FIRST AMENDMENT TO LEASE
FIRST
AMENDMENT TO LEASE
This
is
the First Amendment to Lease entered into this 17th
day of
May, by and between Open Energy
Corporation, a Nevada Corporation, successor in interest to Barnabus Energy
Corporation,
hereinafter called “Tenant” and Generation Properties, L.P., a California
Limited Partnership,
hereinafter called “Landlord”.
WHEREAS,
Landlord and Tenant entered into a Lease Agreement dated September 13, 2005,
for
real
property located in the City of Solana Beach, County of San Diego, State of
California, as
more
particularly described in said Lease Agreement as 514 Xxx xx xx Xxxxx, Xxxxx
000, Xxxxxx Xxxxx,
Xxxxxxxxxx, 00000.
WHEREAS,
Landlord and Tenant now desire to amend and modify certain terms of the
aforesaid Lease as hereinafter set forth. Therefore, the Lease is hereby amended
as follows:
1. Premises: As
part
of this Agreement, Tenant shall add Suite 208, consisting
of approximately 000 Xxxxxxxx Xxxxxx Feet
2. Term: June
01,
2006 - May 31, 2009
3. Rate: $
2.90
per Rentable S.F.
4. Annual
Rate Increases: Three
and
one-half percent (3.5%)
5. Extension:
One
(1)
Three (3) year extension at the then current market rent.
● |
“In
order for Tenant to exercise option Tenant must provide written
notification to the Landlord no less than ninety (90) days and no
more
than
one hundred twenty (120) days prior to the expiration date of the
original
term”.
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6. Security
Deposit: Tenant
Security deposit to be $2189.50
7. Confidential
Agreement: Landlord
and Tenant agree to keep all information related to this Lease
Amendment confidential.
Except
as
specifically modified by this Agreement, the Lease remains unchanged and the
Landlord and Tenant verify, acknowledge and agree that it is in full force
and
effect. In the event
of
a conflict between the terms of the Lease and the terms of this Amendment,
the
terms of this
Amendment shall prevail.
LANDLORD:
GENERATION
PROPERTIES, L.P.,
a
California limited partnership
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TENANT:
OPEN
ENERGY CORPORATION,
a
Nevada Corporation
|
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By:
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TRILOGY
INVESTMENT GROUP LLC
a
California limited liability company,
(Its
General Partner)
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By:
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![]() |
By:
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![]() |
|
Xxxxxxx
X. Xxxxx
Chief
Executive Officer
|
Xxxxx
Xxxxxxx
|
|||
Date:
5/17/06
|
Date:
05/16/06
|
DECLARATION
OF COMMENCEMENT
STATE
OF
CALIFORNIA
COUNTY
OF
SAN DIEGO
WHEREAS,
Generation
Properties, LP as Landlord and Barnabus Energy Corporation, as Tenant,
entered into that certain Lease Agreement, dated the 13th day
of
September 2005, covering
approximately 1,047 rentable square feet located at 000 Xxx xx xx Xxxxx, Xxxxx
000, Xxxxxx Xxxxx, XX 00000, and,
WHEREAS,
both
Landlord and Tenant do hereby declare and evidence that the leased premises
was completed and ready for occupancy on the 1st day
of
October 2005 and was acceptable
in its condition as of that date. The commencement date of said Lease
Agreement
was the 1st day
of
October 2005, and the stated 36-month term of said Lease Agreement
expires on the 30th day
of
September 2008.
WITNESSETH,
the
execution hereto this the 13th
day of
January 2006.
Landlord:
Generation
Properties, L.P.
By:
Commercial Facilities, Inc.,
as
Agent.
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Tenant:
Barnabus
Energy Corporation
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By:
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![]() |
By:
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Xxxx
X. Xxxxxxxxxx CPM®, CCIM®
Senior
Vice President
|
Xxxxx
Xxxxxxx
President
& CEO
|
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BASIC
LEASE INFORMATION
OFFICE
LEASE
Lease
Date:
|
September
15, 2005
|
|
Landlord:
|
Generation
Properties, L.P.
|
|
Managing
Agent:
|
COMMERCIAL
FACILITIES INC.
|
|
Landlord's
Address:
|
Generation
Properties, L.P.
C/o
Commercial Facilities Inc.
00000
Xxxxxxxx Xxxxxx Xxxx, Xxxxx 0X
Xxx
Xxxxx, XX 00000
|
|
Tenant:
|
BARNABAS
ENERGY CORPORATION
|
|
Tenant's
Address:
|
000
Xxx xx xx Xxxxx
Xxxxx
000
Xxxxxx
Xxxxx, XX 00000
|
|
Legal
Description of Land:
|
See
Exhibit “A”
|
|
Premises:
|
That
certain three-story building in which the Premises are located,
whose
mailing address is 000 Xxx xx xx Xxxxx, Xxxxx 000, Xxxxxx
Xxxxx,
XX 00000.
|
|
Rentable
Area of the
Premises:
|
Approximately
1,047 Rentable square feet
|
|
Permitted
Uses:
|
General
Office
|
|
Term:
|
Three
(3) Years
|
|
Term
Commencement
Date:
|
September
15, 2005, or upon substantial completion of Tenant Improvements,
whichever
is later. Said improvements must allow Tenant to move in without
interruption and conduct normal business functions.
|
|
Rent:
|
$3.00
per Rentable Square Foot
|
|
Rent
Escalations:
|
Three
and one-half percent (3.5%) per
year
|
Landlord
Tenant
![tenant](https://www.sec.gov/Archives/edgar/data/1176193/000114420406036343/tenant.jpg)
![landlord](https://www.sec.gov/Archives/edgar/data/1176193/000114420406036343/landlord.jpg)
![tenant](https://www.sec.gov/Archives/edgar/data/1176193/000114420406036343/tenant.jpg)
The
foregoing Basic Lease Information is hereby incorporated into and made a part
of
this Lease. Each reference in this Lease to any of the terms above shall mean
the respective information
herein above set forth and shall be construed to incorporate all of the terms
provided under
the
particular paragraph pertaining to such information. In the event of any
conflict between
any Basic Lease Information and the Lease, the latter shall
control.
LESSOR/LANDLORD:
GENERATION
PROPERTIES, LP
|
LESSEE/TENANT:
BARNANAS
ENERGY CORPORATION
a
California Corporation
|
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By:
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||||
By:
|
![]() |
By:
|
![]() |
|
Xxxxxxx
X. Xxxxx
President
& CEO
|
Xxxxx
Xxxxxxx
President
& CEO
|
|||
Date:
September
15, 2005
|
Date:
9.13.05
|
Landlord
Tenant ![tenant](https://www.sec.gov/Archives/edgar/data/1176193/000114420406036343/tenant.jpg)
![landlord](https://www.sec.gov/Archives/edgar/data/1176193/000114420406036343/landlord.jpg)
![tenant](https://www.sec.gov/Archives/edgar/data/1176193/000114420406036343/tenant.jpg)
BARNABAS
ENERGY CORPORATION
STANDARD OFFICE LEASE
STANDARD OFFICE LEASE
This
lease ("Lease"), dated as of this 13 day
of September 2005, between Generation
Properties L.P., a California Limited Partnership ("Landlord"), and Barnabas
Energy
Corporation, a Nevada Corporation ("Tenant"), for space in the center located
at
000
Xxx xx xx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx, as more particularly described on
the
Legal Description, attached hereto as Exhibit A, shall be upon the terms and
conditions contained
hereinafter.
1.
PREMISES
1.01. Premises.
Landlord
leases to Tenant, subject to the provisions of this Lease,
the Premises in the Building as set forth in the Basic Lease Information, the
usable space
of
which is shown on the Building Floor Plans, attached hereto as Exhibit B. The
rentable
square feet of the Premises, Building and Project shall be as set forth in
the
Basic Lease
Information. Except as otherwise provided in Section 1.07 below, by accepting
possession of the Premises, Tenant shall be deemed to accept the same in their
condition existing
as of the date of such entry and subject to all applicable municipal, county,
state and federal statutes, laws, ordinances, including zoning ordinances,
and
regulations governing and relating to the Tenant's use, occupancy or possession
of the Premises. Tenant acknowledges that the only warranties and
representations Landlord has made in connection with the physical condition
of
the Premises or Tenant's use of the same upon which Tenant has relied directly
or indirectly for any purpose are those expressly provided in this
Lease.
1.02. Exhibits.
The
following Exhibits are attached to this Lease after the signatures
and by reference thereto are incorporated herein:
Exhibit
A
— Legal Description
Exhibit
B
—
Building
Floor Plan
Exhibit
C
— Rules and Regulations
Exhibit
D
— Landlord and Tenant's Work
Exhibit
E
—
Fair
Market Rent
1.03.
Common
Areas. Tenant
shall have, as appurtenant to the Premises and subject
to reasonable rules and regulations from time to time made by Landlord of which
Tenant
is
given notice, the right to the use of the following in common:
(a)
Building Common Area. The common stairways and accessways, lobbies,
entrances, stairs, elevators, maintenance and utility service areas and any
passageways thereto, and the common pipes, ducts, conduits, wires and
appurtenant equipment serving the Premises;
1
(b) Project
Common Area. The common walkways, sidewalks, landscape
areas, parking spaces and driveways necessary for access to the Project and
parking
spaces; and
(c) Parking
Area. The common Project parking lot area ("Parking Area").
1.04.
Landlord's
Reserved Rights in Common Areas. Landlord
reserves the right
from time to time:
(a) Building
Changes. To install, use, maintain, repair, relocate and replace
any pipes, ducts, conduits, wires and appurtenant meters and equipment for
service
to the Building above the ceiling surfaces, below the floor surfaces, within
the
walls and in the central core areas.
(b) Boundary
Changes. To change the lines of the lot on which the Project stands ("Lot")
and
to redesign and restripe the parking facilities around the Building and make
other reasonable changes and grant other rights thereto, including without
limitation, the granting of easements, rights of way and rights of ingress
and
egress and similar rights to users of parcels adjacent to the Lot.
(c) Facility
Changes. To alter or relocate any common areas or other facilities.
(d) Parking.
Landlord reserves the right to grant use to portions of the Parking Area to
tenants.
1.05. Rentable
Area. As
used
in this Lease, the rentable area of the Premises, Building and Project shall
be
the square footage designated in the Basic Lease Information.
The Annual Base Rent and Operating Expenses for the Premises are not
solely
and directly attributable to the actual rentable area of the Premises, Building
or Project
and in the event that it is determined that the actual rentable area of the
Premises, Building
or Project is different from the square footages set forth in the Basic Lease
Information,
no modification shall be made to the Base Rent or Operating Expenses set
forth
in
the Basic Lease Information.
1.06. Tenant's
Parking Entitlements. Tenant
shall have the right to use three (3)
parking spaces. Landlord shall have no responsibility for policing or otherwise
enforcing
parking rights in the Project.
1.07. Condition
of Premises. Landlord
warrants that, as of the Lease Date, no deferred
maintenance is required to be performed on any of the electrical, plumbing
or
mechanical systems in the Building and that such systems are in good working
order.
2
3.
TERM
3.01.
Commencement of Term. The Lease shall be for the Term set forth in the
Basic Lease Information, commencing upon September
15, 2005, or upon substantial completion of Tenant improvements,
whichever is later.
3.02. Notice
of
Lease Dates. Within ten (10) days after Landlord's written request,
Tenant shall execute a written confirmation of the commencement of the Term
and
expiration date of the Term in a form provided by Landlord. Such a notice shall
be binding upon Tenant unless Tenant objects thereto in writing within such
ten
(10) day period.
