Lessee Owned Alterations and Utility
Installations. Unless otherwise instructed per Paragraph 7.4(b) hereof, all
Lessee Owned Alterations and Utility Installations shall, at the expiration or
termination of this Lease, become the property of Lessor and be surrendered by
Lessee with the Premises.
(b) REMOVAL. By delivery to Lessee of written notice from Lessor
not earlier than ninety (90) and not later than thirty (30) days prior to the
end of the term of this Lease, Lessor may require that any or all Lessee Owned
Alterations or Utility Installations be removed by the expiration or termination
of this Lease. Lessor may require the removal at any time of all or any part of
any Lessee Owned Alterations or Utility Installations made without the required
consent.
(c) SURRENDER/RESTORATION. Lessee shall surrender the Premises by
the Expiration Date or any earlier termination date, with all of the
improvements, parts and surfaces thereof broom clean and free of debris, and in
good operating order, condition and state of repair, ordinary wear and tear
excepted. "Ordinary wear and tear" shall not include any damage or deterioration
that would have been prevented by good maintenance practice. Lessee shall repair
any damage occasioned by the installation, maintenance or removal of Trade
Fixtures, Lessee Owned Alterations and/or Utility Installations, furnishings,
and equipment as well as the removal of any storage tank installed by or for
Lessee, and the removal, replacement, or remediation of any soil, material or
groundwater contaminated by Lessee. Trade Fixtures shall remain the property of
Lessee and shall be removed by Lessee. The failure by Lessee to timely vacate
the Premises pursuant to this Paragraph 7.4(c) without the express written
consent of Lessor shall constitute a holdover under the provisions of Paragraph
26 below.
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8. INSURANCE; INDEMNITY.
8.1 PAYMENT FOR INSURANCE. Lessee shall pay for all insurance
required under Paragraph 8 except to the extent of the cost attributable to
liability insurance carried by Lessor under Paragraph 8.2(b) in excess of
$2,000,000 per occurrence. Premiums for policy periods commencing prior to or
extending beyond the Lease term shall be prorated to correspond to the Lease
term. Payment shall be made by Lessee to Lessor within ten (10) days following
receipt of an invoice.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in force a
Commercial General Liability Policy of Insurance protecting Lessee and Lessor
against claims for bodily injury, personal injury and property damage based upon
or arising out of the ownership, use, occupancy or maintenance of the Premises
and all areas appurtenant thereto. Such insurance shall be on an occurrence
basis providing single limit coverage in an amount not less than $2,000,000 per
occurrence with an "ADDITIONAL INSURED -- MANAGERS OR LESSORS OF PREMISES
ENDORSEMENT" and contain the "AMENDMENT OF THE POLLUTION EXCLUSION ENDORSEMENT"
for damage caused by heat, smoke or fumes from a hostile fire. The Policy shall
not contain any intra-insured exclusions as between insured persons or
organizations, but shall include coverage for liability assumed under this Lease
as an "insured contract" for the performance of Lessee's indemnity obligations
under this Lease. The limits of said insurance shall not, however, limit the
liability of Lessee nor relieve Lessee of any obligation hereunder. All
insurance carried by Lessee shall be primary to and not contributory with any
similar insurance carried by Lessor, whose insurance shall be considered excess
insurance only.
(b) CARRIED BY LESSOR. Lessor shall maintain liability insurance
as described in Paragraph 8.2(a), in addition to, and not in lieu of, the
insurance required to be maintained by Lessee. Lessee shall not be named as an
additional insured therein.
8.3 PROPERTY INSURANCE -- BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. The Insuring Party shall obtain
and keep in force a policy or policies in the name of Lessor, with loss payable
to Lessor, any groundlessor, and to any Lender(s) insuring loss or damage to the
Premises. The amount of such insurance shall be equal to the full replacement
cost of the Premises, as the same shall exist from time to time, or the amount
required by any Lenders, but in no event more than the commercially reasonable
and available insurable value thereof. If Lessor is the Insuring Party, however,
Lessee Owned Alterations and Utility Installations, Trade Fixtures, and Lessee's
personal property shall be insured by Lessee under Paragraph 8.4 rather than by
Lessor. If the coverage is available and commercially appropriate, such policy
or policies shall insure against all risks of direct physical loss or damage
(except the perils of flood and/or earthquake unless required by a Lender),
including coverage for debris removal and the enforcement of any Applicable
Requirements requiring the upgrading, demolition, reconstruction or replacement
of any portion of the Premises as the result of a covered loss. Said policy or
policies shall also contain an agreed valuation provision in lieu of any
coinsurance clause, waiver of subrogation, and inflation guard protection
causing an increase in the annual property insurance coverage amount by a factor
of not less than the adjusted U.S. Department of Labor Consumer Price Index for
All Urban Consumers for the city nearest to where the Premises are located. If
such insurance coverage has a deductible clause, the deductible amount shall not
exceed $1,000 per occurrence, and Lessee shall be liable for such deductible
amount in the event of an Insured Loss. (See Addendum Paragraph 67)
(b) RENTAL VALUE. The Insuring Party shall obtain and keep in
force a policy or policies in the name of Lessor with loss payable to Lessor and
any Lender, insuring the loss of the full Rent for one (1) year. Said insurance
shall provide that in the event the Lease is terminated by reason of an insured
loss, the period of indemnity for such coverage shall be extended beyond the
date of the completion of repairs or replacement of the Premises, to provide for
one full year's loss of Rent from the date of any such loss. Said insurance
shall contain an agreed valuation provision in lieu of any coinsurance clause,
and the amount of coverage shall be adjusted annually to reflect the projected
Rent otherwise payable by Lessee, for the next twelve (12) month period. Lessee
shall be liable for any deductible amount in the event of such loss.
(See Addendum Paragraph 67)
(c) ADJACENT PREMISES. If the Premises are part of a larger
building, or of a group of buildings owned by Lessor which are adjacent to the
Premises, the Lessee shall pay for any increase in the premiums for the property
insurance of such building or buildings if said increase is caused by Lessee's
acts, omissions, use or occupancy of the Premises. (See Addendum Paragraph 67)
8.4 LESSEE'S PROPERTY/BUSINESS INTERRUPTION INSURANCE.
(a) PROPERTY DAMAGE. Lessee shall obtain and maintain insurance
coverage on all of Lessee's personal property, Trade Fixtures, and Lessee Owned
Alterations and Utility Installations. Such insurance shall be full replacement
cost coverage with a deductible of not to exceed $1,000 per occurrence. The
proceeds from any such insurance shall be used by Lessee for the replacement of
personal property, Trade Fixtures and Lessee Owned Alterations and Utility
Installations. Lessee shall provide Lessor with written evidence that such
insurance is in force.
(b) BUSINESS INTERRUPTION. Lessee shall obtain and maintain loss
of income and extra expense insurance in amounts as will reimburse Lessee for
direct or indirect loss of earnings attributable to all perils commonly insured
against by prudent lessees in the business of Lessee or attributable to
prevention of access to the Premises as a result of such perils.
(c) NO REPRESENTATION OF ADEQUATE COVERAGE. Lessor makes no
representation that the limits or forms of coverage of insurance specified
herein are adequate to cover Lessee's property, business operations or
obligations under this Lease.
8.5 INSURANCE POLICIES. Insurance required herein shall be by
companies duly licensed or admitted to transact business in the state where the
Premises are located, and maintaining during the policy term a "General
Policyholders Rating" of at least B+, V, as set forth in the most current issue
of "Best's Insurance Guide", or such other rating as may be required by a
Lender. Lessee shall not do or permit to be done anything which invalidates the
required insurance policies. Lessee shall, prior to the Start Date, deliver to
Lessor certified copies of policies of such insurance or certificates evidencing
the existence and amounts of the required insurance. No such policy shall be
cancelable or subject to modification except after thirty (30) days prior
written notice to Lessor. Lessee shall, at least thirty (30) days prior to the
expiration of such policies, furnish Lessor with evidence of renewals or
"insurance binders" evidencing renewal thereof, or Lessor may order such
insurance and charge the cost thereof to Lessee, which amount shall be payable
by Lessee to Lessor upon demand. Such policies shall be for a term of at least
one year, or the length of the remaining term of this Lease, whichever is less.
If either Party shall fail to procure and maintain the insurance required to be
carried by it, the other Party may, but shall not be required to, procure and
maintain the same.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or
remedies, Lessee and Lessor each hereby release and relieve the other, and waive
their entire right to recover damages against the other, for loss of or damage
to its property arising out of or incident to the perils required to be insured
against herein. The effect of such releases and waivers is not limited by the
amount of insurance carried or required, or by any deductibles applicable
hereto. The Parties agree to have their respective property damage insurance
carriers waive any right to subrogation that such companies may have against
Lessor or Lessee, as the case may be, so long as the insurance is not
invalidated thereby.
8.7 INDEMNITY. Except for Lessor's gross negligence or willful
misconduct, Lessee shall indemnify, protect, defend and hold harmless the
Premises, Lessor and its agents, Lessor's master or ground lessor, partners and
Lenders, from and against any and all claims, loss of rents and/or damages,
liens, judgments, penalties, attorneys' and consultants' fees, expenses and/or
liabilities arising out of, involving, or in connection with, the use and/or
occupancy of the Premises by Lessee. If any action or proceeding is brought
against Lessor by reason of any of the foregoing matters, Lessee shall upon
notice defend the same at Lessee's expense by counsel reasonably satisfactory to
Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not
have first paid any such claim in order to be defended or indemnified.
(See Addendum Paragraph 67)
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable
for injury or damage to the person or goods, wares, merchandise or other
property of Lessee, Lessee's employees, contractors, invitees, customers, or any
other person in or about the Premises, whether such damage or injury is caused
by or results from fire, steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, fire sprinklers,
wires, appliances, plumbing, HVAC or lighting fixtures, or from any other cause,
whether the said injury or damage results from conditions arising upon the
Premises or upon other portions of the Building of which the Premises are a
part, or from other sources or places. Lessor shall not be liable for any
damages arising from any act or neglect of any other tenant of Lessor.
Notwithstanding Lessor's negligence or breach of this Lease, Lessor shall under
no circumstances be liable for injury to Lessee's business or for any loss of
income or profit therefrom. (See Addendum Paragraph 67)
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or destruction
to the improvements on the Premises, other than Lessee Owned Alterations and
Utility Installations, which can reasonably be repaired in six (6) months or
less from the date of the damage or destruction.
PAGE 5 of 13
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Lessor shall notify Lessee in writing within thirty (30) days from the date of
the damage or destruction as to whether or not the damage is Partial or Total.
(See Addendum Paragraph 68)
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or
destruction to the Premises, other than Lessee Owned Alterations and Utility
Installations and Trade Fixtures, which cannot reasonably be repaired in six (6)
months or less from the date of the damage or destruction. Lessor shall notify
Lessee in writing within thirty (30) days from the date of the damage or
destruction as to whether or not the damage is Partial or Total. (See Addendum
Paragraph 68)
(c) "INSURED LOSS" shall mean damage or destruction to
improvements on the Premises, other than Lessee Owned Alterations and Utility
Installations and Trade Fixtures, which was caused by an event required to be
covered by the insurance described in Paragraph 8.3(a), irrespective of any
deductible amounts or coverage limits involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or rebuild
the improvements owned by Lessor at the time of the occurrence to their
condition existing immediately prior thereto, including demolition, debris
removal and upgrading required by the operation of Applicable Requirements, and
without deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the occurrence or
discovery of a condition involving the presence of, or a contamination by, a
Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the
Premises.
9.2 PARTIAL DAMAGE -- INSURED LOSS. If a Premises Partial Damage
that is an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair
such damage (but not Lessee's Trade Fixtures or Lessee Owned Alterations and
Utility Installations) as soon as reasonably possible and this Lease shall
continue in full force and effect; provided, however, that Lessee shall, at
Lessor's election, make the repair of any damage or destruction the total cost
to repair of which is $10,000 or less, and, in such event, Lessor shall make any
applicable insurance proceeds available to Lessee on a reasonable basis for that
purpose. Notwithstanding the foregoing, if the required insurance was not in
force or the insurance proceeds are not sufficient to effect such repair, the
Insuring Party shall promptly contribute the shortage in proceeds (except as to
the deductible which is Lessee's responsibility) as and when required to
complete said repairs. In the event, however, such shortage was due to the fact
that, by reason of the unique nature of the improvements, full replacement cost
insurance coverage was not commercially reasonable and available, Lessor shall
have no obligation to pay for the shortage in insurance proceeds or to fully
restore the unique aspects of the Premises unless Lessee provides Lessor with
the funds to cover same, or adequate assurance thereof, within ten (10) days
following receipt of written notice of such shortage and request therefor. If
Lessor receives said funds or adequate assurance thereof within said ten (10)
day period, the party responsible for making the repairs shall complete them as
soon as reasonably possible and this Lease shall remain in full force and
effect. If such funds or assurance are not received, Lessor may nevertheless
elect by written notice to Lessee within ten (10) days thereafter to: (i) make
such restoration and repair as is commercially reasonable with Lessor paying any
shortage in proceeds, in which case this Lease shall remain in full force and
effect, or have this Lease terminate thirty (30) days thereafter. Lessee shall
not be entitled to reimbursement of any funds contributed by Lessee to repair
any such damage or destruction. Premises Partial Damage due to flood or
earthquake shall be subject to Paragraph 9.3, notwithstanding that there may be
some insurance coverage, but the net proceeds of any such insurance shall be
made available for the repairs if made by either Party. (See Addendum
Paragraph 68)
9.3 PARTIAL DAMAGE -- UNINSURED LOSS. If a Premises Partial Damage
that is not an Insured Loss occurs, unless caused by a negligent or willful act
of Lessee (in which event Lessee shall make the repairs at Lessee's expense),
Lessor may either: (i) repair such damage as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full force and
effect, or (ii) terminate this Lease by giving written notice to Lessee within
thirty (30) days after receipt by Lessor of knowledge of the occurrence of such
damage. Such termination shall be effective sixty (60) days following the date
of such notice. In the event Lessor elects to terminate this Lease, Lessee shall
have the right within ten (10) days after receipt of the termination notice to
give written notice to Lessor of Lessee's commitment to pay for the repair of
such damage without reimbursement from Lessor. Lessee shall provide Lessor with
said funds or satisfactory assurance thereof within thirty (30) days after
making such commitment. In such event this Lease shall continue in full force
and effect, and Lessor shall proceed to make such repairs as soon as reasonably
possible after the required funds are available. If Lessee does not make the
required commitment, this Lease shall terminate as of the date specified in the
termination notice. (See Addendum Paragraph 68)
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof,
if a Premises Total Destruction occurs, this Lease shall terminate sixty (60)
days following such Destruction. If the damage or destruction was caused by the
gross negligence or willful misconduct of Lessee, Lessor shall have the right to
recover Lessor's damages from Lessee, except as provided in Paragraph 8.6.
(See Addendum Paragraph 68)
9.5 DAMAGE NEAR END OF TERM. If at any time during the last six (6)
months of this Lease there is damage for which the cost to repair exceeds one
(1) month's Base Rent, whether or not an Insured Loss, Lessor may terminate this
Lease effective sixty (60) days following the date of occurrence of such damage
by giving a written termination notice to Lessee within thirty (30) days after
the date of occurrence of such damage. Notwithstanding the foregoing, if Lessee
at that time has an exercisable option to extend this Lease or to purchase the
Premises, then Lessee may preserve this Lease by, (a) exercising such option and
(b) providing Lessor with any shortage in insurance proceeds (or adequate
assurance thereof) needed to make the repairs on or before the earlier of (i)
the date which is ten days after Lessee's receipt of Lessor's written notice
purporting to terminate this Lease, or (ii) the day prior to the date upon which
such option expires. If Lessee duly exercises such option during such period and
provides Lessor with funds (or adequate assurance thereof) to cover any shortage
in insurance proceeds, Lessor shall, at Lessor's commercially reasonable
expense, repair such damage as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise such option and
provide such funds or assurance during such period, then this Lease shall
terminate on the date specified in the termination notice and Lessee's option
shall be extinguished. (See Addendum Paragraph 68)
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES. (See Addendum
Paragraph 68)
(a) ABATEMENT. In the event of Premises Partial Damage or
Premises Total Destruction or a Hazardous Substance Condition for which Lessee
is not responsible under this Lease, the Rent payable by Lessee for the period
required for the repair, remediation or restoration of such damage shall be
abated in proportion to the degree to which Lessee's use of the Premises is
impaired, but not to exceed the proceeds received from the Rental Value
insurance. All other obligations of Lessee hereunder shall be performed by
Lessee, and Lessor shall have no liability for any such damage, destruction,
remediation, repair or restoration except as provided herein. (See Addendum
Paragraph 68)
(b) REMEDIES. If Lessor shall be obligated to repair or restore
the Premises and does not commence, in a substantial and meaningful way, such
repair or restoration within ninety (90) days after such obligation shall
accrue, Lessee may, at any time prior to the commencement of such repair or
restoration, give written notice to Lessor and to any Lenders of which Lessee
has actual notice, of Lessee's election to terminate this Lease on a date not
less than sixty (60) days following the giving of such notice. If Lessee gives
such notice and such repair or restoration is not commenced within thirty (30)
days thereafter, this Lease shall terminate as of the date specified in said
notice. If the repair or restoration is commenced within said thirty (30) days,
this Lease shall continue in full force and effect. "COMMENCE" shall mean either
the unconditional authorization of the preparation of the required plans, or the
beginning of the actual work on the Premises, whichever first occurs. (See
Addendum Paragraph 68)
9.7 TERMINATION -- ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be
made concerning advance Base Rent and any other advance payments made by Lessee
to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's
Security Deposit as has not been, or is not then required to be, used by Lessor.
9.8 WAIVE STATUTES. Lessor and Lessee agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the Premises
with respect to the termination of this Lease and hereby waive the provisions of
any present or future statute to the extent inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 DEFINITION OF "REAL PROPERTY TAXES." As used herein, the term
"REAL PROPERTY TAXES" shall include any form of assessment; real estate,
general, special, ordinary or extraordinary, or rental levy or tax (other than
inheritance, personal income or estate taxes); improvement bond; and/or license
fee imposed upon or levied against any legal or equitable interest of Lessor in
the Premises, Lessor's right to other income therefrom, and/or Lessor's business
of leasing, by any authority having the direct or indirect power to tax and
where the
PAGE 6 of 13
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funds are generated with reference to the Building address and where the
proceeds so generated are to be applied by the city, county or other local
taxing authority of a jurisdiction within which the Premises are located. The
term "REAL PROPERTY TAXES" shall also include any tax, fee, levy, assessment or
charge, or any increase therein, imposed by reason of events occurring during
the term of this Lease, including but not limited to, a change in the ownership
of the Premises. (See Addendum Paragraph 69)
10.2
(a) PAYMENT OF TAXES. Lessee shall pay the Real Property Taxes
applicable to the Premises during the term of this Lease. Subject to Paragraph
10.2(b), all such payments shall be made at least ten (10) days prior to any
delinquency date. Lessee shall promptly furnish Lessor with satisfactory
evidence that such taxes have been paid. If any such taxes shall cover any
period of time prior to or after the expiration or termination of this Lease,
Lessee's share of such taxes shall be prorated to cover only that portion of the
tax xxxx applicable to the period that this Lease is in effect, and Lessor shall
reimburse Lessee for any overpayment. If Lessee shall fail to pay any required
Real Property Taxes, Lessor shall have the right to pay the same, and Lessee
shall reimburse Lessor therefor upon demand.
