STANDARD INDUSTRIAL LEASE --- MULTI-TENANT
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. PARTIES. This Lease, dated, for reference purposes only, OCTOBER 14,
1992, is made by and between YAGEO USA (herein called "Lessor") and LJL
BIOSYSTEMS, INC. (herein called "Lessee").
2. PREMISES, PARKING AND COMMON AREAS.
2.1 PREMISES. Lessor hereby leases to Lessee and Lessee leases from
Lessor for the term, at the rental, and upon all of the conditions set forth
herein, real property situated in the County of Santa Xxxxx, State of
California commonly known as 000 XXXXXX XXXXX, XXXXXXXXX and described as
APPROXIMATELY 14,130 SQUARE FEET, THE MOST WESTERLY PORTION OF A SINGLE STORY
25,000 SF BUILDING, herein referred to as the "Premises", as may be outlined
on an Exhibit attached hereto, including rights to the Common Areas as
hereinafter specified but not including any rights to the roof on the
Premises or to any building in the Industrial Center. The Premises are a
portion of a building, herein referred to as the "Building". The Premises,
the Building, the Common Areas, the land upon which the same are located,
along with all other buildings and improvements thereon, are herein
collectively referred to as the "Industrial Center".
2.2 VEHICLE PARKING. Lessee shall be entitled to 56 vehicle parking
spaces, unreserved and unassigned, on those portions of the Common Areas
designated by Lessor for parking. Lessee shall not use more parking spaces
than said number. Said parking spaces shall be used only for parking by
vehicles no larger than full size passenger automobiles or pick-up trucks,
herein called "Permitted Size Vehicles". Vehicles other than Permitted Size
Vehicles are herein referred to as "Oversized Vehicles."
2.2.1 Lessee shall not permit or allow any vehicles that belong
to or are controlled by Lessee or Lessee's employees, suppliers, shippers,
customers or invitees to be loaded, unloaded, or parked in areas other than
those designated by Lessor for such activities.
2.2.2 If Lessee permits or allows any of the prohibited
activities described in paragraph 2.2 of this Lease, than Lessor shall have
the right, without notice, in addition to such other rights and remedies that
it may have, to remove or tow away the vehicle involved and charge the cost
to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.3 COMMON AREAS -- DEFINITION. The term "Common Areas" is defined as
all areas and facilities outside the Premises and within the exterior
boundary line of the Industrial Center that are provided and designated by
the Lessor from time to time for the general and non-exclusive use of Lessor,
Lessee and of other lessees of the Industrial Center and their respective
employees, suppliers, shippers, customers and invitees, including parking
areas, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, driveways and landscaped areas.
2.4 COMMON AREAS -- LESSEE'S RIGHTS. Lessor hereby grants to Lessee,
for the benefit of Lessee and its employees, suppliers, shippers, customers
and invitees during the term of this Lease, the non-exclusive right to use,
in common with others entitled to such use, the Common Areas as they exist
from time to time, subject to any rights, powers, and privileges reserved by
Lessor under the terms hereof or under the terms of any rules and regulations
or restrictions governing the use of the Industrial Center. Under no
circumstances shall the right herein granted to use the Common Areas be
deemed to include the right to store any property, temporarily or
permanently, in the Common Areas. Any such storage shall be permitted only by
the prior written consent of Lessor's or Lessor's designated agent, which
consent may be revoked at any time. In the event that any unauthorized
storage shall occur then Lessor shall have the right, without notice, in
addition to such other rights and remedies that it may have, to remove the
property and charge the cost to Lessee, which cost shall be immediately
payable upon demand by Lessor.
2.5 COMMON AREAS -- RULES AND REGULATIONS. Lessor or such other
person(s) as Lessor may appoint shall have the exclusive control and
management of the Common Areas and shall have the right, from time to time,
to establish, modify, amend and enforce reasonable rules and regulations with
respect thereto. Lessee agrees to abide by and conform to all such rules and
regulations, and to cause its employees, suppliers, shippers, customers and
invitees to so abide and conform. Lessor shall not be responsible to Lessee
for the non-compliance with said rules and regulations by other lessees of
the Industrial Center.
2.6 COMMON AREAS -- CHANGES. Lessor shall have the right, in Lessor's
sole discretion, from time to time
(a) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of driveways,
entrances, parking spaces, parking areas, loading and unloading areas,
ingress, egress, direction of traffic, landscaped areas and walkways, (b) To
close temporarily any of the Common Areas for maintenance purposes so long as
reasonable access to the Premises remains available, (c) To designate other
land outside the boundaries of the Industrial Center to be a part of the
Common Areas, (d) To add additional buildings and improvements to the Common
Areas, (e) To use the Common Areas while engaged in making additional
improvements, repairs, or alterations to the Industrial Center, or any
portion thereof, (f) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and Industrial Center, as
Lessor may, in the exercise of sound business judgment, deem to be
appropriate.
2.6.1 Lessor shall at all times provide the parking facilities
required by applicable law and in no event shall the number of parking spaces
that Lessee is entitled to under paragraph 2.2 be reduced.
3. TERM.
3.1 TERM. The term of this Lease shall be for (2) TWO YEARS commencing
on JANUARY 1, 1993 and ending on DECEMBER 31, 1994 unless sooner terminated
pursuant to any provision hereof.
3.2 DELAY IN POSSESSION. Notwithstanding said commencement date, if for
any reason Lessor cannot deliver possession of the Premises to Lessee, on
said date, Lessor shall not be subject to any liability therefor nor shall
such failure affect the validity of this Lease or the obligations of Lessee
hereunder or extend the term hereof, but in such case, Lessee shall not be
obligated to pay rent or perform any other obligation of Lessee under the
terms of this Lease, except as may be otherwise provided in this Lease, until
possession of the Premises is tendered to Lessee, provided however, that if
Lessor shall not have delivered possession of the Premises within sixty (60)
days from said commencement date, Lessee may, at Lessee's option, by notice
in writing to Lessor within ten (10) days thereafter, cancel this Lease, in
which event the parties shall be discharged from all obligations hereunder,
provided further, however, that if such written notice of Lessee is not
received by Lessor within said ten (10) day period, Lessee's right to cancel
this Lease hereunder shall terminate and be of no further force or effect.
3.3 EARLY POSSESSION. If Lessee occupies the Premises prior to said
commencement date, such occupancy shall be subject to all provisions of this
Lease except for the payment of base rent, such occupancy shall not advance
the termination date.
4. RENT.
4.1 BASE RENT. Lessee shall pay to Lessor, as Base Rent for the
Premises, without any offset or deduction, except as may be otherwise
expressly provided in this Lease, on the 1ST day of each month of the term
hereof, monthly payments in advance of $7,065.00 SEVEN THOUSAND SIXTY-FIVE
AND NO/100 DOLLARS.
Lessee shall pay Lessor upon execution hereof $7,065.00 as Base Rent for
JANUARY 1993. Rent for any period during the term hereof which is for less
than one month shall be a pro rata portion of the Base Rent. Rent shall be
payable in lawful money of the United States to Lessor at the address stated
herein or to such other persons or at such other places as Lessor may
designate in writing.
4.2 OPERATING EXPENSES. Lessee shall pay to Lessor during the term
hereof, in addition to the Base Rent, Lessee's Share, as hereinafter defined,
of all Operating Expenses, as hereinafter defined, during each calendar year
of the term of this Lease, in accordance with the following provisions:
(a) "Lessee's Share" is defined, for purposes of this Lease, as 56%
percent.
(b) "Operating Expenses" is defined, for purposes of this Lease, as all
costs incurred by Lessor, if any, for:
(i) The operation, repair and maintenance, in neat, clean, good
order and condition of the following:
(aa) The Common Areas, including parking areas, loading and
unloading areas, trash areas, roadways, sidewalks, walkways, parkways,
driveways, landscaped areas, striping, bumpers, irrigation systems, Common Area
lighting facilities and fences and gates.
(bb) Trash disposal services.
(cc) Tenant directories.
(dd) Fire detection systems including sprinkler system
maintenance and repair.
(ee) Security services.
(ff) Any other service to be provided by Lessor that is
elsewhere in this Lease stated to be an "Operating Expense."
(ii) Any deductible portion of an insured loss concerning any of the
items or matters described in this paragraph 4.2:
(iii) The cost of the premiums for the liability and property
insurance policies to be maintained by Lessor under paragraph 8 hereof:
(iv) The amount of the real property tax to be paid by Lessor under
paragraph 10.1 hereof:
(v) The cost of water, gas and electricity to service the Common
Areas.
(c) The inclusion of the improvements, facilities and services set
forth in paragraph 4.2(b)(i) of the definition of Operating Expenses shall
not be deemed to impose an obligation upon Lessor to either have said
improvements or facilities or to provide those services unless the Industrial
Center already has the same, Lessor already provides the services, or Lessor
has agreed elsewhere in this Lease to provide the same or some of them.
(d) Lessee's Share of Operating Expenses shall be payable by Lessee
within ten (10) days after a reasonably detailed statement of actual expenses
is presented to Lessee by Lessor. At Lessor's option, however, an amount may
be estimated by Lessor from time to time of Lessee's Share of annual
Operating Expenses and the same shall be payable monthly or quarterly, as
Lessor shall designate, during each twelve-month period of the Lease term, on
the same day as the Base Rent is due hereunder. In the event that Lessee
pays Lessor's estimate of Lessee's Share of Operating Expenses as aforesaid,
Lessor shall deliver to Lessee within sixty (60) days after the expiration of
each calendar year a reasonably detailed statement showing Lessee's Share of
the actual Operating Expenses incurred during the preceding year. If
Lessee's payments under this paragraph 4.2(d) during said preceding year
exceed Lessee's Share as indicated on said statement, Lessee shall be
entitled to credit the amount of such overpayment against Lessee's Share of
Operating Expenses next falling due. If Lessee's payments under this
paragraph during said preceding year were less than Lessee's Share as
indicated on said statement, Lessee shall pay to Lessor the amount of the
deficiency within ten (10) days after delivery by Lessor to Lessee of said
statement.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution
hereof $7,065.00 as security for Lessee's faithful performance of Lessee's
obligation hereunder. If Lessee fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this Lease,
Lessor may use, apply or retain all or any portion of said deposit for the
payment of any rent or other charge in default or for the payment of any
other sum to which Lessor may become obligated by reason of Lessee's default,
or to compensate Lessor for any loss or damages which Lessor may suffer
thereby. If Lessor so uses or applies all or any portion of said deposit,
Lessee shall within ten (10) days after written demand therefor deposit cash
with Lessor in an amount sufficient to restore said deposit to the full
amount then required of Lessee. If the monthly rent shall, from time to
time, increase during the term of this Lease, Lessee shall, at time of such
increase, deposit with Lessor additional money as a security deposit so that
the total amount of the security deposit held by Lessor shall at all times
bear the same proportion to the then current Base Rent as the initial
security deposit bears to the initial Base Rent set forth in paragraph 4.
Lessor shall not be required to keep said security deposit separate from its
general accounts. If Lessee performs all of Lessee's obligations hereunder,
said deposit, or so much thereof as has not theretofore been applied by
Lessor, shall be returned, without payment of interest or other increment for
its use, to Lessee (or, at Lessor's option, to the last assignee, if any, of
Lessee's interest hereunder) at the expiration of the term hereof, and after
Lessee has vacated the Premises. No trust relationship is created herein
between Lessor and Lessee with respect to said Security Deposit.
6. USE.
6.1 USE. The Premises shall be used and occupied only for general
office, R&D/light manufacturing, and storage and distribution of diagnostic
instruments, or any other use which is reasonably comparable and for no other
purpose.