3.03. Option
to
Extend. Tenant shall have the option to extend the Term of this Lease for one
(1) additional period of three (3) years (the "Premises Option") at the then
current
Fair Market Rent (Exhibit E). The period of the Premises Option is referred
to
herein as the "Option Term". Tenant shall have no right or interest to exercise
the Premises Option unless: (a) Tenant gives the Landlord written notice of
its
intent to exercise the Premises Option no sooner than six (6) months and no
later than three (3) months
prior to the end of the Term (the "Extension Notice"); (b) Tenant is not in
default at the time of the extension notice of any of the terms or conditions
under this Lease prior to the commencement of the Option Term, nor are there
any
conditions which with the passage
of time could result in a default by Tenant at any time with the exception
of
cured
late rental payments; and (c) (i) Tenant has not filed for or sought protection
under any bankruptcy statute, (ii)Tenant has not failed to obtain a vacation
from any involuntary bankruptcy proceeding within sixty (60) days of such
filing, (iii)Tenant has not defaulted or there are no events which may cause
a
default under any of Tenant's debt or
indenture obligations. Annual Base Rent during the Option Term shall be as
set
forth in Section 4.03 below. Time is of the essence with respect to Tenant's
exercise of the Premises Option. Tenant's failure to exactly comply with any
of
the time or other requirements
herein, shall cause the Premises Option to automatically expire and, in such
event,
this Lease shall terminate upon the expiration of the Term. The option to extend
the
Term
pursuant hereto for the Option Term shall be personal to Tenant and shall not
be
exercisable
by or for the benefit of any assignee, subtenant or other transferee of
Tenant.
3.04. Days.
Except for the Rent payment requirements of Articles 4.01 and 4.04,
when time periods often (10) days or less are provided in this Lease, unless
"calendar
days" is expressly stated, such time periods are to be calculated such that
"days"
shall mean business days, regardless of whether "business days" is expressly
stated.
3
4.
RENT
4.01.
Base
Rent. $3.00
(a)
Initial
Term.
The
Annual Base Rent shall be the amount set forth in
the
Basic Lease Information payable in equal monthly installments of Monthly Base
Rent as set forth in the Basic Lease Information. Tenant shall pay the Monthly
Base Rent to Landlord in advance upon the first day of each calendar month
of
the Term, at Landlord's address or at such other place designated by Landlord
in
a notice to Tenant, without any prior demand therefore and without any
deduction, abatement or setoff whatsoever,
in lawful money of the United States of America. If the Term shall commence
or end on a day other than the first day of a calendar month, then Tenant shall
pay,
upon
the commencement date of the Term and the first day of the last calendar month,
a pro rata portion of the Monthly Base Rent, prorated on a per diem basis,
with
respect
to the portions of the fractional calendar month included in the Term. Prior
to
September
15, 2005, Tenant shall pay the first full months installment of the Monthly
Base
Rent owing thereunder.
4.02. Additional
Rent. All
charges required to be paid by Tenant hereunder, including
without limitation, payments for Operating Expenses and any other amounts
payable under this Lease, shall be considered additional rent for the purposes
of this Lease
("Additional Rent"), and Tenant shall pay Additional Rent as provided in Article
6.05.
"Rent" shall mean Base Rent and Additional Rent.
4.03. Escalation.
The
Base
Rent shall be adjusted during the Term as provided in the Basic Lease
Information. During the Option Term, the Annual Base Rent shall be subject
to an
annual increase, effective as of each anniversary of the Term Commencement
Date
("Adjustment Date"), to reflect a fixed increase of three and one-half
percent (3.5%)
4.04. Late
Payment. If
any
installment of Rent is not paid promptly on the first of
the
month or otherwise when due, the unpaid amounts shall bear interest at the
interest rate
set
forth in Article 12.02(e) from the date due to the date of payment. In addition,
Tenant
acknowledges that the late payment of any installment of Rent will cause
Landlord
to incur certain costs and expenses not contemplated under this Lease, the
exact
amount
of
which are extremely difficult or impractical to fix. These costs and expenses
will
include, without limitation, administrative and collection costs and processing
and accounting
expenses. Therefore, if any installment of rent is not received by Landlord
from
Tenant when the installment is due, Tenant shall immediately pay to Landlord
a
charge
for administration, collection and accounting expenses equal to ten percent
(10%) of the amount of such delinquent amounts due in addition to the
installment of Rent then owing
with interest at the interest rate set forth in Article 12.02(e), regardless
of
whether or
not a
notice of default or notice of termination has been given by Landlord. Tenant
shall
not
incur the obligation to pay the foregoing charge for late payment of rent until
ten (10)
days
after rent is due. Landlord and Tenant agree that the late payment charge
represents a reasonable estimate of Landlord's costs and expenses and is fair
compensation
to Landlord for its loss suffered by Tenant's nonpayment of any amounts
when
due
and payable pursuant to this Lease. This provision shall not relieve Tenant
from
payment of Rent at the time and in the manner herein specified.
4
4.05.
Security
Deposit. Upon
the
execution of this Lease, Tenant shall pay $3,141.00,
to secure the performance by Tenant of its obligations under the Lease,
including without limitation Tenant's obligations (i) to pay Basic Monthly
Rent
and Additional Rent, (ii) to repair damages to the Premises and/or the Project
caused by Tenant or Tenant's agents, employees, contractors, licensees, and
invitees (collectively, "Tenant's Invitees"), (iii) to clean the Premises upon
the termination of this Lease, with the
exception of normal wear and tear, and (iv) to remedy any other defaults by
Tenant in the
performance of any of its obligations under the Lease. If Tenant commits any
default under this Lease, Landlord may, at its election, use the Security
Deposit to cure such defaults, and to compensate Landlord for all damage
suffered by Landlord from such defaults, including, without limitation,
reasonable attorneys fees and costs incurred by Landlord.
Upon demand by Landlord, Tenant shall promptly pay to Landlord a sum
equal
to
any portion of the Security Deposit so used by Landlord, in order to maintain
the Security
Deposit in the amount set forth herein. Following the Expiration Date or earlier
termination of this Lease, and within the time frame required by applicable
law
or thirty (30) days following final walkthrough, Landlord shall deliver to
Tenant, at Tenant's last known address, any portion of the Security Deposit
not
used by Landlord, as provided in this
Paragraph. Landlord may commingle the Security Deposit with Landlord's other
funds
and
Landlord shall not pay interest on such Security Deposit to Tenant.
5.
INSURANCE
5.01.
Special
Form Coverage. At
all
times during the Term, Landlord shall procure
and maintain in full force and effect with respect to the Project, a policy
or
policies
of all risk insurance (special form insurance including sprinkler, vandalism
and
malicious
mischief coverage, and any other endorsements required by the holder of any
fee
or leasehold mortgage) in an amount equal to one hundred percent (100%) of
the
full replacement value (replacement cost new, including debris removal, and
demolition) thereof
and any other insurance Landlord deems customary and reasonable. At all times
during
the Term, Tenant shall procure, pay for and maintain in full force and effect
a
similar policy of insurance, naming Landlord and Managing Agent as an additional
insured with respect to property of every description and kind owned by Tenant
upon the Premises or the Building, or for which Tenant is legally liable,
including, without limitation,
trade fixtures, furniture, equipment and all tenant improvements owned or
installed by or on behalf of Tenant (but not with respect to those owned by
Landlord), insuring
one hundred percent (100%) of the full replacement value of said property and
tenant improvements. All policy proceeds shall be used for the repair and
replacement of the
property damaged or destroyed unless this Lease shall cease and terminate under
the provisions
on excessive damage or destruction set forth in Article 10.03
below.
5
5.02. Liability
Coverage. Ten
(10)
days prior to Tenant’s earliest occupancy of the
Premises, Tenant shall provide Landlord with certificates of insurance
for all
of Tenant’s
insurance policies required hereunder so that Landlord may determine whether
Tenant’s insurance policies are in such forms, amounts and are written by such
insurance companies
as required by Landlord. Tenant shall, at its own cost and expense, keep
and
maintain in full force during the Term, a policy or policies of broad form
commercial general
liability insurance with and cross-liability endorsements (insuring Tenant’s
indemnification
obligations under this Lease, including Article 5.09 hereof) written by
an
insurance
company approved by Landlord in the form customary to the locality, insuring
Tenant’s
activities with respect to the Premises and/or Building against loss, damage
or
liability
for personal and bodily injury (including wrongful death) of any person
and loss
or
damage
to property occurring in, upon or about the Premises covering personal
and
bodily injury in the amounts of not less than Two Million Dollars ($2,000,000)
per person and Two Million Dollars ($2,000,000) per occurrence and covering
property damage in the amount of not less than One Million Dollars ($1,000,000)
per occurrence. Landlord
and Managing Agent shall be named as an additional insured with respect
to
liability arising out of Tenant’s activity.
5.03. Worker’s
Compensation Insurance. Tenant
shall, at its own cost and expense,
keep and maintain in full force during the Term, a policy or policies of
worker’s compensation
insurance, in statutory amounts and limits, and employer’s liability insurance
with limits as follows: bodily injury each accident in the amount of not
less
than One Million Dollars ($1,000,000), bodily injury/disease each employee
in an
amount not less than One Million Dollars ($1,000,000), and a bodily
injury/disease policy limit of not less than One Million Dollars
($1,000,000).
5.04. Insurance
Certificates. Tenant
shall furnish to Landlord, no more than ten (10) days prior to the earlier
of
Tenant’s occupancy of the Premises (as permitted by Section
3.02) or the Term Commencement Date of this Lease and thereafter no more
than
thirty
(30) days prior to the expiration of each such policy, a certificate of
insurance issued by the insurance carrier of liability and property insurance
carried by Tenant pursuant
hereto. Said certificates shall expressly provide that such policies shall
not
be cancelable or subject to reduction of coverage or otherwise be subject
to
modification except
after thirty (30) days’ prior written notice to the parties named as additional
insureds
in this Article 5. Landlord, its successors and assigns, and any nominee
of
Landlord
holding any interest in the Premises, including without limitation, any
ground
lessor and the holder of any fee or leasehold mortgage, shall be named
as
additional insureds under each such policy of insurance maintained by Tenant
pursuant to this Lease.
5.05. Tenant’s
Failure. If
Tenant
fails to maintain any insurance required in this Lease, Tenant shall be
liable
for any loss or cost resulting from said failure. Notwithstanding
the foregoing, Landlord may at Landlord’s sole discretion, but shall not
be
required to, procure said insurance on Tenant’s behalf and charge Tenant the
premium for
such
policies. This Article 5.05 shall not be deemed to be a waiver of any of
Landlord’s
rights and remedies under any other section of this Lease.
6
5.06. Waiver
of Subrogation. Any
policy or policies of fire, extended coverage or
similar casualty insurance, which either party obtains in connection with
the
Premises, or Tenant’s personal property therein, shall, to the extent the same
can be obtained without unreasonable expense, include a clause or endorsement
denying the insurer any rights of subrogation against the other party to
the
extent rights have been waived by the insured prior to the occurrence of
injury
or loss. Landlord and Tenant waive any rights of recovery against the other
for
injury or loss due to hazards covered by insurance containing such a waiver
of
subrogation clause or endorsement to the extent of the injury or loss covered
thereby.
5.07. Tenant’s
Property and Fixtures. Tenant
shall assume the risk of damage to
any
furniture, equipment, machinery, goods, supplies or fixtures which are
or remain
the
property of Tenant or as to which Tenant retains the right of removal from
the
Premises.
5.08. Indemnification
of Landlord. To
the
fullest extent permitted by law, Tenant
agrees with Landlord that Landlord, Landlord’s agents and employees shall not be
liable
for any damage or liability of any kind or for any injury to or death of
persons, or damage to property of Tenant or any other person occurring
from any
cause whatsoever related to the use, improvement, occupancy or enjoyment
of the
Premises by Tenant or any person thereon or holding under Tenant, and caused
by
the negligence or willful misconduct of Tenant and Tenant shall indemnify
protect, defend and hold Landlord, Landlord’s agents and employees, the
Premises, Building, Project, Lot and Landlord’s related property, harmless from
and against (i) any and all liability, fines, penalties, losses, damages,
costs
and expenses, demands, causes of action, claims or judgments arising from
or
growing out of any injury to any person or persons or any damage to any
property
as a result of any accident or other occurrence during the Term occasioned
as a
result of Tenant’s or Tenant’s officers, employees, agents, servants,
subtenants, concessionaires,
licensees, contractors or invitees negligence or willful misconduct in
the
use,
maintenance, occupation or operation of the Premises during the Term, (ii)
all
liens, claims and demands related to the use of the Premises and its facilities
during the Term, or any repairs, alterations or improvements which Tenant
may
make or cause to be made upon the Premises, and (iii) from and against
all legal
costs and charges, including attorneys’ fees, incurred in and about any of such
matters and the defense of any action arising
out of the same or in discharging the Building, Project, Lot and Landlord’s
related property
or any part thereof from any and all liens, charges or judgments which
may
accrue or be placed thereon by reason of any act or omission of the Tenant;
provided, however, that Tenant shall not be required to indemnify Landlord
for
any damage or injury arising as a result of the negligence or willful misconduct
of Landlord, Landlord’s agents
or
employees. Landlord shall indemnify, defend and hold Tenant and its agents
and
employees harmless from all costs, damages, claims, liabilities and expenses
(including reasonable attorneys fees), losses and court costs for personal
injury, death or property damage arising from incidents occurring on or
about
the Premises or Building and
caused by the negligence or willful misconduct of Landlord, its agents,
employees or invitees.
