Exhibit 10.7
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, September 28 1999, is made by and between Xxxx X. and Xxxxxx Xxx
("Lessor") and inTEST Sunnyvale Corporation, a wholly owned subsidiary
of inTEST Corporation, a Delaware corporation ("Lessee"),
(collectively the "Parties," or individually a "Party").
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 l275-1279 Xxxxxxxx Station Road,
Sunnyvale (Exhibit A), located in the County of Santa Xxxxx, 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) all that certain real property consisting of
approximately 18,255 square feet shown on Exhibit B ("Premises"). (See
also Paragraph 2)
1.3 Term: Five (5) years and Zero (0) months ("Original Term")
commencing January 1. 2000 ("Commencement Date") and ending December
31, 2004 ("Expiration Date"). (See also Paragraph 3)
1.4 Early Possession: Upon full execution of lease document
("Early Possession Date"). (See also Paragraphs 3.2 and 3.3)
1.5 Base Rent: $25. 557.00 per month ("Base Rent"), payable on
the First day of each month commencing January 1, 2000. (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: $25,557.00 as Base Rent for
the period.
1.7 Security Deposit: $29.208.00 ("Security Deposit"). (See also
Paragraph 5)
1.8 Agreed Use: The Premises shall be used and occupied for
general office, light assembly, machine shop, warehousing and other
legal related uses.(See also Paragraph 6)
1.9 Insuring Party: Lessor is the "Insuring Party" unless
otherwise stated herein. (See also Paragraph 8)
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):
[x] CPS represents Lessor exclusively ("Lessor's Broker");
[x] Xxxxx & Xxxxx represents Lessee exclusively ("Lessee's Broker");
(b) Payment to Brokers: Upon execution and delivery of this
Lease by both Parties, Lessor shall pay to the Broker the fee agreed
to in their separate written agreement (or if there is no such
agreement, the sum of _ % of the total Base Rent for the brokerage
services rendered by said Broker).
1.11 Guarantor. The obligations of the Lessee under this Lease
are to be guaranteed by inTEST Corporation, a Delaware corporation
("Guarantor"). (See also Paragraph 37)
1.12 Addenda and Exhibits. Attached hereto is an Addendum or
Addenda consisting of Paragraphs 50 through 56 and Exhibits A. B and
C, 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.
2.3 Compliance. Lessor warrants that the improvements on the
Premises 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. 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:
(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 Lessee may instead terminate this Lease unless Lessor
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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.
(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.
(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.
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 therefore 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.
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.
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.
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.
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.
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.
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
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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.
(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.
(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.
(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.
(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.
(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.
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.
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.
(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.
(c) Replacement. Subject to Lessee's indemnification of
Lessor as set forth in Paragraph 8.7 below, and without relieving
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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.
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.
(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 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 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 (which shall
not be unreasonably withheld) 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.
(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.
(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.
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
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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.
(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.
(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.
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.
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.
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. 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.
(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.
(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.
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
Page 5 of 11
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 lull force and effect, and Lessor shall proceed to make such
repairs as soon as reasonably possible alter 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.
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.
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.
9.6 Abatement of Rent; Lessee's Remedies.
(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.
(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.
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 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.
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.
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.
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.
(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.
(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
Page 6 of 11
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.
(e) Lessee's remedy for any breach of Paragraph 12.1 by
Lessor shall be limited to compensatory damages and/or injunctive
relief.
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 ~ny 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.
(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.
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
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.
(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.
(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.
(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. 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 (a) is
contrary to any applicable law, such provision shall be of no force or
effect, and not affect the validity of the remaining provisions.
(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
Page 7 of 11
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 defamer, 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 s~id 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.
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.
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.
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 bylaw. Interest is payable in addition to the potential
late charge provided for in Paragraph 13.4.
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.
(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.
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.
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 a 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
Page 8 of 11
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, and/or 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.
(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.
(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.
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.
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
monies 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.
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.
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, 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
Page 9 of 11
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.
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.
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.
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.
37.1 Execution. The Guarantors, if any, shall each execute a
guaranty in the form most recently published by the American
Industrial Real Estate Association, and each such Guarantor shall have
the same obligations as Lessee under this Lease.