(b) ADVANCE PAYMENT. In the event Lessee incurs a late charge on
any Rent payment, Lessor may, at Lessor's option, estimate the current Real
Property Taxes, and require that such taxes be paid in advance to Lessor by
Lessee, either: (i) in a lump sum amount equal to the installment due, at least
twenty (20) days prior to the applicable delinquency date, or (ii) monthly in
advance with the payment of the Base Rent. If Lessor elects to require payment
monthly in advance, the monthly payment shall be an amount equal to the amount
of the estimated installment of taxes divided by the number of months remaining
before the month in which said installment becomes delinquent. When the actual
amount of the applicable tax xxxx is known, the amount of such equal monthly
advance payments shall be adjusted as required to provide the funds needed to
pay the applicable taxes. If the amount collected by Lessor is insufficient to
pay such Real Property Taxes when due, Lessee shall pay Lessor, upon demand,
such additional sums as are necessary to pay such obligations. All monies paid
to Lessor under this Paragraph may be intermingled with other monies of Lessor
and shall not bear interest. In the event of a Breach by Lessee in the
performance of its obligations under this Lease, then any balance of funds paid
to Lessor under the provisions of this Paragraph may, at the option of Lessor,
be treated as an additional Security Deposit.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the Real Property Taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be conclusively determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information as
may be reasonably available. (See Addendum Paragraph 69)
10.4 PERSONAL PROPERTY TAXES. Lessee shall pay, prior to delinquency,
all taxes assessed against and levied upon Lessee Owned Alterations, Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee. When possible, Lessee shall cause such property to be assessed and
billed separately from the real property of Lessor. If any of Lessee's said
personal property shall be assessed with Lessor's real property, Lessee shall
pay Lessor the taxes attributable to Lessee's property within ten (10) days
after receipt of a written statement.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to the
Premises, together with any taxes thereon. If any such services are not
separately metered to Lessee, Lessee shall pay a reasonable proportion, to be
determined by Lessor, of all charges jointly metered. (See Addendum
Paragraph 70)
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED.
(a) Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage or encumber (collectively, "ASSIGN OR ASSIGNMENT") or sublet
all or any part of Lessee's interest in this Lease or in the Premises without
Lessor's prior written consent.
(b) A change in the control of Lessee shall constitute an
assignment requiring consent. The transfer, on a cumulative basis, of
twenty-five percent (25%) or more of the voting control of Lessee shall
constitute a change in control for this purpose. (See Addendum Paragraph 71)
(c) The involvement of Lessee or its assets in any transaction,
or series of transactions (by way of merger, sale, acquisition, financing,
transfer, leveraged buy-out or otherwise), whether or not a formal assignment or
hypothecation of this Lease or Lessee's assets occurs, which results or will
result in a reduction of the Net Worth of Lessee by an amount greater than
twenty-five percent (25%) of such Net Worth as it was represented at the time of
the execution of this Lease or at the time of the most recent assignment to
which Lessor has consented, or as it exists immediately prior to said
transaction or transactions constituting such reduction, whichever was or is
greater, shall be considered an assignment of this Lease to which Lessor may
withhold its consent. "NET WORTH OF LESSEE" shall mean the net worth of Lessee
(excluding any guarantors) established under generally accepted accounting
principles. (See Addendum Paragraph 71)
(d) An assignment or subletting without consent shall, at
Lessor's option, be a Default curable after notice per Paragraph 13.1(c), or a
noncurable Breach without the necessity of any notice and grace period. If
Lessor elects to treat such unapproved assignment or subletting as a noncurable
Breach, Lessor may either: (i) terminate this Lease, or (ii) upon thirty (30)
days written notice, increase the monthly Base Rent to one hundred ten percent
(110%) of the Base Rent then in effect. Further, in the event of such Breach and
rental adjustment, (i) the purchase price of any option to purchase the Premises
held by Lessee shall be subject to similar adjustment to one hundred ten percent
(110%) of the price previously in effect, and (ii) all fixed and non-fixed
rental adjustments scheduled during the remainder of the Lease term shall be
increased to One Hundred Ten Percent (110%) of the scheduled adjusted rent.
(See Addendum Paragraph 71)
(e) Lessee's remedy for any breach of Paragraph 12.1 by Lessor
shall be limited to compensatory damages and/or injunctive relief.
(See Addendum Paragraph 71)
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
(a) Regardless of Lessor's consent, any assignment or subletting
shall not: (i) be effective without the express written assumption by such
assignee or sublessee of the obligations of Lessee under this Lease; (ii)
release Lessee of any obligations hereunder; or (iii) alter the primary
liability of Lessee for the payment of Rent or for the performance of any other
obligations to be performed by Lessee.
(b) Lessor may accept Rent or performance of Lessee's
obligations from any person other than Lessee pending approval or disapproval of
an assignment. Neither a delay in the approval or disapproval of such assignment
nor the acceptance of Rent or performance shall constitute a waiver or estoppel
of Lessor's right to exercise its remedies for Lessee's Default or Breach.
(c) Lessor's consent to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting.
(d) In the event of any Default or Breach by Lessee, Lessor may
proceed directly against Lessee, any Guarantors or anyone else responsible for
the performance of Lessee's obligations under this Lease, including any assignee
or sublessee, without first exhausting Lessor's remedies against any other
person or entity responsible therefore to Lessor, or any security held by
Lessor.
(e) Each request for consent to an assignment or subletting
shall be in writing, accompanied by information relevant to Lessor's
determination as to the financial and operational responsibility and
appropriateness of the proposed assignee or sublessee, including but not limited
to the intended use and/or required modification of the Premises, if any,
together with a fee of $1,000 or ten percent (10%) of the current monthly Base
Rent applicable to the portion of the Premises which is the subject of the
proposed assignment or sublease, whichever is greater, as consideration for
Lessor's considering and processing said request. Lessee agrees to provide
Lessor with such other or additional information and/or documentation as may be
reasonably requested. (See Addendum Paragraph 71)
(f) Any assignee of, or sublessee under, this Lease shall, by
reason of accepting such assignment or entering into such sublease, be deemed to
have assumed and agreed to conform and comply with each and every term,
covenant, condition and obligation herein to be observed or performed by Lessee
during the term of said assignment or sublease, other than such obligations as
are contrary to or inconsistent with provisions of an assignment or sublease to
which Lessor has specifically consented to in writing.
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. (See
Addendum Paragraph 71) The following terms and conditions shall apply to any
subletting by Lessee of all or any part of the Premises and shall be deemed
included in all subleases under this Lease whether or not expressly incorporated
therein:
(a) Lessee hereby assigns and transfers to Lessor all of
Lessee's interest in all Rent payable on any sublease, and Lessor may collect
such Rent and apply same toward Lessee's obligations under this Lease; provided,
however, that until a Breach shall occur in the performance of Lessee's
obligations, Lessee may collect said Rent. Lessor shall not, by reason of the
foregoing or any assignment of such sublease, nor by reason of the collection of
Rent, be deemed liable to the sublessee for any failure of Lessee to perform and
comply with any of Lessee's obligations to such sublessee. Lessee hereby
irrevocably authorizes and directs any such sublessee, upon receipt of a written
PAGE 7 of 13
8
notice from Lessor stating that a Breach exists in the performance of Lessee's
obligations under this Lease, to pay to Lessor all Rent due and to become due
under the sublease. Sublessee shall rely upon any such notice from Lessor and
shall pay all Rents to Lessor without any obligation or right to inquire as to
whether such Breach exists, notwithstanding any claim from Lessee to the
contrary.
(b) In the event of a Breach by Lessee, Lessor may, at its
option, require sublessee to attorn to Lessor, in which event Lessor shall
undertake the obligations of the sublessor under such sublease from the time of
the exercise of said option to the expiration of such sublease; provided,
however, Lessor shall not be liable for any prepaid rents or security deposit
paid by such sublessee to such sublessor or for any prior Defaults or Breaches
of such sublessor.
(c) Any matter requiring the consent of the sublessor under a
sublease shall also require the consent of Lessor.
(d) No sublessee shall further assign or sublet all or any part
of the Premises without Lessor's prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or
Breach by Lessee to the sublessee, who shall have the right to cure the Default
of Lessee within the grace period, if any, specified in such notice. The
sublessee shall have a right of reimbursement and offset from and against Lessee
for any such Defaults cured by the sublessee.
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. A "DEFAULT" is defined as a failure by the
Lessee to comply with or perform any of the terms, covenants, conditions or
rules under this Lease. A "BREACH" is defined as the occurrence of one or more
of the following Defaults, and the failure of Lessee to cure such Default within
any applicable grace period:
(a) The abandonment of the Premises; or the vacating of the
Premises without providing a commercially reasonable level of security, or where
the coverage of the property insurance described in Paragraph 8.3 is jeopardized
as a result thereof, or without providing reasonable assurances to minimize
potential vandalism. (See Addendum Paragraph 72)
(b) The failure of Lessee to make any payment of Rent or any
Security Deposit required to be made by Lessee hereunder, whether to Lessor or
to a third party, when due, to provide reasonable evidence of insurance or
surety bond, or to fulfill any obligation under this Lease which endangers or
threatens life or property, where such failure continues for a period of three
(3) business days following written notice to Lessee. (See Addendum Paragraph
72)
(c) The failure by Lessee to provide (i) reasonable written
evidence of compliance with Applicable Requirements, (ii) the service contracts,
(iii) the rescission of an unauthorized assignment or subletting, (iv) a Tenancy
Statement, (v) a requested subordination, (vi) evidence concerning any guaranty
and/or Guarantor, (vii) any document requested under Paragraph 42 (easements),
or (viii) any other documentation or information which Lessor may reasonably
require of Lessee under the terms of this Lease, where any such failure
continues for a period of ten (10) days following written notice to Lessee.
(See Addendum Paragraph 72)
(d) A Default by Lessee as to the terms, covenants, conditions
or provisions of this Lease, or of the rules adopted under Paragraph 40 hereof,
other than those described in subparagraphs 13.1(a), (b) or (c), above, where
such Default continues for a period of thirty (30) days after written notice;
provided, however, that if the nature of Lessee's Default is such that more than
thirty (30) days are reasonably required for its cure, then it shall not be
deemed to be a Breach if Lessee commences such cure within said thirty (30) day
period and thereafter diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the
making of any general arrangement or assignment for the benefit of creditors;
(ii) becoming a "DEBTOR" as defined in 11 U.S.C. Section 101 or any successor
statute thereto (unless, in the case of a petition filed against Lessee, the
same is dismissed within sixty (60) days); (iii) the appointment of a trustee or
receiver to take possession of substantially all of Lessee's assets located at
the Premises or of Lessee's interest in this Lease, where possession is not
restored to Lessee within thirty (30) days; or (iv) the attachment, execution or
other judicial seizure of substantially all of Lessee's assets located at the
Premises or of Lessee's interest in this Lease, where such seizure is not
discharged within thirty (30) days; provided, however, in the event that any
provision of this subparagraph 13.1 (e) is contrary to any applicable law, such
provision shall be of no force or effect, and not affect the validity of the
remaining provisions. (See Addendum Paragraph 72)
(f) The discovery that any financial statement of Lessee or of
any Guarantor given to Lessor was materially false.
(g) If the performance of Lessee's obligations under this Lease
is guaranteed: (i) the death of a Guarantor; (ii) the termination of a
Guarantor's liability with respect to this Lease other than in accordance with
the terms of such guaranty; (iii) a Guarantor's becoming insolvent or the
subject of a bankruptcy filing; (iv) a Guarantor's refusal to honor the
guaranty; or (v) a Guarantor's breach of its guaranty obligation on an
anticipatory basis, and Lessee's failure, within sixty (60) days following
written notice of any such event, to provide written alternative assurance or
security, which, when coupled with the then existing resources of Lessee, equals
or exceeds the combined financial resources of Lessee and the Guarantors that
existed at the time of execution of this Lease.
13.2 REMEDIES. If Lessee fails to perform any of its affirmative
duties or obligations, within ten (10) days after written notice (or in case of
an emergency, without notice), Lessor may, at its option, perform such duty or
obligation on Lessee's behalf, including but not limited to the obtaining of
reasonably required bonds, insurance policies, or governmental licenses, permits
or approvals. The costs and expenses of any such performance by Lessor shall be
due and payable by Lessee upon receipt of invoice therefor. If any check given
to Lessor by Lessee shall not be honored by the bank upon which it is drawn,
Lessor, at its option, may require all future payments to be made by Lessee to
be by cashier's check. In the event of a Breach, Lessor may, with or without
further notice or demand, and without limiting Lessor in the exercise of any
right or remedy which Lessor may have by reason of such Breach:
(a) Terminate Lessee's right to possession of the Premises by
any lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession to Lessor. In such event Lessor shall be
entitled to recover from Lessee: (i) the unpaid Rent which had been earned at
the time of termination; (ii) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that the Lessee proves
could have been reasonably avoided; (iii) 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 that the Lessee proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, including but not limited to the cost of recovering
possession of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, and that
portion of any leasing commission paid by Lessor in connection with this Lease
applicable to the unexpired term of this Lease. The worth at the time of award
of the amount referred to in provision (iii) of the immediately preceding
sentence shall be computed by discounting such amount at the discount rate of
the Federal Reserve Bank of the District within which the Premises are located
at the time of award plus one percent (1%). Efforts by Lessor to mitigate
damages caused by Lessee's Breach of this Lease shall not waive Lessor's right
to recover damages under Paragraph 12. If termination of this Lease is obtained
through the provisional remedy of unlawful detainer, Lessor shall have the right
to recover in such proceeding any unpaid Rent and damages as are recoverable
therein, or Lessor may reserve the right to recover all or any part thereof in a
separate suit. If a notice and grace period required under Paragraph 13.1 was
not previously given, a notice to pay rent or quit, or to perform or quit given
to Lessee under the unlawful detainer statute shall also constitute the notice
required by Paragraph 13.1. In such case, the applicable grace period required
by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and
the failure of Lessee to cure the Default within the greater of the two such
grace periods shall constitute both an unlawful detainer and a Breach of this
Lease entitling Lessor to the remedies provided for in this Lease and/or by said
statute.
(b) Continue the Lease and Lessee's right to possession and
recover the Rent as it becomes due, in which event Lessee may sublet or assign,
subject only to reasonable limitations. Acts of maintenance, efforts to relet,
and/or the appointment of a receiver to protect the Lessor's interests, shall
not constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available under the
laws or judicial decisions of the state wherein the Premises are located. The
expiration or termination of this Lease and/or the termination of Lessee's right
to possession shall not relieve Lessee from liability under any indemnity
provisions of this Lease as to matters occurring or accruing during the term
hereof or by reason of Lessee's occupancy of the Premises.
PAGE 8 of 13
9
13.3 INDUCEMENT RECAPTURE. Any agreement for free or abated rent or
other charges, or for the giving or paying by Lessor to or for Lessee of any
cash or other bonus, inducement or consideration for Lessee's entering into this
Lease, all of which concessions are hereinafter referred to as "INDUCEMENT
PROVISIONS," shall be deemed conditioned upon Lessee's full and faithful
performance of all of the terms, covenants and conditions of this Lease. Upon
Breach of this Lease by Lessee, any such Inducement Provision shall
automatically be deemed deleted from this Lease and of no further force or
effect, and any rent, other charge, bonus, inducement or consideration
theretofore abated, given or paid by Lessor under such an Inducement Provision
shall be immediately due and payable by Lessee to Lessor, notwithstanding any
subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent or
the cure of the Breach which initiated the operation of this paragraph shall not
be deemed a waiver by Lessor of the provisions of this paragraph unless
specifically so stated in writing by Lessor at the time of such acceptance.
(See Addendum Paragraph 72)
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease,
the exact amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges, and late
charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent
shall not be received by Lessor within five (5) days after such amount shall be
due, then, without any requirement for notice to Lessee, Lessee shall pay to
Lessor a one-time late charge equal to ten percent (10%) of each such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of such late
payment. Acceptance of such late charge by Lessor shall in no event constitute a
waiver of Lessee's Default or Breach with respect to such overdue amount, nor
prevent the exercise of any of the other rights and remedies granted hereunder.
In the event that a late charge is payable hereunder, whether or not collected,
for three (3) consecutive installments of Base Rent, then notwithstanding any
provision of this Lease to the contrary, Base Rent shall, at Lessor's option,
become due and payable quarterly in advance. (See Addendum Paragraph 72)
13.5 INTEREST. Any monetary payment due Lessor hereunder, other than
late charges, not received by Lessor, when due as to scheduled payments (such as
Base Rent) or within thirty (30) days following the date on which it was due for
non-scheduled payment, shall bear interest from the date when due, as to
scheduled payments, or the thirty-first (31st) day after it was due as to
non-scheduled payments. The interest ("INTEREST") charged shall be equal to the
prime rate reported in the Wall Street Journal as published closest prior to the
date when due plus four percent (4%), but shall not exceed the maximum rate
allowed by law. Interest is payable in addition to the potential late charge
provided for in Paragraph 13.4. (See Addendum Paragraph 72)
13.6 BREACH BY LESSOR.
(a) NOTICE OF BREACH. Lessor shall not be deemed in breach of
this Lease unless Lessor fails within a reasonable time to perform an obligation
required to be performed by Lessor. For purposes of this Paragraph, a reasonable
time shall in no event be less than thirty (30) days after receipt by Lessor,
and any Lender whose name and address shall have been furnished Lessee in
writing for such purpose, of written notice specifying wherein such obligation
of Lessor has not been performed; provided, however, that if the nature of
Lessor's obligation is such that more than thirty (30) days are reasonably
required for its performance, then Lessor shall not be in breach if performance
is commenced within such thirty (30) day period and thereafter diligently
pursued to completion. (See Addendum Paragraph 72)
(b) PERFORMANCE BY LESSEE ON BEHALF OF LESSOR. In the event that
neither Lessor nor Lender cures said breach within thirty (30) days after
receipt of said notice, or if having commenced said cure they do not diligently
pursue it to completion, then Lessee may elect to cure said breach at Lessee's
expense and offset from Rent an amount equal to the greater of one month's Base
Rent or the Security Deposit, and to pay an excess of such expense under
protest, reserving Lessee's right to reimbursement from Lessor. Lessee shall
document the cost of said cure and supply said documentation to Lessor.
(See Addendum Paragraph 72)
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said power
(collectively "CONDEMNATION"), this Lease shall terminate as to the part taken
as of the date the condemning authority takes title or possession, whichever
first occurs. If more than ten percent (10%) of any building portion of the
premises, or more than twenty-five percent (25%) of the land area portion of the
premises not occupied by any building, is taken by Condemnation, Lessee may, at
Lessee's option, to be exercised in writing within ten (10) days after Lessor
shall have given Lessee written notice of such taking (or in the absence of such
notice, within ten (10) days after the condemning authority shall have taken
possession) terminate this Lease as of the date the condemning authority takes
such possession. If Lessee does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the portion of
the Premises remaining, except that the Base Rent shall be reduced in proportion
to the reduction in utility of the Premises caused by such Condemnation.
Condemnation awards and/or payments shall be the property of Lessor, whether
such award shall be made as compensation for diminution in value of the
leasehold, the value of the part taken, or for severance damages; provided,
however, that Lessee shall be entitled to any compensation for Lessee's
relocation expenses, loss of business goodwill and/or Trade Fixtures, without
regard to whether or not this Lease is terminated pursuant to the provisions of
this Paragraph. All Alterations and Utility Installations made to the Premises
by Lessee, for purposes of Condemnation only, shall be considered the property
of the Lessee and Lessee shall be entitled to any and all compensation which is
payable therefor. In the event that this Lease is not terminated by reason of
the Condemnation, Lessor shall repair any damage to the Premises caused by such
condemnation. (See Addendum Paragraph 73)
15. BROKERS' FEE.
15.1 ADDITIONAL COMMISSION. In addition to the payments owed pursuant
to Paragraph 1.10 above, and unless Lessor and the Brokers otherwise agree in
writing, Lessor agrees that: (a) if Lessee exercises any Option, (b) if Lessee
acquires any rights to the Premises or other premises owned by Lessor and
located within the same Project, if any, within which the Premises is located,
(c) if Lessee remains in possession of the Premises, with the consent of Lessor,
after the expiration of this Lease, or (d) if Base Rent is increased, whether by
agreement or operation of an escalation clause herein, then, Lessor shall pay
Brokers a fee in accordance with the schedule of said Brokers in effect at the
time of the execution of this Lease.
15.2 ASSUMPTION OF OBLIGATIONS. Any buyer or transferee of Lessor's
interest in this Lease shall be deemed to have assumed Lessor's obligation
hereunder. Each Broker shall be a third party beneficiary of the provisions of
Paragraphs 1.10, 15, 22 and 31. If Lessor fails to pay to a Broker any amounts
due as and for commissions pertaining to this Lease when due, then such amounts
shall accrue Interest. In addition, if Lessor fails to pay any amounts to
Lessee's Broker when due, Lessee's Broker may send written notice to Lessor and
Lessee of such failure and if Lessor fails to pay such amounts within ten (10)
days after said notice, Lessee shall pay said monies to its Broker and offset
such amounts against Rent. In addition, Lessee's Broker shall be deemed to be a
third party beneficiary of any commission agreement entered into by and/or
between Lessor and Lessor's Broker.