7
5.09.
Earthquake
and Flood Insurance. In
addition to any other insurance policies
carried by Landlord in connection with the Project, Landlord may elect
to
procure and maintain in full force and effect during the Term, with respect
to
the Project, a policy of earthquake/volcanic action and flood and/or surface
water insurance, including rental value insurance against abatement or
loss of
rent in the case of damage or loss covered under such earthquake/volcanic
and
flood and/or surface water insurance, in an amount up to one hundred percent
(100%) of the full insurance replacement value (including debris removal
and
demolition) of the Project improvements. In the event that the cost of
such
insurance is not included in the Operating Expenses for the Base Calendar
Year,
and Landlord elects to procure such insurance after the Base Calendar Year,
the
Base Calendar Year Operating Expenses shall be adjusted to reflect the
Operating
Expenses Landlord would have paid had Landlord carried such insurance in
the
Base Calendar Year.
6.
OPERATING EXPENSES
[Sections
6.01 - 6.09 intentionally deleted]
6.10.
Services
and Utilities. Landlord
shall cause the Common Areas to be kept in a neat, clean and orderly condition,
property lighted and landscaped, similar to the condition
of similar office projects in the vicinity of the Project. Tenant shall
pay the
cost
of
all utilities delivered to the Premises whether or not separately metered
and
billed. Landlord
shall not be liable for
any
failure or interruption of any utility or service, and Tenant shall not
be
entitled to any reduction or abatement of Rent except as provided in the
following sentence on account
of any such failure or interruption, unless such failure or interruption
is
shown by Tenant
to
be directly attributable to the negligence or intentional acts of Landlord,
its
agents
or
employees. In the event of any such interruption or failure of any services
or
utilities
provided in this Lease resulting from the negligence or intentional acts
of
Landlord, Landlord's agents or employees, Tenant's sole remedy shall be
the
equitable abatement of Base Rent for the duration of the interruption or
failure, which abatement shall
not
commence until Tenant has first provided notice to Landlord and given two
(2)
days
to
cure such interruption or failure.
8
6.11.
Special
Services.
(a) Additional
Services. In
the event Landlord provides any utilities or
services to Tenant beyond the standard services set forth in Section 6.08
of
this Lease, Tenant
shall pay Landlord for such special services as Additional Rent.
(b) Utility
Consumption.
Intentionally Deleted.
7.REPAIRS
AND MAINTENANCE
7.01. Tenant
Repairs and Maintenance. Tenant shall, at Tenant's own expense, operate
the Premises in a clean, sanitary and safe condition and keep the integrity
and
quality of the Premises, all walls, ceilings, lights, fixtures, and floor
coverings thereof, in substantially the same condition as received by Tenant,
reasonable wear and tear excepted. Tenant shall be responsible for any
janitorial costs for their Suite. Tenant shall be responsible for the cost
of
any repairs due to damage caused by Tenant's active negligence
or willful misconduct. Tenant waives the right to make repairs at Landlord's
expense
under any law, statute or ordinance now or hereafter in effect (including
the
provisions of California Civil Code Section 1942 and any successive sections
or
statutes of a similar nature). Tenant waives all rights to recover any losses
or
damages (including interference with or injury to Tenant's business) provided
Landlord is not negligent in performing
repairs or maintenance. Other than Landlord's negligence in or failure to
perform
repair or maintenance, it is expressly understood and agreed that Tenant
shall
be solely responsible for and look solely to its insurance for any such damage
and losses.
7.02. Inspection
of Premises. Landlord shall give Tenant reasonable prior written
notice for entrance into the Premises. Landlord, at reasonable times, may
enter
the Premises to complete construction undertaken by Landlord on the Premises
or
Building, to inspect, improve, clean or repair the same, to inspect the
performance by Tenant of the terms and conditions hereof and to affix reasonable
signs and displays, show the Premises to prospective purchasers, tenants
and
lenders and for all other purposes as Landlord shall reasonably deem necessary.
Subject to the foregoing, Landlord shall keep and maintain in good and
first-class condition and repair the structural components of the building
such
as supports, foundations and roof.
7.03. Liens.
Tenant shall promptly pay and discharge all claims for work or labor
done, supplies furnished or services rendered at the request of Tenant and
shall
keep
the
Premises and Building free and clear of all mechanics' and materialmen's
liens
in
connection therewith. Landlord shall have the right to post or keep posted
on
the Premises,
or in the immediate vicinity thereof, any notices of non-responsibility for
any
construction,
alteration or repair of the Premises by Tenant. If any such lien is filed,
Landlord
may, after Landlord has first provided notice to Tenant and given Tenant
seven
(7)
days
to remove such lien, but shall not be required to, take such action or pay
such
amount as may be necessary to remove such lien; and, Tenant shall pay to
Landlord as Additional Rent any such amounts expended by Landlord within
five
(5) days after notice is received from Landlord of the amount expended by
Landlord.
9
8.
FIXTURES, PERSONAL PROPERTY AND ALTERATIONS
8.01. Fixtures
and Personal Property. Tenant,
at Tenant's expense, may install any
necessary trade fixtures, equipment and furniture in the Premises; provided,
that such items
are
installed and are removable without damage to the structure or improvements
of
the
Building. Landlord reserves the right to approve or disapprove of curtains,
draperies, shades,
paint or other interior improvements visible from outside the Premises on
wholly
aesthetic grounds which shall not be unreasonably withheld. Such improvements
must be submitted for Landlord's written approval prior to installation,
or
Landlord may remove or
replace such items at Tenant's sole expense. Said trade fixtures, equipment
and
furniture
shall remain Tenant's property and shall be removed by Tenant upon expiration
of
the
Term, or earlier termination of this Lease. At Landlord's option, Landlord
may
notify Tenant in writing not to remove said improvements. Tenant shall repair,
at Tenant's
sole expense, all damage caused by the installation or removal of trade
fixtures, equipment, furniture or temporary improvements. If Tenant fails
to
remove the foregoing items
within ten (10) days of the termination of this Lease, Landlord may (i) keep
and
use them,
wherein Tenant surrenders possession of title and waives all rights of
possession, or (ii) remove any or all of them and cause them to be stored
or
sold in accordance with applicable
law.
8.02. Alterations.
Tenant
shall not make or allow to be made any alterations, additions
or improvements to the Premises, either at the inception of this Lease or
subsequently during the Term, without obtaining the prior written consent
of
Landlord, which consent shall not be unreasonably withheld. Tenant shall
deliver
to Landlord full and
complete plans and specifications of all such alterations, additions or
improvements, and
no
such work shall be commenced by Tenant until Landlord has given its written
approval thereof. Landlord does not expressly or implicitly covenant or warrant
that any plans or specifications submitted by Tenant are safe or that the
same
comply with any applicable
laws, lawful ordinances, etc. Further, Tenant shall indemnify and hold
Landlord
harmless from any loss, cost or expense, including attorneys' fees and costs,
incurred by Landlord as a result of any defects in design, materials or
workmanship resulting
from Tenant's alterations, additions or improvements to the Premises. All
repairs,
alterations, additions, and restoration by Tenant hereinafter required or
permitted shall
be
done in a good and workmanlike manner and in compliance with all applicable
laws
and
lawful ordinances, by-laws, regulations and orders of any federal, state,
county, municipal
or other public authority and of the insurers of the Building. Tenant shall
not
permit
liens of any kind to be imposed upon the Premises or Building and Tenant
shall
discharge of record any such liens or post adequate security or bond within
five
(5) days after
written notice thereof. Tenant shall reimburse Landlord for Landlord's
reasonable charges
for reviewing and approving or disapproving plans and specifications for
any
alterations proposed by Tenant. Tenant shall insure the alterations under
Tenant's all risk insurance
policy or policies as set forth in Article 5.01. Tenant shall require that
any
contractors
used by Tenant carry a comprehensive liability insurance policy covering
bodily
injury in the amounts of Two Million Dollars ($2,000,000) per person and
Two
Million
Dollars ($2,000,000) per occurrence and covering property damage in the amount
of
One
Million Dollars ($1,000,000). Tenant shall obtain, on behalf of Tenant and
at
Tenant's
sole cost and expense, before proceeding with any alteration the cost of
which
exceeds Ten Thousand Dollars ($10,000) a completion and lien indemnity bond,
or
other surety,
reasonably satisfactory to Landlord for such alteration. Landlord may require
proof
of
such insurance prior to commencement of any work on the Premises.
10
8.03.
Removal
of Alterations. All
alterations, additions and improvements shall remain
the property of Tenant until termination of this Lease, at which time they
shall
be and
become the property of Landlord; provided, however, Landlord may, by written
notice at any time prior to the date which is thirty (30) days before the
expiration of the Term (or immediately upon any sooner termination of the
Lease)
identify those items of Tenant's alterations, additions or improvements which
Landlord shall require Tenant to remove at the termination of this Lease.
If
Landlord requires Tenant to remove any such alterations,
additions or improvements, Tenant shall at its sole cost, remove the identified
items
on
or before the expiration or sooner termination of this Lease and repair any
damage
to
the Premises and/or the Building caused by such removal. Landlord shall,
upon
giving Tenant consent, inform Tenant if Landlord will require said alteration
to
be removed at expiration of Lease.
9.
USE AND COMPLIANCE WITH LAWS
9.01.
General
Use and Compliance with Laws. Tenant
shall only use the Premises
for the Permitted Uses specified in the Basic Lease Information and for no
other
use
without the prior written consent of Landlord. Tenant shall, at Tenant's
sole
cost and expense, comply with all of the requirements of municipal, county,
state, federal and other applicable governmental authorities now in force,
or
which may hereafter be in force, pertaining to Tenants permitted use of the
Premises, Project, Building, Lot and Parking Area and secure any necessary
permits therefore and shall faithfully observe, in the use of the Premises,
Project, Building, Lot and Parking Area, all municipal, county, state, federal
and other applicable governmental entities' requirements which are now in
force,
or
which may hereafter be in force. Without limiting the generality of the
foregoing
sentence, Landlord agrees that Landlord shall be responsible for making
alterations
to the Premises which Landlord is required to maintain or repair if such
alterations
are required by changes in the law after the Term Commencement Date, and
are
not
required as a result of (1) Tenant's particular manner of occupancy or manner
of
use
of
the Premises, Project, Lot and/or Parking Area, (2) the Improvements or any
alterations, additions or improvements to the Premises (including, without
limitation, the installation
of Tenant's trade fixtures, equipment and furnishings in the Premises. Tenant,
in Tenant's use and occupancy of the Premises, shall not subject the Premises
to
any use which would tend to damage any portion thereof or which shall in
any way
increase the existing rate of any insurance on the Building or any portion
thereof or cause any cancellation of any insurance policy covering the Building
or portion thereof. Tenant shall not do or permit to be done anything which
would obstruct or interfere with the rights of or injure other Tenants or
occupants of the Project.
11
9.02.
Signs.
Tenant
shall not install any sign on the Premises or Building unless Tenant receives
prior written approval from Landlord for such sign, which shall not be
unreasonably
withheld. Any sign placed by Tenant on the Premises, Project, Building or
Lot
shall
be installed at Tenant's sole cost and expense and shall contain only Tenant's
name, or the name of any affiliate of Tenant actually occupying the Premises,
and no advertising
matter. Tenant shall remove any such sign upon termination of this Lease
and
shall
return the Premises to their condition prior to the placement or erection
of
said sign.