37.2 Default. It shall constitute a Default of the Lessee if any
Guarantor fails or refuses, upon request to provide: (a) evidence of
the execution of the guaranty, including the authority of the party
signing on Guarantor's behalf to obligate Guarantor, and in the case
of a corporate Guarantor, a certified copy of a resolution of its
board of directors authorizing the making of such guaranty, (b)
current financial statements, (c) a Tenancy Statement, or (d) written
confirmation that the guaranty is still in effect.
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.
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.
(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 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.
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
Page 10 of 11
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 01 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 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.
See Paragraph 50, "Option to Extend", which is attached hereto and
incorporated herein as part of this Lease. See Addendum 1 which is
attached hereto and Incorporated herein as part of this Lease and sets
forth Paragraphs 52 through 56.
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.
By LESSOR: By LESSEE:
Xxxx X. and Xxxxxx Xxx inTEST Sunnyvale Corporation, a
wholly-owned subsidiary of inTEST
Corporation, a Delaware
Corporation
By: /s/Xxxx X. Xxx By: /s/Xxxxxxx X. Xxxxx
----------------------- --------------------------------
Xxxx X. Xxx Xxxxxxx X. Xxxxx
Exec. VP, COO
By: /s/Xxxxxx Xxx
-----------------------
Xxxxxx Xxx
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. (000)000-0000. Fax No. (000)000-0000
Page 11 of 11
OPTION(S) TO EXTEND
STANDARD LEASE ADDENDUM
Dated: September 28, 1999
By and Between (Lessor) Xxxx X. and Xxxxxx Xxx
(Lessee) inTEST Corporation
Address of Premises: 0000-0000 Xxxxxxxx Xxxxxxx Xxxx, Xxxxxxxxx, XX
Paragraph 50
A. OPTION(S) TO EXTEND:
Lessor hereby grants to Lessee the option to extend the term of this
Lease for One (1) additional Sixty (60) month period(s) commencing
when the prior term expires upon each and all of the following terms
and conditions:
(i) In order to exercise an option to extend, Lessee must give
written notice of such election to Lessor and Lessor must receive the
same at least 3 but not more than 4 months prior to the date that the
option period would commence, time being of the essence. If proper notification
of the exercise of an option is not given and/or received, such option shall
automatically expire. Options (if there are more than one) may only be
exercised consecutively.
(ii) The provisions of paragraph 39, including those relating to
Lessee's Default set forth in paragraph 39.4 of this Lease, are
conditions of this Option.
(iii) Except for the provisions of this Lease granting an option or
options to extend the term, all of the terms and conditions of this
Lease except where specifically modified by this option shall apply.
(iv) This Option 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 without the intention of thereafter assigning or subletting.
(v) The monthly rent for each month of the option period shall be
calculated as follows, using the method(s) indicated below:
(Check Method(s) to be Used and Fill in Appropriately)
I. Cost of Living Adjustment(s) (COLA)
N/A
II. Market Rental Value Adjustment(s) (MRV)
a. On (Fill in MRV Adjustment Date(s))December 1, 2004 the Base
Rent shall be adjusted to the "Market Rental Value" of the property as
follows:
1) Four months prior to each Market Rental Value Adjustment Date
described above, the Parties shall attempt to agree upon what the new
MRV will be on the adjustment date, If agreement cannot be reached,
within thirty days, then:
(a) Lessor and Lessee shall immediately appoint a mutually
acceptable appraiser or broker to establish the new MRV within the
next thirty days. Any associated costs will be split equally between
the Parties, or
(b) Both Lessor and Lessee shall each immediately make a
reasonable determination of the MRV and submit such determination, in
writing, to arbitration in accordance with the following provisions:
Initials: EJ Initial: DWS
MJ
Page 1 of 2
(i) Within fifteen days thereafter, Lessor and Lessee
shall each select an El appraiser or El broker ("Consultant" - check
one) of their choice to act as an arbitrator. The two arbitrators so
appointed shall immediately select a third mutually acceptable
Consultant to act as a third arbitrator.
(ii) The three arbitrators shall within thirty days of
the appointment of the third arbitrator reach a decision as to what
the actual MRV for the Premises is, and whether Lessor's or Lessee's
submitted MRV is the closest thereto. The decision of a majority of
the arbitrators shall be binding on the Parties. The submitted MRV
which is determined to be the closest to the actual MRV shall
thereafter be used by the Parties.
(iii) If either of the Parties fails to appoint an
arbitrator within the specified fifteen days, the arbitrator timely
appointed by one of them shall reach a decision on his or her own, and
said decision shall be binding on the Parties.