15.3 REPRESENTATIONS AND INDEMNITIES OF BROKER RELATIONSHIPS. Lessee
and Lessor each represent and warrant to the other that it has had no dealings
with any person, firm, broker or finder (other than the Brokers, if any) in
connection with this Lease, and that no one other than said named Brokers is
entitled to any commission or finder's fee in connection herewith. Lessee and
Lessor do each hereby agree to indemnify, protect, defend and hold the other
harmless from and against liability for compensation or charges which may be
claimed by any such unnamed broker, finder or other similar party by reason of
any dealings or actions of the indemnifying Party, including any costs,
expenses, attorneys' fees reasonably incurred with respect thereto.
16. ESTOPPEL CERTIFICATES.
(a) Each Party (as "RESPONDING PARTY") shall within ten (10)
days after written notice from the other Party (the "REQUESTING PARTY") execute,
acknowledge and deliver to the Requesting Party a statement in writing in form
similar to the then most current "ESTOPPEL CERTIFICATE" form published by the
American Industrial Real Estate Association, plus such additional information,
confirmation and/or statements as may be reasonably requested by the Requesting
Party. (See Addendum Paragraph 74)
(b) If the Responding Party shall fail to execute or deliver the
Estoppel Certificate within such ten day period, the Requesting Party may
execute an Estoppel Certificate stating that: (i) the Lease is in full force and
effect without modification except as may be represented by the Requesting
Party, (ii) there are no uncured defaults in the Requesting Party's performance,
and (iii) if Lessor is the Requesting Party, not more than one month's rent has
been paid in advance. Prospective purchasers and encumbrancers may rely upon the
Requesting Party's Estoppel Certificate, and the Responding Party shall be
estopped from denying the truth of the facts contained in said Certificate.
(See Addendum Paragraph 74)
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(c) If Lessor desires to finance, refinance, or sell the Premises, or any part
thereof, Lessee and all Guarantors shall deliver to any potential lender or
purchaser designated by Lessor such financial statements as may be reasonably
required by such lender or purchaser, including, but not limited to Lessee's
financial statements for the past three (3) years. All such financial statements
shall be received by Lessor and such lender or purchaser in confidence and shall
be used only for the purposes herein set forth. (See Addendum Paragraph 74)
17. DEFINITION OF LESSOR. The term "LESSOR" as used herein shall mean the
owner or owners at the time in question of the fee title to the Premises, or, if
this is a sublease, of the Lessee's interest in the prior lease. In the event of
a transfer of Lessor's title or interest in the Premises or this Lease, Lessor
shall deliver to the transferee or assignee (in cash or by credit) any unused
Security Deposit held by Lessor. Except as provided in Paragraph 15, upon such
transfer or assignment and delivery of the Security Deposit, as aforesaid, the
prior Lessor shall be relieved of all liability with respect to the obligations
and/or covenants under this Lease thereafter to be performed by the Lessor.
Subject to the foregoing, the obligations and/or covenants in this Lease to be
performed by the Lessor shall be binding only upon the Lessor as hereinabove
defined. Notwithstanding the above, and subject to the provisions of Paragraph
20 below, the original Lessor under this Lease, and all subsequent holders of
the Lessor's interest in this Lease shall remain liable and responsible with
regard to the potential duties and liabilities of Lessor pertaining to Hazardous
Substances as outlined in Paragraph 6 above.
18. SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. DAYS. Unless otherwise specifically indicated to the contrary, the word
"days" as used in this Lease shall mean and refer to calendar days.
20. LIMITATION ON LIABILITY. Subject to the provisions of Paragraph 17
above, the obligations of Lessor under this Lease shall not constitute personal
obligations of Lessor, the individual partners of Lessor or its or their
individual partners, directors, officers or shareholders, and Lessee shall look
to the Premises, and to no other assets of Lessor, for the satisfaction of any
liability of Lessor with respect to this Lease, and shall not seek recourse
against the individual partners of Lessor, or its or their individual partners,
directors, officers or shareholders, or any of their personal assets for such
satisfaction.
21. TIME OF ESSENCE. Time is of the essence with respect to the performance
of all obligations to be performed or observed by the Parties under this Lease.
22. NO PRIOR OR OTHER AGREEMENTS; BROKER DISCLAIMER. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein, and
no other prior or contemporaneous agreement or understanding shall be effective.
Lessor and Lessee each represents and warrants to the Brokers that it has made,
and is relying solely upon, its own investigation as to the nature, quality,
character and financial responsibility of the other Party to this Lease and as
to the nature, quality and character of the Premises. Brokers have no
responsibility with respect thereto or with respect to any default or breach
hereof by either Party. The liability (including court costs and Attorneys'
fees), of any Broker with respect to negotiation, execution, delivery or
performance by either Lessor or Lessee under this Lease or any amendment or
modification hereto shall be limited to an amount up to the fee received by such
Broker pursuant to this Lease; provided, however, that the foregoing limitation
on each Broker's liability shall not be applicable to any gross negligence or
willful misconduct of such Broker.
23. NOTICES.
23.1 NOTICE REQUIREMENTS. All notices required or permitted
by this Lease shall be in writing and may be delivered in person (by hand or by
courier) or may be sent by regular, certified or registered mail or U.S. Postal
Service Express Mail, with postage prepaid, or by facsimile transmission, and
shall be deemed sufficiently given if served in a manner specified in this
Paragraph 23. The addresses noted adjacent to a Party's signature on this Lease
shall be that Party's address for delivery or mailing of notices. Either Party
may by written notice to the other specify a different address for notice,
except that upon Lessee's taking possession of the Premises, the Premises shall
constitute Lessee's address for notice. A copy of all notices to Lessor shall be
concurrently transmitted to such party or parties at such addresses as Lessor
may from time to time hereafter designate in writing. (See Addendum
Paragraph 89)
23.2 DATE OF NOTICE. Any notice sent by registered or
certified mail, return receipt requested, shall be deemed given on the date of
delivery shown on the receipt card, or if no delivery date is shown, the
postmark thereon. If sent by regular mail the notice shall be deemed given
forty-eight (48) hours after the same is addressed as required herein and mailed
with postage prepaid. Notices delivered by United States Express Mail or
overnight courier that guarantee next day delivery shall be deemed given
twenty-four (24) hours after delivery of the same to the Postal Service or
courier. Notices transmitted by facsimile transmission or similar means shall be
deemed delivered upon telephone confirmation of receipt, provided a copy is also
delivered via delivery or mail. If notice is received on a Saturday, Sunday or
legal holiday, it shall be deemed received on the next business day.
24. WAIVERS. No waiver by Lessor of the Default or Breach of any term,
covenant or condition hereof by Lessee, shall be deemed a waiver of any other
term, covenant or condition hereof, or of any subsequent Default or Breach by
Lessee of the same or of any other term, covenant or condition hereof. Lessor's
consent to, or approval of, any act shall not be deemed to render unnecessary
the obtaining of Lessor's consent to, or approval of, any subsequent or similar
act by Lessee, or be construed as the basis of an estoppel to enforce the
provision or provisions of this Lease requiring such consent. The acceptance of
Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. Any
payment by Lessee may be accepted by Lessor on account of moneys or damages due
Lessor, notwithstanding any qualifying statements or conditions made by Lessee
in connection therewith, which such statements and/or conditions shall be of no
force or effect whatsoever unless specifically agreed to in writing by Lessor at
or before the time of deposit of such payment.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees applicable thereto.
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or termination of this Lease.
In the event that Lessee holds over, then the Base Rent shall be increased to
one hundred fifty percent (150%) of the Base Rent applicable during the month
immediately preceding the expiration or termination. Nothing contained herein
shall be construed as consent by Lessor to any holding over by Lessee.
(See Addendum Paragraph 75)
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. COVENANTS AND CONDITIONS; CONSTRUCTION OF AGREEMENT. All provisions of
this Lease to be observed or performed by Lessee are both covenants and
conditions. In construing this Lease, all headings and titles are for the
convenience of the parties only and shall not be considered a part of this
Lease. Whenever required by the context, the singular shall include the plural
and vice versa. This Lease shall not be construed as if prepared by one of the
parties, but rather according to its fair meaning as a whole, as if both parties
had prepared it.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the
parties, their personal representatives, successors and assigns and be governed
by the laws of the State in which the Premises are located. Any litigation
between the Parties hereto concerning this Lease shall be initiated in the
county in which the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or other
hypothecation or security device (collectively, "SECURITY DEVICE"), now or
hereafter placed upon the Premises, to any and all advances made on the security
thereof, and to all renewals, modifications, and extensions thereof. Lessee
agrees that the holders of any such Security Devices (in this Lease together
referred to as "Lessor's Lender") shall have no liability or obligation to
perform any of the obligations of Lessor under this Lease. Any Lender may elect
to have this Lease and/or any Option granted hereby superior to the lien of its
Security Device by giving written notice thereof to Lessee, whereupon this Lease
and such Options shall be deemed prior to such Security Device, notwithstanding
the relative dates of the documentation or recordation thereof.
(See Addendum Paragraph 76)
30.2 ATTORNMENT. Subject to the non-disturbance provisions of
Paragraph 30.3, Lessee agrees to attorn to a Lender or any other party who
acquires ownership of the Premises by reason of a foreclosure of a Security
Device, and that in the event of such foreclosure,
PAGE 10 of 13
11
such new owner shall not: (i) be liable for any act or omission of any prior
lessor or with respect to events occurring prior to acquisition of ownership;
(ii) be subject to any offsets or defenses which Lessee might have against any
prior lessor; or (iii) be bound by prepayment of more than one (1) month's rent.
30.3 NON-DISTURBANCE. With respect to Security Devices entered into
by Lessor after the execution of this Lease, Lessee's subordination of this
Lease shall be subject to receiving a commercially reasonable non-disturbance
agreement (a "NON-DISTURBANCE AGREEMENT") from the Lender which Non-Disturbance
Agreement provides that Lessee's possession of the Premises, and this Lease,
including any options to extend the term hereof, will not be disturbed so long
as Lessee is not in Breach hereof and attorns to the record owner of the
Premises. Further, within sixty (60) days after the execution of this Lease,
Lessor shall use its commercially reasonable efforts to obtain a Non-Disturbance
Agreement from the holder of any pre-existing Security Device which is secured
by the Premises. In the event that Lessor is unable to provide the
Non-Disturbance Agreement within said sixty (60) days, then Lessee may, at
Lessee's option, directly contact Lessor's lender and attempt to negotiate for
the execution and delivery of a Non-Disturbance Agreement.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30
shall be effective without the execution of any further documents; provided,
however, that, upon written request from Lessor or a Lender in connection with a
sale, financing or refinancing of the Premises, Lessee and Lessor shall execute
such further writings as may be reasonably required to separately document any
subordination, attornment and/or Non-Disturbance Agreement provided for herein.
31. ATTORNEYS' FEES. If any Party or Broker brings an action or proceeding
involving the Premises to enforce the terms hereof or to declare rights
hereunder, the Prevailing Party (as hereafter defined) in any such proceeding,
action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such
fees may be awarded in the same suit or recovered in a separate suit, whether or
not such action or proceeding is pursued to decision or judgment. The term,
"PREVAILING PARTY" shall include, without limitation, a Party or Broker who
substantially obtains or defeats the relief sought, as the case may be, whether
by compromise, settlement, judgment, or the abandonment by the other Party or
Broker of its claim or defense. The attorneys' fees award shall not be computed
in accordance with any court fee schedule, but shall be such as to fully
reimburse all attorneys' fees reasonably incurred. In addition, Lessor shall be
entitled to attorneys' fees, costs and expenses incurred in the preparation and
service of notices of Default and consultations in connection therewith, whether
or not a legal action is subsequently commenced in connection with such Default
or resulting Breach. (See Addendum Paragraph 77)
32. LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS. Lessor and Lessor's agents
shall have the right to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times for the purpose of showing the same
to prospective purchasers, lenders, or lessees, and making such alterations,
repairs, improvements or additions to the Premises as Lessor may deem necessary.
All such activities shall be without abatement of rent or liability to Lessee.
Lessor may at any time place on the Premises any ordinary "FOR SALE" signs and
Lessor may during the last six (6) months of the term hereof place on the
Premises any ordinary "FOR LEASE" signs. Lessee may at any time place on or
about the Premises any ordinary "FOR SUBLEASE" sign. (See Addendum Paragraph 78)
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, any
auction upon the Premises without Lessor's prior written consent. Lessor shall
not be obligated to exercise any standard of reasonableness in determining
whether to permit an auction.
34. SIGNS. Except for ordinary "For Sublease" signs, Lessee shall not place
any sign upon the Premises without Lessor's prior written consent. All signs
must comply with all Applicable Requirements. (See Addendum Paragraph 79)
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, that Lessor may elect to continue any one or all
existing subtenancies. Lessor's failure within ten (10) days following any such
event to elect to the contrary by written notice to the holder of any such
lesser interest, shall constitute Lessor's election to have such event
constitute the termination of such interest.
36. CONSENTS. Except as otherwise provided herein, wherever in this Lease
the consent of a Party is required to an act by or for the other Party, such
consent shall not be unreasonably withheld or delayed. Lessor's actual
reasonable costs and expenses (including, but not limited to, architects',
attorneys', engineers' and other consultants' fees) incurred in the
consideration of, or response to, a request by Lessee for any Lessor consent,
including, but not limited to, consents to an assignment, a subletting or the
presence or use of a Hazardous Substance, shall be paid by Lessee upon receipt
of an invoice and supporting documentation therefor. Lessor's consent to any
act, assignment or subletting shall not constitute an acknowledgment that no
Default or Breach by Lessee of this Lease exists, nor shall such consent be
deemed a waiver of any then existing Default or Breach, except as may be
otherwise specifically stated in writing by Lessor at the time of such consent.
The failure to specify herein any particular condition to Lessor's consent shall
not preclude the imposition by Lessor at the time of consent of such further or
other conditions as are then reasonable with reference to the particular matter
for which consent is being given. In the event that either Party disagrees with
any determination made by the other hereunder and reasonably requests the
reasons for such determination, the determining party shall furnish its reasons
in writing and in reasonable detail within ten (10) business days following such
request.
37. GUARANTOR. (See Addendum Paragraph 80)
38. QUIET POSSESSION. Subject to payment by Lessee of the Rent and
performance of all of the covenants, conditions and provisions on Lessee's part
to be observed and performed under this Lease, Lessee shall have quiet
possession and quiet enjoyment of the Premises during the term hereof.
39. OPTIONS.
39.1 DEFINITION. "OPTION" shall mean: (a) the right to extend the
term of or renew this Lease or to extend or renew any lease that Lessee has on
other property of Lessor; (b) the right of first refusal or first offer to lease
either the Premises or other property of Lessor; (c) the right to purchase or
the right of first refusal to purchase the Premises or other property of Lessor.
39.2 OPTIONS PERSONAL TO ORIGINAL LESSEE. Each Option granted to
Lessee in this Lease is personal to the original Lessee, and cannot be assigned
or exercised by anyone other than said original Lessee and only while the
original Lessee is in full possession of the Premises and, if requested by
Lessor, with Lessee certifying that Lessee has no intention of thereafter
assigning or subletting. (See Addendum Paragraph 81)
39.3 MULTIPLE OPTIONS. In the event that Lessee has any multiple
Options to extend or renew this Lease, a later Option cannot be exercised unless
the prior Options have been validly exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option: (i) during
the period commencing with the giving of any notice of Default and continuing
until said Default is cured, (ii) during the period of time any Rent is unpaid
(without regard to whether notice thereof is given Lessee), (iii) during the
time Lessee is in Breach of this Lease, or (iv) in the event that Lessee has
been given three (3) or more notices of separate Default, whether or not the
Defaults are cured, during the twelve (12) month period immediately preceding
the exercise of the Option. (See Addendum Paragraph 81)
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of Paragraph 39.4(a).
(c) An Option shall terminate and be of no further force or
effect, notwithstanding Lessee's due and timely exercise of the Option, if,
after such exercise and prior to the commencement of the extended term, (i)
Lessee fails to pay Rent for a period of thirty (30) days after such Rent
becomes due (without any necessity of Lessor to give notice thereof), (ii)
Lessor gives to Lessee three (3) or more notices of separate Default during any
twelve (12) month period, whether or not the Defaults are cured, or (iii) if
Lessee commits a Breach of this Lease.
40. MULTIPLE BUILDINGS. If the Premises are a part of a group of buildings
controlled by Lessor, Lessee agrees that it will observe all reasonable rules
and regulations which Lessor may make from time to time for the management,
safety, and care of said properties, including
PAGE 11 of 13
12
the care and cleanliness of the grounds and including the parking, loading and
unloading of vehicles, and that Lessee will pay its fair share of common
expenses incurred in connection therewith. (See Addendum Paragraph 82)
41. SECURITY MEASURES. Lessee hereby acknowledges that the rental payable to
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of the Premises, Lessee,
its agents and invitees and their property from the acts of third parties.
42. RESERVATIONS. Lessor reserves to itself the right, from time to time, to
grant, without the consent or joinder of Lessee, such easements, rights and
dedications that Lessor deems necessary, and to cause the recordation of parcel
maps and restrictions, so long as such easements, rights, dedications, maps and
restrictions do not unreasonably interfere with the use of the Premises by
Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to
effectuate any such easement rights, dedication, map or restrictions.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to
any amount or sum of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such payment
shall not be regarded as a voluntary payment and there shall survive the right
on the part of said Party to institute suit for recovery of such sum. If it
shall be adjudged that there was no legal obligation on the part of said Party
to pay such sum or any part thereof, said Party shall be entitled to recover
such sum or so much thereof as it was not legally required to pay.
44. AUTHORITY. If either Party hereto is a corporation, trust, limited
liability company, partnership, or similar entity, each individual executing
this Lease on behalf of such entity represents and warrants that he or she is
duly authorized to execute and deliver this Lease on its behalf. Each Party
shall, within thirty (30) days after request, deliver to the other Party
satisfactory evidence of such authority.
45. CONFLICT. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisions shall be controlled by the typewritten
or handwritten provisions.
46. OFFER. Preparation of this Lease by either Party or their agent and
submission of same to the other Party shall not be deemed an offer to lease to
the other Party. This Lease is not intended to be binding until executed and
delivered by all Parties hereto.
47. AMENDMENTS. This Lease may be modified only in writing, signed by the
Parties in interest at the time of the modification. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by a Lender in connection with the obtaining of normal financing or
refinancing of the Premises.
48. MULTIPLE PARTIES. If more than one person or entity is named herein as
either Lessor or Lessee, such multiple Parties shall have joint and several
responsibility to comply with the terms of this Lease.
49. MEDIATION AND ARBITRATION OF DISPUTES. An Addendum requiring the
Mediation and/or the Arbitration of all disputes between the Parties and/or
Brokers arising out of this Lease [ ] is [X] is not attached to this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
________________________________________________________________________________
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY,
LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT
RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF
THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND THE
SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE.
WARNING: IF THE PREMISES IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN
PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE
STATE IN WHICH THE PREMISES IS LOCATED.
________________________________________________________________________________
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at: Beverly Hills, California Executed at: Woodland Hills, California
------------------------- --------------------------
on: December , 1999 on: December , 1999
---------------------------------- -----------------------------------
By LESSOR: By LESSEE:
See Page 13 See Page 13
-------------------------------------- ---------------------------------------
-------------------------------------- ---------------------------------------
By: By:
----------------------------------- ------------------------------------
Name Printed: Name Printed:
------------------------ --------------------------
Title: Title:
------------------------------- ---------------------------------
By: By:
----------------------------------- ------------------------------------
Name Printed: Name Printed:
------------------------ --------------------------
Title: Title:
------------------------------- ---------------------------------
Address: 0000 Xxxxxxxx Xxxx., #000 Address:
---------------------------- --------------------------------
Xxxxxxx Xxxxx, XX 00000
---------------------------- --------------------------------
Telephone: (000) 000-0000 Telephone: ( )
--------------------- -----------------------
Facsimile: (000) 000 0000 Facsimile: ( )
--------------------- -----------------------
Federal ID No. 00-0000000 Federal ID No.