At
Tenant's request, Tenant may be placed on a waiting list for a panel on the
monument signage. Said sign would be individually lettered and conform with
the
sign plan
(including city ordinances) and would be subject to landlords consent, which
may
not be unreasonably withheld, conditioned, or delayed.
9.03. Parking
Xxxxxx.Xx
addition to the general obligation of Tenant to comply with laws and without
limitation thereof, Landlord shall not be liable to Tenant nor shall this
Lease
be affected if any parking privileges appurtenant to the Premises are impaired
by reason of any moratorium, initiative, referendum, statute, regulation,
or
other governmental decree or action which could in any manner prevent or
limit
the parking rights
of
Tenant hereunder. Any governmental charges or surcharges or other monetary
obligations
imposed relative to parking rights with respect to the Premises, Project,
Building
and Lot shall be considered as Impositions and shall be payable by Tenant
under
the
provisions of Article 6 hereinabove.
9.04. Floor
Load.Other
than is provided in Exhibit B - "Preliminary Plans", Tenant
shall not place a load upon any floor of the Premises which exceeds the load
per
square
foot which such floor is designed to carry and which is then allowed by
law.
9.05. Deliveries.All
deliveries to and from the Premises shall be made in such a
manner
and during the time periods reasonably specified by Landlord so as to cause
the
minimum
amount of interference with the business of other tenants.
10.
DAMAGE AND DESTRUCTION
10.01.
Reconstruction.
If
the
Premises are damaged or destroyed during the Term
by
any cause not attributable to Tenant, its agents, employees or invitees,
Landlord shall,
to
the extent that insurance proceeds are available therefore and are not applied
by any
lender against payment of an existing loan on the Project, Building or Lot,
except as hereinafter
provided, diligently repair or rebuild them to substantially the condition
in
which
they existed immediately prior to such damage or destruction. If, however,
insurance
proceeds are not sufficient to pay the full cost of reconstruction of the
Premises, Landlord may either terminate this Lease or promptly and diligently
reconstruct the Premises to the extent necessary to restore Landlord's Work
in
the Premises as described in Exhibit D, and Tenant shall be obligated for
the
restoration of all of the items specified as Tenant's Work in said Exhibit
D in
the event of such reconstruction, as well as Tenant's other leasehold
improvements (but not with respect to those improvements owned by Landlord),
trade fixtures and other personal property on the
Premises.
12
10.2. Rent
Abatement. If
any
portion of the Premises is damaged or destroyed during the Term to the extent
that such portion is rendered unusable by Tenant, it is agreed
that Tenant shall look solely to Tenant's business interruption insurance
for
any damages
or losses arising from substantial interference with the operation of Tenant's
business
by reason of such damage or destruction. Tenant would have beneficial
occupancy
without obligation to pay base rent for the first month of the
term.
10.3. Excessive
Damage or Destruction. If
the
Building is damaged or destroyed
to the extent that Landlord determines that it cannot, with reasonable
diligence, be fully repaired or restored by Landlord within one hundred eighty
(180) days after the date of the damage or destruction, Landlord or Tenant
may
terminate this Lease. Notwithstanding the fact that the Premises have been
damaged or destroyed, Landlord shall reasonably determine whether the Building
can be fully repaired or restored within the one hundred eighty (180) day
period, and Landlord's determination shall be binding upon
Tenant. Landlord shall notify Tenant of its determination, in writing, within
forty-five
(45) days after the date of the damage or destruction whether it elects to
fully
repair
or
restore the Building. If Landlord determines that the Building can be fully
repaired
or restored within the one hundred eighty (180) day period, or if Landlord
determines that such repair or restoration cannot be made within said period,
but Landlord
does not elect to terminate within forty-five (45) days from the date of
Landlord's
determination, this Lease shall remain in full force and effect and Landlord
shall diligently repair and restore the damage as soon as reasonably
possible.
10.04.
Uninsured
Casualties. Notwithstanding
anything contained herein to the contrary,
in the event of damage to or destruction of all or any portion of the Building
which is not fully covered by the insurance proceeds received by Landlord
under
the insurance policies required under Article 5.01 hereinabove (without regard
to Landlord's deductible for such policies), Landlord may terminate this
Lease
by written notice to Tenant, given within forty-five (45) days after the
date of
notice to Landlord that said damage
or
destruction is not so covered. If Landlord does not elect to terminate this
Lease,
the Lease shall remain in full force and effect and Landlord shall commence
reconstruction and restoration of Landlord's Work in the Premises as described
in Exhibit D and shall diligently repair or rebuild Landlord's Work to
substantially the condition in which it existed immediately prior to such
damage
or destruction.
13
10.05.
Damage
Near the End of Term. In
the
event of damage to or destruction of
all or
any material portion of the Premises during the last year of the Lease Term
which is not fully covered by the insurance proceeds received by Landlord
under
the insurance policies required under Article 5.01 herein above or which
cannot
be fully repaired prior to the last six (6) months of the Lease Term, Landlord
and Tenant each shall have the option to terminate this Lease by giving written
notice to the other of the exercise
of such option within thirty (30) days after such damage or destruction,
in
which event
this Lease shall cease and terminate as of the date of service of such notice;
provided,
however, that in the event that damage or destruction of all or any portion
of
the
Premises occurs which cannot be repaired prior to the last six (6) months
of the
Lease Term,
but
which Landlord reasonable determines can be completed within thirty (30)
days of
the event of damage or destruction, neither Landlord nor Tenant shall have
the
option to terminate this Lease. For purposes of this section 10.05, a "material"
portion of the Premises shall mean more than twenty-five percent (25%) of
the
full replacement value of the Premises.
10.06.
Waiver.With
respect to any destruction which Landlord is obligated to repair
or
may elect to repair under the terms of this Article 10, Tenant hereby waives
all
rights
to
terminate this Lease pursuant to rights otherwise presently or hereafter
accorded by
law to
tenants, except as expressly otherwise provided herein.
11.
EMINENT DOMAIN
11.01.
Total
Condemnation.If
the
whole of the Premises is acquired or condemned
by eminent domain, inversely condemned or sold in lieu of condemnation, for
any
public or quasi-public use or purpose ("Condemned"), then the Term shall
terminate as of the date of title vesting in such proceeding, and Rent shall
be
adjusted as of
the
date of such termination. Tenant shall immediately notify Landlord of any
such
occurrence.
11.02.
Partial
Condemnation.If
any
part of the Premises is partially Condemned,
and such partial condemnation renders the Premises unusable for the business
of
the Tenant, as reasonably determined by Landlord and Tenant, or in the event
a
substantial portion of the Building is Condemned, as reasonably determined
by
Landlord and Tenant, then the Term shall terminate as of the date of title
vesting in such proceeding and Rent shall be adjusted to the date of
termination. If such condemnation is not sufficiently extensive to render
the
Premises unusable for the business of Tenant, as reasonably determined by
Landlord and Tenant, or less than a substantial portion of the Building
is Condemned, then Landlord shall promptly restore the Premises to a condition
comparable
to its condition immediately prior to such condemnation less the portion
thereof
lost in such condemnation, and this Lease shall continue in full force and
effect except that after the date of such title vesting the Base Rent shall
be
appropriately reduced as reasonably determined by Landlord.
11.03.
Landlord's
Award.If
the
Premises are wholly or partially condemned, then,
subject to the provision of Article 11.04 below, Landlord shall be entitled
to
the entire award paid for such condemnation, and Tenant waives any right
or
claim to any part
thereof from Landlord or the condemning authority.
14
11.04.
Tenant's
Award.Tenant
shall have the right to claim and recover from the condemning authority,
but not
from Landlord, such compensation as may be separately awarded or recoverable
by
Tenant in Tenant's own right on account of any and all costs or loss incurred
by
Tenant including, without limitation, removing Tenant's merchandise, furniture,
fixtures, leasehold improvements and equipment to a new location.
11.05.
Temporary
Condemnation.If
the
whole or any part of the Premises shall be
Condemned for any temporary public or quasi-public use or purpose, this Lease
shall remain in effect and Tenant shall be entitled to receive for itself
such
portion or portions of any award made for such use with respect to the period
of
the taking which is within the
Term.
If a temporary condemnation remains in force at the expiration or earlier
termination
of this
Lease,
Tenant shall pay to Landlord a sum equal to the reasonable cost of
performing any obligations required of Tenant by this Lease with respect
to the
surrender
of the Premises, including without limitation, repairs and maintenance, and
upon
such payment such obligations shall be deemed satisfied. If a temporary
condemnation
is for an established period which extends beyond the Term, the Lease shall
terminate as of the date of occupancy by the condemning authority, and the
damages shall be as provided in Articles 11.03 and 11.04 hereinabove and
Rent
shall be adjusted to the date of occupancy.
11.06.
Notice
and Execution.Landlord
shall, immediately upon service of process in connection with any condemnation
or potential condemnation, give Tenant notice
in
writing thereof. Tenant shall immediately execute and deliver to the Landlord
all instruments that may be required to effectuate the provisions of this
Article.
12.
DEFAULT
12.01.
Events
of Default. The
occurrence of any of the following events shall constitute an "Event of Default"
on the part of Tenant:
(a) Abandonment.
Without
payment of rent or abandonment of the Premises
(absence from the Premises for thirty (30) consecutive days or more, without
a
Landlord-approved assignee or sublessee, shall conclusively be deemed an
abandonment or vacation of the Premises, except for renovation or remodeling
and
provided Landlord has written notice thereof;
(b) Payment.
Failure
to pay any installment of Base Rent, Additional Rent or other moneys due
and
payable hereunder upon the date when said payment is due.
(c) Performance.
Default
in the performance of any of Tenant's covenants,
agreements or obligations hereunder (except default in the payment of Rent,
Additional
Rent or other moneys), where such failure is curable and continues uncured
for
ten
(10) business days after written notice by Landlord to Tenant, provided that
if
the nature of the default cannot be reasonably cured within ten (10) days,
Tenant shall not be deemed in default if it shall commence curing the default
within such ten (10) day period and
diligently prosecutes same to completion;
15
(d) Assignment.
A
general assignment by Tenant for the benefit of creditors or any Unauthorized
Assignment as defined below in Article 13;
(e) Bankruptcy.
The
filing of a voluntary petition by Tenant, or the filing
of
an involuntary petition by any of Tenant's creditors seeking the rehabilitation,
liquidation
or reorganization of Tenant under any law relating to bankruptcy, insolvency
or
other
relief of debtors;
(f) Receivership.
The
appointment of a receiver or other custodian to take possession of substantially
all of Tenant's assets or of this leasehold;
(g) Insolvency,
Dissolution, Etc.
Tenant
shall become insolvent or unable
to
pay its debts, or shall fail generally to pay its debts as they become due;
or
any court
shall enter a decree or order directing the winding up or liquidation of
Tenant
or of substantially all of its assets; or Tenant shall take any action toward
the dissolution or winding up of its affairs or the cessation or suspension
of
its use of the Premises;
(h)
Attachment.
Attachment, execution or other judicial seizure of substantially all of Tenant's
assets or this leasehold; or
(i)
Hazardous
Materials Release.
Any
on-site or off-site contamination
or violation of any Health and Safety Laws as set forth in Article
14.
12.02.
Landlord's
Remedies.
(a)
Abandonment.
If
Tenant vacates or abandons the Premises (as set forth in Article 12.01(a)),
this
Lease shall continue in effect, Landlord shall not be deemed to have
terminated this Lease other than by written notice of termination from
Landlord, and Landlord shall have all of the remedies of a landlord provided
by
Article 1951.4
of
the Civil Code of the State of California. At any time subsequent to vacation
or
abandonment of the Premises by Tenant, Landlord may give notice of termination
and shall
thereafter have all of the rights hereinafter set forth.
(b)
Termination.
Following the occurrence of any Event of Default, Landlord
shall have the right, so long as the default continues, to terminate this
Lease
by written notice to Tenant setting forth: (i) the default; (ii) the
requirements to cure it; and (iii) a demand for possession, which shall be
effective ten (10) business days after it is given
or
upon expiration of the times specified in Article 12.01 hereinabove, whichever
is later.