6.2 COMPLIANCE WITH LAW.
(a) Lessor warrants to Lessee that the Premises, in the state
existing on the date that the Lease term commences, but without regard to the
use for which Lessee will occupy the Premises, does not violate any covenants
or restrictions of record, or any applicable building code, regulation or
ordinance in effect on such Lease term commencement date. In the event it is
determined that this warranty has been violated, then it shall be the
obligation of the Lessor, after written notice from Lessee, to promptly, at
Lessor's sole cost and expense, rectify any such violation. In the event
Lessee does not give to Lessor written notice of the violation of this
warranty within six months from the date that the Lease term commences, the
correction of same shall be the obligation of the Lessee at Lessee's sole
cost. The warranty contained in this paragraph 6.2(a) shall be of no force or
effect if, prior to the date of this Lease, Lessee was an owner or occupant
of the Premises and, in such event, Lessee shall correct any such violation
at Lessee's sole cost.
(b) Except as provided in paragraph 6.2(a) Lessee shall, at
Lessee's expense, promptly comply with all applicable statutes, ordinances,
rules, regulations, orders, covenants and restrictions of record, and
requirements of any fire insurance underwriters or rating bureaus, now in
effect or which may hereafter come into effect, whether or not they reflect a
change in policy from that now existing, during the term or any part of the
term hereof, relating in any manner to the Premises and the occupation and
use by Lessee of the Premises and of the Common Areas. Lessee shall not use
nor permit the use of the Premises of the Common Areas in any manner that
will tend to create waste or a nuisance or shall tend to disturb other
occupants of the Industrial Center.
6.3 CONDITION OF PREMISES.
(a) Lessor shall deliver the Premises to Lessee clean and free of
debris on the Lease commencement date (unless Lessee is already in
possession) and Lessor warrants to Lessee that the plumbing, lighting, air
conditioning, heating, and loading doors in the Premises shall be in good
operating condition on the Lease commencement date. In the event that it is
determined that this warranty has been violated, then it shall be the
obligation of Lessor, after receipt of written notice from Lessee setting
forth with specificity the nature of the violation, to promptly, at Lessor's
sole cost, rectify such violation. Lessee's failure to give such written
notice to Lessor within thirty (30) days after the Lease commencement date
shall cause the conclusive presumption that Lessor has complied with all of
Lessor's obligations hereunder. The warranty contained in this paragraph
6.3(a) shall be of no force or effect if prior to the date of this Lease,
Lessee was an owner or occupant of the Premises.
(b) Except as otherwise provided in this Lease, Lessee hereby
accepts the Premises in their condition existing as of the Lease commencement
date or the date that Lessee takes possession of the Premises, whichever is
earlier, subject to all applicable zoning, municipal, county and state laws,
ordinances and regulations governing and regulating the use of the Premises,
and any covenants or restrictions of record, and accepts this Lease subject
thereto and to all matters disclosed thereby and by any exhibits attached
hereto. Lessee acknowledges that neither Lessor nor Lessor's agent has made
any representation or warranty as to the present or future suitability of the
Premises for the conduct of Lessee's business.
7. MAINTENANCE, REPAIRS, ALTERATIONS AND COMMON AREA SERVICES.
7.1 LESSOR'S OBLIGATIONS. Subject to the provisions of paragraphs 4.2
(Operating Expenses), 6 (Use), 7.2 (Lessee's Obligations) and 9 (Damage or
Destruction) and except for damage caused by any negligent or intentional act
or omission of Lessee, Lessee's employees, suppliers, shippers, customers, or
invitees, in which event Lessee shall repair the damage. Lessor, at Lessor's
expense, subject to reimbursement pursuant to paragraph 4.2, shall keep in
good condition and repair the foundations, exterior walls, structural
condition of interior bearing walls, and roof of the Premises, as well as the
parking lots, walkways, driveways, landscaping, fences, signs, and utility
installations of the Common Areas and all parts thereof, as well as providing
the services for which there is an Operating Expense pursuant to paragraph
4.2. Lessor shall not, however, be obligated to paint the exterior or
interior surface of exterior walls, nor shall Lessor be required to maintain,
repair or replace windows, doors, or plate glass of the Premises. Lessor
shall have no obligation to make repairs under this paragraph 7.1 until a
reasonable time after receipt of written notice from Lessee of the need of
such repairs. Lessee expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford Lessee the right to make
repairs at Lessor's expense or to terminate this Lease because of Lessor's
failure to keep the Premises in good order, condition and repair. Lessor
shall not be liable for damages or loss of any kind or nature by reason of
Lessor's failure to furnish any Common Area Services when such failure is
caused by accident, breakage, repairs, strikes, lockout, or other labor
disturbances or disputes of any character, or by any other cause beyond the
reasonable control of Lessor.
7.2 LESSEE'S OBLIGATIONS.
(a) Subject to the provisions of paragraphs 6 (Use), 7.1 (Lessor's
Obligations), and 9 (Damage or Destruction), Lessee, at Lessee's expense,
shall keep in good order, condition and repair the Premises and every part
thereof (whether or not the damaged portion of the Premises or the means of
repairing the same are reasonably or readily accessible to Lessee) including,
without limiting the generality of the foregoing, all plumbing, *(Lessee
shall procure and maintain, at Lessee's expense, a ventilating and air
conditioning system maintenance contract), electrical and lighting facilities
and equipment within the Premises, fixtures, interior walls and interior
surfaces of exterior walls, ceilings, windows, doors, plate glass, and
skylights located within the Premises. Lessor reserves the right to procure
and maintain the ventilating and air conditioning system maintenance contract
and if Lessor so elects, Lessee shall reimburse Lessor, upon demand, for the
cost thereof. *SEE ADDENDUM
(b) If Lessee fails to perform Lessee's obligations under this
paragraph 7.2 or under any other paragraph of this Lease, Lessor may enter
upon the Premises after ten (10) days prior written notice to Lessee (except
in the case of emergency, in which no notice shall be required), perform such
obligations on Lessee's behalf and put the Premises in good order, condition
and repair, and the cost thereof together with interest thereon at the
maximum rate then allowable by law shall be due and payable as additional
rent to Lessor together with Lessee's next Base Rent installment.
(c) On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same
condition as received, ordinary wear and tear excepted, clean and free of
debris. Any damage or deterioration of the Premises shall not be deemed
ordinary wear and tear if the same could have been prevented by good
maintenance practices. Lessee shall repair any damage to the Premises
occasioned by the installation or removal of Lessee's trade fixtures,
alterations, furnishings and equipment. Notwithstanding anything to the
contrary otherwise stated in this Lease, Lessee shall leave the air lines,
power panels, electrical distribution systems, lighting fixtures, space
heaters, air conditioning, plumbing and fencing on the Premises in good
operating condition.
7.3 ALTERATIONS AND ADDITIONS.
(a) Lessee shall not, without Lessor's prior written consent make
any alterations, improvements, additions, or Utility Installations in, on or
about the Premises, or the Industrial Center, except for nonstructural
alterations to the Premises not exceeding $2,500 in cumulative costs during
the term of this Lease. In any event, whether or not in excess of $2,500 in
cumulative costs, Lessee shall make no change or alterations to the exterior
of the Premises nor the exterior of the Building nor the Industrial Center
without Lessor's prior written consent. As used in this paragraph 7.3 the
term "Utility Installation" shall mean carpeting, window coverings, air
lines, power panels, electrical distribution systems, lighting fixtures,
space heaters, air conditioning, plumbing, and fencing. Lessor may require
that Lessee remove any or all of said alterations, improvements, additions or
Utility Installations at the expiration of the term, and restore the Premises
and the Industrial Center to their prior condition. Lessor may require
Lessee to provide Lessor, at Lessee's sole cost and expense, a lien and
completion bond in an amount equal to one and one-half times the estimated
cost of such improvements, to insure Lessor against any liability for
mechanic's and materialmen's liens and to insure completion of the work.
Should Lessee make any alterations, improvements, additions or Utility
Installations without the prior approval of Lessor, Lessor may, at any time
during the term of this Lease, require that Lessee remove any or all of the
same.
(b) Any alterations, improvements, additions or Utility
Installations in or about the Premises or the Industrial Center that Lessee
shall desire to make and which requires the consent of the Lessor shall be
presented to Lessor in written form, with proposed detailed plans. If Lessor
shall give its consent, the consent shall be deemed conditioned upon Lessee
acquiring a permit to do so from appropriate governmental agencies, the
furnishing of a copy thereof to Lessor prior to the commencement of the work
and the compliance by Lessee of all conditions of said permit in a prompt and
expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises, or the Industrial Center, or any
interest therein. Lessee shall give Lessor not less than ten (10) days
notice prior to the commencement of any work in the Premises, and Lessor
shall have the right to post notices of non-responsibility in or on the
Premises or the Building as provided by law. If Lessee shall, in good faith,
contest the validity of any such lien, claim or demand, then Lessee shall, at
its sole expense defend itself and Lessor against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before the
enforcement thereof against the Lessor or the Premises or the Industrial
Center, upon the condition that if Lessor shall require, Lessee shall
furnish to Lessor a surety bond satisfactory to Lessor in an amount equal to
such contested lien claim or demand indemnifying Lessor against liability for
the same and holding the Premises and the Industrial Center free from the
effect of such lien or claim. In addition, Lessor may require Lessee to pay
Lessor's attorneys fees and costs in participating in such action if Lessor
shall decide it is to Lessor's best interest to do so.
(d) All alterations, improvements, additions and Utility
Installations (whether or not such Utility Installations constitute trade
fixtures of Lessee), which may be made on the Premises, shall be the property
of Lessor and shall remain upon and be surrendered with the Premises at the
expiration of the Lease term, unless Lessor requires their removal pursuant
to paragraph 7.3(a). Notwithstanding the provisions of this paragraph
7.3(d), Lessee's machinery and equipment, other than that which is affixed to
the Premises so that it cannot be removed without material damage to the
Premises and other than Utility Installations, shall remain the property of
Lessee and may be removed by Lessee subject to the provisions of paragraph
7.2.
7.4 UTILITY ADDITIONS. Lessor reserves the right to install new or
additional utility facilities throughout the Building and the Common Areas
for the benefit of Lessor or Lessee, or any other lessee of the Industrial
Center, including but not by way of limitation, such utilities as plumbing,
electrical systems, security systems, communication systems, and fire
protection and detection systems, so long as such installations do not
unreasonably interfere with Lessee's use of the Premises.
8. INSURANCE INDEMNITY.
8.1 LIABILITY INSURANCE -- LESSEE. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease a policy of Combined
Single Limit Bodily Injury and Property Damage insurance insuring Lessee and
Lessor against any liability arising out of the use, occupancy or maintenance
of the Premises and the Industrial Center. Such insurance shall be in an
amount not less that $500,000.00 per occurrence. The policy shall insure
performance by Lessee of the indemnity provisions of this paragraph 8. The
limit of said insurance shall not, however, limit the liability of Lessee
hereunder.
8.2 LIABILITY INSURANCE -- LESSOR. Lessor shall obtain and keep in
force during the term of this Lease a policy of Combined Single Limit Bodily
Injury and Property Damage Insurance, insuring Lessor, but not Lessee, against
any liability arising out of the ownership, use, occupancy or maintenance of
the Industrial Center in an amount not less than $500,000.00 per occurrence.
8.3 PROPERTY INSURANCE. Lessor shall obtain and keep in force during
the term of this Lease a policy or policies of insurance covering loss or
damage to the Industrial Center improvements, but not Lessee's personal
property, fixtures, equipment or tenant improvements, in an amount not to
exceed the full replacement value thereof, as the same may exist from time to
time, providing protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
flood (in the event same is required by a lender having a lien on the
Premises) special extended perils ("all risk", as such term is used in the
insurance industry), plate glass insurance and such other insurance as Lessor
deems advisable. In addition, Lessor shall obtain and keep in force, during
the term of this Lease, a policy of rental value insurance covering a period
of one year, with loss payable to Lessor, which insurance shall also cover
all Operating Expenses for said period. In the event that the Premises shall
suffer an insured loss as defined in paragraph 9.1(g) hereof, the deductible
amounts under the casualty insurance policies relating to the Premises shall
be paid by Lessee.
