EXHIBIT 10.7
EXTENSION OF LEASE
This EXTENSION OF LEASE made this 23rd day of July, 1999, by and between
PLEASANT HILL INDUSTRIAL PARK ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP,
LESSOR, and LAVENIR TECHNOLOGY, INC. LESSEE, hereinafter respectively called
"Lessor" and "Lessee".
WITNESSETH
1. On April 3,1990 a Lease was executed and on May 21, 1993, May 9,1994,
July 31,1995 and September 12, 1996 Extensions of Lease were executed
by and between Pleasant Hill Industrial Park Associates, A California
Limited Partnership, Lessor, and Lavenir Technology, Inc., Lessee, for
those certain premises commonly known and designated as 0000 Xxxxxx
Xxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
2. The parties do hereby agree to:
a. Extend the term of said Lease for a period of Two (2) years
commencing September 1, 1999 and ending on August 31, 2001.
b. The monthly rent shall be payable as follows to XXXXXXXXX
CORPORATION: the sum of EIGHT THOUSAND SIX HUNDRED FORTY AND
001100 ($8,640.00) DOLLARS per month commencing September
1,1999 and continuing on the first day of each and every month
thereafter to and including the first of August 2000;
Thereafter, the sum of EIGHT THOUSAND EIGHT HUNDRED
EIGHTY-EIGHT AND 00/100 ($8,880.00) DOLLARS on the first day
of September, 2000, and continuing on the first day of each
and every month thereafter to and including the fast day of
August, 2001:
3. Lessee, at its option may convert this Extension of Lease to a
Three-year extension rather than the Two-year extension as stated
above. Lessee must notify Lessor, in writing, of its election to
exercise this option prior to October 31,1999. If Lessee elects to
convert this Extension of Lease to the Three-year term then the
termination date of this Extension shall be extended to August 31, 2002
and the monthly rent shall be modified as follows:
November 1, 1999 through August 31, 2000 - $8,520.00 per month
September 1, 2000 through August 31, 2001- $8,640.00 per month
September 1, 2001 through August 31, 2002 - $8,760.00 per month
If Lessee does not elect to convert this Extension of Lease to a
Three-year extension then the termination date and the monthly rent
outlined in Paragraph 2 b shall remain in effect.
4. All other terms and conditions of the above Lease shall remain the
same.
IN WITNESS WHEREOF, the undersigned "Lessor" and "Lessee" have executed these
presents the day and year first above mentioned.
LESSOR: PLEASANT HILL INDUSTRIAL LESSEE: LAVENIR TECHNOLOGY, INC.
PARK ASSOCIATES, A
CALIFORNIA LIMITED
PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxx X. Xxxxx
--------------------------------- ---------------------------------
XXXXXXXXX HOLDINGS, XXX X. XXXXX, PRESIDENT
GENERAL PARTNER LAVENIR TECHNOLOGY, INC.
XXXXXXX X. XXXXXXXXX, ITS
PRESIDENT
PARTIES
THIS LEASE, made at San Francisco, California this 3rd day of April,
1990, by and between PLEASANT HILL INDUSTRIAL PARK ASSOCIATES and LAVENIR
TECHNOLOGY, INC. hereinafter called respectively, Lessor and Lessee, without
regard to number or gender,
PURPOSE
WITNESSETH: that Lessor hereby leases to Lessee, and Lessee hires from
Lessor, for the purpose of conducting therein the assembly and testing of
photo-plotters and related products, the company's administrative and research
and development activities and for no other purpose, those certain premises with
the appurtenances, situated in the City of Pleasant Hill, County of Contra
Costa, State of California and more particularly described as follows, to-wit:
PREMISES
Approximately 7,940 square feet, more commonly known and designated as
0000 Xxxxxx Xxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
TERM
The term shall be for Three (3) years, commencing on the 1st day of
May, 1990, and ending on the 31st day of April, 1993, at the following rent in
lawful money of the United States of America, which Lessee agrees to pay to
Lessor, without deduction or offset, at such place or places as may be
designated from time to time by Lessor, in installments as follows:
RENT
The sum of FIVE THOUSAND FORTY-ONE AND 90/100 DOLLARS on the first day
of June, 1990 and the further sum of FIVE THOUSAND FORTY-ONE AND 90/100
($5,041.90) DOLLARS on the first day of each and every month thereafter during
the term and amended as per Paragraph 22 of the Lease herein. It is further
understood and agreed that said monthly rent will be increased as per Paragraph
22 by a minimum of 4% per annum and a maximum of 8% per annum.