16
(c) Possession.
Following termination under subsection (b), without prejudice
to any other remedies Landlord may have by reason of Tenant's default or of
such
termination, Landlord may then or at anytime thereafter, (i) peaceably re-enter
the Premises, or any part thereof, upon voluntary surrender by Tenant or expel
or remove Tenant
therefrom and any other persons occupying them, using such legal proceedings
as
are
then
available; (ii) repossess and enjoy the Premises, or relet the Premises or
any
part thereof for such term or terms (which may be for a term extending beyond
the Term) at such rental or rentals and upon such other terms and conditions
as
Landlord in its sole discretion
shall determine, with the right to make reasonable alterations and repairs
to the Premises;
and (iii) remove all personal property therefrom and, at Landlord's option,
retain all or any of such personal property (and title thereto shall thereupon
vest in Landlord without compensation to Tenant) or dispose of all or any of
such personal property,
in any manner, without compensation to Tenant. In the event Landlord
removes
all or any of Tenant's personal property pursuant to the foregoing provisions,
Tenant shall pay to Landlord, upon demand, the actual expense of such removal
and disposition and the cost of repairing any damage to the Premises resulting
from such removal.
(d) Recovery.
Following termination under subsection (b), Landlord shall
have all the rights and remedies of a landlord provided by Article 1951.2 of
the
Civil
Code of the State of California. The amount of damages which Landlord may
recover
following termination under subsection (b) shall include: (i) the worth at
the
time of
the
award of the unpaid rent and other amounts which had been earned at the time
of
termination;
(ii) the worth at the time of the award of the amount by which the unpaid rent
which would have been earned after termination until the time of the award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; (iii) the worth at the time of the award of the amount
by
which the unpaid Rent for the balance of the Term after the time of award
exceeds the amount of rental loss Tenant proves could be reasonably avoided;
and
(iv) any other amount necessary to compensate Landlord for all detriment
proximately caused by Tenant's failure to perform its obligations under this
Lease. The "worth at the time of the award" of the amount referred to in
(i) and (ii) above shall be computed by allowing interest thereon at the Default
Rate (as
set
forth below). The "worth at the time of the award" of the amount referred to
in
(iii)
above shall be computed by discounting such amount at the Default Rate (as
set forth below).
Tenant hereby covenants and agrees that the Rent Abatement granted by
Landlord
to Tenant pursuant to this Lease is granted by Landlord upon Landlord's and
Tenant's presumption that Tenant shall remain on the Premises for the entire
five (5) years duration of the Term and, therefore, in the event of termination
under Article 12.02(b),
such abatement of Base Rent shall be forfeited by Tenant, and the "worth at
the
time
of
award" of the Base Rent unpaid by Tenant pursuant to the Lease, shall include
damages in the amount of any and all Base Rent previously abated plus interest
thereon as otherwise provided in the Lease.
(e) Additional
Remedies.
In
addition to the foregoing remedies, Landlord
shall, so long as this Lease is not terminated, have the right to remedy any
default
of Tenant to maintain or improve the Premises without terminating this Lease,
to
incur
expenses on behalf of Tenant in seeking a new subtenant, or to cause a receiver
to be appointed to administer the Premises and new or existing subleases, and
to
add to the Rent
payable hereunder all of Landlord's reasonable costs in so doing, with interest
at the lower
of
the prime rate of interest at the time of said default charged by Xxxxx Fargo
Bank N.A. plus three percent (3%) or the maximum lawful rate.
17
(f) Other.
If
Tenant causes or threatens to cause a breach of any of the covenants,
agreements, terms or conditions contained in this Lease, Landlord shall be
entitled to retain all sums held by Landlord by any trustee or in any account
provided for herein, to enjoin such breach or threatened breach, and to invoke
any right and remedy allowed at law or in equity or by statute or otherwise
as
though re-entry, summary proceedings
and other remedies were not provided for in this Lease. As used in this
Article,
the term "threatens" is limited to delivery to Landlord of a written statement
by Tenant indicating Tenant's intent to cause a breach or Tenant's anticipation
of its uncured default in the performance of, any of the covenants, agreements,
terms or conditions contained in this Lease.
(g) Cumulative.
Each
right and remedy of Landlord provided for in this
Lease shall be cumulative and shall be in addition to every other right or
remedy provided
for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise.
The exercise or beginning of the exercise by Landlord of any one or more of
the
rights or remedies provided for in this Lease, or now or hereafter existing
at
law or in equity or by statute or otherwise, shall not preclude the simultaneous
or later exercise by Landlord
of any or all other rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise.
(h)
No
Waiver.
No
failure by Landlord to insist upon the strict performance
of any term hereof or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance of full or partial payment of Rent during the
continuance of any such breach shall constitute a waiver of any such breach
or
of any such term. Efforts by Landlord to mitigate the damages caused by Tenant's
breach of this Lease shall not be construed to be a waiver of Landlord's right
to recover damages under this Article 12. Nothing in this Article 12 affects
the
right of Landlord to indemnification by Tenant in accordance with Article 5.08
hereinabove for liability arising prior to the termination of this Lease for
personal injuries or property damage.
13.
ASSIGNMENT AND SUBLETTING
13.01.
Assignment
and Subletting; Prohibition. Tenant
shall not assign, mortgage,
pledge, hypothecate or otherwise transfer, this Lease, in whole or in part,
or
any interest therein, nor sublet or permit occupancy by any party other than
Tenant of all or any part of the Premises (each of the foregoing is hereinafter
sometimes referred to as a "Transfer"), without the prior written consent of
Landlord in each instance, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Tenant may
assign its interest in this Lease or sublet any portion of the Premises pursuant
thereto without
the Landlord's consent, if made to any corporation which controls, is controlled
by
or is
under common control with the Tenant, so long as Tenant provides Landlord
with
prior written notice of any such assignment or subletting, together with
information reasonably
required by the Landlord to identify such assignee, or sublessee, and the notice
address thereof. As material consideration for this Lease, Tenant hereby agrees
to provide the following written materials to Landlord regarding any proposed
Transfer for Landlord's
approval: (i) the proposed Transfer agreement to Landlord for Landlord's
approval;
(ii) the certified financial statements of the transferee for the three (3)
years prior to the proposed Transfer; (iii) detailed summaries of the
transferee's business operations; (iv) a detailed credit report of the
transferee; and (v)banking references for the transferee. Landlord shall have
the right to review the written material submitted by Tenant
regarding such Transfer for a period of ten (10) business days following
Landlord's
receipt of such material to consent or decline to consent to such Transfer.
No
Transfer by Tenant shall relieve Tenant of any obligation under this Lease,
including Tenant's
obligation to pay Base Rent and Additional Rent hereunder. Any purported
Transfer
contrary to the provisions hereof without Landlord's consent ("Unauthorized
Transfer")
shall be void. The consent by Landlord to any Transfer shall not constitute
a
waiver
of
the necessity for such consent to any subsequent Transfer. As Additional Rent
hereunder, Tenant shall reimburse Landlord for actual legal and other expenses
incurred by Landlord in connection with any request by Tenant for Landlord's
consent to the Transfer provided, however, in no event shall such fees exceed
Five Hundred dollars ($500.00). Such amount shall be reimbursed by Tenant to
Landlord within ten (10) days following the submission to Tenant of a copy
of
the written invoice from Landlord's counsel
itemizing such costs and fees payable by Landlord with respect to any request
by
Tenant
for Landlord's consent to such a Transfer, whether or not Landlord ultimately
approves such Transfer
18
13.02
Bonus Rental.
If
for
any assignment or sublease, Tenant receives rent or other
consideration, either initially or over the term of the assignment or sublease,
in excess of the Rent called for hereunder, or in case of the sublease of a
portion of the Premises, in excess of such Rent fairly allocable to such
portion, after appropriate adjustments
to assure that all other payments called for hereunder are appropriately taken
into
account, Tenant shall pay to Landlord, as Additional Rent hereunder, fifty
percent (50%) of the excess of each such payment of rent or other consideration
received by Tenant over Tenant's customary and reasonable costs and expenses
of
making the assignment
or sublease (which costs and expenses shall be amortized over the term of the
assignment or sublease), which shall be due and payable by Tenant to Landlord
promptly after
its
receipt by Tenant.
13.03.
Scope.
The
prohibition against Unauthorized Transfers contained in this Article shall
be
construed to include a prohibition against any Transfer by operation of law.
If
this Lease or any interest therein be assigned, or if the underlying beneficial
interest
of Tenant is transferred, or if the Premises or any part thereof be sublet
or
occupied by anybody other than Tenant, Landlord may collect rent from the
assignee, subtenant
or occupant and apply the net amount collected to the Rent herein reserved
and
apportion
any excess rent so collected in accordance with the terms of the immediately
preceding
paragraph, but no such assignment, subletting, occupancy or collection shall
be
deemed
a
waiver of this covenant, or the acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the further performance by
Tenant of covenants
on the part of Tenant herein contained. No assignment or subletting shall
affect
the continuing primary liability of Tenant (which, following assignment, shall
be joint
and
several with the assignee), and Tenant shall not be released from performing
any
of
the terms, covenants and conditions of this Lease.
19
13.04. Waiver.
Notwithstanding
any Transfer, or any indulgences, waivers or extensions
of time granted by Landlord to any transferee, or failure by Landlord to take
action against any transferee, Tenant waives notice of any default of any
transferee and agrees that Landlord may, at its option, proceed against Tenant
without having taken action
against or joined such transferee, except that Tenant shall have the benefit
of
any indulgences,
waivers and extensions of time granted to any such transferee. Tenant
further
waives monetary damages, of whatever land or nature, from Landlord as a result
of,
or in
any way related to any proposed Transfer, whether Landlord consented to such
Transfer or withholds its consent to such Transfer.
13.05. Release.
Whenever
Landlord conveys its interest in the Project, Xxxxxxx Xxxx,
Xxx
xxx/xx Xxxxxxxx, Xxxxxxxx shall be automatically released from the further
performance of covenants on the part of Landlord herein contained, and from
any
and all further liability, obligations, costs and expenses, demands, causes
of
action, claims or judgments arising from or growing out of, or connected with
this Lease after the effective date of said release. The effective date of
said
release shall be the date Landlord transfers title of the Project to the new
owner. If requested, Tenant shall execute a form of release and such other
documentation as may be required to further effect the provisions of this
Article
13.
13.06. Transfer
to Affiliate Permitted. Any
provision in this Lease to the contrary
notwithstanding, Landlord's consent shall not be required for a Transfer to
any
person or entity who controls, is controlled by or is under common control
with
Tenant (Tenant Affiliate); provided that before such assignment shall be
effective, (a) said Tenant Affiliate shall assume, in full, the obligations
of
Tenant under this Lease, (b) Landlord shall be given written notice of such
assignment and assumption, (c) the use of the Premises by the Tenant Affiliate
shall be as set forth in Section 9.01 and (d) the net worth of the Tenant
Affiliate is substantially equal to the net worth of Tenant as of the date
of
this Lease. For purposes of this section 13.06, the term control means
possession, directly or indirectly, of the power to direct or cause the
direction of the management, affairs and policies of anyone, whether through
the
ownership of voting securities, by contract
or otherwise. The bonus rental provisions of Section 13.02 of this Lease shall
not
apply
to an assignment or sublease by Tenant to a Tenant Affiliate."
14.
HAZARDOUS MATERIALS
14.01.
Definitions.
20
(a) Health
and Safety Laws.