---------------------- ------------------------
NOTE: These forms are often modified to meet the changing requirements of law
and industry needs. Always write or call to make sure you are utilizing
the most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 000
Xx. Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000. (213)
000-0000. Fax No. (000) 000-0000
PAGE 12 of 13
13
LESSOR: LESSEE:
NORTHPARK INDUSTRIAL, CAPSTONE TURBINE CORPORATION,
a California general partnership a California corporation
By: NORTHWEST INDUSTRIAL CENTER,
a California limited partnership, By: /s/ X. XXXXX
General Partner --------------------------------
Name: X. Xxxxx
By: /s/ XXXXXX XXXXXX ------------------------------
---------------------------------- Title: CFO
Xxxxxx Xxxxxx, General Partner -----------------------------
By: /s/ XXXX XXXXXX By:
---------------------------------- --------------------------------
Xxxx Xxxxxx, General Partner Name:
------------------------------
Title:
-----------------------------
By: NORTHPARK INDUSTRIAL-XXXXX DIVISION LLC,
a California limited liability company
General Partner
By: WEST AMERICA CONSTRUCTION CORPORATION,
a California corporation,
Manager
By: /s/ XXXXXXXX X. XXXXX
------------------------------
Xxxxxxxx X. Xxxxx, President
By: /s/ XXXXXX X. XXXXXX
------------------------------
Xxxxxx X. Xxxxxx, Secretary
NORTHWEST INDUSTRIAL CENTER,
a California limited partnership,
By: /s/ XXXXXX XXXXXX
----------------------------------
Xxxxxx Xxxxxx, General Partner
By: /s/ XXXX XXXXXX
----------------------------------
Xxxx Xxxxxx, General Partner
NORTHPARK INDUSTRIAL-XXXXX DIVISION LLC,
a California limited liability company
By: WEST AMERICA CONSTRUCTION CORPORATION,
a California corporation,
Manager
By: /s/ XXXXXXXX X. XXXXX
----------------------------------
Xxxxxxxx X. Xxxxx, President
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Xxxxxx X. Xxxxxx, Secretary
PAGE 13 OF 13
14
ADDENDUM TO LEASE - NET
Lease dated: December 1, 1999
----------------------------------------------
Lessor: NORTHPARK INDUSTRIAL
---------------------------------------------------
Lessee: CAPSTONE TURBINE CORPORATION
---------------------------------------------------
LESSOR AND LESSEE HEREBY AGREE THAT NOTWITHSTANDING ANYTHING CONTAINED IN
THE LEASE TO THE CONTRARY, THE PROVISIONS SET FORTH BELOW WILL BE DEEMED TO
BE A PART OF THE LEASE AND SHALL SUPERSEDE, TO THE EXTENT APPROPRIATE, ANY
CONTRARY PROVISION IN THE LEASE. ALL REFERENCES IN THE LEASE AND IN THIS
ADDENDUM SHALL BE CONSTRUCTED TO MEAN THE LEASE AND EXHIBITS, AS AMENDED
AND SUPPLEMENTED BY THIS ADDENDUM. ALL DEFINED TERMS USED IN THIS ADDENDUM,
UNLESS SPECIFICALLY DEFINED IN THIS ADDENDUM, SHALL HAVE THE SAME MEANING
AS SUCH TERMS HAVE IN THE LEASE.
50) PARTIES (PARAGRAPH 1.1, CONTINUED) Lessor, Northpark Industrial, is a
California general partnership which has two general partners. The
partners of Northpark Industrial are Northwest Industrial Center, a
California limited partnership, and Northpark Industrial-Xxxxx Division,
LLC, a California limited liability company, hereinafter said partners are
referred to as "Northwest" and "Xxxxx," respectively. Title to the real
property which is subject to this Lease, and title to the property where a
portion of Lessee's parking will be located pursuant to this Lease, is
held in the names of Northwest and Xxxxx. To evidence the authority of
Lessor to enter into this Lease with respect to such properties, and the
approval by Northwest and Xxxxx of this Lease, Northwest and Xxxxx are
executing this Lease, in their own separate capacities, in addition to
executing this Lease as the general partners of Lessor.
51) PREMISES (PARAGRAPH 1.2, CONTINUED) In addition to the Premises, Lessee
shall have the right, at no additional cost or rent, to use throughout the
term of this Lease, as the same may be extended, 200 parking spaces, (i)
forty (40) of which shall be parking spaces and located on the land on
which the Premises is located (i.e. 21211 Xxxxxxxx), and shall be for
Lessee's exclusive use, and (ii) one-hundred and sixty (160) of which
shall be unreserved, and located on that certain real property commonly
known as 0000 Xxxx Xxx., Xxxxxxxxxx, Xxxxxxxxxx. The land and all
improvements located at 9151 Eton shall be referred to as the "Garage."
Lessor represents and warrants to Lessee that Lessor is the fee simple
owner of the Garage, free and clear of any liens (other than
non-delinquent real property taxes). Lessee and Lessor acknowledge and
agree that other tenants or Northpark Industrial Center, including, but
not limited to, tenants of the property immediately west of the Premises,
and other persons to whom parking privileges may be granted by Lessor from
time to time, may also park in the Garage, provided that the total of such
parking privileges granted by Lessor in the Garage, including Lessee's
parking spaces in the Garage, shall not exceed at any time the maximum
number of parking spaces located in the Garage. Lessor shall, at Lessor's
sole cost and expense, and without any contribution thereto by Lessee, (i)
maintain, repair and replace the Garage in good order, condition and
repair, (ii) at all times maintain the Garage in compliance with all
Applicable Requirements, as further described below, (iii) insure the
Garage in a manner consistent with other comparable buildings, and (iv)
timely pay all real estate or other taxes applicable thereto, except that
if repairs or maintenance become necessary due to damages caused by
Lessee, then it shall be Lessee's obligation to pay for the same, normal
wear and tear excepted.
52) TERM (PARAGRAPH 1.3, CONTINUED) The original term of this Lease shall be
ten (10) years, which shall commence on the date of the expiration of
Lessee's 60-day Early Possession Period, as such term is defined in
Addendum Paragraph 53. The date on which the said ten-year original term of
this Lease commences is referred to herein as the "Commencement Date."
53) EARLY POSSESSION (PARAGRAPH 1.4, CONTINUED) Lessee shall be entitled to
possession and occupancy of the Premises for a 60-day period, hereinafter
the "Early Possession Period." The Early Possession Period shall commence
upon the Substantial Completion (as hereinafter defined) of Lessor's work
as described in Exhibit A hereto. The date of the Substantial Completion
of Lessor's Exhibit A work shall be determined by mutual agreement of the
parties. Lessor shall give Lessee at least ten (10) days written notice of
the date Lessor proposes Lessor will substantially complete Lessor's
Exhibit A work. If during said 10-day period Lessee agrees to the date
Lessor proposes in Lessor's notice as the date of the Substantial
Completion of Lessor's Exhibit A work or the parties mutually agree to
another date for the Substantial Completion of Lessor's work, then the
date so accepted or agreed upon shall be the date of the Substantial
Completion of Lessor's Exhibit A work and the date of the commencement of
Lessee's Early Possession Period. If, on the other hand, during said
10-day period Lessee does not agree to the date proposed by Lessor in said
notice and the parties are unable to agree upon another date for the date
of the Substantial Completion of Lessor's Exhibit A work, then Lessor
shall give Lessee written notice that Lessor shall proceed to complete all
of Lessor's work as described in Exhibit A, and Lessor shall proceed with
the completion of all of Lessor's Exhibit A work, and the date of the
completion of all of Lessor's work as described in Exhibit A shall be the
date of the Substantial Completion of Lessor's Exhibit A work and the date
of the commencement of Lessee's Early Possession Period. Said date is also
referred to in this Lease as the "Start Date."
15
ADDENDUM TO LEASE - NET
PAGE 2 OF 15
54) BASE RENT (PARAGRAPH 1.5, CONTINUED) The Base Rent (and prepaid Base Rent)
payable for the Premises during the original ten (10) year lease term shall
be as follows:
The Base Rent payable for months one (1) through six (6) shall be
$30,000.00 per month.
The Base Rent payable for months seven (7) through twenty (20) shall be
$60,000.00 per month.
The Base Rent payable for months twenty-one (21) through forty (40) shall
be $63,000.00 per month. In addition, on the first day of the twenty-first
(21st) month, Lessee shall deposit with Lessor $3,000.00 as additional
security.
The Base Rent payable for months forty-one (41) through sixty (60) shall
be $66,150.00 per month. In addition, on the first day of the forty-first
(41st) month, Lessee shall deposit with Lessor $3,150.00 as additional
security.
The Base Rent payable for months sixty-one (61) through eighty (80) shall
be $69,457.50 per month. In addition, on the first day of the sixty-first
(61st) month, Lessee shall deposit with Lessor $3,307.50 as additional
security.
The Base Rent payable for months eighty-one (81) through one hundred (100)
shall be $72,930.38 per month. In addition, on the first day of the
eighty-first (81st) month, Lessee shall deposit with Lessor $3,472.88 as
additional security.
The Base Rent payable for months one hundred and one (101) through one
hundred twenty (120) shall be $76,576.89 per month. In addition, on the
first day of the one hundred and first (101st) month, Lessee shall deposit
with Lessor $3,646.51 as additional security.
Notwithstanding the above, upon execution of this Lease, Lessee shall pay
to Lessor prepaid Base Rent in the amount of $420,000.00, which shall be
applied to months one (1), two (2), and nine (9) through fourteen (14), so
that said prepaid Base Rent shall be applied two months @ $30,000 per
month and six months @ $60,000.00 per month. During those periods of
prepaid Base Rent, Lessee shall pay to Lessor $7,235.90 per month as
Lessor's estimate for Lessee's share of Real Property Taxes and
landscaping and irrigation system maintenance (see below).
In consideration of Lessor's execution of this Lease and as a material
inducement to Lessor to execute this Lease, Lessee's payment to Lessor of
prepaid Base Rent in the amount of $420,000.00 upon the execution of this
Lease shall be deemed to be earned by Lessor in full upon the execution of
this Lease by Lessor, and, subject to the provisions of Paragraph 9.4, no
part of such prepayment shall be refundable or subject to abatement or
otherwise so long as there is not an early termination of this Lease prior
to the end of the fourteenth month of the original term of this Lease
which is caused by a material default by Lessor of Lessor's obligations
under this Lease. In the event this Lease is terminated prior to the end
of the said fourteenth month of the original term of this Lease, (i) if
such termination is caused by a material default by Lessor of Lessor's
obligations under this Lease, then Lessee shall be entitled to a refund of
such portion of said prepaid Base Rent as would have been applicable to
the payment of the Base Rent for those months of the original term of this
Lease which would occur after the termination date, and (ii) if such
termination occurs after the fourteenth month of the original term of this
Lease, or such termination occurs prior thereto but is not caused by a
material default by Lessor of Lessor's obligations under this Lease, then
Lessee shall not be entitled to a refund of any portion of such prepayment
of any kind.
In addition to the Base Rent that Lessee is obligated to pay under
Paragraphs 1.5 and 4, during the Early Possession Period and during the
term of this Lease and any extension thereof, Lessee will also be
obligated to pay Lessor the sum of $7,235.90 per month as Lessor's monthly
estimate for Lessee's share of Real Property Taxes (see Paragraph 10.1 and
Addendum Paragraph 69) and landscaping and irrigation system maintenance.
The current annual Real Property Taxes for the Premises are $101,152.00.
Lessor is in the process of having the Real Property Taxes appealed and
until such time that the appeal is either upheld or denied, Lessee's
responsibility for Real Property Taxes shall be capped at $6,886 per
month. Once this issue has been resolved (either upheld or denied)
Lessee's tax responsibility shall be based entirely on the Real Property
Taxes per the County Tax Assessor's tax bills. Any reduction in Real
Property Taxes (net of Lessor's expenses in achieving such reduction)
resulting from Lessor's pending appeal will be passed on to Lessee to the
extent such reduction is applicable to any period or periods for which
Lessee pays Real Property Taxes pursuant to this Lease. Every year of this
Lease, during the month of July, and during the month immediately
following the termination of this Lease, Lessor will prepare an accounting
of all actual Real Property Taxes and landscaping and irrigation system
maintenance for the just concluded twelve-month period ending on the last
day of the immediately preceding month (or if this Lease is not in effect
for an entire twelve-month period, then such accounting shall be for the
number of months of the term of this Lease during such period for which
this Lease has been in effect). Any differences between the actual
expenses and Lessor's estimates shall be either immediately refunded to
Lessee or immediately due by the Lessee, whichever the case may be. Lessee
or its authorized agent shall have the right, upon five (5) days prior
written notice to Lessor, to inspect, at Lessor's main accounting offices,
Lessor's unaudited books and records regarding these expenses. Since
Lessee is the Insuring Party under this Lease (see Addendum Paragraph 67
below, amending Paragraph 1.9), Lessee shall pay insurance premiums
directly for all insurance required to be maintained by the Insuring Party
during the term of this Lease.
55) AGREED USE (PARAGRAPH 1.8, CONTINUED) Lessee may use the Premises for
manufacturing, assembly and/or warehousing and general office use
associated therewith or any other lawful use.
56) CONDITION (PARAGRAPH 2.2, CONTINUED) Lessee shall obtain the service
contracts described in Paragraph 7.1(b) within thirty (30) days following
the Commencement Date. All references to the "Start Date" in the first two
sentences of Paragraph 2.2 shall refer to the Commencement Date in place
of the Start Date. The six (6) months and the thirty (30) days set forth
in Paragraph 2.2 (ii) and (iii) shall commence as of the Commencement Date.
The provisions of Paragraph 2.2 (i) with respect to the warranty of the
roof are superseded by the provisions of Addendum Paragraph 66 which set
forth Lessor's obligations with respect to the maintenance of the roof
until the replacement of the existing roof in accordance with the
provisions of Addendum Paragraph 66.
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57) COMPLIANCE (PARAGRAPH 2.3, CONTINUED) The six-month time period for
Lessee to give Lessor written notice of non-compliance with Applicable
Requirements shall commence on the Commencement Date. The provisions of
Paragraphs 2.3(b) and 7.1(c) are modified so that Capital Expenditures
for seismic retrofitting and Hazardous Substances shall be the sole
responsibility of Lessor, provided, that such Hazardous Substances
existed on the Premises prior to the Start Date (see Addendum Paragraph
64), provided further, that Lessor shall be solely responsible for all
Capital Expenditures on the Garage, including, but not limited to,
Capital Expenditures for seismic retrofitting and Hazardous Substances,
except for any Hazardous Substances brought onto the Garage by or for
Lessee, which shall be Lessee's responsibility.
58) ACKNOWLEDGEMENTS (PARAGRAPH 2.4, CONTINUED) See Addendum Paragraph 64
concerning Hazardous Substances.
59) TERM (PARAGRAPH 3.1, CONTINUED) Within ten (10) days following the
Commencement Date, the parties shall execute a First Amendment to this
Lease in the form of Exhibit D, setting forth the exact date upon which
Base Rent shall commence, the Commencement Date, the Expiration Date
and the dates upon which the Options to Extend must be exercised in
accordance with the provisions of this Lease.
60) EARLY POSSESSION (PARAGRAPH 3.2, CONTINUED) During the Early
Possession Period, Lessee shall not be required to pay Base Rent,
except that during the Early Possession Period Lessee shall pay Real
Property Taxes (see Paragraph 10.1 and Addendum Paragraph 69) and
landscaping and irrigation system maintenance expenses as provided in
Addendum Paragraph 54, and, as the Insuring Party pursuant to Xxxxxxxx
Xxxxxxxxx 00, Xxxxxx shall obtain and maintain at Lessee's expense all
insurance required to be obtained and maintained and paid for by the
Insuring Party pursuant to this Lease.
61) DELAY IN POSSESSION (PARAGRAPH 3.3, CONTINUED) If possession of the
Premises is not delivered to Lessee by April 1, 2000, subject to any
delays normally considered to be due to "force majeure" in the
construction industry and subject to any delays caused by the acts or
omissions of Lessee, then Lessee shall have the right to terminate this
Lease upon ten (10) days written notice to Lessor.
62) SECURITY DEPOSIT (PARAGRAPH 5, CONTINUED) The security deposit shall
be used and may be refunded only in accordance with Paragraph 5 and in
connection with this paragraph. Lessee shall not use any portion of the
security deposit to satisfy any of Lessee's rental obligations
hereunder including the last month's rental payment. Any failure of
Lessee to pay any of Lessee's rental obligations when due, including
the obligations to pay real estate taxes or property maintenance,
constitutes a material breach of this Lease for which Lessor may
re-enter and take possession of the Premises provided such re-entering
and taking is in accordance with California law and subject to whatever
grace period is specifically provided for in this Lease,
notwithstanding the fact that Lessor may have possession of a security
deposit.
APPLICATION OF SECURITY DEPOSIT If Lessor intends to apply any portion
of the Security Deposit due to Lessee's Default, Lessor shall give
Lessee ten (10) days prior written notice and Lessee shall have the
right to cure such Default within said ten (10) day period prior to
Lessor's application of the Security Deposit.
RESTORATION OF SECURITY DEPOSIT If Lessor applies the Security Deposit
in an amount in excess of $3,000.00, Lessee shall have thirty (30) days
to restore the Security Deposit to the full amount then required under
this Lease.
63) USE (PARAGRAPH 6.1, CONTINUED) Lessee understands that there are no
restrictions contained in this Lease as to the type of business which
may be conducted by any other present or future tenant of any building
located near or adjacent to the building in which the Premises are
located, and that Lessor may lease space to other tenants whose
business is the same or competitive with that of Lessee; provided,
however, that Lessor shall not allow or permit future tenants to
interfere with Lessee's use of the Premises, including loading,
unloading and parking.
NO OUTSIDE STORAGE Under no circumstances shall Lessee be permitted to
use the exterior areas of the Premises, including driveways, alleyways
or easement ways or anywhere else outside the building, for the
temporary or permanent storage of any property, including but not
limited to inventory, parts, work in process, pallets, or the
installation of any type of equipment, including but not limited to air
compressors or any other equipment, subject to the construction by
Lessee of an exterior fuel storage shed in accordance with the
provisions applicable thereto in Paragraph 7.3 as set forth in Addendum
Paragraph 66 below. In the event that any unauthorized storage or
installation of equipment or property shall occur, then Lessor shall
have the right, without notice, in addition to such other rights and
remedies that it may have, to remove the property and/or equipment at
Lessee's expense, which shall be paid by Lessee upon demand by Lessor.
No lunch areas or unauthorized compressor sheds are permitted anywhere
in the driveways, alleyways or easement ways, or anywhere else outside
the building, subject to Lessee's right to construct an exterior fuel
storage shed in accordance with the provisions applicable thereto in
Paragraph 7.3 as set forth in Addendum Paragraph 66 below.
INGRESS AND EGRESS; LOADING AND UNLOADING It is understood and agreed
that the exterior portions of the Premises are to be used by Lessee
solely for ingress and egress and for the parking of vehicles as
authorized by Lessor. The exterior portions of the Premises at no time
will be used by Lessee for loading or unloading, except at the loading
dock. It is the parties' intention that Lessee will neither cause nor
permit anything which will detract from keeping the exterior of the
building and Premises in a clean, orderly, and uncluttered condition
fully in keeping with the highest standards and reflecting an image of
the highest quality and standards.
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EXTERIOR WATER USE LIMITATIONS Except for irrigation purposes, Lessee
shall not use any water, either from exterior sources or from sources
within the building, on or about the exterior areas of the Premises for
any purpose whatsoever without Lessor's prior written consent. Any of
Lessee's procedures, processes or other work which require the use of
water shall be done solely within the confines of the building, and no
water shall be allowed to drain onto the exterior areas of the Premises.
64) USE - HAZARDOUS SUBSTANCES (PARAGRAPH 6.2, CONTINUED)
6.2(b) DUTY TO INFORM LESSOR Both Lessor and Lessee shall have similar
obligations to inform the other if either knows or has reasonably cause
to believe that a Hazardous Substance has come to be located in, on,
under or about the Premises.
6.2(c) LESSEE REMEDIATION (i) Lessee accepts responsibility for any
Hazardous Substance brought onto the Premises from the Start Date and
during the term of this Lease by or for Lessee or any third party, (ii)
Lessor accepts responsibility for any Hazardous Substance existing on
the Premises before the Start Date or discovered after the Start Date
but proved to be existing prior to the Start Date, (iii) Lessor shall
be responsible for all Hazardous Substances in, on or under the Garage,
except for any Hazardous Substance brought onto the Garage by or for
Lessee, which shall be Lessee's responsibility, (iv) the words "or
neighboring properties" appearing in the fourth line of Paragraph 6.2(c)
are deleted, and (v) Lessor will be responsibility for Lessor's acts
before the Start Date and during the term of this Lease.