Rent checks should be made payable to XXXXXXXXX CORPORATION.
INTEREST
All base rent, additional rent and all other sums which may from time
to time become due and payable by Lessee to Lessor under any of the provisions
of this Lease shall bear interest from and after the due date thereof at the
greater of ten percent (10%) per annum, or the maximum rate of interest
permitted by law.
POSSESSION
It is further mutually agreed between the parties as follows:
1. If Lessor, for any reason whatsoever, cannot deliver possession of
the said premises to Lessee at the commencement of the said term, as
hereinbefore specified, this lease shall not be voided or voidable, nor shall
Lessor be liable to Lessee for any loss or damage resulting therefrom; but in
that even there shall be a proportionate deduction of rent covering the period
between the commencement of the said term and the time when Lessor can deliver
possession.
2. Lessee shall not commit, or suffer to be committed, any waste upon
the said premises, or any nuisance, or other act or thing which may disturb the
quiet enjoyment of any other tenant in the building in which the demised
premises may be located. Lessee shall not make, or suffer to be made, any
alterations of the said premises, or any part thereof, without the written
consent of Lessor first had and obtained, and any additions to, or alterations
of , the said premises, except movable furniture and trade fixtures, shall
become at once a part of the realty and belong to Lessor.
ABANDONMENT
3. Lessee shall not vacate or abandon the premises at any time during
the term; and if Lessee shall abandon, vacate or surrender said premises, or be
dispossessed by process of law, or otherwise, any personal property belonging to
Lessee and left on the premises shall be deemed to be abandoned, at the option
of Lessor, excerpt such property as may be under a security agreement with
Lessor.
USES PROHIBITED
4. Lessee shall not use, or permit said premises, or any part thereof,
to be used, for any purpose or purposes other than that purpose or purposes for
which said premises are hereby leased; and no use shall be made or permitted to
be made of the said premises, nor acts done, which will increase the existing
rate of insurance upon the building in which said premises may be located, or
cause a cancellation of any insurance policy covering said building, or any part
thereof nor or shall Lessee sell, or permit to be kept, used, or sold, in or
about said premises, any article which may be prohibited by the standard form of
fire insurance policies. Lessee shall, it his sole cost and expense, comply with
any and all requirements pertaining to said premises, of any insurance
organization or company, necessary for the maintenance of reasonable fire and
public liability insurance, covering said building and appurtenances.
FREE FROM LIENS
5. Lessee shall keep the demised premises and the property in which the
demised premises are situated, free from any liens arising out of any work
performed, materials furnished, or obligations incurred by Lessee.
COMPLIANCE WITH GOVERNMENTAL REGULATIONS
6. Lessee shall, at his sole cost and expense, comply with all of the
requirements of all Municipal, State and Federal authorities now in force, or
which may hereafter be in force, pertaining to the said premises, and shall
faithfully observe in the use of the premises all Municipal ordinances and State
and Federal statutes now in force or which may hereafter be in force. The
judgment of any court of competent jurisdiction, or the admission of Lessee in
any action or proceeding against Lessee, whether Lessor be a party thereto or
not, that Lessee has violated any such ordinance or statute in the use of the
premises, shall be conclusive of that fact as between Lessor and Lessee.
INDEMNIFICATION OF LESSOR
7. Lessee, as a material part of the consideration to be rendered to
Lessor, hereby waives all claims against Lessor for damages to goods, wares,
merchandise and other personal property, in , upon or about said premises and
for injuries to person in or about said premises, from any cause arising at any
time, and Lessee will hold Lessor exempt and harmless from any damage or injury
to any person, or to the good, wares, merchandise and other personal property of
any person arising from the use of the premises by Lessee, or from the failure
of Lessee to keep the premise in good condition and repair, as herein provided.
UTILITIES
8. Lessee shall pay for all water, gas, heat, light, power, telephone
service, sewer service charge and all other services supplied to the said
premises, together with any taxes thereon.
ENTRY OF LESSOR
9. Lessee shall permit Lessor and his agents to enter into and upon
said premises at all reasonable times for the purpose of inspecting the same or
for the purpose of maintaining the building in which said premises are situated,
or for the purpose of making repairs, alterations or additions to any other
portion of said building, including the erection and maintenance of such
scaffolding, canopies, fences and props as may be required, or for the purpose
of posting notices of non-liability for alterations, additions, or repairs, or
for the purpose of placing upon the property in which the said premises are
located any usual or ordinary "for sale" signs, without any rebate of rent and
without any liability to Lessee for any loss of occupation or quiet enjoyment of
the premises thereby occasioned; and shall permit Lessor, at any time within
thirty days prior to the expiration of this lease, to place upon said premises
any usual "to lease" signs.