"Health
and Safety Laws" means any and all federal, state or local laws, ordinances,
rules, decrees, orders, regulations, court decisions and other authority
relating to hazardous substances, hazardous materials, hazardous waste, toxic
substances, materials or wastes, environmental conditions on, under or about
the
Premises, or soil and ground water conditions, including, but not limited
to, the Comprehensive Environmental Response, Compensation and Liability Act
of
1980
("CERCLA"), as amended, 42 U.S.C. ß 9601, et seq., the Resource Conservation and
Recovery Act ("RCRA"), 42 U.S.C. ß 6901,
et seq.,
the Hazardous Materials Transportation Act, 49 U.S.C. ß1801, et seq., the
Federal Water Pollution Control Act of 1972, 33 U.S.C. x 0000, xx. seq., the
Safe Drinking Xxxxx Xxx, 00 X.X.X. x 000x, et seq., the Toxic Substances Control
Act ("TSCA"), 15 U.S.C. ß 2601, et seq., the Federal Insecticide, Fungicide, and
Rodenticide Act ("FIFRA"), 7 U.S.C. ß 136, et seq., the Federal Hazardous
Substances Control Act, 15 U.S.C. ß 1261, et seq., the Noise Control Act of
1972, 42 U.S.C. ß 4901, et seq., the Occupational Safety and Health Act
("OSHA"), 29 U.S.C. ß 651, et seq., the California Hazardous Waste Control Act,
Cal. Health and Safety Code x 00000, et seq., the Xxxxxxxxx-Xxxxxxx-Xxxxxx
Hazardous Substances
Account Act, Cal. Health and Safety Code x 00000, et seq., the Safe Drinking
Water and Toxic Enforcement Act of 1986 ("California Proposition 65"), Cal.
Health and Safety
Code B 25249.5, et seq., the Xxxxxx-Cologne Water Quality Control Act, Cal.
Water Code x 00000, xx. seq., any amendments to the foregoing, and any similar
federal, state or local laws, ordinances, rules, decrees, orders or
regulations.
(b) Hazardous
Materials.
"Hazardous Materials" means any chemical, compound, material, substance or
other
matter that: (i) is defined as a hazardous substance, hazardous material,
hazardous waste or toxic substance, material or waste under any Health and
Safety Law, including, but not limited to, those substances, materials
or wastes regulated now or in the future under any statutes or regulations;
(ii)
is controlled
or governed by any Health and Safety Law or gives rise to any reporting, notice
or publication requirements thereunder, or gives rise to any liability,
responsibility or duty on the part of Tenant or Landlord with respect to any
third person hereunder; or (iii) is flammable or explosive material, oil or
any
other petroleum-based substance, freon,
asbestos, urea formaldehyde, radioactive material, nuclear medicine material,
drug, vaccine,
bacteria, virus, hazardous waste, toxic substance, or related injurious or
potentially
injurious material (by itself or in combination with other
materials).
(c) Off-Site
Contamination.
The
term "Off-Site Contamination" shall mean the presence of any Hazardous
Materials, associated in any way with Tenant's, its successors' or assigns'
use
or occupation of the Premises, transported, arranged for disposal
of, or disposed of by Tenant or any third party on behalf of Tenant or its
agents, employees
or officers to any site or location other than the Premises.
(d) On-Site
Contamination.
The
term "On-Site Contamination" shall mean the presence of any Hazardous Materials
in, on or under any portion of the Premises.
21
14.02. Use.
Tenant
shall not allow any Hazardous Material to be used, generated,
manufactured, released, stored or disposed of on, under or about, or
transported
from, the Premises, unless: (a) such use is specifically disclosed to and
approved
by Landlord in writing prior to such use; and (b) such use is conducted in
compliance with the provisions of this Article 14. Landlord's consent may be
withheld in Landlord's
sole discretion, and, if granted, may be revoked at any time. Landlord may
approve
such use subject to reasonable conditions to protect the Premises and Landlord's
interests.
Landlord may withhold approval if Landlord determines that such proposed
use
involves a material risk of a release or discharge of Hazardous Materials or
a
violation of any Health and Safety Laws or that Tenant has not provided
reasonable assurances of its ability to remedy such a violation and fulfill
its
obligations under this Article
14. Notwithstanding the foregoing, Landlord hereby consents to Tenant's use,
storage
or disposal of products containing small quantities of Hazardous Materials,
which products are of a type customarily found in offices and households (such
as aerosol cans containing insecticides, toner for copies, paints, paint remover
and the like), provided that Tenant
shall handle, use, store and dispose of such Hazardous Materials in a safe
and
lawful manner and shall not allow such Hazardous Materials to contaminate the
Premises.
14.03. Compliance
With Laws; Handling of Hazardous Materials. Tenant
shall strictly
comply with, and shall maintain the Premises in compliance with, all Health
and
Safety
Laws. Tenant shall obtain, maintain in effect and comply with the conditions
of
all permits, licenses and other governmental approvals required for Tenant's
operations on
the
Premises under any Health and Safety Laws, including, but not limited to, the
discharge
of appropriately treated Hazardous Materials into or through any sanitary sewer
serving
the Premises. At Landlord's request, Tenant shall deliver copies of, or allow
Landlord to inspect, all such permits, licenses and approvals. All Hazardous
Materials removed
from the Premises shall be removed and transported by duly licensed haulers
to
duly
licensed disposal facilities, in compliance with all Health and safety Laws.
Tenant shall
be
responsible for the proper disposal of any mercury-containing fluorescent
lighting
fixtures. Tenant shall perform any monitoring, testing, investigation, clean-up,
removal, detoxification, preparation of closure or other required plans and
any
other remedial
work required by any governmental agency or lender or reasonably recommended
by
Landlord's environmental consultants as a result of any release or discharge
or
potential release or discharge of Hazardous Materials and resulting in
On-Site
Contamination or Off-Site Contamination or any violation or potential violation
of Health
and Safety Laws by Tenant or any successor or sublessee of Tenant or their
respective agents, contractors, employees, licensees or invitees (collectively,
"Remedial Work"). Tenant shall not enter into any settlement agreement, consent
decree or other compromise with respect to any claims relating to Hazardous
Materials without notifying Landlord and providing ample opportunity for
Landlord to intervene.
14.04. Compliance
With Insurance Requirements. Tenant
shall comply with the requirements
of Landlord's and Tenant's insurers regarding Hazardous Materials and with
such
insurers' recommendations based upon prudent industry practices regarding
management of Hazardous Materials.
22
14.05. Indemnity.
Tenant
shall indemnify, protect, defend and hold Landlord (and
its
partners and their respective officers, directors, employees and agents), the
Premises, Building, Lot Parking Areas, and all other areas of the Project
harmless from and against any and all liabilities, demands, penalties, fines,
claims, suits, judgments, actions, investigations, proceedings, costs and
expenses (including attorneys' fees and court costs) arising out of or in
connection with any breach of any provisions of this Article
14, directly arising out of any liability of Tenant under any Health and Safety
Law or
associated with any On-Site Contamination or any Off-Site Contamination which
is
caused, suffered or permitted to be brought upon, kept, used, discharged,
deposited or leaked
in
or about the Premises or any other portion of the Project by Tenant or any
of
Tenant's
assigns, agents, employees, contractors or invitees or by anyone in the Premises
other than Landlord, Landlord's agents, employees or contractors, including,
but
not limited to, the use, generation, storage, release, disposal or
transportation of Hazardous Materials by Tenant, or any successor or sublessee
of Tenant, or their respective agents, contractors, employees, licensees, or
invitees, on, under or about the Premises during the Term, and including, but
not limited to, all consequential damages and the cost of any Remedial
Work. Any defense by Tenant pursuant to this Article shall be by counsel
reasonably acceptable to Landlord. Neither the consent by Landlord to the use,
generation,
storage, release, disposal or transportation of Hazardous Materials nor the
strict compliance with all Health and Safety Laws shall excuse Tenant from
Tenant's indemnification obligations pursuant to this Article 14.05. The
foregoing indemnity shall be in addition to and not a limitation of the
indemnification provisions of Article 5.09 of this
Lease. Tenant's obligations pursuant to this Article 14.05 shall survive the
termination
or expiration of the Lease.
14.06. Notice.
Each
party to this Lease shall notify the other party, in writing, as soon
as
reasonably possible, and in any event within
five (5)
business days after, any of the
following: (a) a party has knowledge, or it has reasonable cause to believe,
that any Hazardous Material has been released, discharged or is located on,
under or about the Premises, whether or not the release or discharge is in
quantities that would otherwise be reportable to a public agency; (b) a party
receives any order of a governmental agency requiring any Remedial Work pursuant
to any Health and Safety Laws; (c) a party receives any warning, notice of
inspection, notice of violation or alleged violation, or a party receives notice
or knowledge of any proceeding, investigation of enforcement action, pursuant
to
any Health and Safety Laws; or (d) a party receives notice or knowledge of
any
claims made or threatened by any third party against that party or the Premises
relating to any loss or injury resulting from Hazardous Materials or from
violation
of any Health and Safety Law. If the potential risk of any of the foregoing
events
is
material, the party having notice of such event shall deliver immediate verbal
notice
to
the other party, in addition to written notice as set forth above. Landlord
and
Tenant agree to deliver to one another copies of all test results, reports
and
business or management
plans required to be filed with any governmental agency pursuant to any
Health
and Safety Laws.
23
14.07. Default.
The
release or discharge of any Hazardous Material or the violation
of any Hazardous Materials Law by Tenant or any successor or sublessee of
Tenant
shall be a material default by Tenant under the Lease. In addition to or in
lieu
of the
remedies available under the Lease as a result of such default, Landlord shall
have the right,
without terminating the Lease, to require Tenant to suspend its operations
and
activities on the Premises until Landlord is satisfied that appropriate Remedial
Work has been or is being adequately performed; Landlord's election of this
remedy shall not constitute a waiver of Landlord's right thereafter to declare
a
default and pursue other remedies set forth in the Lease.
14.08. Landlord's
Disclosure. Pursuant
to the requirements of California Health and Safety Code Section 25359.7,
Landlord hereby notifies Tenant that Landlord does not know, and does not have
reasonable cause to believe, that any release of any Hazardous Material has
come
to be located on or beneath the Premises, Building or Project. In the event
Hazardous Materials are later discovered to be present in, on or below
the
Premises, Building or Project which is required by any governmental agency
to
be
abated
or removed, the abatement or removal thereof shall, subject to Tenant's
liability set forth above, be at Landlord's sole cost and expense, including
any
costs incurred to comply with any and all rules, regulations, codes, ordinances,
statutes and other requirements of any lawful governmental authority respecting
Hazardous Materials and Landlord shall indemnify, defend and hold Tenant
harmless from any and all claims, judgments,
demands, causes of action, proceedings or hearings relating to the existence
of
Hazardous Materials on or below the Premises, Building or Project.
15.
OFFSET STATEMENT, ATTORNMENT AND SUBORDINATION
15.01. Estoppel
Certificate. Within
ten (10) business days after request therefore by Landlord, or if on any sale,
assignment or hypothecation by Landlord of Landlord's interest
in the Project, Building, Lot and/or Parking Area, or any part thereof, an
estoppel certificate
shall be required from Tenant, Tenant shall deliver, in recordable form, such
a
certificate to any proposed mortgagee or purchaser, and to Landlord, certifying
(if such be the case) that (i) this Lease is in full force and effect; (ii)
the
date of Tenant's most recent payment of Rent, and that Tenant has no defenses
or
offsets outstanding, or stating those offsets or defenses claimed by Tenant;
(iii) and any other information reasonably requested.
Tenant's failure to deliver said certificate in time shall be conclusive upon
Tenant
that: (i) this Lease is in full force and effect, without modification except
as
may be represented by Landlord; (ii) there are no uncured defaults in Landlord's
performance and Tenant has no right of offset, counterclaim or deduction against
Rent hereunder; and (iii) no more than one period's Base Rent has been paid
in
advance. Failure of Tenant to deliver such a certificate to Landlord or any
proposed mortgagee or purchaser within ten (10) business days following
Landlord's request shall constitute a default under the Lease as outlined in
section 12.
15.02. Attornment.
Tenant
shall, in the event any proceedings are brought for the foreclosure of, or
in
the event of exercise of the power of sale under any mortgage or deed of trust
made by the Landlord, its successors or assigns, encumbering the Premises,
or
any
part thereof, or in the event of termination of a ground lease, if any, and
if
so requested,
attorn to the purchaser upon such foreclosure or sale or upon any grant of
a
deed
in
lieu of foreclosure and recognize such purchaser as the Landlord under this
Lease.