(iv) The entire cost of such arbitration shall be paid by
the party whose submitted MRV is not selected, ie. the one that is NOT
the closest to the actual MRV.
2) Notwithstanding the foregoing, the new MRV shall not be less
than the rent payable for the month immediately preceding the rent
adjustment.
b. Upon the establishment of each New Market Rental Value:
1) the new MRV will become the new "Base Rent" for the purpose
of calculating any further Adjustments, and
2) the first month of each Market Rental Value term shall become
the new "Base Month" for the purpose of calculating any further
Adjustments.
III. Fixed Rental Adjustment(s) (FRA)
N/A
B. NOTICE:
Unless specified otherwise herein, notice of any rental
adjustments, other than Fixed Rental Adjustments, shall be made as
specified in paragraph 23 of the Lease.
C. BROKER'S FEE:
The Brokers specified in paragraph 1.10 shall be paid a Brokerage
Fee for each adjustment specified above in accordance with paragraph
15 of the Lease.
Initials: EJ Initial: DWS
MJ
Page 2 of 2
ADDENDUM 1
THIS ADDENDUM IS AITACHED TO AND MADE A PART OF THAT CERTAIN LEASE
AGREEMENT BY AND BETWEEN XXXX X. AND XXXXXX XXX ("LESSOR") AND INTEST
SUNNYVALE CORPORATION ("LESSEE") FOR THE PREMISES LOCATED AT 0000-0000
XXXXXXXX XXXXXXX XXXX, XXXXXXXXX, XXXXXXXXXX AND DATED SEPTEMBER 28, 1999 FOR
REFERENCE PURPOSES ONLY.
51. Tenant Improvements: Lessor shall provide a $15.00 per square
foot tenant improvement allowance. All tenant improvements shall be
performed in accordance with the terms and provisions of the Lease.
Lessee shall invoice Lessor for the cost of such tenant improvements
with such backup information as is reasonably requested by Lessor.
Lessor shall make payment of such Invoices within the amount of the
allowance within 30 day's of receipt of the invoice and statutory
lien releases from all contractors and subcontractors performing
improvements to the property. The allowance shall be used for the
following items:
a. all ADA upgrades;
b. interior paint and patching;
c. interior floor covering (cat-pet and VCT); and
d. specific changes for Lessee's intended use, which will be
mutually agreed upon with Lessor.
52. Rent:
Months Rent/SF/Mo/NNN
12/01/99-11/30/00 $25,557.00
12/01/00-11/30/01 $26,469.75
12/01/01-11/30/02 $27,382.50
12/01/02-11/30/03 $28,295.25
12/01/03-11/30/04 $29,208.00
53. Alterations: Lessee, at Lessee's sole cost and expense may
install vents in the roof for the machine shop. Therefore, Lessor
shall not be responsible for any roof leaks associated with said
vents.
54. Purchase Option: Lessee shall have an option to purchase the
building at Fair Market Value if the Lessor, at its sole option,
elects to sell the building. In the event Lessor makes a decision to
offer the property for sale, Lessor shall provide written notice to
Lessee. Lessee shall have an option, exercisable within 15 days of the
date of the notice, to purchase the building at Fair Market Value to
be determined by independent appraisal as follows: Lessor and Lessee
shall each choose an MAI appraiser to separately determine a value of
the property. If the Fair Market Value as determined by the two
appraisers varies by less than $50,000, the amounts of the appraisals
shall be averaged and that average shall be the purchase price. If the
Fair Market Value as determined by the appraisers varies by $50,000 or
more, the two appraisers shall select a third MAI appraiser. That
third appraiser shall appraise the property and the three appraisers
shall meet and mutually agree on a Fair Market Value for the property.
If the three appraisers are unable to so agree, the Fair Market Value
shall be determined by a court of competent jurisdiction.
55. Lessor shall repair or replace asphalt, at Lessor's option, and
completely resurface the paved parking areas surrounding the building
within 36 months of the Commencement Date.