DESTRUCTION OF PREMISES
10. In the event of a partial destruction of the said premises during
the said term, from any cause, Lessor shall forthwith repair the same, provided
such repairs can be made within sixty (60) days under the laws and regulations
of State, Federal, County or Municipal authorities, but such partial destruction
shall in no wise annual or void this lease, except that Lessee shall be entitled
to a proportionate deduction of rent while such repairs are being made, such
proportionate deduction to be based upon the extent to which the making of such
repairs shall
interfere with the business carried on by Lessee in the said premises. If such
repairs cannot be made in sixty (60) days, Lessor may, at its option, make same
within a reasonable time, this lease continuing in full force and effect and the
rent to be proportionately rebated aforesaid in this paragraph provided. In the
event that Lessor does not so elect to make such repairs which cannot be made in
sixty (60) days, or such repairs cannot be made under such laws and regulations,
this lease may be terminated at the option of either party. In the event that
the building in which the demised premises may be situated by destroyed to the
extent of not less than 33 1/3% of the replacement cost thereof,, Lessor may
elect to terminate this lease, whether the demised premises be injured or not. A
total destruction of the building in which the said premises may be situated
shall terminated this lease. Lessee waives any right to terminate this lease as
a result of any statutory provision now or hereafter in effect pertaining to the
damage or destruction of the demised premises or the building of which the
demised premises are a portion except as expressly provided herein.
ASSIGNMENT AND SUBLETTING
11. Lessee may assign this lease or any interest therein and may also
sublet the whole of said premises, provided that written consent of Lessor to
any such assignment or subletting is first obtained by Lessee. If, during the
term of this lease Lessee requests the written consent of Lessor to any such
assignment or subletting, Lessor's consent thereto shall not unreasonably be
withheld. A consent to one assignment or subletting shall not be deemed to be a
consent to any subsequent assignment or subletting, and any such subsequent
assignment or subletting without Lessor's consent shall be void and shall, at
Lessor's option , terminate the lease. This lease shall not, nor shall any
interest therein, be assignable as the interest of Lessee by operation of law
without the written consent of Lessor, but such consent shall not unreasonably
be withheld. In the event hat the demised premises are assigned or subleased at
a rental consideration in excess of the then current rent, then all of such
excess shall be paid to the Lessor as additional rent thereunder.
INSOLVENCY OR BANKRUPTCY
12. In addition to any and all rights or remedies of Lessor hereunder
or as provided by law, the term of this Lease may be ended at the option of
Lessor and Lessor, at its option, ay reenter and take possession of the demised
premise and remove all persons therefrom and, upon the exercise of such option
by Lessor, Lessee shall have no further claim in or to the demised premises, and
the Lease Agreement and any interest in or to the demised premises shall no
longer be an asset of the Lessee or any successor in interest, if any one of
more of the following events occur:
(a) Lessee admits in writing its inability to pay its debts as they
come due;
(b) Lessee makes, to it unsecured creditors generally, an offer of
settlement, extension or composition;
(c) Lessee files any petition or action for relief under the provisions
of any bankruptcy, reorganization, insolvency or moratorium law, or any other
law or law for the relief of, or relating to, debtors;
(d) Lessee files any petition or action for relief under the provisions
of any bankruptcy, reorganization, insolvency or moratorium law, or any other
law or laws for the relief of, or relating to, debtors.
(e) Lessee is the subject of an involuntary petition or similar action
for relief under any bankruptcy, reorganization, insolvency, or moratorium law,
or any other law or laws for the relief of, or relating to, debtors;
(f) A receiver or trustee is appointed, with or without Lessee's
consent, to take possession of all or part of the assets or properties of
Lessee.
In the event that any one or more of the preceding events shall occur,
failure by Lessor to assert immediately its right to reenter and take possession
of the demised premises or to exercise any other rights or remedies granted to
Lessor by law or hereunder shall not constitute a waiver of any such right or
remedy nor shall Lessor be estopped to assert, at a later time, any such right
or remedy.
DEFAULT
13. In the event of any breach of this lease by Lessee, then Lessor,
besides other rights and remedies he may; have, shall have the immediate right
of re-entry and may remove all persons and property from the premises. If
Lessor's right of re-entry is exercised following abandonment of the premises by
the Lessee, then Lessor may consider any personal property belonging to Lessee
and left on the premises to also have been abandoned, in which case Lessor may
dispose of all such personal property in any manner Lessor shall deem proper and
is hereby relieved of all liability for doing so.