24
15.03. Subordination.
The
rights of Tenant hereunder are and shall be, at the election
of the mortgagee, subject and subordinate to the lien of such mortgage, or
the
lien resulting from any other method of financing or refinancing, now or
hereafter in force
against the Project, Building, Lot and/or Parking Area, and to all advances
made
or hereafter
to be made upon the security thereof; provided, however, that notwithstanding
such subordination, so long as Tenant is not in default under any of the terms,
covenants and
conditions of this Lease, neither this Lease nor any of the rights of Tenant
hereunder upon
Tenant's covenanting that Tenant is not in default hereunder, shall be
terminated or subject to termination by any trustee's sale, any action to
enforce the security, or by any proceeding
or action in foreclosure. If requested, Tenant agrees to execute whatever
documentation
may be required to further effect the provisions of this Article.
15.04. Quiet
Enjoyment. If
Tenant
performs all of the terms and conditions of this Lease to be performed by
Tenant, Landlord agrees that Tenant shall at all times during
the term of the lease peaceably and quietly hold, occupy and enjoy the Premises
without
any manner of hindrance from Landlord or any person lawfully claiming by,
through or under Landlord.
16. NOTICES
16.01.
Notices.
All
notices required to be given hereunder shall be in writing (except for notice
required pursuant to Article 12.01(b)) and shall be (i) personally delivered,
in which even they shall be deemed received on the date of delivery, (ii) sent
by certified
mail, postage prepaid, return receipt requested, or by a professional courier
company which provides a receipt evidencing delivery, in which event they shall
be deemed received on the date of delivery as evidenced by the receipt; or
(iii)
sent by telecopy.
Any notice, request, demand, direction or other communication sent by cable,
telex
or
telecopy must be confirmed within forty-eight (48) hours by letter mailed or
delivered
in accordance with the foregoing. The Landlord's and Tenant's addresses for
written
notices required to be given hereunder shall be the addresses set forth in
the
Basic Lease Information, or at such other place designated by advance written
notice delivered in accordance with the foregoing.
17. SUCCESSORS
BOUND
17.01.
Successors
Bound. This
Lease and each of its covenants and conditions shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
heirs, successors and legal representatives and their respective assigns,
subject to
the
provisions hereof. Whenever in this Lease a reference is made to the Landlord,
such
reference shall be deemed to refer to the person in whom the interest of the
Landlord shall
be
vested and Landlord shall have no obligation hereunder as to any claim arising
after
the
transfer of its interest in the Premises. Any successor or assignee of the
Tenant who accepts an assignment or the benefit of this Lease and enters into
possession or enjoyment hereunder shall thereby assume and agree to perform
and
be bound by the covenants
and conditions thereof. Nothing herein contained shall be deemed in any
manner
to
give a right of assignment to Tenant without the written consent of
Landlord.
25
18.
MISCELLANEOUS
18.01. Waiver.
No
waiver
of any default or breach of any covenant by either party
hereunder shall be implied from any omission by either party to take action
on
account of such default if such default persists or is repeated, and no express
waiver shall affect any default other than the default specified in the waiver,
and then said waiver shall be
operative only for the time and to the extent therein stated. Waivers of any
covenant, term or condition contained herein by either party shall not be
construed as a waiver of any
subsequent breach of the same covenant, term or condition. The consent or
approval by either party to or of any act by either party requiring further
consent or approval shall not be deemed to waive or render unnecessary their
consent or approval to or of any subsequent similar acts.
18.02. Easements.
Landlord
reserves the right to (i) subdivide or alter the boundaries
of the Lot and (ii) grant easements on the Lot and dedicate for public use
portions
thereof without Tenant's consent; provided, however, that no such grant or
dedication
shall materially interfere with Tenant's use of the Premises. From time to
time,
and
upon Landlord's demand, Tenant shall execute, acknowledge and deliver to
Landlord,
in accordance with Landlord's instructions, any and all documents, instruments,
maps or plats necessary to effectuate Tenant's covenants hereunder.
18.03
Relocation.
Intentionally
deleted.
18.04. No
Light, Air or View Easement. Any
diminution or shutting off of light, air or view by any structure which may
be
erected on lands adjacent to or in the vicinity of the Building shall in no
way
affect this Lease or impose any liability on Landlord.
18.05. Corporate
Authority. If
Tenant
executes this Lease as a corporation, each of the persons executing this Lease
on behalf of Tenant hereby covenants and warrants that: (i) Tenant is a duly
authorized and existing corporation; (ii) Tenant is qualified to do business
in
the State of California; (iii) Tenant has full right and authority to enter
into
this Lease; and (iv) each of the persons executing on behalf of Tenant is
authorized to do so.
18.06.
Accord
and Satisfaction. No
payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein
stipulated shall be deemed to be other than on account of the Rent, nor shall
any endorsement or statement on any check or any letter accompanying
any check or payment as Rent be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance of such Rent or pursue any other remedy provided in this
Lease.
26
18.07. Limitation
of Landlord's Liability. The
obligations of Landlord under this Lease shall not constitute personal
obligations of the individual partners, directors, officers, or shareholders
of
Landlord, and in consideration of the benefits accruing hereunder
to Tenant and notwithstanding anything contained in this Lease to the contrary,
Tenant hereby covenants and agrees for itself and all of its successors and
assigns that the liability
of Landlord for its obligations under this Lease shall be limited solely to,
and
Tenant's and its successors' and assigns' sole and exclusive remedy shall be
against the real
estate that is the subject of this Lease and Tenant, its successors and assigns
shall not seek
recourse against the individual partners, directors, officers or shareholders
of
Landlord
or any of their personal assets for such satisfaction.
18.08. Time.
Time
is of
the essence of every provision hereof.
18.09. Attorneys'
Fees. In
any
action or proceeding which the Landlord or the Tenant
may be required to prosecute to enforce its respective rights hereunder, the
less prevailing party therein agrees to pay all costs incurred by the more
prevailing party therein,
including reasonable attorneys' fees, to be fixed by the court, and said costs
and attorneys'
fees shall be made a part of the judgment in said action. In any situation
in which
a
dispute is settled other than by action or proceeding, Tenant shall pay all
Landlord's costs and attorneys' fees related thereto.
18.10. Captions
and Article Numbers. The
captions, article numbers and table of contents appearing in this Lease are
inserted only as a matter of convenience and in no way
define, limit, construe or describe the scope or intent or such sections or
articles of this
Lease nor in any way affect this Lease.
18.11. Severability.
If
any
term, covenant, condition or provision of this Lease, or
the
application thereof to any person or circumstance, shall to any extent be held
by a court
of
competent jurisdiction to be invalid, void or unenforceable, the remainder
of
the terms, covenants, conditions or provisions of this Lease, or the application
thereof to any person
or
circumstance, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
18.12. Applicable
Law. This
Lease, and the rights and obligations of the parties hereto,
shall be construed and enforced in accordance with the laws of the State of
California.
18.13. Submission
of Lease. The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for leasing the Premises.
This
document shall become effective and binding only upon execution
and delivery hereof by Landlord. No act or omission of any employee or agent
of
Landlord or of Landlord's broker or managing agent shall alter, change, or
modify any of
the
provisions hereof.
27
18.14. Holding
Over. Should
Tenant, or any of its successors in interest, hold over
the
Premises, or any part thereof, after the expiration of the term of this Lease,
unless otherwise agreed to in writing, such holding over shall constitute and
be
construed as tenancy from month-to-month only, at a monthly rent equal to one
hundred fifty percent (150%) the monthly Base Rent owed during the final year
of
the Term of this Lease
as
the same may be extended from time to time. This inclusion of the preceding
sentence
shall not be construed as Landlord's permission for Tenant to hold
over.
18.15. Surrender.
Upon
the
expiration or earlier termination of this Lease, Tenant
shall surrender the Premises to Landlord in good order, condition and repair,
except
for reasonable wear and tear or as otherwise provided in Articles 8, 10 and
11.
Tenant
shall not commit or allow any waste or damage to be committed on any portion
of
the
Premises, Building or Project. All property that Tenant is required to surrender
shall become Landlord's property upon the termination of this Lease. Landlord
may cause any of
said
personal property that is not removed from the Premises within thirty (30)
days
after the date of any termination of this Lease to be removed from the Premises
and stored at Tenant's expense, or, at Landlord's election said personal
property thereafter shall belong to Landlord without the payment of any
consideration, subject to the rights of any person holding a perfected security
interest therein.
18.16. Rules
and Regulations. At
all
times during the Term, Tenant shall comply with rules and regulations ("Rules
and Regulations") for the Project, as set forth in Exhibit
C
(and such amendments as Landlord may reasonably adopt), attached hereto and
by
this
reference made a part hereof.
18.17. No
Nuisance. Tenant
shall conduct its business and control its agents, employees, invitees and
visitors in such a manner as not to create any nuisance, or interfere with,
annoy or disturb any other tenant or Landlord in its operation of the
Project.
18.18. Broker.
Per
separate agreement
18.19. Landlord's
Right to Perform. Upon
Tenant's failure to perform any obligation
of Tenant hereunder, including without limitation, payment of Tenant's insurance
premiums, charges of contractors who have supplied materials or labor to the
Premises, etc., Landlord shall have the right to perform such obligation of
Tenant on behalf of Tenant and/or to make payment on behalf of Tenant to such
parties, provided Landlord has first provided written notice to Tenant and
given
Tenant ten (10) days to perform
such obligation (unless another cure period is provided herein). Tenant shall
reimburse
Landlord the reasonable cost of Landlord's performing such obligation on
Tenant's behalf, including reimbursement of any amounts that may be expended
by
Landlord,
plus interest at the rate of three percent (3%) over the prime rate as
announced, from
time
to time, by Xxxxx Fargo Bank, N.A. per annum, as Additional Rent.
18.20. Mortgage
Protection. Landlord
shall not be in default under the terms of this Lease, or by law, unless
Landlord fails to perform the obligations required of Landlord
within a reasonable time, but in no event later than thirty (30) days after
written notice
by
Tenant to Landlord and to the holder of any first mortgage or deed of trust
covering the Premises whose name and address shall have theretofore been
furnished to Tenant
in
writing specifying wherein Landlord has failed to perform such obligation.
If,
however,
the nature of Landlord's obligation is such that more than thirty (30) days
are
required for performance, Landlord shall not be in default if Landlord commences
performance within such thirty (30) day period and diligently prosecutes the
same to completion.
Should Landlord be deemed to be in material default of this Lease, then
Landlord
shall be liable to Tenant for all damages sustained by Tenant as a direct result
of
Landlord's breach. If any such default materially interferes with Tenant's
business operation
in the Premises, Tenant may give Landlord and the holder of any first mortgage
or deed of trust covering the Premises a second written notice specifying
exactly the nature of the Landlord's failure and its impact on Tenant's business
operation in the Premises
and the further remedial action deemed necessary by Tenant. If such remedial
action
is
not undertaken within thirty (30) days of such second written notice, Tenant
shall be entitled to terminate this Lease, but in no event earlier than thirty
(30) days after the second notice to Landlord and the holder of any first
mortgage or deed of trust covering
the Premises. Notwithstanding the foregoing, Tenant shall not be entitled to
terminate
this Lease as a result of Landlord's default if Landlord is making diligent
efforts
to perform the obligations required of Landlord under this Lease. Nothing herein
contained
shall be interpreted to mean that Tenant is excused from paying any rent due
hereunder as a result of any default by Landlord.
28
18.21.
Nonliability.
Landlord
shall not be in default hereunder or be liable for any
damages directly or indirectly resulting from, nor shall the rental herein
reserved be abated by reason (unless otherwise provided herein) of (i) the
interruption of use of the Premises as a result of the installation of any
equipment in connection with the Premises or
Building or (ii) any failure to furnish or delay in furnishing any services
required to be provided
by Landlord when such failure or delay is caused by accident or any condition
beyond the reasonable control of Landlord or by the making of necessary repairs
or improvements to the Premises or to the Building, or the limitation,
curtailment, rationing or restriction on use of water or electricity, gas or
any
other form of energy or any other service
or utility whatsoever serving the Premises or the Building. Landlord shall
use
reasonable
efforts to remedy any interruption in the furnishing of such
services.
