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EXHIBIT 10.25
LEASE AGREEMENT
(Industrial Gross)
BASIC LEASE INFORMATION
LEASE DATE: October 11, 1996
LESSOR: LINCOLN RIVERSIDE BUSINESS CENTER,
a California Limited Partnership
LESSOR'S ADDRESS: X.X. Xxx 00000, 00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
LESSEE: MUL ACRES, INC.
a California Corporation
LESSEE'S ADDRESS: 0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, XX 00000
PREMISES: Approximately 3,200 square feet as shown on Exhibit A
PREMISES ADDRESS: 00000 Xxxxxxxx Xxxxxx, Xxxxxx X & X
Xxxxxxxxx, XX 00000
BUILDING: 19,748 square feet
LOT (BUILDING'S TAX PARCEL): N/A
PARK: 280,354 square feet
TERM: October 15, 1996 ("Commencement Date"), through
November 14, 1998 ("Expiration Date")
BASE RENT (Para. 13): One Thousand Four Hundred and 00/100 Dollars ($1,400.00) per month
ADJUSTMENTS TO BASE RENT: October 15, 1996 to November 14, 1996 $0.00 (Rent Waiver Period)
November 15, 1996 to November 14, 1998 $1,400.00 per month
SECURITY DEPOSIT (Para. 4.A): One Thousand Four Hundred Forty and 00/100 Dollars ($1,440.00)
CLEANING DEPOSIT (Para. 4.B): N/A
TRASH AND WATER CHARGE (Para. 7): Forty and 00/100 Dollars ($40.00) per month
BASE YEAR FOR LESSEE'S SHARE OF THE EXPENSES: 1997
*LESSEE'S SHARE OF INCREASES IN OPERATING EXPENSES (Para. 6.A): 1.14% of the Park
*LESSEE'S SHARE OF INCREASES IN TAX EXPENSES (Para. 6.B): 1.14% of the Park
*LESSEE'S SHARE OF INCREASES IN COMMON AREA UTILITY COSTS (Para. 7): 1.14% of the Park
*The amount of Lessee's Share of the increases in expenses as referenced above
shall be subject to Modification as set forth in this Lease.
PERMITTED USES: Warehousing and assembly of motorcycle parts.
GENERAL LIABILITY INSURANCE Bodily injury, limit of not less than $1,000,000.00 per occurrence;
AMOUNT (Para. 12): Property damage limit of not less than $1,000,000.00 per occurrence;
Combined single limit of not less than $1,000,000.00.
UNRESERVED PARKING SPACES: Six (6) nonexclusive and undesignated spaces
BROKER (Para. 38): None.
Exhibits: Exhibit A - Premises, Building, Lot and/or Park
Exhibit C - Rules and Regulations
Exhibit D - CC&Rs
Exhibit E - Sign Criteria
Exhibit F - Hazardous Materials Disclosure Certificate
Exhibit H - Guaranty of Lease
Addenda: None.
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LEASE AGREEMENT
DATE This Lease is made and entered into as of the Lease Date defined on
Page 1. The Basic Lease information set forth on Page 1 and this Lease
are and shall be construed as a single instrument.
1. PREMISES: Lessor hereby leases the Premises to Lessee upon the terms
and conditions contained herein. Lessor hereby grants to Lessee a revocable
license for the right to use, on a non-exclusive basis, parking areas and
ancillary facilities located within the Common Area of the Park, subject to the
terms of this Lease.
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES: If Lessor
cannot deliver possession of the Premises on the Commencement Date, Lessor
shall not be subject to any liability nor shall the validity of the Lease be
affected; provided the Lease term and the obligation to pay Rent shall commence
on the date possession is tendered and the termination date shall be extended
by a period of time equal to the period computed from the Commencement Date to
the date possession is tendered by Lessor to Lessee. In the event the
commencement date of this Lease is other than the Commencement Date provided on
Page 1, Lessor and Lessee shall execute a written amendment to this Lease,
substantially in the form of Exhibit G hereto, wherein the parties shall
specify the actual commencement date, termination date and the date on which
Lessee is to commence paying Rent. In the event that Lessor permits Lessee to
occupy the Premises prior to the Commencement Date, such occupancy shall be at
Lessee's sole risk and subject to all the provisions of this Lease, including,
but not limited to, the requirement to pay Rent and the Security Deposit, and
to obtain the insurance required pursuant to this Lease and to deliver
insurance certificates as required herein. In addition to the foregoing,
Lessor shall have the right to impose such additional conditions on Lessee's
early entry as Lessor shall deem appropriate. By taking possession of the
Premises, Lessee shall be deemed to have accepted the Premises in a good,
clean and completed condition and state of repair, in compliance with all
applicable laws, codes, regulations, administrative orders and ordinances, and
subject to all matters of record. Lessee hereby acknowledges and agrees that
neither Lessor nor Lessor's agents or representatives has made any
representations or warranties as to the suitability, safety or fitness of
the Premises for the conduct of Lessee's business, Lessee's intended use of the
Premises or for any other purpose, and that neither Lessor nor Lessor's agents
or representatives has agreed to undertake any alterations or construct any
Tenant Improvements to the Premises except as expressly provided in this
Lease. Lessee agrees that at anytime before or during the term of this Lease,
Lessor shall have the right to relocate Lessee from the Premises described
herein to other space within the Park on substantially the same terms and
conditions of this Lease provided the other space is of comparable size.