8.4 PAYMENT OF PREMIUM INCREASE.
(a) After the term of this Lease has commenced, Lessee shall not
be responsible for paying Lessee's Share of any increase in the property
insurance premium for the Industrial Center specified by Lessor's insurance
carrier as being caused by the use, acts or omissions of any other lessee of
the Industrial Center, or by the nature of such other lessee's occupancy
which create an extraordinary or unusual risk.
(b) Lessee, however, shall pay the entirety of any increase in the
property insurance premium for the Industrial Center over what it was
immediately prior to the commencement of the term of this Lease if the
increase is specified by Lessor's insurance carrier as being caused by the
nature of Lessee's occupancy or any act or omission of Lessee.
8.5 INSURANCE POLICIES. Insurance required hereunder shall be in
companies holding a "General Policyholders Rating" of at least B plus, or such
other rating as may be required by a lender having a lien on the Premises, as
set forth in the most current issue of "Best's Insurance Guide." Lessee
shall not do or permit to be done anything which shall invalidate the
insurance policies carried by Lessor. Lessee shall deliver to Lessor copies
of liability insurance policies required under paragraph 8.1 or certificates
evidencing the existence and amounts of such insurance within seven (7) days
after the commencement date of this Lease. No such policy shall be
cancellable or subject to reduction of coverage or other modification except
after thirty (30) days prior written notice to Lessor. Lessee shall, at
least thirty (30) days prior to the expiration of such policies, furnish
Lessor with renewals or "binders" thereof.
8.6 WAIVER OF SUBROGATION. Lessee and Lessor each hereby release and
relieve the other. and waive their entire right of recovery against the other
for loss or damage arising out of or incident to the perils insured against
which perils occur in on or about the Premises, whether due to the negligence
of Lessor or Lessee or their agents, employees, contractors and/or invitees.
Lessee and Lessor shall, upon obtaining the policies of insurance required
give notice to the insurance carrier or carriers that the foregoing mutual
waiver of subrogation is contained in this Lease.
8.7 INDEMNITY. Lessee shall indemnify and hold harmless Lessor from
and against any and all claims arising from Lessee's use of the Industrial
Center or from the conduct of Lessee's business or from any activity, work or
things done, permitted or suffered by Lessee in or about the Premises or
elsewhere and shall further indemnify and hold harmless Lessor from and
against any and all claims arising from any breach or default in the
performance of any obligation on Lessee's part to be performed under the
terms of this Lease, or arising from any act or omission of Lessee or any of
Lessee's agents, contractors, or employees, and from and against all costs,
attorney's fees, expenses and liabilities incurred in the defense of any such
claim or any action or proceeding brought thereon, and in case any action or
proceeding be brought against Lessor by reason of any such claim. Lessee
upon notice from Lessor shall defend the same at Lessee's expense by counsel
reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in
such defense. Lessee, as a material part of the consideration to Lessor,
hereby assumes all risk of damage to property of Lessee or injury to persons,
in, upon or about the Industrial Center arising from any cause and Lessee
hereby waives all claims in respect thereof against Lessor.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees that
Lessor shall not be liable for injury to Lessee's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Lessee, Lessee's employees, invitees, customers, or any other
person in or about the Premises or the Industrial Center, nor shall Lessor be
liable for injury to the person of Lessee, Lessee's employees, agents or
contractors, whether such damage or injury is caused by or results from fire,
steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, or from any other cause,
whether said damage or injury results from conditions arising upon the
Premises or upon portions of the Industrial Center, or from other sources or
places and regardless of whether the cause of such damage or injury or the
means of repairing the same is inaccessible to Lessee. Lessor shall not be
liable for any damages arising from any act or neglect of any other lessee,
occupant or user of the Industrial Center, nor from the failure of Lessor to
enforce the provisions of any other lease of the Industrial Center.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "Premises Partial Damage" shall mean if the Premises are
damaged or destroyed to the extent that the cost of repair is less than fifty
percent of the then replacement cost of the Premises.
(b) "Premises Total Destruction" shall mean if the Premises are
damaged or destroyed to the extent that the cost of repair is fifty percent
or more of the then replacement cost of the Premises.
(c) "Premises Building Partial Damage" shall mean if the Building
of which the Premises are a part is damaged or destroyed to the extent that
the cost to repair is less than fifty percent of the then replacement cost of
the Building.
(d) "Premises Building Total Destruction" shall mean if the
Building of which the Premises are a part is damaged or destroyed to the
extent that the cost to repair is fifty percent or more of the then
replacement cost of the Building.
(e) "Industrial Center Buildings" shall mean all of the buildings
on the Industrial Center site.
(f) "Industrial Center Buildings Total Destruction" shall mean if
the Industrial Center Buildings are damaged or destroyed to the extent that
the cost of repair is fifty percent or more of the then replacement cost of
the Industrial Center Buildings.
(g) "Insured Loss" shall mean damage or destruction which was
covered by an event required to be covered by the insurance described in
paragraph 8. The fact that an Insured Loss has a deductible amount shall not
make the loss an uninsured loss.
(h) "Replacement Cost" shall mean the amount of money necessary to
be spent in order to repair or rebuild the damaged area to the condition that
existed immediately prior to the damage occurring excluding all improvements
made by lessees.
9.2 PREMISES PARTIAL DAMAGE; PREMISES BUILDING PARTIAL DAMAGE.
(a) Insured Loss. Subject to the provisions of paragraph 9.4 and
9.5 if at any time during the term of this Lease there is damage which is an
Insured Loss and which falls into the classification of either Premises
Partial Damage or Premises Building Partial Damage, then Lessor shall, at
Lessor's expense, repair such damage to the Premises, but not Lessee's
fixtures, equipment, or tenant improvements, as soon as reasonably possible
and this Lease shall continue in full force and effect.
(b) Uninsured Loss. Subject to the provisions of paragraphs 9.4
and 9.5, if at any time during the term of this Lease there is damage which
is not an Insured Loss and which falls within the classification of Premises
Partial Damage or Premises Building Partial Damage, unless caused by a
negligent or willful act of Lessee (in which event Lessee shall make the
repairs at Lessee's expense), which damage prevents Lessee from using the
Premises, Lessor may at Lessor's option either (i) repair such damage as soon
as reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Lessee
within thirty (30) days after the date of the occurrence of such damage of
Lessor's intention to cancel and terminate this Lease as of the date of the
occurrence of such damage. In the event Lessor elects to give such notice of
Lessor's intention to cancel and terminate this Lease, Lessee shall have the
right within ten (10) days after the receipt of such notice to give written
notice to Lessor of Lessee's intention to repair such damage at Lessee's
expense, without reimbursement from Lessor, in which event this Lease shall
continue in full force and effect, and Lessee shall proceed to make such
repairs as soon as reasonably possible. If Lessee does not give such notice
within such 10-day period this Lease shall be cancelled and terminated as of
the date of the occurrence of such damage.
9.3 PREMISES TOTAL DESTRUCTION; PREMISES BUILDING TOTAL DESTRUCTION;
INDUSTRIAL CENTER BUILDINGS TOTAL DESTRUCTION.
(a) Subject to the provisions of paragraphs 9.4 and 9.5, if at any
time during the term of this Lease there is damage, whether or not it is an
Insured Loss, and which falls into the classifications of either (i) Premises
Total Destruction, or (ii) Premises Building Total Destruction, or (iii)
Industrial Center Buildings Total Destruction, then Lessor may at Lessor's
option either (i) repair such damage or destruction, but not Lessee's
fixtures, equipment or tenant improvements as soon as reasonably possible at
Lessor's expense and this Lease shall continue in full force and effect or
(ii) give written notice to Lessee within thirty (30) days after the date of
occurrence of such damage of Lessor's intention to cancel and terminate this
Lease, in which case this Lease shall be cancelled and terminated as of the
date of the occurrence of such damage.
9.4 DAMAGE NEAR END OF TERM.
(a) Subject to paragraph 9.4(b), if at any time during the last
six months of the term of this Lease there is substantial damage, whether or
not an Insured Loss, which falls within the classification of Premises
Partial Damage, Lessor may at Lessor's option cancel and terminate this Lease
as of the date of occurrence of such damage by giving written notice to
Lessee of Lessor's election to do so within 30 days after the date of
occurrence of such damage.
(b) Notwithstanding paragraph 9.4(a), in the event that Lessee has
an option to extend or renew this Lease and the time within which said option
may be exercised has not yet expired, Lessee shall exercise such option, if
it is to be exercised at all, no later than twenty (20) days after the
occurrence of an Insured Loss falling within the classification of Premises
Partial Damage during the last six months of the term of this Lease if Lessee
duly exercises such option during said twenty (20) day period. Lessor shall,
at Lessor's expense, repair such damage, but not Lessee's fixtures,
equipment, or tenant improvements, as soon as reasonably possible and this
Lease shall continue in full force and effect. If Lessee fails to exercise
such option during said twenty (20) day period, then Lessor may at Lessor's
option terminate and cancel this Lease as of the expiration of said twenty
(20) day period by giving written notice to Lessee of Lessor's election to do
so within ten (10) days after the expiration of said twenty (20) day period,
notwithstanding any term or provision in the grant of option to the contrary.
9.5 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) In the event Lessor repairs or restores the Premises pursuant
to the provisions of this paragraph 9, the rent payable hereunder for the
period during which such damage, repair, or restoration continues shall be
abated in proportion to the degree to which Lessee's use of the Premises is
impaired. Except for abatement of rent, if any, Lessee shall have no claim
against Lessor for any damage suffered by reason of any such damage,
destruction, repair, or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this paragraph 9 and shall not commence such repair
or restoration within ninety (90) days after such obligation shall accrue,
Lessee may at Lessee's option cancel and terminate this Lease by giving
Lessor written notice of Lessee's election to do so at any time prior to the
commencement of such repair or restoration. In such event this Lease shall
terminate as of the date of such notice.
9.6 TERMINATION -- ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to this paragraph 9, an equitable adjustment shall be made
concerning advance rent and any advance payments made by Lessee to Lessor.
Lessor shall, in addition, return to Lessee so much of Lessee's security
deposit as has not theretofore been applied by Lessor.
9.7 WAIVER. Lessor and Lessee wave the provisions of any statute which
relate to termination of leases when leased property is destroyed and agree
that such event shall be governed by the terms of this Lease.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Lessor shall pay the real property tax. as
defined in paragraph 10 3. applicable to the Industrial Center subject to
reimbursement by Lessee of Lessee's Share of such taxes in accordance with
the provisions of paragraph 4 2. except as otherwise provided in paragraph
10.2.
10.2 ADDITIONAL IMPROVEMENTS. Lessee shall not be responsible for
paying Lessee's Share of any increase in real property tax specified in the
tax assessor's records and work sheets as being caused by additional
improvements placed upon the Industrial Center by other lessees or by Lessor
for the exclusive enjoyment of such other lessees. Lessee shall, however,
pay to Lessor at the time that Operating Expenses are payable under paragraph
4.2(c) the entirety of any increase in real property tax if assessed solely
by reason of additional improvements placed upon the Premises by Lessee or at
Lessee's request.
10.3 DEFINITION OF "REAL PROPERTY TAX". As used herein, the term "real
property tax" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax , improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes), imposed on the Industrial Center or any
portion thereof by any authority having the direct or indirect power to tax,
including any city, county, state or federal government, or any school,
agricultural , sanitary, fire, street, drainage or other improvement district
thereof, as against any legal or equitable interest of Lessor in the
Industrial Center or in any portion thereof, as against Lessor's right to
rent or other income therefrom, and as against Lessor's business of leasing
the Industrial Center. The term "real property tax" shall also include any
tax, fee, levy, assessment, or charge (i) in substitution of, partially or
totally, any tax, fee, levy, assessment or charge hereinabove included within
the definition of "real property tax", or (ii) the nature of which was
hereinbefore included within the definition of "real property tax", or (iii)
which is imposed for a service or right not charged prior to June 1, 1978,
or, if previously charged, has been increased since June 1, 1978, or (iv)
which is imposed as a result of a transfer, either partial or total, of
Lessor's interest in the Industrial Center or which is added to a tax or
charge hereinbefore included within the definition of real property tax by
reason of such transfer, or (v) which is imposed by reason of this
transaction, any modifications or changes hereto, or any transfers hereof.