6.2(d) LESSEE INDEMNIFICATION (i) Lessor's gross negligence, intentional
misconduct and breach of this Lease shall be exceptions to Lessee's
indemnification obligations, (ii) Lessee's indemnification obligations
shall be consistent with Lessee's responsibility for Hazardous
Substances in accordance with the provisions set forth above in
Paragraph 6.2(c) of this Addendum Paragraph 64 under the heading "Lessee
Indemnification," (iii) Lessee's indemnification shall terminate upon
delivery to Lessor of a Phase I report of the condition of the Premises
at the date of termination of this Lease, provided said report describes
the condition of the Premises as of said date to be the same or better
than the condition of the Premises described in the Phase I report
delivered to Lessee prior to the execution of this Lease, and provided
further, that Lessee's indemnification shall not terminate with respect
to any contamination which Lessor can substantiate that the cause of
such contamination occurred from the Start Date or during the term of
this Lease.
6.2(e) LESSOR INDEMNIFICATION (i) Lessee's gross negligence, intentional
misconduct and breach of this Lease shall be exceptions to Lessor's
indemnification obligations, (ii) Lessor's indemnification obligations
shall be consistent with Lessor's responsibility for any Hazardous
Substance in accordance with the provisions set forth above in Paragraph
6.2(c) of this Addendum Paragraph 64 under the heading "Lessee
Remediation," (iii) subject to the scope of each party's responsibility
for Hazardous Substances as specified above in Paragraph 6.2(c) of this
Addendum Paragraph 64 under the heading "Lessee Remediation," the
provisions of Lessor's indemnification shall parallel the provisions set
forth in Paragraph 6.2(d) for Lessee's Indemnification.
6.2(f) INVESTIGATIONS AND REMEDIATIONS Each party's responsibility and
payment for any investigations or remediation measures shall be
consistent with the scope of such party's responsibility for Hazardous
Substances in accordance with the provisions set forth above in
Paragraph 6.2(c) of this Addendum Paragraph 64 under the heading "Lessee
Remediation."
6.2(g) LESSOR TERMINATION OPTION Lessor shall have the right to
terminate this Lease as the result of a Hazardous Substance Condition
only if (i) in accordance with the provisions set forth above in
Paragraph 6.2(c) of this Addendum Paragraph 64 under the heading "Lessee
Remediation," Lessee is responsible for the Hazardous Substance
Condition, and (ii) Lessee fails to comply with its obligations under
this Lease with respect to the remediation thereof.
65) USE - INSPECTION; COMPLIANCE (PARAGRAPH 6.4, CONTINUED) Lessor shall
give Lessee no less than 24 hours prior notice for inspections, unless
an emergency, and shall use its best efforts not to interfere with
Lessee's use of the Premises during such inspection and visits. The last
sentence of Paragraph 6.4 will be applicable to a contamination only if
such contamination is within the scope of Lessee's responsibility in
accordance with the provisions set forth above in Paragraph 6.2(c) of
Addendum Paragraph 64 under the heading "Lessee Remediation."
66) MAINTENANCE; REPAIRS, UTILITY INSTALLATIONS; TRADE FIXTURES AND
ALTERATIONS (PARAGRAPH 7, CONTINUED)
7.1(a), (b) and (c) LESSEE'S OBLIGATIONS:
1. Until a new exterior membrane of the roof has been installed
on the Premises by Lessor, Lessor will be responsible for maintaining
the existing roof at Lessor's expense, except that any leaks caused by
Lessee's penetrations for venting or other wok by Lessee which affects
the roof shall be Lessee's responsibility. When the useful life of the
existing exterior membrane of the roof on the Premises has ended,
Lessor, at Lessor's cost and expense, will cause the existing exterior
membrane on the roof to be replaced or a new exterior roof membrane to
be added on to the existing roof. Such work shall be done by an
independent non-affiliated third party contractor selected by Lessor for
which Lessor shall obtain at least two bids from such third party
contractors for such work and shall assign to Lessee whatever warranty
is provided with the new exterior roof membrane by the contractor
selected for such work. Thereafter, Lessee shall have the sole
responsibility for maintenance, repair and replacement of the exterior
roof membrane. The foregoing provisions of this paragraph supersede the
provisions set forth in Paragraph 2.2 of the Lease concerning Lessor's
warranty and compliance with respect to the condition of the surface of
the roof.
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2. Foundations and exterior and interior load bearing walls, if any,
and interior structural elements of the roof are deleted from Paragraph 7.1(a),
as the same will be maintained by Lessor at Lessor's cost and expense, except
that any damages caused by Lessee's gross negligence or that of Lessee's
employees, guests, agents or invitees shall be repaired at Lessee's cost and
expense.
3. Lessor shall, at Lessor's sole cost and expense, keep the Garage in
good order, condition and repair during the term of this lease, and any
extensions thereof. Lessor's obligations shall include restorations,
replacements or renewals when necessary to keep the Garage and all improvements
thereon, or a part thereof, in good order, condition and state of repair. Any
damages to the Garage caused by Lessee, Lessee's employees, or agents shall be
repaired at Lessee's cost and expense, normal wear and tear excepted.
4. Lessor hereby consents of Lessee's roof penetrations to be made by
Lessee immediately after the Start Date, as shown in working drawings of work
to be performed by Lessee and attached to this Lease as Exhibit B, provided,
however, that Lessee is responsible for any leaks caused by such penetrations
of the roof.
5. The service contracts described in Paragraph 7.1(b), clauses (ii),
(iv), (v), (vi), (vii) and (viii), are deleted and there is added a service
contract for the elevator in the building.
6. To maintain a cohesive landscaping appearance throughout the
business park in which the Premises are located, Lessor shall maintain all
landscaping and irrigation system contracts, and Lessee shall reimburse Lessor
for those costs pursuant to Addendum Paragraph 54. The current average monthly
cost for landscaping and irrigation for the Premises is $350.00.
7. Paragraph 7.1(c) shall be modified to provide that Lessor and Lessee
shall be responsible for all Hazardous Substances in accordance with the
provisions of Paragraph 6.2, as modified pursuant to Addendum Paragraph 64
above, and Lessor shall be responsible for all seismic retrofitting as
necessary to comply with the Applicable Requirements.
7.3 UTILITY INSTALLATIONS; TRADE FIXTURES; ALTERATIONS
1. The figures $50,000 in the aggregate and $10,000 in any one year,
appearing in the last line of Paragraph 7.3(a), are changed to $100,000 in the
aggregate and $25,000 in any one year.
2. Lessee shall be entitled, at its sole cost and expense, to
interconnect its electrical panels with the DWP grid, subject to DWP approval,
in order to allow Lessee the ability to provide power generated by turbine
motors.
3. In addition to any other improvements which Lessee is allowed to
make to the Premises, in order to meet Lessee's necessary fuel storage
requirements, Lessee shall have the right to construct an exterior fuel storage
shed, currently anticipated to be approximately 20' x 25' and to be located on
the southwesterly most portion of the Premises, subject to Lessor's approval of
the design and location thereof, including, but not limited to, a design which
is consistent with the existing architectural design of the Building, which
such approval shall not be unreasonably withheld, and provided the construction
and maintenance of such shed and Lessee's use thereof complies with all
Applicable Requirements.
4. At the end of the term of the Lease, Lessee will not be required to
remove or restore any portion of the Premises which has been constructed,
installed or removed by Lessor or Lessee, including the mezzanine, pursuant to
either Lessor's work or Lessee's work as described in Exhibit A or Exhibit B
attached hereto.
UNAUTHORIZED ALTERATIONS Except for the roof penetrations to which Lessor has
consented as provided above, Lessee shall inform Lessor of any work
anticipated on the roof, in conjunction with its operation and obtain permission
to do same prior to commencement of same. Lessor shall not make any
alterations, improvements or additions to the Premises which require Lessor's
consent in accordance with the dollar limitations set forth above unless and
until Lessor's prior written consent has been obtained. Should Lessee make any
alterations, etc. requiring Lessor's consent without having obtained the prior
written consent of Lessor, Lessor may, at any time during the term of this
Lease or upon its termination, require that Lessee, at its expense, remove any
or all of the same and that Lessee pay to Lessor the amount of any damage to
the roof caused by Lessee, or Lessor may remove same at Lessee's expense.
WINDOW COVERINGS Lessee shall obtain Lessor's prior written approval for the
installation of any interior or exterior window coverings, including but not
limited to drapes, blinds, sunshades, sunscreens, holiday or other decorations
or any type of film window treatment. No exterior painting is permitted. In the
event that any such unauthorized installations or alterations occur, then
Lessor shall have the right, without notice, in addition to such other rights
and remedies that it may have, to remove all of the same at Lessee's expense,
which shall be paid by Lessee upon demand by Lessor.
SECURITY Security bars or other security measures installed by Lessee require
prior written consent of Lessor. Such installations, except for electronic
security systems, shall remain as part of the Premises upon termination of the
Lease unless Lessor requests removal of such installations and restoration of
the Premises in accordance with Paragraph 7.4 of the Lease.
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7.4 OWNERSHIP; REMOVAL; SURRENDER; AND RESTORATION
1. Lessee shall not be required to remove or restore any of the tenant
improvements made by Lessor or Lessee prior to the Commencement Date,
including the mezzanine, and described in Exhibit A or Exhibit B hereto.
2. The second sentence of Paragraph 7.4(a) is deleted. All of Lessee's
improvements which are to be made by Lessee as described in Exhibit B
hereto and any Alterations and Utility Installations made by Lessee
thereafter, for which Lessee shall have paid the cost thereof, including,
but not limited to site specific electrical installations to accommodate
turbine engines, shall not become the property of Lessor, but rather shall
be Lessee's own property which Lessee may remove from the Premises prior to
or at the end of the term of this Lease, provided that Lessee shall be
responsible to repair any damages caused by the removal thereof.
3. Lessor's right under Paragraph 7.4(b) to require that any or all of
Lessee's improvements and Lessee Owned Alterations or Utility Installations
be removed by Lessee by the expiration or earlier termination of this Lease
applies only to all tenant improvements made after the Commencement Date,
including but not limited to improvements which were made to the Premises
by Lessor after the Commencement Date at the request of Lessee and
improvements made after the Commencement Date the cost of which was
amortized over the term of this Lease or a portion thereof in the form of
additional rent. As stated above, Lessor shall not have the right to
require Lessee to remove any improvements made by Lessor or Lessee prior to
the Commencement Date and described in Exhibit A or Exhibit B hereto.
67) INSURANCE; INDEMNITY (PARAGRAPHS 1.9 AND 8, CONTINUED)
1.9 INSURING PARTY. Lessee shall be the Insuring Party.
8.3 PROPERTY INSURANCE - BUILDING, IMPROVEMENTS AND RENTAL VALUE
(a) BUILDING AND IMPROVEMENTS
1. With reference to the property insurance required by Paragraph
8.3(a), Lessor and Lessee agree that the full replacement cost of the
Premises will be not less than $6,045,000.00 as of the Commencement Date.
2. The sum of $1,000 per occurrence appearing in the penultimate
line of Paragraph 8.3(a) is deleted and inserted in lieu thereof are the
sum and words "$10,000 per occurrence, or such other deductible amount as
the parties may mutually agree upon in writing."
3. Lessee shall be liable for the deductible amount in the event
of an Insured Loss.
4. Lessee shall be entitled to obtain its own insurance for
improvements made by Lessee as described in Exhibit B and for Lessee Owned
Alternations and/or Utility Installations.
(b) RENTAL VALUE The amount of any rental insurance will be reduced by
the amount of prepaid Base Rent for the periods described in Addendum
Paragraph 54 above.
(c) ADJACENT PREMISES Paragraph 8.3(c) is deleted.
8.7 INDEMNITY In the first line of Paragraph 8.7 after the word
"misconduct," there are inserted the words "Lessor's Breach of this Lease."
8.8 EXEMPTION OF LESSOR FROM LIABILITY
1. At the beginning of Paragraph 8.8 the following is added: "Except
for Lessor's gross negligence, willful misconduct or Breach of this
Lease,..."
2. Lessor will make reasonable efforts to enforce the rules and
regulations applicable to the Garage, upon notice of a violation thereof.
68) DAMAGE OR DESTRUCTION (PARAGRAPH 9, CONTINUED)
9.1 DEFINITIONS
(a) "PREMISES PARTIAL DAMAGE" "Premises Partial Damage" shall mean any
damage or destruction to the Improvements on the Premises, other than
Lessee Owned Alterations and Utility Installations and Trade Fixtures,
which may be repaired at a cost which is less than forty percent (40%) of
the then cost of replacement of the entire building located on the Premises
and which can reasonably be repaired in six (6) months or less from the
date of the damage or destruction. Lessor shall obtain at least three (3)
independent third party bids as to the cost and time to repair the damage
or destruction.
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(b) "PREMISES TOTAL DESTRUCTION" "Premises Total Destruction" shall
mean damage or destruction to the Improvements to the Premises, other than
Lessee Owned Alterations and Utility Installations and Trade Fixtures,
which cannot be repaired at a cost which is less than forty percent (40%)
of the then cost of replacement of the entire building located on the
Premises and cannot reasonably be repaired in six (6) months or less from
the date of the damage or destruction. Lessor shall obtain at least three
(3) independent third party bids as to the cost and time to repair the
damage or destruction.
9.2 PARTIAL DAMAGE -- INSURED LOSS
1. Lessor will exercise reasonable and good faith efforts to make any
repairs Lessor is obligated to make pursuant to the terms of this Lease as
efficiently and promptly as reasonably possible.
2. The last sentence of Paragraph 9.2 is deleted.
9.3 PARTIAL DAMAGE -- Uninsured Loss Lessor shall make any repairs due to a
partial uninsured loss if the cost thereof does not exceed $300,000 and in
such event Lessor shall not have the right to terminate this Lease.
9.4 TOTAL DESTRUCTION -- INSURED LOSS If a Premises Total Destruction
occurs before the end of the fourteenth month of the original term of this
Lease, Lessee shall be entitled to a refund of a portion of Lessee's
prepaid Base Rent as follows:
1. If the date of the destruction or damage is on or prior to the
Commencement Date, the amount of such refund shall be equal to fifty
percent (50%) of the total amount of Lessee's prepaid Base Rent.
2. If the date of the destruction or damage is after the Commencement
Date but prior to the last day of the fourteenth month of the original term
of this Lease, then the amount of the refund shall be equal to (i) fifty
percent (50%) of Lessee's prepaid Base Rent for the months (prorated for
any portion of a month) which have not elapsed prior to the date of the
destruction or damage, plus (ii) fifty percent (50%) of the amount of
Lessee's prepaid Base Rent for the months (prorated for any portion of a
month) which have elapsed prior to the date of the destruction or damage.
3. If the date of the destruction or damage occurs after the end of
the fourteenth month of the original term of this Lease, Lessee shall not
be entitled to any refund of Lessee's prepaid Base Rent.
9.5 DAMAGE NEAR END OF TERM Lessor's right to terminate this Lease
pursuant to Paragraph 9.5 shall be applicable only to a Partial Damage
Uninsured Loss.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES
(a) ABATEMENT The words "but not to exceed the proceeds received
from the Rental Value insurance", appearing at the end of the first
sentence, are deleted.
(b) REMEDIES The following time periods are changed: ninety (90)
is change to sixty (60); sixty (60) is change to thirty (30); and thirty
(30) is change to twenty (20).
69) REAL PROPERTY TAXES (PARAGRAPH 10, CONTINUED)
10.1 DEFINITION OF "REAL PROPERTY TAXES" During the first five (5) years of
the original term of this Lease, Lessor shall not pass on to Lessee any
increase in Real Property Taxes due to a transfer by Lessor or a change of
ownership of all or a portion of the Premises os any interest therein.
10.3 JOINT ASSESSMENT Paragraph 10.3 of this Lease is deleted.
70) UTILITIES (PARAGRAPH 11, CONTINUED) The last sentence of Paragraph 11
of this Lease is deleted.
71) ASSIGNMENT (PARAGRAPH 12, CONTINUED)
12.1 LESSOR'S CONSENT REQUIRED
(b) and (c) Paragraphs 12.1(b) and (c) are deleted and replaced with
the following:
"(b) Lessee may assign its interest in the Lease to a subsidiary
company which is an affiliate of Lessee, or in the event of a sale of the
majority of its stock, it may assign its interest in the Lease to the
acquiring company provided that the use is the same and that the acquiring
company has a net worth of no less than $25,000,000 as of the date of the
assignment.
Notwithstanding anything set forth in the Lease to the contrary,
Lessee shall have the right to assign, sublet, transfer, change its
ownership or control without the consent of Lessor:
(i) in connection with the initial offering of the shares of Lessee;
or
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(ii) to any affiliate of Lessee, any subsidiary of Lessee, any parent
of Lessee, or any subsidiary of any parent of Lessee, provided such
subsidiary, parent or subsidiary of parent is an affiliate of Lessee; or
(iii) to any corporation with which Lessee may merge or consolidate
provided such corporation has a net worth of no less than $25,000,000 as of
the date of the merger or consolidation; or
(iv) in connection with any name change of Lessee.
For purposes of this Paragraph 12, an affiliate of Lessee shall
mean any Person (i.e. any individual, corporation, partnership, joint
venture, trust or other legal entity) which, whether directly or
indirectly, controls, is controlled by, or is under common control with:
(1) Lessee, or (2) any director, officer, or controlling partner or
shareholder of Lessee. For purposes of this definition, control shall mean
the power (whether through direct or indirect ownership of fifty-one
percent (51%) or more of the voting equity interest of such Person, or
otherwise) to direct management and policies of such Person. In the event
Lessee's interest is transferred in accordance with this Paragraph 12, any
change from the use herein permitted shall be subject to the Lessor's
consent pursuant to this Lease. Lessee shall give Lessor prompt written
notice of the transaction and a duly executed acceptance and assignment of
the Lease by the assignee or a duly executed copy of the sublease."
(d) The words "or a noncurable Breach without the necessity of any
notice or grace period", appearing in the second line of this Paragraph
12.1(d), and "(i) terminate this Lease", appearing in the third line, are
deleted.
(e) Paragraph 12.1(e) is deleted.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING
(e) The fee which will be payable to Lessor for considering and
processing a request for consent to an assignment or subletting shall be an
amount which is equal to Lessor's actual out-of-pocket expenses for
considering and processing said request.
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING
1. Lessee shall pay to Lessor as additional Base Rent, fifty percent
(50%) of any Profits (as defined below) actually received by Lessee
pursuant to such approved assignment or sublease. Whenever Lessor is
entitled to share in any excess income resulting from an assignment or
sublease of the Premises, the following shall constitute the definition of
"Profits"; the gross revenue received from the assignee or sublessee during
the sublease term or during the assignment, with respect to the space
covered by the sublease or assignment ("Transferred Space"), less: (a) the
gross revenue paid to Lessor by Lessee during the period of the sublease
term or during the assignment with respect to the Transferred Space; (b)
any improvement allowance or other economic concession (planning allowance,
moving expenses, etc.) paid by Lessee to the sublessee or assignee; (c)
brokers' commissions; (d) attorneys' fees; (e) lease takeover payments; (f)
costs of advertising the space for sublease or assignment; (g) unamortized
cost of initial and subsequent improvements to the Transferred Space by
Lessee; and (h) any other costs actually paid in assigning or subletting
the Transferred Space; provided, however, under no circumstances shall
Lessor be paid any Profits until Lessee has recovered all of the items set
forth in subparts (a) through (h) for such Transferred Space, it being
understood that if in any year the gross revenues, less the deductions set
forth in subparts (a) through (h) above (the "Net Revenues") are less than
any and all costs actually paid in assigning or subletting the affected
space (collectively "Transaction Costs"), the amount of the excess
Transaction Costs shall be carried over to the next year and then deducted
from Net Revenues with the procedure repeated until a Profit is achieved.
Within five (5) days of Lessee entering into a written sublease of the
Premises in accordance with this Xxxxxxxxx 00, Xxxxxx shall deliver to
Lessor an executed copy of such sublease.
2. In the event Lessee requests Lessor's signature or consent to any
other action or on any other document, including, but not limited to, loan
or security documents relating to a loan transaction in which Lessee is
taking part, Lessor may require Lessee to pay Lessor a fee for considering
and processing said request in the amount described above in Paragraph
12.2(e) of this Addendum Paragraph 71.