If Lessee breaches this lease and abandons the property before the end
of the term, or if Lessee's right to possession is terminated by Lessor because
of a breach of the Lease, then in either such case, Lessor may recover from
Lessee all damages suffered by Lessor, as the result of Lessee's failure to
perform his obligations thereunder, including but not restricted to, the worth
at the time of the award by the court having jurisdiction thereof of the amount
by which the rent then unpaid hereunder for the balance of the lease term
exceeds the amount of such rental loss for the same period which Lessee proves
could be reasonably avoided by Lessor, and in such case, Lessor, prior to the
award, may relet the premises for the purpose of mitigating damages suffered by
Lessor because of Lessee's failure to perform his obligations hereunder;
provided, however that even though Lessee has abandoned the premises following
such breach, this lease shall nevertheless continue in full force an defect for
as long as Lessor does not terminate Lessee's right of possession, and until
such termination, Lessor may enforce all his rights and remedies under this
lease, including the right to recover the rent from Lessee as it becomes due
hereunder.
REPAIRS
14. Lessee shall, at his sole cost, keep and maintain said premises and
appurtenances and every part thereof (excepting interior walls and roofs which
Lessor agrees to repair), including glazing, sidewalks adjacent to said
premises, parking areas, driveways, lighting standards, landscaping and
striping, any store front and the interior of the premises, in good and
sanitary order, condition and repair. By entry hereunder, Lessee accepts the
premises as being in good and sanitary order condition and repair and agrees on
the last day of said term, or sooner termination of this lease, to surrender
unto Lessor all and singular said premises with said appurtenances in the same
condition as when received, reasonable use and wear thereof and damage by fire,
act of God or by the elements excepted, and to remove all of Lessee's sings form
said premises.
ADVERTISEMENTS AND SIGNS
15. Lessee shall not conduct or permit to be conducted any sale by
auction on said premises. Lessee shall not place or permit to be placed any
projecting sign, marquee or awning on the front of the said premises without the
written consent of Lessor; Lessee, upon request of Lessor, shall immediately
remove any sign or decoration which Lessee has placed or permitted to be placed
in, on , or about the front of the premises and which, in the opinion of Lessor,
is objectionable or offensive, and if Lessee fails so to do, Lessor may enter
upon said premises and remove the same. Lessor has reserved the exclusive right
to the two exterior sidewalls, rear wall and roof of said premises, and Lessee
shall not place or permit to be place upon the said sidewalls, rear wall or
roof, any sign, advertisement or notice without the written consent of Lessor.
SURRENDER OF LEASE
16. The voluntary or other surrender of this lease by Lessee, or a
mutual cancellation thereof, shall not work a merger, and shall, at the option
of the Lessor, terminate all or any existing subleases or subtenancies, or may,
at the option of Lessor, operate as an assignment to him of any or all such
subleases or subtenancies.
CONDEMNATION
17. If any part of the demised premises shall be taken or condemned for
a public or quasi-public use, and a part thereof remains which is susceptible of
occupation hereunder, this lease shall, as to the part so taken, terminate as of
the date title shall vest in the condemnor, and the rent payable hereunder shall
be adjusted so that the Lessee shall be required to pay for the remainder of the
term only such portion of such rent as the value of the part remaining after
condemnation bears to the value of the entire premises at the date of
condemnation; but in such event Lessor shall have the option to terminate this
lease as of the date when title to the part so condemned vests in the condemnor.
If all of the demised premises, or such part thereof be taken or condemned so
that there does not remain a portion susceptible for occupation thereunder, this
lease shall thereupon terminate. If part or all of the demised premises bee
taken or condemned, all compensation awarded upon such condemnation or taking
shall go the Lessor and the Lessee shall have no claims thereto, and the Lessee
hereby irrevocably assigns and transfers to the Lessor any right to compensation
or damages to which the Lessee may become entitled during the term hereof by
reason of the condemnation of all or a part of the demised premises.
ATTORNEY'S FEES
18. In case suit is brought by either party because of the breach of
any term, covenant or condition herein contained, the prevailing party shall be
entitled to recover against the other party a reasonable attorney's fee to be
fixed by the court.