10.4 JOINT ASSESSMENT. If the Industrial Center is not separately
assessed, Lessee's Share of the real property tax liability shall be an
equitable proportion of the real property taxes for all of the land and
improvements included within the tax parcel assessed, such proportion to be
determined by Lessor from the respective valuations assigned in the
assessor's work sheets or such other information as may be reasonably
available Lessor's reasonable determination thereof, in good faith, shall be
conclusive.
10.5 PERSONAL PROPERTY TAX.
(a) Lessee shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises or elsewhere. When
possible, Lessee shall cause said trade fixtures, furnishings, equipment and
all other personal property to be assessed and billed separately from the
real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed
with Lessor's real property, Lessee shall pay to Lessor the taxes
attributable to Lessee within ten (10) days after receipt of a written
statement setting forth the taxes applicable to Lessee's property.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light,
power, telephone and other utilities and services supplied to the Premises,
together with any taxes thereon. If any such services are not separately
metered to the Premises, Lessee shall pay at Lessor's option, either Lessee's
Share or a reasonable proportion to be determined by Lessor of all charges
jointly metered with other premises in the Building.
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer
or encumber all or any part of Lessee's interest in the Lease or in the
Premises without Lessor's prior written consent, which Lessor shall not
unreasonably withhold. Lessor shall respond to Lessee's request for consent
hereunder in a timely manner and any attempted assignment, transfer,
mortgage, encumbrance or subletting without such consent shall be void, and
shall constitute a breach of this Lease without the need for notice to Lessee
under paragraph 13.1.
12.2 LESSEE AFFILIATE. Notwithstanding the provisions of
paragraph 12.1 hereof, Lessee may assign or sublet the Premises, or any
portion thereof, without Lessor's consent, to any corporation which controls,
is controlled by or is under common control with Lessee, or to any
corporation resulting from the merger or consolidation with Lessee, or to any
person or entity which acquires all the assets of Lessee as a going concern
of the business that is being conducted on the Premises, all of which are
referred to as "Lessee Affiliate", provided that before such assignment
shall be effective said assignee shall assume, in full, the obligations of
Lessee under this Lease. Any such assignment shall not, in any way, affect or
limit the liability of Lessee under the terms of this Lease even if after
such assignment or subletting the terms of this Lease are materially changed
or altered without the consent of Lessee, the consent of whom shall not be
necessary.
12.3 TERMS AND CONDITIONS OF ASSIGNMENT. Regardless of Lessor's
consent, no assignment shall release Lessee of Lessee's obligations hereunder
or after the primary liability of Lessee to pay the Base Rent and Lessee's
Share of Operating Expenses, and to perform all other obligations to be
performed by Lessee hereunder. Lessor may accept rent from any person other
than Lessee pending approval or disapproval of such assignment. Neither a
delay in the approval or disapproval of such assignment nor the acceptance of
rent shall constitute a waiver or estoppel of Lessor's right to exercise its
remedies for the breach of any of the terms or conditions of this paragraph
12 of this Lease Consent to one assignment shall not be deemed consent to any
subsequent assignment. In the event of default by any assignee of Lessee or
any successor of Lessee, in the performance of any of the terms hereof,
Lessor may proceed directly against Lessee without the necessity of
exhausting remedies against said assignee. Lessor may consent to subsequent
assignments of this Lease or amendments or modifications to this Lease with
assignees of Lessee, without notifying Lessee or any successor of Lessee, and
without obtaining its or their consent thereto and such action shall not
relieve Lessee of liability under this Lease.
12.4 TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. Regardless of
Lessor's consent, the following terms and conditions shall apply to any
subletting by Lessee of all or any part of the Premises and shall be included
in subleases:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease heretofore or
hereafter made by Lessee, and Lessor may collect such rent and income and
apply same toward Lessee's obligations under this Lease, provided, however,
that until a default shall occur in the performance of Lessee's obligations
under this Lease, Lessee may receive, collect and enjoy the rents accruing
under such sublease. Lessor shall not, by reason of this or any other
assignment of such sublease to Lessor nor by reason of the collection of
the rents from a sublessee, be deemed liable to the sublessee for any failure
of Lessee to perform and comply with any of Lessee's obligations to such
sublessee under such sublease. Lessee hereby irrevocably authorizes and
directs any such sublessee, upon receipt of a written notice from Lessor
stating that a default exists in the performance of Lessee's obligations
under this Lease, to pay Lessor the rents due and to become due under the
sublease. Lessee agrees that such sublessee shall have the right to rely
upon any such statement and request from Lessor, and that such sublessee
shall pay such rent to Lessor without any obligation or right to inquire as
to whether such default exists and notwithstanding any notice from or claim
from Lessee to the contrary. Lessee shall have no right or claim against
such sublessee or Lessor for any such rents so paid by said sublessee to
Lessor.
(b) No sublease entered into by Lessee shall be effective unless
and until it has been approved in writing by Lessor. In entering into any
sublease, Lessee shall use only such form of sublease as is satisfactory to
Lessor, and once approved by Lessor, such sublease shall not be changed or
modified without Lessor's prior written consent. Any sublessee shall, by
reason of entering into a sublease under this Lease, be deemed, for the
benefit of Lessor, to have assumed and agreed to conform and comply with each
and every obligation herein to be performed by Lessee other than such
obligations as are contrary to or inconsistent with provisions contained in a
sublease to which Lessor has expressly consented in writing.
(c) If Lessee's obligations under this Lease have been
guaranteed by third parties, then a sublease, and Lessor's consent
thereto, shall not be effective unless said guarantors give their
written consent to such sublease and the terms thereof.
(d) The consent by Lessor to any subletting shall not
release Lessee from its obligations or alter the primary liability of
Lessee to pay the rent and perform and comply with all of the
obligations of Lessee to be performed under this Lease.
(e) The consent by Lessor to any subletting shall not
constitute a consent to any subsequent subletting by Lessee or to any
assignment or subletting by the sublessee. However, Lessor may
consent to subsequent sublettings and assignments of the sublease or
any amendments or modifications thereto without notifying Lessee or
anyone else liable on the Lease or sublease and without obtaining
their consent and such action shall not relieve such persons from
liability.
(f) In the event of any default under this Lease, Lessor
may proceed directly against Lessee, and guarantors or any one else
responsible for the performance of this Lease, including the
sublessee, without first exhausting Lessor's remedies against any
other person or entity responsible therefor to Lessor, or any Security held
by Lessor or Lessee.
(g) In the event Lessee shall default in the performance
of its obligations under this Lease, Lessor, at its option and without
any obligation to do so, may require any sublessee to attorn to
Lessor, in which event Lessor shall undertake the obligations of
Lessee under such sublease from the time of the exercise of said
option to the termination of such sublease, provided, however, Lessor
shall not be liable for any prepaid rents or security deposit paid by
such sublessee to Lessee or for any other prior defaults of Lessee
under such sublease.
(h) Each and every consent required of Lessee under a
sublease shall also require the consent of Lessor.
(i) No sublessee shall further assign or sublet all or any
part of the Premises without Lessor's prior written consent.
(j) Lessor's written consent to any subletting of the Premises by
Lessee shall not constitute an acknowledgement that no default then exists
under this Lease of the obligations to be performed by Lessee nor shall such
consent be deemed a waiver of any then existing default, except as may be
otherwise stated by Lessor at the time.
(k) With respect to any subletting to which Lessor has consented,
Lessor agrees to deliver a copy of any notice of default by Lessee to the
sublessee. Such sublessee shall have the right to cure a default of Lessee
within ten (10) days after service of said notice of default upon such
sublessee, and the sublessee shall have a right of reimbursement and offset
from and against Lessee for any such defaults cured by the sublessee.
12.5 ATTORNEY'S FEES. In the event Lessee shall assign or
sublet the Premises or request the consent of Lessor to any
assignment or subletting or if Lessee shall request the consent of
Lessor for any act Lessee proposes to do then Lessee shall pay
Lessor's reasonable attorneys fees incurred in connection therewith,
such attorneys fees not to exceed $350.00 for each such request.
Initials
13. DEFAULT; REMEDIES.
13.1 DEFAULT. The occurrence of any one or more of the
following events shall constitute a material default of this Lease by
Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or
any other payment required to be made by Lessee hereunder, as and
when due, where such failure shall continue for a period of three (3)
days after written notice thereof from Lessor to Lessee. In the
event that Lessor serves Lessee with a Notice to Pay Rent or Quit
pursuant to applicable Unlawful Detainer statutes such Notice to Pay
Rent or Quit shall also constitute the notice required by this
subparagraph.
(c) Except as otherwise provided in this Lease, the
failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by
Lessee, other than described in paragraph (b) above, where such
failure shall continue for a period of thirty (30) days after written
notice thereof from Lessor to Lessee, provided, however, that if the
nature of Lessee's noncompliance is such that more than thirty (30)
days are reasonably required for its cure, then Lessee shall not be
deemed to be in default if Lessee commenced such cure within said
thirty (30) day period and thereafter diligently prosecutes such cure
to completion. To the extent permitted by law, such thirty (30) day
notice shall constitute the sole and exclusive notice required to be
given to Lessee under applicable Unlawful Detainer statutes.
(d) (i) The making by Lessee of any general arrangement
or general assignment for the benefit of creditors, (ii) Lessee
becomes a "debtor" as defined in 11 U.S.C. Section 101 or any successor
statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days), (iii) the
appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of
Lessee's interest in this Lease, where possession is not restored to
Lessee within thirty (30) days, or (iv) the attachment, execution, or
other judicial seizure of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where
such seizure is not discharged within thirty (30) days. In the event
that any provision of this paragraph 13.1(d) is contrary to any
applicable law, such provision shall be of no force or effect.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee, any assignee of Lessee, any subtenant of Lessee, any
successor in interest of Lessee or any guarantor of Lessee's obligation
hereunder, was materially false.
13.2 REMEDIES. In the event of any such material default by
Lessee, Lessor may at any time thereafter, with or without notice or
demand and without limiting Lessor in the exercise of any right or
remedy which Lessor may have by reason of such default:
(a) Terminate Lessee's right to possession of the Premises
by any lawful means, in which case this Lease and the term hereof
shall terminate and Lessee shall immediately surrender possession of
the Premises to Lessor. In such event Lessor shall be entitled to
recover from Lessee all damages incurred by Lessor by reason of
Lessee's default including, but not limited to, the cost of
recovering possession of the Premises, expenses of reletting,
including necessary renovation and alteration of the Premises,
reasonable attorney's fees, and any real estate commission actually
paid, the worth at the time of award by the court having jurisdiction
thereof of the amount by which the unpaid rent for the balance of the
term after the time of such award exceeds the amount of such rental
loss for the same period that Lessee proves could be reasonably
avoided, that portion of the leasing commission paid by Lessor
pursuant to paragraph 15 applicable to the unexpired term of this
Lease.
(b) Maintain Lessee's right to possession in which case
this Lease shall continue in effect whether or not Lessee shall have
vacated or abandoned the Premises. In such event Lessor shall be
entitled to enforce all of Lessor's rights and remedies under this
Lease, including the right to recover the rent as it becomes due
hereunder.
(c) Pursue any other remedy now or hereafter available to
Lessor under the laws or judicial decisions of the state wherein the
Premises are located. Unpaid installments of rent and other unpaid
monetary obligations of Lessee under the terms of this Lease shall
bear interest from the date due at the maximum rate then allowable by
law.