56. Lessor at its cost shall paint the exterior of the building.
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
GUARANTY OF LEASE
WHEREAS Xxxx X. and Xxxxxx Xxx, hereinafter "Lessor", and inTEST
Sunnyrvale Corporation, a wholly owned subsidiary of inTEST
Corporation, hereinafter "Lessee", are about to execute a document
entitled "Lease" dated September 28, 1999 concerning the premises
commonly known as 0000-0000 Xxxxxxxx Xxxxxxx Xxxx, Xxxxxxxxx wherein
Lessor will lease the premises to Lessee, and
WHEREAS, inTEST Corporation, a Delaware corporation hereinafter
"Guarantors" have a financial interest in Lessee, and
WHEREAS, Lessor would not execute the Lease if Guarantors did not
execute and deliver to Lessor this Guarantee of Lease.
NOW THEREFORE, in consideration of the execution of the foregoing
Lease by Lessor and as a material inducement to Lessor to execute said
Lease, Guarantors hereby jointly, severally, unconditionally and
irrevocably guarantee the prompt payment by Lessee of all rents and
all other sums payable by Lessee under said Lease and the faithful and
prompt performance by Lessee of each and every one of the terms,
conditions and covenants of said Lease to be kept and performed by
Lessee.
It is specifically agreed that the terms of the foregoing Lease
may be modified by agreement between Lessor and Lessee, or by a course
of conduct, and said Lease may be assigned by Lessor or any assignee
of Lessor without consent or notice to Guarantors and that this
Guaranty shall guarantee the performance of said Lease as so modified.
This Guaranty shall not be released, modified or affected by the
failure or delay on the part of Lessor to enforce any of the rights or
remedies of the Lessor under said Lease, whether pursuant to the terms
thereof or at law or in equity.
No notice of default need be given to Guarantors, it being
specifically agreed that the guarantee of the undersigned is a
continuing guarantee under which Lessor may proceed immediately
against Lessee and/or against Guarantors following any breach or
default by Lessee or for the enforcement of any rights which Lessor
may have as against Lessee under the terms of the Lease or at law or
in equity.
Lessor shall have the right to proceed against Guarantors
hereunder following any breach or default by Lessee without first
proceeding against Lessee and without previous notice to or demand
upon either Lessee or Guarantors.
Guarantors hereby waive (a) notice of acceptance of this
Guaranty. (b) demand of payment, presentation and protest, (c) all
right to assert or plead any statute of limitations relating to this
Guaranty or the Lease, (d) any right to require the Lessor to proceed
against the Lessee or any other Guarantor or any other person or
entity liable to Lessor, (e) any right to require Lessor to apply to
any default any security deposit or other security it may hold under
the Lease, (f) any right to require Lessor to proceed under any other
remedy Lessor may have before proceeding against Guarantors, (g) any
right of subrogation.
Guarantors do hereby subrogate all existing or future
indebtedness of Lessee to Guarantors to the obligations owed to Lessor
under the Lease and this Guaranty.
If a Guarantor is married, such Guarantor expressly agrees that
recourse may be had against his or her separate property for all of
the obligations hereunder.
The obligations of Lessee under the Lease to execute and deliver
estoppel statements and financial statements, as therein provided,
shall be deemed to also require the Guarantors hereunder to do and
provide the same.
The term "Lessor" refers to and means the Lessor named in the
Lease and also Lessor's successors and assigns. So long as Lessor's
interest in the Lease, the leased premises or the rents, issues and
profits therefrom, are subject to any mortgage or deed of trust or
assignment for security, no acquisition by Guarantors of the Lessor's
interest shall affect the continuing obligation of Guarantors under
this Guaranty which shall nevertheless continue in full force and
effect for the benefit of the mortgagee, beneficiary, trustee or
assignee under such mortgage, deed of trust or assignment and their
successors and assigns.
The term "Lessee" refers to and means the Lessee named in the
Lease and also Lessee's successors and assigns.
In the event any action be brought by said Lessor against
Guarantors hereunder to enforce the obligation of Guarantors
hereunder, the unsuccessful party in such action shall pay to the
prevailing party therein a reasonable attorney's fee which shall be
fixed by the court.
If this Form has been filled in, it has been prepared for submission
to your attorney for his approval. No representation or recommendation
is made by the American Industrial Real Estate Association, the real
estate broker or its agents or employees as to the legal sufficiency,
legal effect, or tax consequences of this Form or the transaction
relating thereto.
Executed at: Sunnyvale, CA /s/Xxxxxxx X. Xxxxx
On 10/27/99 -------------------------
Address 000 Xxxxxxxx Xxxxx Xxxx. VP, COO
"GUARANTORS"