72) DEFAULT; BREACH; REMEDIES (PARAGRAPH 13, CONTINUED)
13.1 DEFAULT; BREACH
(a) So long as Lessee is performing all of its obligations under
this Lease, an abandonment or vacating of the Premises shall not
constitute a Default.
(b) The words "whether to Lessor or a third party," appearing in
the first and second lines of Paragraph 13.1(a), are deleted and the
time period in the third line of "three (3) business days" is changed
to "seven (7) business days."
(c) The time period of "ten (10) days" is changed to "thirty
(30) days" unless a shorter time period is specified elsewhere in the
Lease.
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(E) The events described in this Paragraph 13.1(e) shall not, in and
of themselves, be a cause for a Default so long as Lessee is satisfying all
of its monetary and other obligations under the Lease.
13.3 INDUCEMENT RECAPTURE The provisions of Paragraph 13.3 of the Lease
shall not require Lessee to re-install the mezzanine to the Premises or to
pay Lessor for said mezzanine, and any concessions involving free rent or
reduced rent or the costs of the improvements made by Lessor as described
in Exhibit A shall not be subject to recapture.
13.4 LATE CHARGES The time period of "five (5) days," appearing in the
fourth line, is changed to "ten (10) days," and the late charge of "ten
percent (10%)," appearing in the fifth line, is changed to "six percent
(6%)."
13.5 INTEREST The second sentence is deleted and replaced with "The
interest ("Interest") charged shall be at the rate of ten percent (10%) per
annum, but shall not exceed the maximum rate permitted by law."
13.6 BREACH BY LESSOR
(a) NOTICE OF BREACH The following language is added at the beginning
of Paragraph 13.6 (a): "Except as provided elsewhere in the Lease, ..."
(b) PERFORMANCE BY LESSEE ON BEHALF OF LESSOR The words "the greater
of one month's Base Rent or the Security Deposit, and to pay an excess of
such expense under protest, reserving Lessee's right to reimbursement from
Lessor," appearing in the third and fourth lines, are deleted and replaced
with "the actual amount spent by Lessee."
73) CONDEMNATION (PARAGRAPH 14, CONTINUED) In the event of a taking of
Lessee's onsite parking spaces, Lessor will provide substitute parking in
the Garage, in which case no other adjustments shall be made by reason of
any taking of Lessee's onsite parking spaces. If Lessor does not provide
for such substituted parking in the Garage, then Lessee shall have the
right to terminate the Lease. In the event the taking includes any
improvements made by Lessee to the Premises, Lessee shall be entitled to
participate in the condemnation award to the extent of Lessee's investment
in said improvements.
74) ESTOPPEL CERTIFICATES (PARAGRAPH 16, CONTINUED)
(a) Ten (10) days is changed to thirty (30) days in the first line of
Paragraph 16(a).
(c) Financial statements required to be delivered by Lessee pursuant
to Paragraph 16(c) will be those financial statements of Lessee which are
prepared in the ordinary course of business.
75) NO RIGHT TO HOLDOVER (PARAGRAPH 26, CONTINUED)
1. The language "one hundred fifty percent (150%)" is deleted from the
second sentence and replaced with "one hundred ten percent (110%)."
2. If Lessee remains in possession of the Premises after the
expiration of the Lease term, without Lessor's written consent, then
Lessee's occupancy of the premises shall be deemed to be a holdover tenancy
upon all of the provisions of this Lease pertaining to obligations of
Lessee, but not including any options or rights of first refusal, if any,
granted to Lessee under this lease. If Lessee's hold-over tenancy exceeds
ten (10) days, Lessee may terminate the tenancy only by giving sixty (60)
days written notice of termination to Lessor, whereas Lessor may terminate
the tenancy or change the terms of the Lease upon giving to Lessee sixty
(60) days written notice thereof. The termination date shall be the last
day of the month in which the notice requirement has been met.
3. Notwithstanding anything to the contrary contained in Paragraphs
1.3, 1.5, 3.1, 4 or elsewhere in this Lease, Lessee's obligation to pay
rent shall continue until (i) Lessee has removed all of its property from
the Premises, (ii) Lessee has made any repairs required under Paragraph
7.4(c), (iii) Lessee has removed all Alterations, improvements, additions
and Utility Installations which Lessor requires Lessee to remove pursuant
to Paragraph 7.4(b), and (iv) Lessee has notified Lessor in writing that
all of the items (i) through (iii) of this paragraph, to the extent
applicable, have been accomplished.
76) SUBORDINATION; ATTORNMENT; NON-DISTURBANCE (PARAGRAPH 30, CONTINUED)
30.1 SUBORDINATION
1. Lessor represents and warrants to Lessee that there are no
Security Devices affecting the Premises or the Garage as of the date
hereof, and no Security Devices shall be entered into from the date hereof
through and including thirty (30) days after the Start Date.
2. Lessee shall be allowed to record a memorandum of the Lease in
the form of Exhibit E, provided that if a memorandum of the Lease is
recorded, Lessee shall be required to record a termination of the Lease
within thirty (30) days after the date of the termination of the Lease.
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77) ATTORNEYS' FEES (PARAGRAPH 31, CONTINUED) Wherever in this Lease attorneys'
fees and costs are to be paid, whether in this Paragraph 31 or in other
provisions relating to indemnification, all such fees and costs shall be
reasonable.
78) LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS (PARAGRAPH 32, CONTINUED) Lessor
agrees that it may show the Premises upon 24 hours prior notice and will
use its best efforts not to interfere with Lessee's use of the Premises.
The language "or liability" is deleted from the second sentence.
79) SIGNS (PARAGRAPH 34, CONTINUED) Lessee may install exterior and monument
signs with Lessor's prior written consent.
80) GUARANTOR (PARAGRAPH 37, CONTINUED) Paragraph 37 of the Lease is deleted.
81) OPTIONS (PARAGRAPH 39, CONTINUED)
39.2 OPTIONS PERSONAL TO ORIGINAL LESSEE Paragraph 39.2 of the Lease is
deleted.
39.4 EFFECT OF DEFAULT ON OPTIONS
(a) Except for clause (iv), any Default by Lessee shall be
curable by Lessee, and when and if cured by Lessee, shall not cause Lessee
to lose a right to exercise an Option.
82) MULTIPLE BUILDINGS (PARAGRAPH 40, CONTINUED) The language appearing at the
end of this Paragraph "and that Lessee will pay its fair share of common
expenses incurred in connection therewith" is deleted.
83) DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR NORTHPARK
INDUSTRIAL CENTER. Lessee acknowledges receipt of a copy of the Declaration
of Covenants, Conditions and Restrictions ("CC&R's") for Northpark
Industrial Center recorded with the County of Los Angeles as document
numbers 79-760182 and 00-0000000. Lessee has reviewed and approved said
documents and agrees to be bound by all the terms and conditions therein.
Lessee further agrees that said CC&R's shall be binding upon Lessee and any
sublessee, successor and assign. Lessor's compliance covenants in Paragraph
2.3 of this Lease shall be deemed to include the CC&R's to the extent
applicable to the Premises and Garage Start Date.
84) ENVIRONMENTAL SITE ASSESSMENT REPORT. Lessor acknowledges receipt of, and
its satisfaction with, the Environmental Site Assessment Report prepared
for the Premises by GlenFos, Inc., Project No. P1-91311-092799, dated
October 11, 1999 (the "Report"). The Report recommends no further
subsurface investigation. Prior to the Start Date, Lessor shall remove from
the Premises approximately eight (8) 55-gallon drums of liquid referenced
in the Report. Lessee shall provide Lessor with a similar report made as of
a date which is no earlier than ninety (90) days prior to the termination
date of the Lease and Lessee's vacancy of the Premises and Lessee shall
deliver such report to Lessor no later than thirty (30) days prior to the
termination date of the Lease and Lessee's vacancy of the Premises.
85) LESSOR'S TENANT IMPROVEMENTS. Attached hereto and marked Exhibit A to this
Lease are plans and specifications describing the improvements and other
work to be done by Lessor's cost and expense. In addition, Lessor, at
Lessor's cost and expense, shall do the following:
a. Re-stretch and repair (where required, to be mutually agreed upon by
Lessor and Lessee) and steam clean all carpeting and flooring. Replace
where necessary, to be mutually agreed upon by Lessor and Lessee, at a
cost not to exceed $14.00 per yard inclusive of all costs (carpet,
pad, base, installation, taxes, etc.)
b. Clean, smooth (if necessary) and seal warehouse floor.
c. Paint all offices, production and warehouse areas as needed.
86) PARKING; GARAGE; RULES
PARKING-GENERAL
1. Lessee or Lessee's employees, visitors, customers, or guests shall
not use public driveways, alleyways or easement ways or other public areas
for parking purposes.
2. No automotive repair, car washing, waxing and detailing, or covered
parking is permitted at any time.
3. Prohibited vehicles are not permitted; examples of prohibited
vehicles shall include, but shall not be limited to, trailers, campers,
recreational vehicles, boats, "dead automobiles" or automobiles parked
longer than 48 hours.
4. If Lessee permits or allows parking other than in the areas
intended for parking or permits or allows any of the aforedescribed
prohibited vehicles to park on any portion of the parking areas or
anywhere else within the Premises, then Lessor shall have the right,
without notice, in addition to other rights and remedies it may have, to
remove or tow away the vehicle involved and charge the cost to Lessee,
which cost shall be immediately payable by Lessee upon demand by Lessor.
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5. Lessor shall not relocate any of Lessee's parking spaces except for
onsite parking spaces in the event of condemnation, in which case Lessor
may replace onsite parking spaces with an equivalent number of additional
parking spaces in the Garage.
GARAGE-GENERAL
1. All parking in the Garage is on an unreserved first-come
first-served basis. Lessee's right to use the Garage is strictly limited
to the 160 parking spaces located there for Lessee's use as provided in
Addendum Paragraph 51 above. there will be no additional fee payable by
Lessee for the said 160 parking spaces located in the Garage. In no event
may the Garage or any portion thereof be used by Lessee for testing
equipment or for any other purpose. The Garage is accessible 365 days a
year and 24 hours each day. Additional parking rules applicable to parking
in the Garage are set forth in Exhibit C hereto. No portion of the Garage
is specifically assigned to any tenant; provided, however, Lessor reserves
the right to assign specific spaces and to reserve spaces for visitors,
small cars, handicapped persons and for other legal requirements, and
Lessee's use thereof shall comply with such reservations.
2. Except for Lessor's gross negligence, willful misconduct or Breach
of the Lease, Lessor shall have no liability whatsoever for any damage to
property or any other items located in the Garage, nor for any personal
injuries or death arising out of any incident or matter relating to the
Garage. In all events, Lessee agrees to look first to its insurance
carrier for payment of any losses sustained in connection with Lessee's
use of the Garage. Lessee hereby waives on behalf of its insurance
carriers all rights of subrogation against Lessor.
3. Lessor also reserves the right to close all or any portion of the
Garage from time to time in order to make repairs or perform maintenance
services, or to alter, modify, re-stripe the Garage, or if required by
casualty, strike, condemnation, act of God, governmental law or other
reason beyond Lessor's reasonable control.
4. Lessee shall at all times comply with all Applicable Requirements
concerning use of the Garage. Lessee shall extend all of its insurance
policies required under this lease to include vehicles to be parked in the
Garage hereunder and personal property located therein or thereon. Upon
request, Lessee shall provide Lessor with certificates or other
satisfactory evidence of such insurance.
5. Lessee will be issued one card-key for each of Lessee's parking
spaces in the Garage. Prior to furnishing any card-keys to any person,
Lessee shall provide Lessor with a list including all names, type of
automobile, year of manufacture, drivers license number and automobile
license number for all persons using the Garage at any time. Lessee shall
be responsible for the return of said card-keys upon termination of the
Lease. A replacement fee of $25.00 may be charged for any lost or damaged
card-key, and if any card-key is not returned to Lessor upon termination
of the Lease, Lessor may charge Lessee's Security deposit for such
replacement fee.
GARAGE RULES Lessor reserves the right to adopt, modify, and enforce
reasonable rules governing the use of the Garage from time to time,
including any card-key, sticker or other identification or entrance
system, and hours of operation. The Rules set forth in Exhibit C hereto
are currently in effect. Lessee agrees to acquaint all persons to whom
Lessee assigns parking spaces in the Garage of such Rules. Lessor may
refuse to permit any person who violates such rules to park in the Garage,
and any violation of the Rules shall subject the car to removal from the
Garage. Lessor may deactivate the respective card-key of such person upon
ten (10) days written notice if such person fails to cure the violation or
is a repeat offender.
87) OPTION TO EXTEND - FIRST OF TWO
A. Lessor hereby grants to Lessee the option to extend the term of this
lease for a five (5) year period commencing when the original term of this
lease expires, upon each and all of the following terms and conditions;
(i) Lessee gives to Lessor and Lessor receives written notice
of the exercise of the option to extend this Lease for said additional
term no earlier than nine months and no later than six months prior to
the time that the option period would commence if the option were
exercised, time being of the essence. If said notification of the
exercise of said option is not so given and received, this option shall
automatically expire. The time period for the exercise of the options
shall be set forth in the First Amendment to Lease provided for in
Addendum Paragraph 59 above;
(ii) The provisions of Paragraph 39, including the provision
relating to default of Lessee set forth in Paragraph 39.4 of this Lease
are conditions of this option;
(iii) All of the terms and conditions of this Lease except
where specifically modified by this option shall apply;
(iv) Subject to the provisions of the last sentence of this
paragraph (iv), the rent payable for the first twelve months of the
term of this option shall be one hundred percent (100%) of the fair
market rental value for the Premises. Said fair market rental value shall
be based upon the prevailing market rate at the commencement of the
option term for rentals then being offered prospective tenants for new
leases or recently executed leases for comparable space within a three
(3) mile radius of the Premises. The determination of such fair market
rental value shall also take into consideration all the elements
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which are generally and usually considered in the real estate industry to
establish a fair market value. In the event the fair market rental value
is not able to be determined in accordance with the foregoing provisions
of this paragraph (iv) due to a lack of comparable space within said three
(3) mile radius from the Premises, or due to the fact that the parties are
unable to agree with respect to said fair market rental value of the
Premises or for any other reason, then, subject to the provisions of the
last sentence of this paragraph (iv), the fair market rental value of the
Premises shall be determined by appraisal in accordance with the following
provisions:
a. If the fair market rental value of the Premises has not
been determined in accordance with the foregoing provisions of this
paragraph (iv), or by mutual agreement of the parties, within sixty (60)
days of the commencement of this option period, then within ten (10) days
thereafter both Lessor and Lessee shall each select an appraiser and the
two appraisers so selected by Lessor and Lessee shall select a third
appraiser;
b. Within thirty (30) days of the selection of the third
appraiser, the three appraisers shall determine the fair market rental
value of the Premises for the first twelve months of the term of this
option. The determination of the fair market rental value of the Premises
by a majority of the three appraisers shall be binding upon Lessor and
Lessee, subject to the provisions of the last sentence of this paragraph
(iv);
c. If either Lessor or Lessee shall fail to select an
appraiser within the aforesaid ten (10) day period, the appraiser timely
selected by one of them may determine the fair market rental value of the
Premises on his or her own, and said appraiser's determination shall be
binding upon both parties, subject to the provisions of the last sentence
of this paragraph (iv); and
x. Xxxxxx and Lessee shall pay the cost of such appraisal
equally.
Notwithstanding the foregoing provisions of this paragraph
(iv), in no event shall the monthly rental for the first twelve months of
the term of this option be less than one hundred percent (100%) of the
rent payable for the month immediately preceding commencement of the term
of this option.
(v) On the first day of the 13th month, 25th month, 37th month
and 49th month of the term of this option, the monthly rent payable under
paragraph (iv) shall all be adjusted by the increase, if any, from the
date the term of this option commenced in the C.P.I. As used herein, the
term "C.P.I." shall mean the Consumer Price Index of the Bureau of Labor
Statistics of the U.S. Department of Labor for All Urban Consumers, Los
Angeles-Anaheim-Riverside, California (1982/84=100), "All Items", herein
referred to as "C.P.I."
a. The monthly rent payable in accordance with Paragraph
87A(v) of this Addendum shall be calculated as follows: the rent payable
for the first month of the term of this option, as determined in
accordance with Paragraph 87A(iv) of this Addendum, shall be multiplied by
a fraction the numerator of which shall be the C.P.I. of the calendar
month immediately preceding the effective date of the subject rent
escalation, and the denominator of which shall be the C.P.I. for the
calendar month in which the term of this option commenced. The sum so
calculated shall constitute the new monthly rent hereunder, but, in no
event, shall such new monthly rent be less than the rent payable for the
month immediately preceding the date for rent adjustment.
b. In the event the compilation and/or publication of the
C.P.I. shall be discontinued, then the index most nearly the same as the
C.P.I. shall be used to make such calculation. In the event that Lessor
and Lessee cannot agree on such alternative index, then the matter shall
be submitted for decision to the American Arbitration Association in
accordance with the rules of said association and the decision of the
arbitrators shall be binding upon the parties. The cost of said
arbitrators shall be paid equally by Lessor and Lessee.
x. Xxxxxx shall notify Lessee of any rental increases
pursuant to this paragraph as soon as practicable after the relevant
C.P.I. figures have been released. Until such notification, Lessee shall
continue to pay the rent in effect during the prior rental period. After
notification of a rental increase, Lessee shall commence making rental
payments in the increased amount and shall, within ten (10) days after
such notification, pay to Lessor the amount of any rental increases due
for previous months.
B. If this option to extend is exercised, the term of this option
shall commence on the first day following the date of the expiration of
the original term of this Lease and shall end on the date which is five
(5) years thereafter.
88) OPTION TO EXTEND -- SECOND OF TWO
A. In the event Lessee exercises the first option to extend the term
of this Lease pursuant to Addendum Paragraph 87, then Lessor hereby grants
to Lessee the option to extend the term of this Lease for a second five
(5) year period upon the expiration of the term of the first option, upon
each and all of the following terms and conditions:
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(i) Lessee gives to Lessor and Lessor receives written notice of the
exercise of the option to extend this Lease for said additional term no earlier
than nine months and no later than six months prior to the time that the term of
this option would commence if the option were exercised, time being of the
essence. If said notification of the exercise of said option is not so given and
received, this option shall automatically expire;
(ii) The provisions of Paragraph 39, including the provision relating to
default of Lessee set forth in Paragraph 39.4 of this Lease are conditions of
this option;
(iii) All of the terms and conditions of this Lease except where
specifically modified by this option shall apply;
(iv) Subject to the provisions of the last sentence of this paragraph
(iv), the rent payable for the first twelve months of the term of this option
shall be one hundred percent (100%) of the fair market rental value for the
Premises. Said fair market rental value shall be based upon the prevailing
market rate at the commencement of the term of this option for rentals then
being offered prospective tenants for new leases or recently executed leases for
comparable space within a three (3) mile radius of the Premises. The
determination of such fair market rental value shall also take into
consideration all the elements which are generally and usually considered in the
real estate industry to establish a fair market value. In the event the fair
market rental value is not able to be determined in accordance with the
foregoing provisions of this paragraph (iv) due to a lack of comparable space
within said three (3) mile radius from the Premises, or due to the fact that the
parties are unable to agree with respect to said fair market rental value of
the Premises or for any other reason, then, subject to the provisions of the
last sentence of this paragraph (iv), the fair market rental value of the
Premises shall be determined by appraisal in accordance with the following
provisions:
a. If the fair market rental value of the Premises has not been
determined in accordance with the foregoing provisions of this paragraph (iv),
or by mutual agreement of the parties, within sixty (60) days of the
commencement of this option period, then within ten (10) days thereafter both
Lessor and Lessee shall each select an appraiser and the two appraisers so
selected by Lessor and Lessee shall select a third appraiser;
b. Within thirty (30) days of the selection of third appraiser, the
three appraisers shall determine the fair market rental value of the Premises
for the first twelve months of the term of this option. The determination of the
fair market rental value of the Premises by a majority of the three appraisers
shall be binding upon Lessor and Lessee, subject to the provisions of the last
sentence of this paragraph (iv);
c. If either Lessor or Lessee shall fail to select an appraiser
within the aforesaid ten (10) day period, the appraiser timely selected by one
of them may determine the fair market rental value of the Premises on his or
her own, and said appraiser's determination shall be binding upon both parties,
subject to the provisions of the last sentence of this paragraph (iv); and
x. Xxxxxx and Lessee shall pay the cost of such appraisal equally.