13.3 DEFAULT BY LESSOR. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, but
in no event later than thirty (30) days after written notice by Lessee to
Lessor 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
Lessee in writing, specifying wherein Lessor has failed to perform such
obligation, provided, however, that if the nature of Lessor's obligation is
such that more than thirty (30) days are required for performance then Lessor
shall not be in default if Lessor commences performance within such thirty
(30) day period and thereafter diligently prosecutes the same to completion.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee to Lessor of Base Rent, Lessee's Share of Operating Expenses or other
sums due hereunder will cause Lessor to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting
charges, and late charges which may be imposed on Lessor by the terms of any
mortgage or trust deed covering the Property. Accordingly, if any
installment of Base Rent Operating Expenses or any other sum due from Lessee
shall not be received by Lessor or Lessor's designee within ten (10) days
after such amount shall be due, then, without any requirement for notice to
Lessee, Lessee shall pay to Lessor a late charge equal to 6% of such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of late payment
by Lessee. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee's default with respect to such overdue amount,
nor prevent Lessor from exercising any of the other rights and remedies
granted hereunder. In the event that a late charge is payable hereunder,
whether or not collected, for three (3) consecutive installments of any of
the aforesaid monetary obligations of Lessee, then Base Rent shall
automatically become due and payable quarterly in advance, rather than
monthly, notwithstanding paragraph 4.1 or any other provision of this Lease
to the contrary.
14. CONDEMNATION. If the Premises or any portion thereof or the Industrial
Center are taken under the power of eminent domain, or sold under the threat
of the exercise of said power (all of which are herein called
"condemnation"), this Lease shall terminate as to the part so taken as the
date the condemning authority takes title or possession, whichever first
occurs. If more than ten percent of the floor area of the Premises, or more
than twenty-five percent of that portion of the Common Areas designated as
parking for the Industrial Center is taken by condemnation, Lessee may, at
Lessee's option, to be exercised in writing only within ten (10) days after
Lessor shall have given Lessee written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
shall have taken possession) terminate this Lease as of the date the
condemning authority takes such possession. If Lessee does not terminate
this Lease in accordance with the foregoing, this Lease shall remain in full
force and effect as to the portion of the premises remaining except that the
rent shall be reduced in the proportion that the floor area of the Premises
taken bears to the total floor area of the Premises. No reduction of rent
shall occur if the only area taken is that which does not have the Premises
located thereon. Any award for the taking of all or any part of the Premises
under the power of eminent domain or any payment made under threat of the
exercise of such power shall be the property of Lessor, whether such award
shall be made as compensation for diminution in value of the leasehold or for
the taking of the fee or as severance damages, provided, however, that Lessee
shall be entitled to any award for loss of or damage to Lessee's trade
fixtures and removable personal property. In the event that this Lease is
not terminated by reason of such condemnation, Lessor shall to the extent of
severance damages received by Lessor in connection with such condemnation,
repair any damage to the Premises caused by such condemnation except to the
extent that Lessee has been reimbursed therefor by the condemning authority.
Lessee shall pay any amount in excess of such severance damages required to
complete such repair.
15. BROKER'S FEE.
(a) Upon execution of this Lease by both parties, Lessor shall pay to
XXXXXXX & XXXXXXXXX AND XXXXXXX & XXXXX split 50/50 Licensed real estate
broker(s) a fee as set forth in a separate agreement between Lessor and said
broker(s).
(b) Lessor further agrees that if Lessee exercises any Option,
as defined in paragraph 39.1 of this Lease, which is granted to
Lessee under this Lease, or any subsequently granted option which is
substantially similar to an Option granted to Lessee under this
Lease, or if Lessee acquires any rights to the Premises or other
premises described in this Lease which are substantially similar to
what Lessee would have acquired had an Option herein granted to
Lessee been exercised, or if Lessee remains in possession of the
Premises after the expiration of the term of this Lease after having
failed to exercise an Option, or if said broker(s) are the procuring
cause of any other lease or sale entered into between the parties
pertaining to the Premises and/or any adjacent property in which
Lessor has an interest then as to any of said transactions, Lessor
shall pay said broker(s) a fee in accordance with the schedule of
said broker(s) in effect at the time of execution of this Lease.
(c) Lessor agrees to pay said fee not only on behalf of Lessor
but also on behalf of any person, corporation, association, or other
entity having an ownership interest in said real property or any part
thereof, when such fee is due hereunder. Any transferee of Lessor's
interests in this Lease, whether such transfer is by agreement or by
operation of law, shall be deemed to have assumed Lessor's obligation
under this paragraph 15. Said broker shall be a third party
beneficiary of the provisions of this paragraph 15.
16. ESTOPPEL CERTIFICATE.
(a) Each party (as "responding party") shall at any time upon
not less than ten (10) days prior written notice from the other party
("requesting party") execute, acknowledge and deliver to the
requesting party a statement in writing (i) certifying that this
Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to
which the rent and other charges are paid in advance, if any, and
(ii) acknowledging that there are not, to the responding party's
knowledge, any uncured defaults on the part of the requesting party,
or specifying such defaults if any are claimed. Any such statement
may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises or of the business of the requesting
party.
(b) At the requesting party's option, the failure to deliver
such statement within such time shall be a material default of this
Lease by the party who is to respond, without any further notice to
such party, or it shall be conclusive upon such party that (i) this
Lease is in full force and effect, without modification except as may
be represented by the requesting party, (ii) there are no uncured
defaults in the requesting party's performance, and (iii) if Lessor
is the requesting party, not more than one month's rent has been paid
in advance.
(c) If Lessor desires to finance, refinance, or sell the
Property, or any party thereof, Lessee hereby agrees to deliver to
any lender or purchaser designated by Lessor such financial
statements of Lessee as may be reasonably required by such lender or
purchaser. Such statements shall include the past three (3) years'
financial statements of Lessee. All such financial statements shall
be received by Lessor and such lender or purchaser in confidence and
shall be used only for the purposes herein set forth.
17. LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean
only the owner or owners, at the time in question, of the fee title
or a lessee's interest in a ground lease of the Industrial Center,
and except as expressly provided in paragraph 15, in the event of any
transfer of such title or interest. Lessor herein named (and in case
of any subsequent transfers then the grantor) shall be relieved from
and after the date of such transfer of all liability as respects
Lessor's obligations thereafter to be performed, provided that any
funds in the hands of Lessor of the then grantor at the time of such
transfer, in which Lessee has an interest, shall be delivered to the
grantee. The obligations contained in this Lease to be performed by
Lessor shall, subject as aforesaid, be binding on Lessor's successors
and assigns, only during their respective periods of ownership.
18. SEVERABILITY. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction, shall in no way
affect the validity of any other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein
provided any amount due to Lessor not paid when due shall bear
interest at the maximum rate then allowable by law from the date due.
Payment of such interest shall not excuse or cure any default by
Lessee under this Lease, provided, however, that interest shall not
be payable on late charges incurred by Lessee nor on any amounts upon
which late charges are paid by Lessee.
20. TIME OF ESSENCE. Time is of the essence with respect to the
obligations to be performed under this Lease.
21. ADDITIONAL RENT. All monetary obligations of Lessee to Lessor
under the terms of this Lease, including but not limited to Lessee's
Share of Operating Expenses and insurance and tax expenses payable
shall be deemed to be rent.
22. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No
prior or contemporaneous agreement or understanding pertaining to any such
matter shall be effective. This Lease may be modified in writing only,
signed by the parties in interest at the time of the modification. Except as
otherwise stated in this Lease, Lessee hereby acknowledges that neither the
real estate broker listed in paragraph 15 hereof nor any cooperating broker
on this transaction nor the Lessor or any employee or agents of any of said
persons has made any oral or written warranties or representations to Lessee
relative to the condition or use by the Lessee of the Premises or the
Property and Lessee acknowledges that Lessee assumes all responsibility
regarding the Occupational Safety Health Act, the legal use and adaptability
of the Premises and the compliance thereof with all applicable laws and
regulations in effect during the term of this Lease except as otherwise
specifically stated in this Lease.
23. NOTICES. Any notice required or permitted to be given hereunder
shall be in writing and may be given by personal delivery or by
certified mail, and if given personally or by mail, shall be deemed
sufficiently given if addressed to Lessee or to Lessor at the address
noted below the signature of the respective parties, as the case may
be. Either party may by notice to the other specify a different
address for notice purposes except that upon Lessee's taking
possession of the Premises, the Premises shall constitute Lessee's
address for notice purposes. A copy of all notices required or
permitted to be given to Lessor hereunder shall be concurrently
transmitted to such party or parties at such addresses as Lessor may
from time to time hereafter designate by notice to Lessee.
24. WAIVERS. No waiver by Lessor or any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent
breach by Lessee of the same or any other provision. Lessor's
consent to, or approval of, any act shall not be deemed to render
unnecessary the obtaining of Lessor's consent to or approval of any
subsequent act by Lessee. The acceptance of rent hereunder by Lessor
shall not be a waiver of any preceding breach by Lessee of any
provision hereof other than the failure of Lessee to pay the
particular rent so accepted, regardless of Lessor's knowledge of such
preceding breach at the time of acceptance of such rent.
25. RECORDING. Either Lessor or Lessee shall, upon request of the
other, execute, acknowledge and deliver to the other a "short form"
memorandum of this Lease for recording purposes.
26. HOLDING OVER. If Lessee, with Lessor's consent, remains in
possession of the Premises or any part thereof after the expiration
of the term hereof, such occupancy shall be tenancy from month to
month upon all the provisions of this Lease pertaining to the
obligations of Lessee, but all Options, if any, granted under the
terms of this Lease shall be deemed terminated and be of no further
effect during said month to month tenancy.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all
other remedies at law or in equity.
28. COVENANTS AND CONDITIONS. Each provision of this Lease
performable by Lessee shall be deemed both a covenant and a condition.
29. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof
restricting assignment or subletting by Lessee and subject to the
provisions of paragraph 17, this Lease shall bind the parties, their
personal representatives, successors and assigns. This Lease shall
be governed by the laws of the State where the Industrial Center is
located and any litigation concerning this Lease between the parties
hereto shall be initialed in the county in which the Industrial
Center is located.
30. SUBORDINATION.
(a) This Lease, and any Option granted hereby, at Lessor's
option, shall be subordinate to any ground lease, mortgage, deed of
trust, or any other hypothecation or security now or hereafter placed
upon the Industrial Center and to any and all advances made on the
security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such
subordination, Lessee's right to quiet possession of the Premises
shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the
provisions of this Lease, unless this Lease is otherwise terminated
pursuant to its terms. If any mortgagee, trustee or ground lessor
shall elect to have this Lease and such Options granted hereby prior
to the lien of its mortgage, deed of trust or ground lease, and shall
give written notice thereof to Lessee, this Lease and such Options
shall be deemed prior to such mortgage, deed of trust or ground
lease, whether this Lease or such Options are dated prior or
subsequent to the date of said mortgage, deed of trust or ground
lease or the date of recording thereof.
(b) Lessee agrees to execute any documents required to
effectuate an attornment, a subordination or to make this Lease or
any Option granted herein prior to the lien of any mortgage, deed of
trust or ground lease, as the case may be. Lessee's failure to
execute such documents within ten (10) days after written demand
shall constitute a material default by Lessee hereunder without
further notice to Lessee or, at Lessor's option. Lessor shall
execute such documents on behalf of Lessee as Lessee's
attorney-in-fact. Lessee does hereby make, constitute and
irrevocably appoint Lessor as Lessee's attorney-in-fact and in
Lessee's name, place and stead, to execute such documents in
accordance with this paragraph 30(b).
31. ATTORNEY'S FEES. If either party or the broker(s) named herein
bring an action to enforce the terms hereof or declare rights
hereunder, the prevailing party in any such action, on trial or
appeal, shall be entitled to his reasonable attorney's fees to be
paid by the losing party as fixed by the court. The provisions of
this paragraph shall inure to the benefit of the broker named herein
who seeks to enforce a right hereunder.