ARBITRATION
19. In the event of a dispute between Lessor and Lessee relative to the
provisions of this lease, the matter shall be determined by competent and
disinterested arbitrators, one of whom shall be selected and paid by Lessor and
one selected and paid by Lessee. Each party shall notify the other party the
name and address of the arbitrator so selected within 15 days after a written
request for arbitration has been given by one party to the other. In the event
these two cannot agree within 30 days after their appointment, the arbitrators
shall select a competent and disinterested part as the third arbitrator, the
expense to be borne equally by Lessor and Lessee. In the event these two do not
so select a third arbitrator within the next 15 days, then the third arbitrator
shall be appointed by the President of the Chamber of Commerce of San Francisco,
State of California, upon the request o f either party. The decision of any two
of the three arbitrators so chosen shall be final and conclusive on the parties
hereto. The decision of the arbitrators shall be in writing, and a copy thereof
shall be given to Lessor and Lessee within 90 days after the date of the request
for arbitration.
SECURITY DEPOSIT
20. Lessee shall deposit with Lessor upon execution hereof the sum of
Fifteen Thousand and 00/100 ($15,000.00) Dollars as security for Lessee's
faithful performance of Lessee's obligations hereunder. If Lessee fails to pay
rent or other charges due hereunder, or otherwise defaults with respect to any
provision of this lease, Lessor may use, apply or retain all or any portion of
said deposit for the payment of any rent or other charge in default or for the
payment of any other sum to which Lessor may become obligated by reason of
Lessee's default, or to compensate Lessor for any loss or damage which Lessor
may suffer thereby. If Lessor so uses or applies all or any portion of said
deposit, Lessee shall within ten (10) days after written demand therefore,
deposit cash with Lessor in an amount sufficient to restore said deposit to the
full amount hereinabove stated and Lessee's failure to do so shall be a breach
of this Lease, and Lessor may at its option terminate this lease. Lessor shall
not be required to keep said deposit separate from its general accounts. If
Lessee performs all of Lessee's obligations hereunder, said deposit or so much
thereof as had not theretofore been applied by Lessor, shall be returned without
payment of interest or other increment for its use, to Lessee (or, at Lessor's
option, to the last assignee, if any, of Lessee's interest hereunder) within
fifteen (15) days after the expiration of the term thereof, or after Lessee has
vacated the Premises, whichever is later.
TAXES AND ASSESSMENTS
21. In the event that in any tax year during the term of this lease the
amount of the Municipal, State or County Real Estate taxes including the amount
of any general or special assessments, or levies or charges made by any
municipal or political subdivision for local improvements shall exceed the
amount of such taxes including such general or special
assessments, levies or charges for the fiscal year 1989-1990, the Lessee shall
pay to the Lessor for such year upon demand an amount equal to 7.94% of the
total increase in such taxes, assessments, levies and charges upon the whole of
the land and building upon and within which the leased premises are situate,
whether such increase is caused by increased or added rate or increased assessed
valuation or by increase in, or by reason of any new, general or special
assessment. It is understood that, if the right to pay any assessments in
installments is given to Lessor, then for the purposes of this paragraph it
shall be deemed that the same are paid in such installments regardless of
whether or not the Lessor may pay the same in one sum or in any larger amounts
than the installment basis.
It is agreed that any increase in taxes caused by an increase in
assessed valuation due to work done in the demised premises by Lessee or by work
done in any other parts of the building by Lessor or any other tenant in the
building shall not be included in computing the amount of increase in taxes to
be paid by Lessee under the preceding paragraph of this Paragraph 21, but shall
be computed separately in the following manner:
1. Any increase in taxes caused by an increase in assessed valuation
due to the work done by Lessee in the demised premises at any time during said
term shall be borne entirely by Lessee.
2. If there is any increase in taxes caused by work done in any other
parts of the building by Lessor or by any other tenant in the building, the
Lessee shall not be responsible for any portion of such increase in taxes.
The amount of Lessee's obligation under this paragraph for the year in
which this lease terminates shall be prorated in the proportion that the period
this lease is in effect during the tax year in which this lease terminates bears
to the full tax year.
Lessee also shall pay, before delinquency, any and all taxes levied or
assessed and which become payable during the term hereof upon Lessee's
equipment, furniture, fixtures and other personal property located in the
premises. In addition to rental and other charges to be paid by Lessee
hereunder, Lessee shall reimburse to Lessor, upon demand, any and all taxes
payable by Lessor (other than net income taxes) whether or not now customary or
within the contemplation of the parties hereto: (a) upon, allocated to, or
measured by or on the rental payable hereunder, including, without limitation,
any gross income tax or exercise tax levied by the State, any political
subdivision thereof, or Federal Government with respect to the receipt of such
rental; or (b) upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Lessee of the
premises or any portion thereof; or (c) upon or measured by the value of
Lessee's equipment, furniture, fixtures and other personal property located in
the premises or by the cost or value of any leasehold improvements located in
the premises; or (d) upon this transaction or any document to which Lessee is a
party creating or transferring an interest or an estate in the premises; or (e)
any tax or charge made by any authority having jurisdiction upon any automobile
parking facilities used by Lessee and any sewer tax, water control tax or
Environmental Quality Control charge.