Notwithstanding the foregoing provisions of this paragraph (iv), in no event
shall the monthly rental for the first twelve months of the term of this option
be less than one hundred percent (100%) of the rent payable for the month
immediately preceding commencement of the term of this option.
(v) On the first day of the 13th month, 25th month, 37th month and 49th
month of the term of this option, the monthly rent payable under paragraph (iv)
shall all be adjusted by the increase, if any, from the date the term of this
option commenced in the C.P.I. As used herein, the term "C.P.I." shall mean the
Consumer Price Index of the Bureau of Labor Statistics of the U.S. Department
of Labor for All Urban Consumers, Los Angeles-Anaheim-Riverside, California
(1982/84=100), "All Items", herein referred to as "C.P.I."
a. The monthly rent payable in accordance with Paragraph 88A(v) of
this Addendum shall be calculated as follows: the rent payable for the first
month of the term of this option, as determined in accordance with Paragraph
88A(iv) of this Addendum, shall be multiplied by a fraction the numerator of
which shall be the C.P.I. of the calendar month immediately preceding the
effective date of the subject rent escalation, and the denominator of which
shall be the C.P.I. for the calendar month in which the term of this option
commenced. The sum so calculated shall constitute the new monthly rent
hereunder, but, in no event, shall such new monthly rent be less than the rent
payable for the month immediately preceding the date for rent adjustment.
b. In the event the compilation and/or publication of the C.P.I.
shall be discontinued, then the index most nearly the same as the C.P.I. shall
be used to make such calculation. In the event that Lessor and Lessee cannot
agree on such alternative index, then the matter shall be submitted for
decision to the American Arbitration Association in accordance with the rules
of said association and decision of the arbitrators shall be binding upon the
parties. The cost of said arbitrators shall be paid equally by Lessor and
Lessee.
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x. Xxxxxx shall notify Lessee of any rental increases
pursuant to this paragraph as soon as practicable after the relevant
C.P.I. figures have been released. Until such notification, Lessee shall
continue to pay the rent in effect during the prior rental period. After
notification of a rental increase, Lessee shall commence making rental
payments in the increased amount and shall, within ten (10) days after
such notification, pay to Lessor the amount of any rental increases due
for previous months.
B. If this option to extend is exercised, the term of this option
shall commence on the first day following the date of the expiration of
the term of the first option pursuant to Addendum Paragraph 87 of this
Lease and shall end on the date which is five (5) years thereafter.
89) NOTICES (PARAGRAPH 23, CONTINUED)
23.1 NOTICE REQUIREMENTS:
1. Subject to change from time to time by written notice to Lessee,
the address of Lessor is: c/o West America Construction Corporation, 0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
2. Subject to change from time to time by written notice to Lessor,
prior to the Commencement Date the address of Lessee is 0000 Xxxxxxxxxxxx
Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000, attention Xxxxxxx X. Xxxxx,
Chief Financial Officer, and from and after the Commencement Date, the
address of Lessee will be 00000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx
00000, attention Xxxxxxx X. Xxxxx, Chief Financial Officer.
LESSOR: LESSEE:
NORTHPARK INDUSTRIAL, CAPSTONE TURBINE CORPORATION,
a California general partnership a California corporation
By: NORTHWEST INDUSTRIAL CENTER,
a California limited partnership,
General Partner By: /s/
------------------------------
Name: [illegible]
By: /s/ XXXXXX XXXXXX ----------------------------
------------------------------ Title: CFO
Xxxxxx Xxxxxx, General Partner ---------------------------
By: /s/
------------------------------
Name: [illegible]
By: /s/ XXXX XXXXXX ----------------------------
------------------------------ Title: President & CEO
Xxxx Xxxxxx, General Partner ---------------------------
By: NORTHPARK INDUSTRIAL-XXXXX DIVISION LLC,
a California limited liability company
General Partner
By: WEST AMERICA CONSTRUCTION CORPORATION,
a California corporation,
Manager
By: /S/ XXXXXXXX X. XXXXX
----------------------------------
Xxxxxxxx X. Xxxxx, President
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Xxxxxx X. Xxxxxx, Secretary
NORTHWEST INDUSTRIAL CENTER,
a California limited partnership,
By: /S/ XXXXXX XXXXXX
------------------------------
Xxxxxx Xxxxxx, General Partner
By: /s/ XXXX XXXXXX
------------------------------
Xxxx Xxxxxx, General Partner
28
ADDENDUM TO LEASE - NET
PAGE 15 OF 15
LESSOR'S SIGNATURES CONTINUED:
By: NORTHPARK INDUSTRIAL-XXXXX DIVISION LLC,
a California limited liability company
By: WEST AMERICA CONSTRUCTION CORPORATION,
a California corporation,
Manager
By: /S/ XXXXXXXX X. XXXXX
----------------------------------
Xxxxxxxx X. Xxxxx, President
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Xxxxxx X. Xxxxxx, Secretary
29
EXHIBIT A
[FIRST FLOOR PLAN]
LESSOR [Illegible] LESSEE [Illegible]
------------------------- -------------------------
------------------------- -------------------------
-------------------------
-------------------------
30
EXHIBIT A CONT.
[SECOND FLOOR PLAN]
LESSOR [Illegible] LESSEE [Illegible]
------------------------- -------------------------
------------------------- -------------------------
-------------------------
-------------------------
31
EXHIBIT B
[FIRST FLOOR PLAN]
LESSOR [Illegible] LESSEE [Illegible]
------------------------- -------------------------
------------------------- -------------------------
-------------------------
-------------------------
32
EXHIBIT B CONT.
SECOND FLOOR PLAN
LESSOR [Illegible] LESSEE [Illegible]
------------------------- -------------------------
------------------------- -------------------------
-------------------------
-------------------------
33
EXHIBIT C
GARAGE PARKING RULES
a. Garage hours: Twenty-four (24) hours, seven (7) days a week.
b. Cars must be parked entirely within the stall lines painted on the floor,
and only small cars may be parked in areas reserved for compacts. All cars
must be parked head-in only.
c. All directional signs and arrows must be observed.
d. Speed limit shall be 5 miles per hour.
e. Parking is prohibited in all areas not expressly designated for parking,
including without limitation:
1. Aisles.
2. Loading zones.
3. Areas not striped for parking.
4. Areas where "No Parking" signs are posted.
5. Ramps, right side up - left side down.
f. Spaces reserved for handicapped parking must be used only be vehicles
properly designated.
g. Parking stickers, card-key or any other devices or forms of identification
or entry supplied by Lessor shall remain the property of Lessor. Such
devices must be displayed as requested and may not be mutilated in any
manner. The serial number of the parking identification device may not be
obliterated. Devices are not transferable and any device in the possession
of any unauthorized holder will be void.
h. Garage managers or personnel are not authorized to make or allow any
exceptions to these Rules.
i. Each driver of a vehicle is required to drive and park safely, and lock
and secure his or her own vehicle.
j. Loss or theft of parking identification, card-keys or other such devices
must be reported to Lessor immediately. Any parking devices reported lost
or stolen or found on any unauthorized car will be confiscated and the
illegal holder will be fined at the prevailing written rate. Lost or stolen
devices found by Lessee or its employees must be returned to Lessor.
k. Washing, waxing, cleaning or servicing of any vehicle is prohibited.
Parking spaces may only be used for parking automobiles.
l. Parking space shall be used only for parking by vehicles no larger than
full size passenger automobiles or pick-up trucks. Prohibited vehicles are
not permitted; examples of prohibited vehicles shall include, but shall not
be limited to, vehicles exceeding 6'6" in height, trucks or trucking
equipment, trailers, campers, recreational vehicles, boats, "dead
automobiles" or automobiles parked longer than 48 hours. No automotive
repair or work is permitted. Lessor shall have the right, without notice,
in addition to other rights and remedies it may have, to remove or tow
away any prohibited vehicle and charge the cost to the owner, which cost
shall be immediately payable upon demand by Lessor.
m. Other prohibitions include but are not limited to: eating in Garage,
loitering, throwing trash, leaky vehicles, damage to gates, arms, card-key
readers, entry or exit equipment, other vehicles, real or personal
property, fences, rails or walls.
x. Xxxxxx may prohibit violators of Rules from using parking spaces provided
to Lessor hereunder. In such case, Lessor shall void the violator's
card-key and notify Lessee in writing. Said individual(s) would be
prohibited from using Garage, until a fine of $75.00 is paid or until
Lessor agrees to reinstate the violator, at Lessor's option.
34
EXHIBIT D
FORM OF
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "First Amendment"), dated ________,
2001, is made by and between Northpark Industrial, a California general
partnership, Northwest Industrial Center, a California limited partnership and
Northpark Industrial-Xxxxx Division, LLC, a California limited liability
company (collectively, "Lessor"), with offices at 0000 Xxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, and CAPSTONE TURBINE CORPORATION, a
California corporation ("Lessee"), with offices at 00000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxx 00000.
WHEREAS, Lessor and Lessee have entered into that certain Standard
Industrial Commercial Single-Tenant Lease - Net, including Addendum and
Exhibits thereto, dated, for reference purposes only, December 1, 1999
("Lease"), for a concrete tilt-up building consisting of approximately 98,370
square feet of area including 200 parking spaces located on certain real
property known as 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx and 0000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx.
WHEREAS, the provisions of the Lease specify that the Commencement
Date shall be the date of the expiration of Lessee's 60-day Early Possession
Period, as defined in Addendum Paragraph 53 to the Lease.
NOW THEREFORE, in consideration of the covenants and provisions
contained herein, and other good and valuable consideration, the sufficiency of
which Lessor and Lessee hereby acknowledge, Lessor and Lessee agree as follows:
1. CONFIRMATION OF DEFINED TERMS. Unless modified herein all terms
previously defined and capitalized in the Lease shall hold the same meaning for
the purposes of this First Amendment.
2. CONFIRMATION OF COMMENCEMENT DATE AND TERM. The Commencement
Date is hereby confirmed to be _________, 2001, and the Term is hereby
confirmed to be the ten (10) year period commencing on _________, 2001, and
ending on ________, 2011.
3. CONFIRMATION OF BASE RENT AND BASE RENT PAYMENT PERIODS. The
Base Rent payable for the Premises during the initial ten (10) year term of the
Lease shall be as follows:
a. The Base Rent payable for the period of _________, 2001 through
_________, 200_ shall be $30,000.00 per month;
b. The Base Rent payable for the period of _________, 200_ through
_________, 200_ shall be $60,000.00 per month;
35
c. The Base Rent payable for the period of ________, 200__ through
________, 200__ shall be $63,000.00 per month. In addition, on ________, 200__,
Lessee shall deposit with Lessor $3,000.00 as additional security deposit;
d. The Base Rent payable for the period of ________, 200__ through
________, 200__ shall be $66,150.00 per month. In addition, on ________, 200__,
Lessee shall deposit with Lessor $3,150.00 as additional security deposit;
e. The Base Rent payable for the period of ________, 200__ through
________, 200__ shall be $69,457.50 per month. In addition, on ________, 200__,
Lessee shall deposit with Lessor $3,307.50 as additional security deposit;
f. The Base Rent payable for the period of ________, 200__ through
________, 200__ shall be $72,930.38 per month. In addition, on ________, 200__,
Lessee shall deposit with Lessor $3,472.88 as additional security deposit; and
g. The Base Rent payable for the period of ________, 200__ through
________, 200__ shall be $76,576.89 per month. In addition, on ________, 200__,
Lessee shall deposit with Lessor $3,646.51 as additional security deposit.
4. CONFIRMATION OF FIRST OPTION TO EXTEND. Based upon the Commencement
Date and Term specified hereinabove, the period of time in which Lessee is
permitted to validly exercise its first Option to Extend the Term of the Lease
is hereby confirmed to be ________ through ________.
5. CONFIRMATION OF SECOND OPTION TO EXTEND. Based upon the Commencement
Date and Term specified hereinabove, the period of time in which Lessee is
permitted to validly exercise its second Option to Extend the Term of the Lease
is hereby confirmed to be ________ through ________.
6. WARRANTY OF AUTHORITY. If Lessor or Lessee signs as a corporation,
partnership or limited liability company, each of the persons executing this
First Amendment on behalf of Lessor and Lessee hereby covenants and warrants
that the entity executing hereinbelow is a duly authorized and existing entity
that is qualified to do business in California; that the persons(s) signing on
behalf of either Lessor or Lessee have full right and authority to enter into
this First Amendment; and that each and every person signing on behalf of
either Lessor or Lessee are authorized in writing to do so.
7. SUCCESSORS AND HEIRS. The provisions of this First Amendment shall
inure to the benefit of Lessor's and Lessee's respective successors, assigns,
heirs and all persons claiming by, through or under them.
36
8. SUBMISSION OF DOCUMENT. No expanded contractual or other rights shall
exist between Lessor and Lessee with respect to the Premises, as contemplated
under this First Amendment, until both Lessor and Lessee have executed and
delivered this First Amendment, whether or not any additional rental or
security deposits have been received by Lessor, and notwithstanding that Lessor
has delivered to Lessee an unexecuted copy of this First Amendment. Execution
of this First Amendment by Lessee and its return to Lessor shall not be binding
upon either party, notwithstanding any time interval, until Lessor has in fact
executed and delivered this First Amendment to Lessee.
9. GOVERNING LAW. The provisions of this First Amendment shall be
governed by the laws of the State of California.
10. REAFFIRMATION. Lessor and Lessee acknowledge and agree that the
Lease, as amended herein, constitutes the entire agreement by and between
Lessor and Lessee, and supersedes any and all other agreements written or oral
between the parties hereto. Furthermore, except as modified herein, all other
covenants and provisions of the Lease shall remain unmodified and in full force
and effect.
[INTENTIONALLY LEFT BLANK]
37
IN WITNESS WHEREOF, Lessor and Lessee have duly executed this document as
of the day and year written below.
LESSOR:
NORTHPARK INDUSTRIAL,
a California general partnership
By: NORTHWEST INDUSTRIAL CENTER, a California
limited partnership, General Partner
By:
-------------------------------------------------------
Xxxxxx Xxxxxx, General Partner
By:
-------------------------------------------------------
Xxxx Xxxxxx, General Partner
By: NORTHPARK INDUSTRIAL-XXXXX DIVISION LLC,
a California limited liability company, General Partner
By: WEST AMERICA CONSTRUCTION
CORPORATION, a California corporation,
Manager
By:
--------------------------------------------------
Xxxxxxxx X. Xxxxx, President
By:
--------------------------------------------------
Xxxxxx X. Xxxxxx, Secretary
NORTHWEST INDUSTRIAL CENTER,
a California limited partnership
By:
------------------------------------------------------------
Xxxxxx Xxxxxx, General Partner
By:
------------------------------------------------------------
Xxxx Xxxxxx, General Partner
NORTHPARK INDUSTRIAL-XXXXX DIVISION LLC,
a California limited liability company
By: WEST AMERICA CONSTRUCTION CORPORATION,
a California corporation, Manager
By:
-------------------------------------------------------
Xxxxxxxx X. Xxxxx, President
By:
-------------------------------------------------------
Xxxxxx X. Xxxxxx, Secretary
38
EXHIBIT E
FORM OF
MEMORANDUM OF LEASE
AND OPTION TO EXTEND
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Capstone Turbine Corporation
x/x Xxxxxxxxx, Xxxxx, Xxxxxx & Younger
000 xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
--------------------------------------------------------------------------------
MEMORANDUM OF LEASE
AND OPTION TO EXTEND
THIS MEMORANDUM OF LEASE AND OPTION TO EXTEND ("Memorandum") of that
certain Standard Industrial/Commercial Single Tenant Lease - Net ("Lease"), is
entered into this ____ day of December, 1999, by and between Northpark
Industrial, a California general partnership, Northwest Industrial Center, a
California limited partnership and Northpark Industrial-Xxxxx Division, LLC
(collectively, "Lessor"), and CAPSTONE TURBINE CORPORATION, a California
corporation ("Lessee"), for the purpose of memorializing their execution of
said Lease on December __, 1999.
1. Lessor does hereby lease to Lessee and Lessee does hereby rent from
Lessor, at the rent and upon the terms and conditions described in the Lease
and Addendum attached thereto, that certain real property located in the City
of Chatsworth, County of Los Angeles, State of California, described in Exhibit
"A" attached hereto and incorporated herein by this reference ("21211
Nordhoff").
2. In addition to the real property referenced in Paragraph 1 hereto, the
Lease Premises include Lessee's right to use (i) forty (40) parking spaces on
21211 Xxxxxxxx, and (ii) one hundred and sixty (160) parking spaces located on
certain real property located in the City of Chatsworth, County of Los Angeles,
State of California, described in Exhibit "B" attached hereto and incorporated
herein by this reference ("9151 Eton").
3. The term of the Lease is for a period of ten (10) years commencing
on the "Commencement Date" as defined in said Lease and ending ten (10) years
after said "Commencement Date."
4. Pursuant to the Lease, Lessor grants to Lessee two (2) five (5) year
options to extend the term of the Lease, the first of which commences when the
original Term of this Lease expires ("First Option"), and the second of which
option commences upon expiration of the First Option Period and continues for
an additional five (5) years thereafter.
5. In the event of any conflict or inconsistency with the terms and
conditions of this Memorandum and the terms and conditions of the Lease, then
the terms and conditions of the Lease shall govern. This Memorandum may be
executed in two or more counterparts with the combined counterparts
constituting one integrated agreement.
39
This Memorandum shall be deemed to have been executed as of the date of
the last acknowledged signature hereto, provided however, the signatories
hereto intend that said Memorandum shall be deemed to be effective as of the
date of the execution of the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as of
the date first above-written.
LESSOR:
NORTHPARK INDUSTRIAL,
a California general partnership
By: NORTHWEST INDUSTRIAL CENTER, a California
limited partnership, General Partner
By:
-----------------------------------------------
Xxxxxx Xxxxxx, General Partner
By:
-----------------------------------------------
Xxxx Xxxxxx, General Partner
By: NORTHPARK INDUSTRIAL-XXXXX DIVISION LLC,
a California limited liability company, General Partner
By: WEST AMERICA CONSTRUCTION
CORPORATION, a California corporation,
Manager
By:
-----------------------------------------
Xxxxxxxx X. Xxxxx, President
By:
-----------------------------------------
Xxxxxx X. Xxxxxx, Secretary
NORTHWEST INDUSTRIAL CENTER,
a California limited partnership
By:
----------------------------------------------------
Xxxxxx Xxxxxx, General Partner
By:
----------------------------------------------------
Xxxx Xxxxxx, General Partner
40
LESSOR'S SIGNATURES CONTINUED:
NORTHPARK INDUSTRIAL-XXXXX DIVISION LLC,
a California limited liability company
By: WEST AMERICA CONSTRUCTION CORPORATION,
a California corporation, Manager
By:
-----------------------------------
Xxxxxxxx X. Xxxxx, President
By:
-----------------------------------
Xxxxxx X. Xxxxxx, Secretary
LESSEE:
CAPSTONE TURBINE CORPORATION,
a California corporation
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
41
EXHIBIT A
XXX 0 XX XXXXX XX. 00000, XX THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 896 PAGES 17 TO 20 INCLUSIVE
OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT AS UNDIVIDED 1/4 INTEREST IN ALL PETROLEUM, OIL, ASPHALTUM, GAS AND
OTHER HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, AS RESERVED IN THE DEED
FROM XXXXX XXXXXXXX, RECORDED JANUARY 6, 1939 IN BOOK 16242 PAGE 356, OFFICIAL
RECORDS BY A DEED RECORDED JUNE 14, 1960 AS INSTRUMENT NO. 4143, OFFICIAL
RECORDS, SAID XXXXX XXXXXXXX QUITCLAIMED TO THE RECORD OWNERS OF SAID LAND ALL
HIS RIGHT, TITLE AND INTEREST IN AND TO THAT PORTION OF SAID LAND LYING ABOVE A
DEPTH OF 500 FEET, MEASURED VERTICALLY FROM THE SURFACE, TOGETHER WITH ANY
RIGHT OF ENTRY ON THE SURFACE THEREOF.
ALSO EXCEPT THEREFROM AN UNDIVIDED 1/4 INTEREST IN ALL PETROLEUM, OIL,
ASPHALTUM, GAS AND OTHER HYDROCARBON SUBSTANCES AS RESERVED IN THE DEED FROM X.