32. LESSOR'S ACCESS. Lessor and Lessor's agents shall have the right to
enter the Premises at reasonable times for the purpose of inspecting the
same, showing the same to prospective purchasers, lenders, or lessees, and
making such alterations, repairs, improvements or additions to the Premises
or to the building of which they are part as Lessor may deem necessary or
desirable. Lessor may at any time place on or about the Premises or the
Building any ordinary "For Sale" signs and Lessor may at any time during the
last 120 days of the term hereof place on or about the Premises any ordinary
"For Lease" signs. All activities of Lessor pursuant to this paragraph shall
be without abatement of rent, nor shall Lessor have any liability to Lessee
for the same.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises or the Common
Areas without first having obtained Lessor's prior written consent.
Notwithstanding anything to the contrary in this Lease, Lessor shall not be
obligated to exercise any standard of reasonableness in determining whether
to grant such consent.
34. SIGNS. Lessee shall not place any sign upon the Premises or the
Industrial Center without Lessor's prior written consent. Under no
circumstances shall Lessee place a sign on any roof of the Industrial
Center.
35. MERGER. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, or a termination by Lessor,
shall not work a merger, and shall, at the option of Lessor,
terminate all or any existing subtenancies or may, at the option of
Lessor, operate as an assignment to Lessor of any or all of such
subtenancies.
36. CONSENTS. Except for paragraph 33 hereof, wherever in this
Lease the consent of one party is required to an act of the other
party such consent shall not be unreasonably withheld or delayed.
37. GUARANTOR. In the event that there is a guarantor of this
Lease, said guarantor shall have the same obligations as Lessee under
this Lease.
38. QUIET POSSESSION. Upon Lessee paying the rent for the Premises
and observing and performing all of the covenants, conditions and
provisions on Lessee's part to be observed and performed hereunder,
Lessee shall have quiet possession of the Premises for the entire
term hereof subject to all of the provisions of this Lease. The
individuals executing this Lease on behalf of Lessor represent and
warrant to Lessee that they are fully authorized and legally capable
of executing this Lease on behalf of Lessor and that such execution
is binding upon all parties holding an ownership interest in the
Property.
39. OPTIONS.
39.1 DEFINITION. As used in this paragraph the word "Option"
has the following meaning (1) the right or option to extend the term
of this Lease or to renew this Lease or to extend or renew any lease
that Lessee has on other property of Lessor; (2) the option or right
of first refusal to lease the Premises or the right of first offer to
lease the Premises or the right of first refusal to lease other space
within the Industrial Center or other property of Lessor or the right
of first offer to lease other space within the Industrial Center or
other property of Lessor; (3) the right or option to purchase the
Premises or the Industrial Center, or the right of first refusal to
purchase the Premises or the
Industrial Center, or the right of first offer to purchase the
Premises of the Industrial Center, or the right or option to purchase
other property of Lessor, or the right of first refusal to purchase
other property of Lessor or the right of first offer to purchase
other property of Lessor.
39.2 OPTIONS PERSONAL. Each Option granted to Lessee in this Lease is
personal to the original Lessee and may be exercised only by the original
Lessee while occupying the Premises who does so without the intent thereafter
assigning this Lease or subletting the Premises or any portion thereof, and
may not be exercised or be assigned, voluntarily or involuntarily, by or to
any person or entity other than Lessee, provided, however, that an Option may
be exercised by or assigned to any Lessee Affiliate as defined in paragraph
12.2 of this Lease. The Options, if any, herein granted to Lessee are not
assignable separate and apart from this Lease, nor may any Option be
separated from this Lease in any manner, either by reservation or otherwise.
39.3 MULTIPLE OPTIONS. [DELETED]
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary,
(i) during the time commencing from the date Lessor gives to Lessee a
notice of default pursuant to paragraph 13.1(b) or 13.1(c) and
continuing until the noncompliance alleged in said notice of default
is cured, or (ii) during the period of time commencing on the date
after a monetary obligation to Lessor is due from Lessee and unpaid
(without any necessity for notice thereof to Lessee) and continuing
until the obligation is paid, or (iii) at any time after an event of
default described in paragraphs 13.1(a), 13.1(d), or 13.1(e) (without
any necessity of Lessor to give notice of such default to Lessee),
nor (iv) in the event that Lessor has given to Lessee three or more
notices of default under paragraph 13.1(b), or paragraph 13.1(c),
whether or not the defaults are cured, during the 12 month period of
time immediately prior to the time that Lessee attempts to exercise
the subject Option.
(b) The period of time within which an Option may be
exercised shall not be extended or enlarged by reason of Lessee's
inability to exercise an Option because of the provisions of
paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option
shall terminate and be of no further force or effect, notwithstanding
Lessee's due and timely exercise of the Option, if, after such
exercise and during the term of this Lease, (i) Lessee fails to pay
to Lessor a monetary obligation of Lessee for a period of thirty (30)
days after such obligation becomes due (without any necessity of
Lessor to give notice thereof to Lessee), or (ii) Lessee fails to
commence to cure a default specified in paragraph 13.1(c) within
thirty (30) days after the date that Lessor gives notice to Lessee of
such default and/or Lessee fails thereafter to diligently prosecute
said cure to completion, or (iii) Lessee commits a default described
in paragraph 13.1(a), 13.1(d) or 13.1(e) (without any necessity of
Lessor to give notice of such default to Lessee), or (iv) Lessor
gives to Lessee three or more notices of default under paragraph
13.1(b), or paragraph 13.1(c), whether or not the defaults are cured.
40. SECURITY MEASURES. Lessee hereby acknowledges that Lessor shall
have no obligation whatsoever to provide guard service or other
security measures for the benefit of the Premises or the Industrial
Center. Lessee assumes all responsibility for the protection of
Lessee, its agents, and invitees and the property of Lessee and of
Lessee's agents and invitees from acts of third parties. Nothing
herein contained shall prevent Lessor, at Lessor's sole option, from
providing security protection for the Industrial Center or any part
thereof, in which event the cost thereof shall be included within the
definition of Operating Expenses, as set forth in paragraph 4.2(b).
41. EASEMENTS. Lessor reserves to itself the right, from time to
time, to grant such easements, rights and dedications that Lessor
deems necessary or desirable, and to cause the recordation of Parcel
Maps and restrictions, so long as such easements, rights,
dedications, maps and restrictions do not unreasonably interfere
with the use of the Premises by Lessee. Lessee shall sign any of the
aforementioned documents upon request of Lessor and failure to do so
shall constitute a material default of this Lease by Lessee without
the need of further notice to Lessee.
42. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise
as to any amount or sum of money to be paid by one party to the
other under the provisions hereof, the party against whom the
obligation to pay the money is asserted shall have the right to make
payment "under protest" and such payment shall not be regarded as a
voluntary payment, and there shall survive the right on the part of
said party to institute suit for recovery of such sum. If it shall
be adjudged that there was no legal obligation on the part of said
party to pay such sums or any part thereof, said party shall be
entitled to recover such sum or so much thereof as it was not legally
required to pay under the provisions of this Lease.
43. AUTHORITY. If Lessee is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf
of such entity represents and warrants that he or she is duly
authorized to execute and deliver this Lease on behalf of said
entity. It Lessee is a corporation, trust or partnership, Lessee
shall, within thirty (30) days after execution of this Lease, deliver
to Lessor evidence of such authority satisfactory to Lessor.
44. CONFLICT. Any Conflict between the printed provisions of this
Lease and the typewritten or handwritten provisions, if any, shall be
controlled by the typewritten or handwritten provisions.
45. OFFER. Preparation of this Lease by Lessor or Lessor's agent
and submission of same to Lessee shall not be deemed an offer to
lease. This Lease shall become binding upon Lessor and Lessee only
when fully executed by Lessor and Lessee.
46. ADDENDUM. Attached hereto is an addendum or addenda containing
paragraphs _________ through _________ which constitute a part of
this Lease.
47. IMPROVEMENTS TO BE COMPLETED AT SOLE COST OF LESSOR BY
DECEMBER 4, 1992.
(a) Paint throughout or touch-up paint as indicated on Exhibit C.
(b) Replace lenses in overhead lighting and replace broken
ceiling and floor tiles where necessary.
(c) Lessor shall reduct the HVAC systems serving the warehouse
and tiled areas to divide the space. Upon execution of a lease for
the remaining portion of the building, Lessor will separate the
electrical supply for each unit and separately meter the 10-ton HVAC
unit which serves the front areas. Lessee will pay the entire cost
of operating this unit in lieu of payment of rent for the conference
room until such time as a tenant is found. Then Lessee will vacate
the conference room, the 10-ton unit will be metered, and Lessee and
the new tenant will divide the cost of operating this unit 50/50.
48. LESSEE OPTION. Lessee shall have an option (subject to
paragraph 39) to extend this lease for one additional one year
period. The base rent for this period shall be $.60 per square foot
or $8,478.00 per month.
49. RIGHT OF FIRST REFUSAL. Lessee shall have a right of first
refusal on the adjacent space at the same terms and conditions of any
bona fide written offer. After receipt of the written offer, Lessee
shall have three (3) working days to notify Lessor in writing of its
intention to lease the space. If Lessee elects not to lease such
space, Lessor may offer such space to third parties upon the same
terms and conditions as contained in Lessor's prior written
notification to Lessee. Prior to offering such space to third
parties upon terms and conditions which differ by greater than 5%,
Lessor will first offer the space to Lessee upon such newly proposed
terms and conditions and the same 3 day notification period shall
apply. If within the initial 24 month lease term no offer exists,
Lessee may expand to occupy the entire building under the same terms
and conditions as the current lease. The rent would increase to
$12,600 per month and the security deposit would be increased to
equal $12,600.
49.1 DIVISION OF UTILITIES COST. If Lessor occupies any portion
of the building with 3 or fewer employees, Lessor shall pay $200.00
per month to be applied to the cost of electricity, gas and water
which are supplied to the building. If Lessor should change the
nature of his use of the building so that the demand for electricity,
gas and water increases, then the $200.00 amount shall be
re-negotiated to reflect the change, or Lessor shall separately meter
the two sides as if a new tenant had been found.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND
EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS
LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES
HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF
THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND
PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
THIS LEASE HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR
APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE
BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL EFFICIENCY, LEGAL
EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION RELATING
THERETO. THE PARTIES SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN
LEGAL COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
LESSOR LESSEE
Yageo USA Inc. LJL BioSystems, Inc.
------------------------- -----------------------------
By /s/ By /s/ Xxxxxx Xxxxxx 11/5/92
--------------------------- ---------------------------------
By By
--------------------------- ---------------------------------
Executed on Executed on
------------------ ------------------------
ADDRESS FOR NOTICES AND RENT ADDRESS
Yageo USA, Inc. LJL BioSystems, Inc.
----------------------------- -------------------------------
000 Xxxxxx Xxxxx 000 Xxxxxx Drive
----------------------------- -------------------------------
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
----------------------------- --------------------------------
ADDENDUM TO LEASE AGREEMENT
50. Lessor agrees that Lessee will make improvements to the Premises
indicated on Exhibit C. At termination of the Lease, Lessee will
remove the wall and the carpeting as specified on Exhibit C and
restore the vinyl tile to good usable condition. Lessee, at Lessee's
option may install a shower as shown on Exhibit C. All work to be
done shall meet all applicable building codes per city of Sunnyvale.
51. Lessee, at Lessee's expense, shall procure and maintain a
heating, ventilation and air conditioning system maintenance contract
for the part of the building that is occupied by Lessee. Lessor
shall be responsible for all the repairs and replacement costs
associated with HVAC system, when needed.
52. Lessor shall clean and buff all tile areas indicated on Exhibit C.
53. Lessor shall secure all loose or hanging ceiling insulation.
54. LJL BioSystems, Inc. shall have exclusive rights to the lobby.
However any future occupant of the unused portion of the Premises
shall have access to their portion of the building through the lobby.