22. The monthly rental in the amount of $5,041.90, set forth above
shall be increased on May 1, 1991 and May 1, 1992 in the same proportion that
the Consumer Price Index figure
published by the United States Department of Labor, Bureau of Labor Statistics,
all items retail for San Francisco-Oakland for the month prior to the adjustment
month bears to the Consumer Price Index figure for the month prior to the month
in which lease commences (1967 = 100) hereinafter called "basic index figure",
provided, however, that in no event shall the monthly rental for any such period
be less than the monthly rental being paid by Lessee immediately prior to such
adjustment.
If prior to the effective date of any rental adjustment in Bureau of
Labor Statistics should revise or change the methods or basic data used in
calculating the said index, in such a way as to affect the direct comparability
of such revised or changed index, with the original index used herein, then the
Bureau shall be requested to furnish a conversation factor designated to adjust
to the new basis, the said original index.
If said Consumer Price Index, as now constituted, compiled and
published shall cease to be compiled and published during the term hereof, then
the Bureau of Labor Statistics shall be requested to furnish a statement
converting the basic index figure to a figure that would be comparable in
another index published by the Bureau of Labor Statistics and such other index
shall be used in computing the rental increase provided above.
If no such conversion or other index is available, then the said rental
increase shall be determined by arbitration in the manner provided in Paragraph
19 hereof.
INSURANCE
23. Lessee agrees during the full term of this lease to carry
comprehensive bodily injury insurance covering the demised premises, its
appurtenances and ways immediately adjoining, including any parking areas and
driveways that may be used by Lessee, in a single limit of $1,000,000 for injury
or death to any number of persons in any one occurrence, property damage
insurance in the amount of $100,000.00 and plate glass insurance in Companies
satisfactory to the Lessor, in the joint names of the Lessor and Lessee, and to
pay the premiums therefore and to deliver said policies, or certificates
thereof, unto the Lessor, and the failure of the Lessee either to effect said
insurance in the names herein called for or to pay the premiums therefore or to
deliver said policies, or certificates thereof, unto the Lessor shall permit the
Lessor to effect said insurance and to pay the requisite premiums therefore,
which premiums shall be repayable unto him with the next installment of rental,
and failure to repay the same shall carry with it the same consequence as
failure to pay any installment of rental. Each insurer mentioned in this
paragraph shall agree, by endorsement upon the policy or policies issued by it,
or by independent instrument furnished to the Lessor, that it will give the
Lessor ten (10) days written notice before the policy or policies in question
shall be altered or cancelled.
NOTICES
24. Whenever it is required that any notice be given hereunder, the
same shall be sufficiently served by depositing the same in the United States
Mail, postage prepaid, and addressed to the addresses set forth below:
To Lessor at: 00 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
To Lessee at: 0000 Xxxxxx Xxx
Xxxxxxxx Xxxx, XX
or to such other addresses as a party may designate by written notice to the
other party in the manner herein provided.
LESSOR'S LIABILITY
25. The term "Lessor", as used in this Paragraph, shall mean only the
owner or owners at the time in question of the fee title or its interest in a
ground lease of the Premises, and in the event of any transfer of such title or
interest. Lessor herein named (and in case of any subsequent transfers the then
grantor) shall be relieved from and after the date of such transfer of all
liability as respects Lessor's obligations thereafter to be performed, provided
that any funds in the hands of Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest, shall be delivered to the grantee.
The obligations contained in this Lease to be performed by Lessor shall be
binding on Lessor's successors and assigns only during their respective periods
of ownership.
WAIVER
26. The waiver by Lessor of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition therein contained. The subsequent acceptance of rent
hereunder by Lessor shall not be deemed to be a waiver of any preceding breach o
by Lessee of any term, covenant or condition of this lease, other than the
failure of Lessee to pay the particular rental so accepted, regardless of
Lessor's knowledge of such proceeding breach at the time of acceptance of such
rent.
HOLD OVER
27. Any holding over after the expiration of the said term, with the
consent of Lessor, shall be construed to be a tenancy from month to month, at a
rental in the amount of the last monthly rental plus all other charges payable
hereunder, and shall otherwise be on the terms and conditions herein specified,
so far as applicable.