18.22
Modification
for Lender. If,
in
connection with obtaining construction, interim
or permanent financing for the Project or the Building, the lender shall require
reasonable
modifications in this Lease as a condition to such financing, Tenant will not
unreasonably
withhold, delay or defer its consent thereto, provided that such modifications
do not increase the obligations of Tenant hereunder or materially adversely
affect
the leasehold interest hereby created or Tenant's rights hereunder.
18.23.
Recording.
Neither
Landlord nor Tenant shall record this Lease without the consent of the other.
Either party may, at its sole cost and expense, record a short form
memorandum of this Lease in a form reasonably acceptable to the other
party.
29
18.24. Entire
Agreement. This
Lease sets forth all covenants, promises, agreements,
conditions and understandings between Landlord and Tenant concerning the
Premises,
Project, Building and Lot, and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between Landlord and
Tenant other than
as
are herein set forth. Except as herein otherwise provided no subsequent
alteration,
amendment, change or addition to this Lease shall be binding upon Landlord
or
Tenant unless reduced to writing and signed by Landlord and Tenant.
18.25. Special
Provisions. Section
purposely deleted.
IN
WITNESS WHEREOF, the parties have executed this Lease as of the date first
above-written.
LESSOR/LANDLORD:
GENERATION
PROPERTIES L.P.
|
LESSEE/TENANT:
BARNABAS
ENERGY
CORPORATION.
A Nevada Corporation
|
|||||
By:
TRILOGY
INVESTMENT GROUP LLC
a California Limited Liability Company,
its
General Partner
|
||||||
By:
![]() |
By:
![]() |
|||||
Xxxxxxx
X. Xxxxx
President
& CEO
|
Xxxxx
Xxxxxxx
President
and CEO
|
|||||
Date: September 15, 2005 | Date 9-13-05 | |||||
30
EXHIBIT
A
Legal
Description
![exhibita](https://www.sec.gov/Archives/edgar/data/1176193/000114420406036343/exhibita.jpg)
31
EXHIBIT
B
![exhibitb](https://www.sec.gov/Archives/edgar/data/1176193/000114420406036343/exhibitb.jpg)
32
EXHIBIT
C
OCEAN
POINTE
Rules
and Regulations
1.
The
sidewalks, entrances, passages, courts, elevators, vestibules, stairways,
corridors or halls
shall nor be obstructed or used for any purposes other than ingress and
egress.
2. The
sashes, sash doors, skylights. windows and doors that reflect or admit light
and
air into
halls, passageways or other public places in the Project shall not be covered
or
obstructed by any
Tenant, nor shall any bottles, parcels or other articles be placed on the
windowsills, without Landlord's
written consent, which shall not be unreasonably withheld.
3.
The
water and wash closets and other plumbing fixtures shall not be used for any
purpose other than those for which they were constructed, and no sweepings,
rubbish, rags or other substances shall be thrown therein. All damages resulting
from any misuse of the fixtures shall be borne by the Tenant who, or whose
servants, employees, agents, visitors or licensees, shall have
caused the same.
4.
No Tenant shall xxxx, paint, drill into, or in any way deface any part of the
Premises or the
Project. No boring, cutting or stringing of wires or laying of linoleum or
similar floor coverings
shall be permitted except with the prior written consent of Landlord and as
Landlord may
direct, which
shall not be unreasonably withheld.
5.
No Tenant shall cause or permit any unusual or objectionable odors to be
produced or permeate the Premises or the Project.
6.
The Premises shall not be used for manufacturing or for the storage of
merchandise except
as
such storage that may be required in order to use the Premises for retail
purposes. No Tenant shall
engage or pay any employees on the Premises except those actually working for
such Tenant on the Premises, nor advertise for laborers giving an
address at
the
Premises. The Premises shall not be used for lodging or sleeping, or for any
illegal purposes.
7.
No Tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other occupants of the Project, or those
having business with them, whether by the use of any musical instrument, radio
phonograph, unusual noise, or any other way. No Tenant shall throw anything
out
of doors, windows or skylights or down the passageways.
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33
8.
No Tenant nor any of Tenant's servants, employees, agents, visitors or
licensees, shall at any
time
bring or keep upon the Premises any inflammable, combustible or explosive fluid
chemical
or substance (including asbestos),or
any
hazardous or toxic
substances,
including those that
are
defined by any governmental body having authority over the Premises and the
Project.
9.
No additional locks or bolts of any kind shall be placed upon any of the doors
or windows by any Tenant, nor shall any changes be made in existing locks or
the
mechanism thereof.
Tenant will be furnished with one key for each full-time employee at time the
Tenant takes
possession of the Premises. Thereafter, Tenant will be charged for all keys.
Each Tenant must
upon
the termination of its tenancy, restore to the Landlord all keys of stores,
offices and toilet
rooms, either furnished to or otherwise procured by, such Tenant. In the event
of the loss of any keys so furnished, such Tenant shall pay to
Landlord
the cost of replacing the same or of changing the lock or locks opened by such
lost key if Landlord deems it reasonably necessary. Tenant
and Landlord shall have the Premises re-keyed at Landlord's expense on the
day
Tenant takes
possession of the Premises.
10.
All
removals or the carrying in or our of any safes, freight, furniture, or bulky
matter of any description must take place during the hours which Landlord may
reasonably determine. The moving of safes or other fixtures or bulky matters
of
any kind must be made upon previous notice to the superintendent of the Project
and under his supervision, and the persons employed by
any
Tenant for such work must be acceptable to Landlord. Landlord reserves the
right
to inspect
all safes, freight or other bulky articles to be brought into the Project and
to
exclude therefrom
all safes, freight orother
bulky articles which violate any of these Rules and Regulations
or the Lease of which these Rules and Regulations area part. Landlord reserves
the right
to
prescribe the weight and position of all safes which must be placed upon
supports approved
by Landlord in order to distribute weight.
11. Landlord
shall have the right to prohibit any advertising by any Tenant which, in
Landlord's
opinion, tends to impair the reputation of the Project or its desirability
as a
retail and professional
complex, and upon written notice from Landlord any Tenant shall refrain from
or
discontinue
such advertising.
12. Between
the hours of 10:00 pm and 8:00 am. Landlord reserves the right to exclude from
the
Project all persons who have not received clearance as a result of a written
request fromTenant
Landlord shall in no case be liable for damages for any error with regard to
the
admission
to or exclusion from the Project of any person. In case of a mob riot, public
excitement
or other circumstances rendering such action advisable in Landlord's opinion.
Landlord
reserves the right to prevent access to
the
Project, for the safety of all Tenants and the
protection
of the Project.
13. Any
persons employed by any Tenant to do maintenance work shall while in the Project
and
outside of the Premises, be subject to and under the control and direction
of the superintendent
of the Project (but not as an agent or servant of the superintendent or of
Landlord),
and Tenant shall be responsible for all acts of such persons. No such person
shall be allowed
in the Project after regular hours.
14. All
doors
opening onto public corridors shall be kept closed except when in use
for
ingress
and egress.
15. The
requirements of Tenant, will be amended to only upon application to the Project
office.
16. Canvassing,
soliciting and peddling in the Project are prohibited, and each Tenant shall
cooperate
to prevent the same.
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34
17.
All
office equipment of any electrical or mechanical nature shall be placed by
Tenant in the
Premises in settings approved by Landlord, to absorb or prevent any vibration,
noise or annoyance.
18.
No
air-conditioning unit or other similar apparatus shall be installed or used
by
any Tenant without the written consent of Landlord.
19.
There
shall not be used in any space, or in the public halls, either by any Tenant
or
others, any
hand
trucks except those equipped with rubber tires and rubber side
guards.
20.
Landlord shall have the right exercisable without notice or without liability
to
any Tenant
to
change the name and address of the Project.
21.
No
vending machine or machines of any description shall be installed, maintained
oroperated
upon the Premises without written consent of Landlord.
22.
The
scheduling of moves of Tenant's furniture and equipment in or out of the Project
is subject
to the reasonable discretion of Landlord.
23.
Landlord reserves the right to
amend
or
change these Rules and Regulations to the extent necessary
as conditions may change or circumstances arise at the Project and all Tenants
shall be
bound
thereby.
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35
EXHIBIT
D
Landlord
and Tenants Work
At
Landlords cost, Landlord shall provide new paint, new carpet, and remove
cabinetry.
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36
EXHIBIT
"E"
Fair
Market Rent Determination
(a) |
Not
later than one hundred (100) days prior to any applicable Extension
Term,
Landlord and
Tenant shall meet in an effort to negotiate, in good faith, the fair
market rent of the Property
as of such Extension Term. However, in no event will the new rate
be less
than the
last month of the last year of the initial term. If Landlord and
Tenant
have not agreed upon the fair market rent of the Property at least
ninety
(90) days prior to the applicable Extension
Term, the fair market rent shall be determined by appraisal, by one
or
more appraisers
or brokers (herein called "Appraiser(s)"), as provided in Section
5(b),
below. If appraiser(s)
are used, such appraiser(s) shall have at least five (5) years' experience
in the
appraisal of commercial/industrial real property in the area in which
the
Property is located
and shall be members of professional organizations such as MAI or
equivalent. If broker(s)
are used, such brokers) shall have at least five (5) years' experience
in
the sales
and leasing of commercial/industrial real property in the area in
which
the Property is
located and shall be members of professional organizations such as
the
Society of Industrial
and Office Realtors or equivalent.
|
(b) |
If
Landlord and Tenant are not able to agree upon the fair market rent
of the
Property within the prescribed time period, then Landlord and Tenant
shall
attempt to agree in good
faith upon a single Appraiser not later than seventy-five (75) days
prior
to the applicable
Extension Term. If Landlord and Tenant are unable to agree upon a
single
Appraiser
within such time period, then Landlord and Tenant shall each appoint
one
Appraiser
not later than sixty-five (65) days prior to the applicable Extension
Term. Within ten
(10) days thereafter, the two (2) appointed Appraisers shall appoint
a
third (3rd) Appraiser.
If either Landlord or Tenant fails to appoint its Appraiser within
the
prescribed time
period, the single Appraiser appointed shall determine the fair market
rent of the Property.
If both parties fail to appoint Appraisers within the prescribed
time
periods, then the first Appraiser thereafter selected by a party
shall
determine the fair market rent of the Property.
Each party shall bear the cost of its own Appraiser and the parties
shall
share equally
the cost of the single or third Appraiser, if
applicable.
|
(c) |
For
the purposes of such appraisal, the term "fair market rent" shall
mean the
price that a ready
and willing tenant would pay, as of the applicable Extension Term,
as
monthly rent to
a ready and willing landlord of property comparable to the Property
if
such property were exposed for lease on the open market for a reasonable
period of time and taking into
account all of the purposes for which such property may be used.
If a
single Appraiser
is chosen, then such Appraiser shall determine the fair market rent
of the
Property,
Otherwise, the fair market rent of the Property shall be the arithmetic
average of
the two (2) of the three (3) appraisals which are closest in amount,
and
the third appraisal
shall be disregarded. In no event, however, shall the Base Rent be
reduced
by reason
of such computation. Landlord and Tenant shall instruct the Appraiser(s)
to complete
the determination of the fair market rent not later than thirty (30)
days
prior to the
applicable Extension Term. If the fair market rent is not determined
prior
to the applicable
Extension Term, than Tenant shall continue to pay to Landlord the
Base
Rent applicable
to the Property immediately prior to such Extension, until the fair
market
rent is determined.
When the fair market rent of the Property is determined, Landlord
shall
deliver
notice thereof to Tenant, and Tenant shall pay to Landlord, within
ten
(10) days after
receipt of such notice, the difference between the Base Rent actually
paid
by Tenant to Landlord and the new Base Rent determined
hereunder.
|
Landlord
Tenant ![tenant](https://www.sec.gov/Archives/edgar/data/1176193/000114420406036343/tenant.jpg)
![landlord](https://www.sec.gov/Archives/edgar/data/1176193/000114420406036343/landlord.jpg)
![tenant](https://www.sec.gov/Archives/edgar/data/1176193/000114420406036343/tenant.jpg)
37