55. Lessee's portion of operating expenses shall not exceed $.12 per
sq. foot for the first year of the lease. Subsequent years shall not
exceed 10% increase per year.
56. TOXIC MATERIALS: Lessor shall have the express responsibility to
advise Lessee of any toxic materials which are located in, or about
the Premises, parking areas, storage area or other parts of the
Project. It shall be the responsibility of Lessor at its sole cost
and expense to remove any building toxic materials prior to the
commencement of Lessee improvement construction, and to indemnify and
hold Lessee harmless from any prior condition. Further, Lessor's
costs for the removal of toxic material(s) in Lessee's Premises or in
any other location in the Project shall be the Lessor's sole
responsibility.
57. NOTICE TO OWNER'S, BUYERS AND TENANTS REGARDING ENVIRONMENTAL
MATTERS: It is essential that all parties to real estate
transactions be aware of the health, liability and economic impact of
environmental factors on real estate. Xxxxxxx & Wakefield and Cornish
& Xxxxx Commercial does not conduct investigations or analyses of
environmental matters and, accordingly, urges its clients to retain
qualified environmental professionals to determine whether hazardous
or toxic wastes or substances are present at the property and, if so,
whether any health danger or other liability exists.
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Sobrato Development Companies
00000 Xxxxx Xx Xxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxx X. Xxxxxxx
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AGREEMENT
This Agreement is made and entered into as of the 3rd day of December,
1993, by and between LJL BIOSYSTEMS, INC., a California corporation ("LJL"),
YAGEO USA, INC., a California corporation ("Yageo"), and XXXX XXXXXXX XXXXXXX,
or his successor(s) Trustee(s) under Revocable Trust Agreement dated April 28,
1989, FBO XXX X. XXXXXXX ("Sobrato").
THE UNDERSIGNED EACH ACKNOWLEDGE:
A. LJL, as Tenant, and Yageo, as Landlord, entered into that written
Lease Agreement ("the Lease") dated October 14, 1992 for certain approximately
14,130 square feet of premises (the "Premises") located in that certain
building commonly known as 000 Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx, more
particularly described on EXHIBIT A attached hereto (the "Property").
B. The Property is encumbered by a deed of trust ("Deed of Trust")
securing an assumption agreement executed by Yageo for the benefit of Sobrato.
X. Xxxxxxx has commenced foreclosure proceedings under the deed of trust
and a foreclosure sale is currently scheduled for December 7, 1993.
D. It is in the best interests of Yageo, LJL and Sobrato for Yageo, LJL
and Sobrato to be mutually assured that LJL will continue to be a tenant of the
Premises after the foreclosure.
Accordingly, Yageo, LJL and Sobrato hereby agree as follows:
1. The effectiveness of this Agreement is conditioned on the following:
(a) Receipt by LJL from Yageo of the sum of Seven Thousand Sixty
Five Dollars ($7,065), which sum represents the deposit previously delivered by
LJL to Yageo as the security deposit under the Lease.
(b) Receipt by Sobrato from Yageo of the sum of Seventeen Thousand
Nine Hundred Thirty-five Dollars ($17,935), for application toward amounts due
and owing from Yageo to Sobrato in connection with the Property and the Deed of
Trust.
2. In the event of any foreclosure of the Deed of Trust, provided that
LJL shall not then be in default beyond any grace period under the Lease, LJL
shall not be made a party in any action or proceeding to remove or evict LJL or
to disturb its possession, nor shall the leasehold estate of LJL created by the
Lease be affected in any way, and the Lease shall continue in full force and
effect as a direct lease between LJL and Sobrato (or any third-party purchaser
at the foreclosure sale).
3. Sobrato hereby agrees to proceed with the pending foreclosure sale,
unless prevented by a third party. Yageo and LJL hereby agree not to interfere
with the foreclosure sale or attempt to enjoin the same.
4. Sobrato shall request that the trustee holding the foreclosure sale
read a statement notifying any potential bidders that the Property is being
sold subject to the Lease (as amended below) and another lease.
5. Effective as of the consummation of the foreclosure sale, the Lease
shall be amended as follows:
(a) Paragraph 5 ("Security Deposit") of the Lease shall be deleted;
(b) The following is added to the Lease: Lessor shall have no
obligation to provide separate utility meters for the Premises. Lessor shall
equitably prorate utility charges that are used in common by Lessee and the
other occupants of the Property, such that Lessee shall pay only that portion
of such charges attributable to Lessee's consumption utilities.
(c) Except as set forth above, all terms and conditions of the Lease
(including, without limitation, paragraph 54 of the Addendum which grants LJL
the exclusive right to use the building lobby), are unmodified and in full
force and effect.
6. Effective as of the consummation of the foreclosure sale, the parties
do hereby release, discharge and waive claims against each other as follows:
(a) RELEASE BY LJL. LJL, on behalf of itself and its agents,
employees, heirs, representatives, successors and assigns, hereby releases and
discharges Yageo, and its agents, employees, heirs, representatives, successors
and assigns, of and from any and all claims, demands, obligations, liabilities,
indebtedness, breaches of contract, breaches of duty or any relationship, acts,
omissions, misfeasance, malfeasance, causes of action, controversies, promises,
losses, damages, costs and expenses of
-2-
every type, kind, nature, description or character, and irrespective of how,
why, or by reason of what facts, whether now existing or hereafter arising, or
which could, might or may be claimed to exist, whether known or unknown,
suspected or unsuspected, liquidated or unliquidated, each as though fully set
forth herein at length, including without limitation those liabilities which
in any way arise out of, are connected with or relate to the Lease, as well as
any action or inaction of any person or entity released hereunder with respect
to the Lease.
(b) RELEASE BY SOBRATO. Sobrato on behalf of itself and its agents,
employees, heirs, representatives, successors and assigns, hereby releases and
discharges Yageo, and its agents, employees, heirs, representatives,
successors and assigns, of and from any and all claims, demands, obligations,
liabilities, indebtedness, breaches of contract, breaches of duty or any
relationship, acts, omissions, misfeasance, malfeasance, causes of action,
controversies, promises, losses, damages, costs and expenses of every type,
kind, nature, description or character, and irrespective of how, why, or by
reason of what facts, whether now existing or hereafter arising, or which
could, might or may be claimed to exist, whether known or unknown, suspected
or unsuspected, liquidated or unliquidated, each as though fully set forth
herein at length, including without limitation those liabilities which in any
way arise out of, are connected with or relate to the above-referenced
assumption agreement and/or Deed of Trust, as well as any action or inaction
of any person or entity released hereunder with respect to said assumption
agreement and/or Deed of Trust.
(c) RELEASES BY YAGEO. Yageo, on behalf of itself and its agents,
employees, heirs, representatives, successors and assigns, hereby releases and
discharges Sobrato, and his agents, employees, heirs, representatives,
successors and assigns, of and from any and all claims, demands, obligations,
liabilities, indebtedness, breaches of contract, breaches of duty or any
relationship, acts, omissions, misfeasance, malfeasance, causes of action,
controversies, promises, losses, damages, costs and expenses of every type,
kind, nature, description or character, and irrespective of how, why, or by
reason of what facts, whether now existing or hereafter arising, or which
could, might or may be claimed to exist, whether known or unknown, suspected
or unsuspected, liquidated or unliquidated, each as though fully set forth
herein at length, including without limitation those liabilities which in any
way arise out of, are connected with or relate to the above-referenced
assumption agreement and/or Deed of Trust, as well as any action or inaction
of any person or entity released hereunder with respect to said assumption
agreement and/or Deed of Trust.
Yageo, on behalf of itself and its agents, employees, heirs,
representatives, successors and assigns, hereby releases and discharges LJL,
and its agents, employees, heirs, representatives, successors and assigns, of
and from any and all claims, demands,
-3-
obligations, liabilities, indebtedness, breaches of contract, breaches of duty
or any relationship, acts, omissions, misfeasance, malfeasance, causes of
action, controversies, promises, losses, damages, costs and expenses of every
type, kind, nature, description or character, and irrespective of how, why,
or by reason of what facts, whether now existing or hereafter arising, or
which could, might or may be claimed to exist, whether known or unknown,
suspected or unsuspected, liquidated or unliquidated, each as though fully set
forth herein at length, including without limitation those liabilities which
in any way arise out of, are connected with or relate to the Lease, as well as
any action or inaction of any person or entity released hereunder with respect
to the Lease.
(d) WAIVER OF UNKNOWN CLAIMS. As to all matters being released by
each releasing party pursuant to the foregoing provisions, such releasing party
waives any and all rights which it may have under the provisions of California
Civil Code section 1542 or under any comparable federal and/or state statute or
rule of law. California Civil Code section 1542 provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release which if known by him must have materially affected his
settlement with the debtor.
In the event, for any reason, the foreclosure sale is not consummated or, if
consummated, is successfully challenged or set aside, then the foregoing
releases and waivers of claims shall be of no force and effect, all currently
existing obligations of the parties shall be reinstated, and the parties shall
be obligated to perform under the Lease, as to LJL and Yageo, and under said
assumption agreement and Deed of Trust, as to Sobrato and Yageo, of the sale,
as the same exist as of the date of this Agreement. Yageo and LJL hereby agree
not to challenge the foreclosure sale or seek to set the same aside.
7. LJL will not make any claim of default under the Lease against any
purchaser of the Premises at a foreclosure sale of the Deed of Trust (including
Sobrato) with respect to any matter under the Lease of which LJL is aware as of
the date of this Agreement.
8. The parties hereto may execute this Agreement simultaneously, in any
number of counterparts, or by annexing signature pages hereto, or on facsimile
copies, each of which shall be deemed an original, but all of which together
shall constitute one and the same document.
9. This Agreement constitutes the entire agreement between the parties
hereto and supersedes and cancels any and all previous negotiations,
arrangements, agreements and understandings, whether written or oral, between
the parties with respect to the subject
-4-
matter hereof. No addition to, or modification of, any term or provision of
this Agreement shall be effective until and unless set forth in a written
instrument signed by all parties.
10. In the event any party hereto shall bring any action or legal
proceeding for damages for an alleged breach of any provision of this
Agreement, or to enforce protect, interpret, or establish any term, condition,
or covenant of this Agreement or right or remedy of any party, the prevailing
party shall be entitled to recover, as a part of such action or proceeding,
reasonable attorneys' fees and court costs, including attorneys' fees and costs
for appeal, as may be fixed by the court or jury.
11. This Agreement shall be governed by and construed in accordance with
the laws of the State of California, without regard to the provisions thereof
relating to conflict of laws and shall be binding upon the successors and
assigns of the parties.
IN WITNESS WHEREOF, this Agreement has been executed as of the dates set
forth below.
YAGEO USA, INC.,
a California corporation
By: XXXXXX X. XXXXX /s/
---------------------------
Its: Attorney in fact
--------------------------
Date:December 3, 1993
-------------------------
LJL BIOSYSTEMS, INC.,
a California corporation
By: /s/ XXXXXX XXXXX
---------------------------
Its: Director, Finance &
Administration
--------------------------
Date: December 3, 1993
-------------------------
XXXX XXXXXXX XXXXXXX, or his
successor(s) Trustee(s) under
Revocable Trust Agreement dated
April 28, 1989, FBO XXX X. XXXXXXX
By: /s/ JMS
---------------------------
Xxxx X. Xxxxxxx, Trustee
Date: December 3, 1993
-------------------------
-5-
STATE OF CALIFORNIA
COUNTY OF SANTA XXXXX
On December ___, 1993, before me, _____________________.
personally appeared XXXX X. XXXXXXX,
/ / personally known to me -OR- proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity,
and that by his signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
(SIGNATURE OF NOTARY)
CAPACITY CLAIMED BY SIGNER
--------------------------
Though statute does not require the Notary to fill in the data below, doing
so may prove invaluable to persons relying on the document.