X. XXXXXX ESTATE, A CORPORATION, RECORDED JANUARY 6, 1939 IN BOOK 16242 PAGE
356, OFFICIAL RECORDS, BY A DEED RECORDED SEPTEMBER 22, 1960 AS INSTRUMENT NO.
4090, OFFICIAL RECORDS, ALL RIGHTS TO ENTER UPON THE SURFACE AND THAT PORTION
OF THE SUBSURFACE LYING ABOVE A DEPTH OF 500 FEET BELOW THE SURFACE OF SAID
LAND WAS QUITCLAIMED TO THE RECORD OWNERS OF LOTS 1 TO 7 INCLUSIVE, 27 TO 33
INCLUSIVE 38, 39, 40 AND THAT PORTION OF LOTS 8, 9, 10, 26, 34 AND 37 LYING
SOUTHERLY OF THE NORTHERLY LINE OF THE LAND DESCRIBED IN SAID DEED LASTLY ABOVE
DESCRIBED EXCEPTING AND RESERVING AS A DRILL-SITE, THAT PORTION OF LOTS 7, 8
AND 9 LYING WITHIN THE AREA OF LAND AS THEREIN PROVIDED.
ALSO EXCEPT SUCH INTEREST IN THE REMAINDER OF THE OIL, GAS, MINERALS AND OTHER
HYDROCARBON SUBSTANCES IN OR UNDER SAID LAND, AS RESERVED BY SECURITY PACIFIC
NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, AND XXXX X. XXXXXX, AS
CO-EXECUTORS OF THE ESTATE OF XXXXXX XXXXXXX, DECEASED, IN DEED RECORDED
FEBRUARY 9, 1973 AS INSTRUMENT NO. 195, OFFICIAL RECORDS.
42
EXHIBIT "B"
LOT 40, EXCEPT THEREFROM THE NORTHERLY 9 FEET MEASURED ALONG THE WESTERLY LINE
OF SAID LOT, OF TRACT NO. 33398, IN THE CITY OF LOS ANGELES, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 896 PAGES 17 TO 20
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT AN UNDIVIDED 1/4 INTEREST IN ALL PETROLEUM, OIL, ASPHALTUM, GAS AND
OTHER HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, AS RESERVED IN THE DEED
FROM XXXXX XXXXXXXX, RECORDED JANUARY 6, 1939 IN BOOK 16424 PAGE 352, OFFICIAL
RECORDS, BY DEED RECORDED JUNE 14, 1960 AS INSTRUMENT NO. 4143, SAID XXXXX
XXXXXXXX QUITCLAIMED TO THE RECORD OWNERS OF SAID LAND ALL HIS RIGHTS, TITLE
AND INTEREST IN AND TO THAT PORTION OF SAID LAND LYING ABOVE A DEPTH OF 500
FEET, MEASURED VERTICALLY FROM THE SURFACE, TOGETHER WITH ANY RIGHT OF ENTRY ON
THE SURFACE THEREOF.
ALSO EXCEPT THEREFROM AN UNDIVIDED 1/4 INTEREST IN ALL PETROLEUM, OIL,
ASPHALTUM, GAS AND OTHER HYDROCARBON SUBSTANCES, AS RESERVED IN THE DEED FROM
X. X. XXXXXX ESTATE, A CORPORATION, RECORDED JANUARY 6, 1939 IN BOOK 16242 PAGE
356, OFFICIAL RECORDS, BY A DEED RECORDED SEPTEMBER 22, 1960 AS INSTRUMENT NO.
4090, ALL RIGHTS TO ENTER UPON THE SURFACE AND THAT PORTION OF THE SUBSURFACE
LYING ABOVE A DEPTH OF 500 FEET BELOW THE SURFACE OF SAID LAND, WAS QUITCLAIMED
ON THE RECORD OWNERS OF LOTS AS THEREIN DESCRIBED.
ALSO EXCEPT SUCH INTEREST IN THE REMAINDER OF THE OIL, GAS, MINERALS AND OTHER
HYDROCARBON SUBSTANCES IN OR UNDER SAID LAND, AS RESERVED BY SECURITY PACIFIC
NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, AND XXXX X. XXXXXX, AS
CO-EXECUTORS OF THE ESTATE OF XXXXXX XXXXXXX, DECEASED, IN DEED RECORDED
FEBRUARY 9, 1973 AS INSTRUMENT XX. 000.
00
Xx. 000000
________________________________________________________________________________
VENDOR NO: 1183 VENDOR NAME: NORTHPARK INDUSTRIAL
INVOICE NO INV DATE INVOICE AMOUNT DISC TAKEN PAYMENT AMOUNT
---------- ---------- -------------- ---------- --------------
DEPOSIT NEW BLDG 12/30/1999 480,000.00 0.00 480,000.00
PREPAID RENT $420,000 - SEC. DEP $60,000
________________________________________________________________________________
Total: 480,000.00 0.00 480,000.00
________________________________________________________________________________
11-24 XXXXX FARGO BANK
[CAPSTONE LOGO] ------- 0000 XXXXXXX XXXXXX XXXX. No. 031263
1210(8) XXXXXXXX XXXXX, XX 00000
Pay FOUR HUNDRED EIGHTY THOUSAND USD and 00/100
-------------------------------
DATE AMOUNT
-------------------------------
12/30/1999 $ ***480,000.00*
TO -------------------------------
THE NORTHPARK INDUSTRIAL
ORDER 00000 XXXXXXXX
XX XXXXXXXXXX XX 00000 /s/
-------------------------------
/s/
-------------------------------
-------------------------------------------------------------------------------------------
031263 121000248 4443 331152
44
[THE XXXXXX COMPANY LOGO]
MEMO
TO: Xxxx Xxxx, Chicago Title - Pasadena Branch
FROM: Xxxx Xxxxxx, Vice President
The Xxxxxx Company
DATE: January 4, 2000
SUBJECT: 00000 Xxxxxxxx Xxxxxx & 0000 Xxxx Xxxxxx, Xxxxxxxxxx, XX
--------------------------------------------------------------------------------
Please record this document as an accommodation for these principals for the
above referenced properties.
Should you have any questions, please do not hesitate to give me a call at
(000) 000-0000.
Thank you.
45
MEMORANDUM OF LEASE
AND OPTION TO EXTEND
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Capstone Turbine Corporation
x/x Xxxxxxxxx, Xxxxx, Xxxxxx & Younger
000 xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
--------------------------------------------------------------------------------
MEMORANDUM OF LEASE
AND OPTION TO EXTEND
THIS MEMORANDUM OF LEASE AND OPTION TO EXTEND ("Memorandum") of that
certain Standard Industrial/Commercial Single Tenant Lease - Net ("Lease"), is
entered into this 30th day of December, 1999, by and between Northpark
Industrial, a California general partnership, Northwest Industrial Center, a
California limited partnership and Northpark Industrial-Xxxxx Division, LLC
(collectively, "Lessor"), and CAPSTONE TURBINE CORPORATION, a California
corporation ("Lessee"), for the purpose of memorializing their execution of said
Lease on December 30, 1999.
1. Lessor does hereby lease to Lessee and Lessee does hereby rent from
Lessor, at the rent and upon the terms and conditions described in the Lease
and Addendum attached thereto, that certain real property located in the City
of Chatsworth, County of Los Angeles, State of California, described in Exhibit
"A" attached hereto and incorporated herein by this reference ("21211
Xxxxxxxx").
2. In addition to the real property reference in Paragraph 1 hereto, the
Lease Premises include Lessee's right to use (i) forty (40) parking spaces on
21211 Nordhoff, and (ii) one hundred and sixty (160) parking spaces located on
certain real property located in the City of Chatsworth, County of Los Angeles,
State of California, described in Exhibit "B" attached hereto and incorporated
herein by this reference ("9151 Eton").
3. The term of the Lease is for a period of ten (10) years commencing on
the "Commencement Date" as defined in said Lease and ending ten (10) years
after said "Commencement Date."
4. Pursuant to the Lease, Lessor grants to Lessee two (2) five (5) year
options to extend the term of the Lease, the first of which commences when the
original Term of this Lease expires ("First Option"), and the second of which
option commences upon expiration of the First Option Period and continues for
an additional five (5) years thereafter.
5. In the event of any conflict or inconsistency with the terms and
conditions of this Memorandum and the terms and conditions of the Lease, then
the terms and conditions of the Lease shall govern. This Memorandum may be
executed in two or more counterparts with the combined counterparts
constituting one integrated agreement.
46
This Memorandum shall be deemed to have been executed as of the date of
the last acknowledged signature hereto, provided however, the signatories
hereto intend that said Memorandum shall be deemed to be effective as of the
date of the execution of the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as
of the date first above-written.
LESSOR:
NORTHPARK INDUSTRIAL,
a California general partnership
By: NORTHWEST INDUSTRIAL CENTER,
a California limited partnership,
General Partner
By: /s/ XXXXXX XXXXXX
---------------------------------
Xxxxxx Xxxxxx, General Partner
By: /s/ XXXX XXXXXX,
---------------------------------
Xxxx Xxxxxx, General Partner
By: NORTHPARK INDUSTRIAL-XXXXX
DIVISION LLC, a California
limited liability company,
General Partner
By: WEST AMERICA CONSTRUCTION
CORPORATION, a California
corporation, Manager
By: /s/ XXXXXXXX X. XXXXX
----------------------
Xxxxxxxx X. Xxxxx,
President
By: /s/ XXXXXX X. XXXXXX
----------------------
Xxxxxx X. Xxxxxx,
Secretary
NORTHWEST INDUSTRIAL CENTER,
a California limited partnership
By: /s/ XXXXXX XXXXXX
-------------------------------------
Xxxxxx Xxxxxx, General Partner
By: /s/ XXXX XXXXXX
-------------------------------------
Xxxx Xxxxxx, General Partner
47
LESSOR'S SIGNATURES CONTINUED:
NORTHPARK INDUSTRIAL-XXXXX DIVISION LLC,
a California limited liability company
By: WEST AMERICA CONSTRUCTION
CORPORATION, a California
corporation, Manager
By: /s/ XXXXXXXX X. XXXXX
---------------------------------
Xxxxxxxx X. Xxxxx, President
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Xxxxxx X. Xxxxxx, Secretary
LESSEE:
CAPSTONE TURBINE CORPORATION,
a California corporation
By: /s/ XXX XXXXXXX
-------------------------------------
Name: Xxx Xxxxxxx
-----------------------------------
Title: President & CEO
----------------------------------
BY: /s/ X. XXXXX
-------------------------------------
Name: X. Xxxxx
-----------------------------------
Title: CFO
----------------------------------
48
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On December 22, 1999, before me, the undersigned, a notary public in and
for said State, personally appeared Ake Amgren, personally known to me to be the
person whose name is subscribed to the within instrument and acknowledged to me
that such person executed the same in the person's authorized capacity, and that
by the person's signature on the instrument, the person, or the entity on behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
XXXXXX XXXXXXX
Commission # 1237244 /s/ XXXXXX XXXXXXX
[LOGO] Notary Public - California ---------------------------
Los Angeles County Notary Public
My Comm. Expires Oct 22, 2003
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On December 22, 1999, before me, the undersigned, a notary public in and
for said State, personally appeared Xxxx Xxxxx, personally known to me to be the
person whose name is subscribed to the within instrument and acknowledged to me
that such person executed the same in the person's authorized capacity, and that
by the person's signature on the instrument, the person, or the entity on behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
XXXXXX XXXXXXX
Commission # 1237244 /s/XXXXXX XXXXXXX
[LOGO] Notary Public - California ---------------------------
Los Angeles County Notary Public
My Comm. Expires Oct 22, 2003
[SEAL]
49
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On December 22, 1999, before me, the undersigned, a notary public in and
for said State, personally appeared Xxxxxxxx X. Xxxxx, personally known to me to
be the person whose name is subscribed to the within instrument and acknowledged
to me that such person executed the same in the person's authorized capacity,
and that by the person's signature on the instrument, the person, or the entity
on behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
XXXXX XXXXX
Commission # 1125439 /s/ XXXXX XXXXX
[LOGO] Notary Public - California ----------------------------
Los Angeles County Notary Public
My Comm. Expires Feb 9, 2001
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On December 22, 1999, before me, the undersigned, a notary public in and
for said State, personally appeared Xxxxxx X. Xxxxxx, personally known to me to
be the person whose name is subscribed to the within instrument and acknowledged
to me that such person executed the same in the person's authorized capacity,
and that by the person's signature on the instrument, the person, or the entity
on behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
XXXXX XXXXX
Commission # 1125439 /s/ XXXXX XXXXX
[LOGO] Notary Public - California ----------------------------
Los Angeles County Notary Public
My Comm. Expires Feb 9, 2001
[SEAL]
50
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On December 30, 1999, before me, the undersigned, a notary public in and
for said State, personally appeared Xxxxxx Xxxxxx, proved to me on the basis
of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that such person executed the same in
the person's authorized capacity, and that by the person's signature on the
instrument, the person, or the entity on behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
----------------------------
XXXXXX XXXXXXX
Commission # 1237244
Notary Public - California /s/ XXXXXX XXXXXXX
Los Angeles County -----------------------
My Comm. Expires Oct 22, 2003 Notary Public
------------------------------
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On December 30, 1999, before me, the undersigned, a notary public in and
for said State, personally appeared Xxxx Xxxxxx, proved to me on the basis
of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that such person executed the same in
the person's authorized capacity, and that by the person's signature on the
instrument, the person, or the entity on behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
----------------------------
XXXXXX XXXXXXX
Commission # 1237244
Notary Public - California /s/ XXXXXX XXXXXXX
Los Angeles County -----------------------
My Comm. Expires Oct 22, 2003 Notary Public
------------------------------
[SEAL]
00
XXXXX XX XXXXXXXXXX )
) ss.
COUNTY OF LOS ANGELES )
On December 22, 1999, before me, the undersigned, a notary public in and
for said State, personally appeared Xxxxxxxx X. Xxxxx, personally known to me to
be the person whose name is subscribed to the within instrument and acknowledged
to me that such person executed the same in the person's authorized capacity,
and that by the person's signature on the instrument, the person, or the entity
on behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------
XXXXX XXXXX
Commission # 1125439
Notary Public - California /s/ XXXXX XXXXX
Los Angeles County -----------------------
My Comm. Expires Feb 9, 2001 Notary Public
------------------------------
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On December 22, 1999, before me, the undersigned, a notary public in and
for said State, personally appeared Xxxxxx X. Xxxxxx, personally known to me to
be the person whose name is subscribed to the within instrument and acknowledged
to me that such person executed the same in the person's authorized capacity,
and that by the person's signature on the instrument, the person, or the entity
on behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------
XXXXX XXXXX
Commission # 1125439
Notary Public - California /s/ XXXXX XXXXX
Los Angeles County -----------------------
My Comm. Expires Feb 9, 2001 Notary Public
------------------------------
[SEAL]
52
EXHIBIT A
XXX 0 XX XXXXX XX. 00000, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 896 PAGES 17 TO 20 INCLUSIVE
OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT AN UNDIVIDED 1/4 INTEREST IN ALL PETROLEUM, OIL, ASPHALTUM, GAS AND OTHER
HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, AS RESERVED IN THE DEED FROM
XXXXX XXXXXXXX, RECORDED JANUARY 6, 1939 IN BOOK 16242 PAGE 356, OFFICIAL
RECORDS BY A DEED RECORDED JUNE 14, 1960 AS INSTRUMENT NO. 4143, OFFICIAL
RECORDS, SAID XXXXX XXXXXXXX QUITCLAIMED TO THE RECORD OWNERS OF SAID LAND ALL
HIS RIGHT, TITLE AND INTEREST IN AND TO THAT PORTION OF SAID LAND LYING ABOVE A
DEPTH OF 500 FEET, MEASURED VERTICALLY FROM THE SURFACE, TOGETHER WITH ANY
RIGHT OF ENTRY ON THE SURFACE THEREOF.
ALSO EXCEPT THEREFROM AN UNDIVIDED 1/4 INTEREST IN ALL PETROLEUM, OIL,
ASPHALTUM, GAS AND OTHER HYDROCARBON SUBSTANCES AS RESERVED IN THE DEED FROM X.
X. XXXXXX ESTATE, A CORPORATION, RECORDED JANUARY 6, 1939 IN BOOK 16242 PAGE
356, OFFICIAL RECORDS, BY A DEED RECORDED SEPTEMBER 22, 1960 AS INSTRUMENT NO.
4090, OFFICIAL RECORDS, ALL RIGHTS TO ENTER UPON THE SURFACE AND THAT PORTION
OF THE SUBSURFACE LYING ABOVE A DEPTH OF 500 FEET BELOW THE SURFACE OF SAID
LAND WAS QUITCLAIMED TO THE RECORD OWNERS OF LOTS 1 TO 7 INCLUSIVE, 27 TO 33
INCLUSIVE 38, 39, 40 AND THAT PORTION OF LOTS 8, 9, 10, 26, 34 AND 37 LYING
SOUTHERLY OF THE NORTHERLY LINE OF THE LAND DESCRIBED IN SAID DEED LASTLY ABOVE
DESCRIBED EXCEPTING AND RESERVING AS A DRILL-SITE, THAT PORTION OF LOTS 7, 8
AND 9 LYING WITHIN THE AREA OF LAND AS THEREIN PROVIDED.
ALSO EXCEPT SUCH INTEREST IN THE REMAINDER OF THE OIL, GAS, MINERALS AND OTHER
HYDROCARBON SUBSTANCES IN OR UNDER SAID LAND, AS RESERVED BY SECURITY PACIFIC
NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, AND XXXX X. XXXXXX, AS
CO-EXECUTORS OF THE ESTATE OF XXXXXX XXXXXXX, DECEASED, IN DEED RECORDED
FEBRUARY 9, 1973 AS INSTRUMENT NO. 195, OFFICIAL RECORDS.
53
EXHIBIT "B"
LOT 40, EXCEPT THEREFROM THE NORTHERLY 9 FEET MEASURED ALONG THE WESTERLY LINE
OF SAID LOT, OF TRACT NO. 33398, IN THE CITY OF LOS ANGELES, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 896 PAGES 17 TO 20
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT AN UNDIVIDED 1/4 INTEREST IN ALL PETROLEUM, OIL, ASPHALTUM, GAS AND OTHER
HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, AS RESERVED IN THE DEED FROM
XXXXX XXXXXXXX, RECORDED JANUARY 6, 1939 IN BOOK 16424 PAGE 352, OFFICIAL
RECORDS, BY A DEED RECORDED JUNE 14, 1960 AS INSTRUMENT NO. 4143, SAID XXXXX
XXXXXXXX QUITCLAIMED TO THE RECORD OWNERS OF SAID LAND ALL HIS RIGHTS, TITLE AND
INTEREST IN AND TO THAT PORTION OF SAID LAND LYING ABOVE A DEPTH OF 500 FEET,
MEASURED VERTICALLY FROM THE SURFACE, TOGETHER WITH ANY RIGHT OF ENTRY ON THE
SURFACE THEREOF.
ALSO EXCEPT THEREFROM AN UNDIVIDED 1/4 INTEREST IN ALL PETROLEUM, OIL,
ASPHALTUM, GAS AND OTHER HYDROCARBON SUBSTANCES, AS RESERVED IN THE DEED FROM X.
X. XXXXXX ESTATE, A CORPORATION, RECORDED JANUARY 6, 1939 IN BOOK 16242 PAGE
356, OFFICIAL RECORDS, BY A DEED RECORDED SEPTEMBER 22, 1960 AS INSTRUMENT NO.
4090, ALL RIGHTS TO ENTER UPON THE SURFACE AND THAT PORTION OF THE SUBSURFACE
LYING ABOVE A DEPTH OF 500 FEET BELOW THE SURFACE OF SAID LAND, WAS QUITCLAIMED
TO THE RECORD OWNERS OF LOTS AS THEREIN DESCRIBED.
ALSO EXCEPT SUCH INTEREST IN THE REMAINDER OF THE OIL, GAS, MINERALS AND OTHER
HYDROCARBON SUBSTANCES IN OR UNDER SAID LAND, AS RESERVED BY SECURITY PACIFIC
NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, AND XXXX X. XXXXXX, AS
CO-EXECUTORS OF THE ESTATE OF XXXXXX XXXXXXX, DECEASED, IN DEED RECORDED
FEBRUARY 9, 1973 AS INSTRUMENT NO. 195.