SUCCESSORS
28. The covenants and conditions herein contained shall, subject to the
provisions as to assignment, apply to and bind the heirs, successors, executors,
administrators and assigns of all of the parties hereto; and all of the parties
hereto shall be jointly and severally liable hereunder.
TIME
29. Time is of the essence of this Lease.
CAPTIONS
30. The captions in the margins of this Lease are for convenience only
and are not a part of this lease and do not in any way limit or amplify the
terms and provisions of this Lease.
SUBORDINATION
31. The Lessee covenants that this lease is and at all times shall be
subject and subordinate to the lien of any mortgage or deed of trust now
existing or which the Lessor or any subsequent owner of the demised premises
shall make covering said demised premises or the building of which said premises
are a part, and to any and all advances made or to be made under or upon said
mortgage or deed of trust, and to the interest thereon. Notwithstanding such
subordination Lessee's right to quiet possession of the premises shall not be
disturbed if Lessee is not in default hereunder and so long as Lessee shall pay
the rent and observe and perform all of the provisions of this lease.
ESTOPPEL CERTIFICATE
32. Lessee shall at any time and from time to time upon not less than
ten (10) days prior written notice from Lessor execute, acknowledge and deliver
to Lessor a statement in writing (i) certifying that this Lease is unmodified
and in full force and effect (or, if modified stating the nature of such
modification and certifying that this Lease as so modified, is in full force and
effect) and the dates to which the rental and other charges are paid in advance,
if any, and (ii) acknowledging that there are not, to Lessee's knowledge, any
uncured defaults on the parts of Lessor hereunder, or specifying such defaults
if any are claimed. Any such statement may be relied upon by any prospective
purchaser or encumbrancer of all or any portion of the real property of which
the premises are a part. Lessee's failure to deliver such statement within such
time shall be conclusive upon Lessee (i) that this Lease is in full force and
effect, without modification except, as may be represented by Lessor, (ii) that
there are no uncured defaults in Lessor's performance, and (iii) that not more
than one month's rental has been paid in advance.
SPECIAL PROVISIONS
33. Special provisions of this Lease numbered 34 through 36 are
attached hereto and are made a part hereof. Also incorporated hereby is Lease A
Addendum dated April 6, 1990.
34. LESSEE WARRANTS THAT IT SHALL NOT MAKE ANY USE OF THE PREMISES
WHICH MAY CAUSE CONTAMINATION OF THE BUILDING AND IMPROVEMENTS, THE SOIL OR
GROUND WATER AND HEREBY INDEMNIFIES AND AGREES TO HOLD LESSOR HARMLESS FROM ANY
CLAIM FOR DAMAGES ARISING FROM ANY CONTAMINATION CAUSED BY LESSEE'S USE OF THE
PREMISES INCLUDING, BUT NOT LIMITED TO, DAMAGE TO LESSOR'S PROPERTY, THE
PROPERTY OF ANY THIRD PARTY OR PERSONAL INJURY TO ANY PERSON. THE
INDEMNIFICATION GIVEN HEREUNDER SHALL BE CONTINUING AND SHALL SURVIVE THE
TERMINATION OF THE LEASE TERM.
35. IF AT ANY TIME LESSOR DETERMINES TO LEASE ALL OR PART OF THE
ADJACENT EASTERN 4,000 (APPROXIMATELY) SQUARE FEET VACANT SPACE COMMON KNOWN AND
DESIGNATED AS 0000 XXXXXX XXX, XXXXXXXX XXXX, XXXXXXXXXX, LESSOR AGREES TO GRANT
TO LESSEE A FIRST RIGHT OF REFUSAL ON SAID SPACE. LESSOR SHALL NOTIFY LESSEE OF
THE RENT AND TERMS FOR WHICH LESSOR IS
WILLING TO LEASE SAID SPACE. IF LESSEE, WITHIN 3 CALENDAR DAYS AFTER RECEIPT OF
LESSOR'S NOTICE, INDICATES IN WRITING ITS AGREEMENT TO LEASE THE SPACE, THE
SPACE SHALL BE INCLUDED WITHIN THE PREMISES AND LEASED TO THE LESSEE PURSUANT TO
THE PROVISIONS OF THIS LEASE. HOWEVER, THE RENT PAYABLE UNDER THIS LEASE SHALL
BE INCREASED BY THE AMOUNT OF RENT ATTRIBUTED TO THE ADDITIONAL SPACE LEASED BY
LESSEE. THE PARTIES SHALL IMMEDIATELY EXECUTE AN AMENDMENT TO THE LEASE STATING
THE ADDITION OF THE EXPANSION SPACE, TO THE PREMISES. IF THE LESSEE DOES NOT
INDICATE WITHIN THREE CALENDAR DAYS ITS AGREEMENT TO LEASE THE ADDITIONAL SPACE,
LESSOR THEREAFTER SHALL HAVE THE RIGHT TO LEASE THE SPACE TO A THIRD PARTY, AND
THIS OPTION TO EXPAND PREMISES SHALL BE OF NO FURTHER FORCE AND EFFECT.