/ / INDIVIDUAL
/ / CORPORATE OFFICER(S)
-------------------------
Title(s)
/ / PARTNER(s) / / LIMITED
/ / GENERAL
/ / ATTORNEY-IN-FACT
/ / TRUSTEE(S)
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
--------------------
--------------------
SIGNER IS REPRESENTING:
-----------------------
Name of Person(s) or Entity(ies)
--------------------------------
--------------------------------
STATE OF CALIFORNIA
COUNTY OF SANTA XXXXX
On December 3 , 1993, before me, Xxx Xxxxx ,
--- --------------------
personally appeared XXXXXX X. XXXXX ,
-------------------------
/x/ personally known to me -OR- proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxxx X. Xxxxx
--------------------------------------
(SIGNATURE OF NOTARY)
CAPACITY CLAIMED BY SIGNER
--------------------------
Though statute does not require the Notary to fill in the data below, doing
so may prove invaluable to persons relying on the document.
/ / INDIVIDUAL
/ / CORPORATE OFFICER(S)
-------------------------
Title(s)
/ / PARTNER(s) / / LIMITED
/ / GENERAL
/X/ ATTORNEY-IN-FACT
/ / TRUSTEE(S)
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
--------------------
--------------------
SIGNER IS REPRESENTING:
-----------------------
Name of Person(s) or Entity(ies)
--------------------------------
--------------------------------
-6-
STATE OF CALIFORNIA
COUNTY OF SANTA XXXXX
On December ______, 1993, before me,__________________________,
personally appeared _____________________________________,
/ / personally known to me -OR- proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity,
and that by his signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
--------------------------------------
(SIGNATURE OF NOTARY)
CAPACITY CLAIMED BY SIGNER
--------------------------
Though statute does not require the Notary to fill in the data below, doing
so may prove invaluable to persons relying on the document.
/ / INDIVIDUAL
/ / CORPORATE OFFICER(S)
-------------------------
Title(s)
/ / PARTNER(s) / / LIMITED
/ / GENERAL
/ / ATTORNEY-IN-FACT
/ / TRUSTEE(S)
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
--------------------
--------------------
SIGNER IS REPRESENTING:
-----------------------
Name of Person(s) or Entity(ies)
--------------------------------
--------------------------------
-7-
EXHIBIT A
LEGAL DESCRIPTION
All that certain real property situate in the City of Sunnyvale, County of
Santa Xxxxx, State of California, described as follows:
PARCEL B, as shown on that certain Map recorded February 13, 1976 in Book 367,
Page 54 of Maps, Records of Santa Xxxxx County, California
Common Address: 000 Xxxxxx Xxxxx, Xxxxxxxxx, XX
APN: 000-00-000
SECOND AMENDMENT TO LEASE
This second amendment to lease ("Second Amendment") is made this 20TH day of
October, 1995 by and between The Xxx Xxxxxxx 1989 Revocable Trust, having an
address at 00000 X. Xx Xxxx Xxxx., Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx 00000, as
successor Landlord to Yageo USA Inc., ("Landlord") and LJL Biosystems, a
Delaware corporation having its principal place of business at 000 Xxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxx, 00000 ("Tenant").
WITNESSETH
WHEREAS Landlord and Tenant entered into a lease dated October 14, 1992 and an
amendment to the lease dated December 3, 1993 (collectively the "Lease") for
the premises ("Premises") located at 000 Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx;
and
WHEREAS effective October 15,1995, Landlord and Tenant wish to modify the Lease
to revise the Lease Expiration Date, Base Rent, and certain other provisions of
the Lease;
NOW, THEREFORE, in order to effect the intent of the parties as set forth above
and for good and valuable consideration exchanged between the parties, the
Lease is amended effective October 15, 1995 as follows:
1. The expiration date of the Lease is changed to December 31, 1996.
2. The Base Rent is changed from $8,478.00 per month to $9,891.00 per month.
3. Lease paragraphs 47, 48, 49.1, 51, 52, 53 and 55 are deleted.
4. Tenant, at Tenant's expense, agrees to procure and maintain a heating,
ventilation and air conditioning system maintenance contract for the equipment
that serves the Premises. Tenant shall be responsible for all repair costs
associated with the HVAC system.
5. Tenant shall have no responsibility to pay the cost of equipment
replacement or any other replacement associated with the Premises if such cost
would normally be capitalized under generally
accepted accounting principles. Tenant shall have no responsibility to pay
replacement costs for the roof membrane.
6. Tenant shall have the right to terminate the Lease by providing Landlord
with no less than 180 days' advance written notice of its intent to terminate.
Such termination shall occur on the last day of the month that is at least 6
months from the date of Tenant's termination notice.
7. All defined terms shall have the same meanings as in the Lease, except as
otherwise stated in this Second Amendment.
8. Except as hereby amended, the Lease and all of the terms, covenants and
conditions thereof shall remain unmodified and in full force and effect. In
the event of any conflict or inconsistency between the terms and provisions of
this Second Amendment and the terms and provisions of the Lease, the terms and
provisions of this Second Amendment shall prevail.
IN WITNESS WHEREOF, the parties hereto have set their hands to this Amendment
as of the day and date first above written.
LANDLORD TENANT
The Xxx Xxxxxxx 1989 Revocable Trust LJL Biosystems,
a Delaware corporation
By: /s/ JMS By: /s/ Xxxxxx Xxxxx
--------------------------- -----------------------
Director, Finance &
Its: Trustee Its: Administration
--------------------------- -----------------------
Page 2
THIRD AMENDMENT TO LEASE
This third amendment to lease ("Third Amendment") is made this 16 day of
September, 1996 by and between The Xxx Xxxxxxx 1989 Revocable Trust, having an
address at 00000 X. Xx Xxxx Xxxx., Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx 00000, as
successor Landlord to Yageo USA Inc., ("Landlord") and LJL Biosystems, a
Delaware corporation having its principal place of business at 000 Xxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxx, 00000 ("Tenant").
WITNESSETH
WHEREAS Landlord and Tenant entered into a lease dated October 14, 1992, an
amendment to the lease dated December 3, 1993, and a second amendment to the
lease dated October 20, 1995 (collectively the "Lease") for the premises
located at 000 Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx ("Premises"); and
WHEREAS effective September 1, 1996, Landlord and Tenant wish to modify the
Lease to revise the Lease Expiration Date, Base Rent, and certain other
provisions of the Lease;
NOW, THEREFORE, in order to effect the intent of the parties as set forth above
and for good and valuable consideration exchanged between the parties, the
Lease is amended effective September 1, 1996 as follows:
1. The expiration date of the Lease is changed to January 31, 2000.
2. Paragraph 6 of the Second Amendment to Lease is deleted.
3. Base Rent is due according to the following schedule:
September 1, 1996 through December 31, 1996: $9,891.00 per month
January 1, 1997 through December 31, 1998: $12,010.50 per month
January 1, 1999 through February 14, 2000: $12,717.00 per month
4. Lease paragraph 49 is deleted. In its place, Landlord hereby grants
Tenant a right of first offering to lease the adjacent space within the
building of approximately 11,000 square feet ("Expansion Space"), currently
leased by Cermetek Microelectronics. Prior to Landlord offering to lease the
Expansion Space to a third party (other than any third parties with existing
rights as of the date of this Third Amendment), Landlord shall give Tenant
written notice of such desire and the terms and other information under which
Landlord intends to lease the Expansion Space. Provided at the time of
exercise Tenant is not in default under this Lease, Tenant shall have the
option, which must be exercised, if at all, by written notice to Landlord
within ten (10) days after Tenant's receipt of Landlord's notice, to lease
the Expansion Space at the rent and terms of lease specified in the notice.
In the event Tenant timely exercises such option to lease the Expansion
Space, Landlord shall lease the Expansion Space to Tenant in accordance with
the rent and terms specified in Landlord's notice and on the terms and
conditions of this Lease which are not inconsistent with the terms and
conditions set forth in Landlord's notice. The parties shall execute an
amendment to this Lease memorializing the addition of the Expansion Space to
this Lease on such terms and conditions. In the event Tenant does not
execute said amendment within 30 days of receipt from Landlord, or in the
event Tenant fails to exercise Tenant's option within said 10-day period,
Landlord shall have one hundred eighty (180) days thereafter to lease the
Expansion Space at no less than ninety percent (90%) of the rental rate and
upon the same or substantially the same other terms of lease as specified in
the notice to Tenant. In the event Landlord fails to lease the Expansion
Space within said 180-day period or in the event Landlord proposes to lease
the Expansion Space at less than 90% of the rental rate or on other material
terms which are more favorable to the prospective tenant than that proposed
to Tenant, Landlord shall be required to resubmit such offer to Tenant in
accordance with this Right of First Offering. Notwithstanding the foregoing,
this Right of First Offering shall automatically terminate upon the
expiration or sooner termination of the Lease.
5. Landlord grants to Tenant, subject to the terms and conditions set forth
in this paragraph, an option ("Option") to extend the Lease Term for an
additional term ("Option Term"). The Option Term shall be for a period of
sixty (60) months and shall be exercised, if at all, by written notice to
Landlord no earlier than eighteen (18) months prior to the Lease expiration
date but no later than nine (9) months prior to the expiration date. If
Tenant exercises the Option, all of the terms,
Page 2
covenants and conditions of this Lease except this Section shall apply during
the Option Term as though the expiration date of the Option Term was the date
originally set forth herein as the Lease expiration date, provided that Base
Rent for the Premises payable by Tenant during the Option Term shall be
derived by increasing the Base Rent applicable to the period immediately
prior to the commencement of the Option Term by a percentage equal to the
percentage increase, if any, in the Consumer Price Index for the year 1999.
Notwithstanding anything herein to the contrary, if Tenant is in monetary or
material non-monetary default under any of the terms, covenants or conditions
of this Lease either at the time Tenant exercises the Option or at any time
thereafter prior to the commencement date of the Option Term, Landlord shall
have, in addition to all of Landlord's other rights and remedies provided in
this Lease, the right to terminate the Option upon notice to Tenant, in which
event the expiration date of this Lease shall be and remain unmodified. It
is understood and agreed by the parties that Tenant's right to extend the
Lease Term as provided in this paragraph is contingent upon Cermetek
Microelectronics exercising its right to extend its lease for the adjacent
space within the Building. In the event Cermetek does not elect to extend
its lease, this paragraph shall be null and void, unless Tenant is willing to
lease the Expansion Space as provided in Paragraph 4 above.
6. Paragraph 8.6 of the Lease is deleted and replaced with the following:
Landlord and Tenant hereby waive any rights each may have against the other on
account of any loss or damage that is caused or results from a risk which is
actually insured against, which is required to be insured against under this
Lease, or which would normally be covered by a standard form of full
replacement value "all risk extended coverage" policy of casualty insurance,
regardless of whether such loss or damage is due to the negligence of Landlord
or Tenant or if their respective agents, employees, subtenants, contractors,
assignees, invitees or any other cause.
7. In Paragraph 12.2 of the Lease, the words "or Paragraph 12.4" are added to
the first sentence after the words - "the provisions of paragraph 12.1".
8. All defined terms shall have the same meanings as in the Lease, except as
otherwise stated in this Third Amendment.
Page 3
9. Except as hereby amended, the Lease and all of the terms, covenants and
conditions thereof shall remain unmodified and in full force and effect. In
the event of any conflict or inconsistency between the terms and provisions of
this Third Amendment and the terms and provisions of the Lease, the terms and
provisions of this Third Amendment shall prevail.
IN WITNESS WHEREOF, the parties hereto have set their hands to this Amendment
as of the day and date first above written.
LANDLORD TENANT
The Xxx Xxxxxxx 1989 Revocable Trust LJL Biosystems, Inc.
a Delaware corporation
By: /s/ JMS By: /s/ Xxxxxx Xxxxx
--------------------------------- ------------------------------
Its: Trustee Its: Vice President, Finance
-------------------------------- -----------------------------
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