36. LESSEE SHALL BE GRANTED BY LESSOR A $10,000 TENANT IMPROVEMENT
ALLOWANCE. LESSEE SHALL PROVIDE LESSOR WITH A LIST OF SUCH IMPROVEMENTS. IN THE
EVENT THAT SAID IMPROVEMENT EXCEED $10,000, SAID EXCESS SHALL BE PAID BY LESSEE.
LESSOR SHALL PROVIDE LESSEE WITH A WRITTEN BID BY A LICENSED CONTRACTOR FOR SAID
IMPROVEMENTS FOR LESSEE'S APPROVAL.
IN WITNESS WHEREOF, the parties hereto have executed this lease the day
and year first above written.
LESSORS LESSEES
PLEASANT HILL INDUSTRIAL PARK LAVENIR TECHNOLOGY, INC.
ASSOCIATES, A CALIFORNIA LIMITED
PARTNERSHIP
By: By: /s/ Xxx X. Xxxxx
---------------------------------- ----------------------------------
XXXXXXXXX HOLDINGS, GENERAL
PARTNER XXXXXXX X. XXXXXXXXX,
PRESIDENT Xxx X. Xxxxx - April 6, 1990
----------------------------------
PRESIDENT
----------------------------------
This lease has been prepared for submission to your attorney for his
approval. No representation or recommendation is made by Xxxxxxxxx Realty
Company, or its agents or employees as to the legal sufficiency, legal effect,
or tax consequences of this lease or the transaction relating thereto.
LEASE ADDENDUM
April 6, 1990
Addendum to the lease dated April 3, 1990, by and between Pleasant Hill
Industrial Park Associates as Lessor and Lavenir Technology, Inc. as Lessee for
the Premises designated as 0000 Xxxxxx Xxx, Xxxxxxxx Xxxx, Xxxxxxxxxx. Lessor
and Lessee do hereby agree to clarify and amend the terms of said lease as
follows:
1. Lessee shall be given possession and shall be allowed to occupy the
premises upon execution of this lease by Lessor, subject to all of the
terms and conditions of the lease.
2. Lessor warrants that all heating, air conditioning, plumbing and
electrical systems on the premises are in good operating condition and
repair at the time of possession by Lessee. Lessee shall have thirty
(30) days from date of occupancy to verify that such systems are in
good operating condition. Lessor to be responsible for the
repair/correction of malfunctions discovered by Lessee during said
thirty (30) day period.
3. Notwithstanding the provisions of paragraph 14 of this lease, Lessor
shall be responsible for the maintenance and repair of sidewalks,
parking areas, driveways, lighting standards, landscaping and striping
adjacent to the premises.
4. Lessor hereby agrees to allow Tenant to paint over the existing signage
painted on the front exterior wall of the premises and to allow Lessee
to place its own signage in its place, subject to Lessor's approval of
Lessee's sign.
5. Upon Lessee's request and submission of plans and specifications
acceptable to Lessor, Lessor to install windows at the mezzanine level
of the rear wall of the premises, at Lessee's sole expense. Said work
shall be done with all required permits from the City of Pleasant Hill
and shall be subject to lessor's prior approval of the structural
engineering and architectural plans for said windows.
6. Line one of paragraph 35 of this lease is hereby amended as follows:
"If at any time Lessor receives a firm offer to lease all or part of
the adjacent Eastern" . . .
7. The following is hereby added to paragraph 36 of the lease: If Lessee
feels Lessor's contractor's bid is not competitive, Lessee shall be
allowed to solicit competitive bids from two additional contractors,
and Lessor shall have the work performed for the price bid by the
lowest-priced, qualified contractor, or allow Lessor's contractor to do
the work at the low-bid price.
Agreed and Accepted: Agreed & Accepted:
Lessor: Pleasant Hill Industrial Lessee: Lavenir Technology Inc.
Parking Associates
By: By: /s/ Xxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxx, President Xxx X. Xxxxx, President