3. RENT: On the date that Lessee executes this Lease, Lessee shall
deliver to Lessor the original executed Lease, the Base Rent (which shall be
applied against the Rent payable for the first month Lessee is required to pay
Base Rent), the Security Deposit, the Cleaning Deposit, and all insurance
certificates evidencing the insurance required to be obtained by Lessee under
Paragraph 12 of this Lease. Lessee agrees to pay Lessor, without prior notice
or demand, or abatement, offset, deduction or claim, the Base Rent described
on Page 1, payable in advance at Lessor's address shown on Page 1 on the first
day of each month throughout the term of the Lease. In addition to the Base
Rent set forth on Page 1, Lessee shall pay Lessor in advance and on the first
(1st) day of each month throughout (the term of this Lease (including any
extensions of such term), as additional rent Lessee's share, as set forth on
Page 1, of Increases in Operating Expenses, Increases in Tax Expenses,
Increases in Common Area Utility Costs, administrative expenses, Trash and
Water Charge and Utility Expenses, as specified in Paragraphs 6.A,, 6.13., 6.C.
and 7 of this Lease, respectively. Additionally, Lessee shall pay to Lessor as
additional rent hereunder, immediately on Lessor's demand therefor, any and all
costs and expenses incurred by Lessor to enforce the provisions of this Lease,
including, but not limited to, costs associated with any proposed assignment or
subletting of all or any portion of the Premises by Lessee, costs associated
with the delivery of notices, delivery and recordation of notice(s) of default,
attorneys' fees, expert fees, court costs and filing fees (collectively, the
"Enforcement Expenses"). The term "Rent" whenever used herein refers to the
aggregate of all these amounts. If Lessor permits Lessee to occupy the
Premises without requiring Lessee to pay rental payments for a period of time,
the waiver of the requirement to pay rental payments shall only apply to
waiver of the Base Rent and Lessee shall otherwise perform all other
obligations of Lessee hereunder, including, but not limited to paying to Lessor
any and all amounts considered additional rent, such as Lessee's share of
Increases in Operating Expenses, Increases in Tax Expenses, Increases in Common
Area Utility Costs, Trash and Water Charge, Utility Expenses, and administrative
expenses. If,
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at any time, Lessee is in default of or otherwise breaches any term, condition
or provision of this Lease, any such waiver by Lessor of Lessee's requirement
to pay rental payments shall be null and void and Lessee shall immediately pay
to Lessor all rental payments waived by Lessor. The Rent for any fractional
part of a calendar month at the commencement or termination of the Lease term
shall be a prorated amount of the Rent for a full calendar month based upon a
thirty (30) day month. The prorated Rent shall be paid on the Commencement Date
and the first day of the calendar month in which the date of termination
occurs, as the case may be.
4. SECURITY DEPOSIT AND CLEANING DEPOSIT:
A. SECURITY DEPOSIT: Upon Lessee's execution of this Lease,
Lessee shall deliver to Lessor, as a Security Deposit for the performance by
Lessee of its obligations under this Lease, the amount described on Page 1. If
Lessee is in default, Lessor may, but without obligation to do so, use the
Security Deposit, or any portion thereof, to cure the default or to compensate
Lessor for all damages sustained by Lessor resulting from Lessee's default,
including, but not limited to the Enforcement Expenses. Lessee shall,
immediately on demand, pay to Lessor a sum equal to the portion of the Security
Deposit so applied or used so as to replenish the amount of the Security
Deposit held up to the amount initially deposited with Lessor. Concurrently
with any increase in the Base Rent, Lessee shall deliver to Lessor an amount
equal to such increase, which amount shall be added to the Security Deposit
being held by Lessor and be deemed a part of such Security Deposit thereafter.
At anytime after Lessee has defaulted hereunder, Lessor may require an
increase in the amount of the Security Deposit required hereunder for the then
balance of the Lease term and Lessee shall, immediately on demand, pay to
Lessor additional sums in the amount of such increase. As soon as practicable
after the termination of this Lease, Lessor shall return the Security Deposit
to Lessee, less such amounts as are reasonably necessary, as determined solely
by Lessor, to remedy Lessee's default(s) hereunder or to otherwise restore the
Premises to a clean and safe condition, reasonable wear and tear excepted. If
the cost to restore the Premises exceeds the amount of the Security Deposit,
Lessee shall promptly deliver to Lessor any and all of such excess sums as
determined solely by Lessor. Lessor shall not be required to keep the Security
Deposit separate from other funds, and, unless otherwise required by law,
Lessee shall not be entitled to interest on the Security Deposit. In no event
or circumstance shall Lessee have the right to any use of the Security Deposit
and, specifically, Lessee may not use the Security Deposit as a credit or to
otherwise offset any payments required hereunder, including, but not limited
to, Rent or any portion thereof.
B. CLEANING DEPOSIT: Upon Lessee's execution of this Lease,
Lessee shall deliver to Lessor, as a Cleaning Deposit for the performance by
Lessee of its obligations under this Lease including, but not limited to,
Paragraph 11 below, the amount described on Page 1. The Cleaning Deposit is to
be used for purposes relating to cleaning up the Premises and the Park adjacent
to the Premises to the satisfaction of Lessor. If Lessee is in default, Lessor
may, but without obligation to do so, use the Cleaning Deposit, or any portion
thereof, to cure the default or to compensate Lessor for all damages sustained
by Lessor resulting from Lessee's default, including, but not limited to the
Enforcement Expenses. Lessee shall, immediately on demand, pay to Lessor a sum
equal to the portion of the Cleaning Deposit so applied or used so as to
replenish the amount of the Cleaning Deposit held up to the amount initially
deposited with Lessor. At anytime after Lessee has defaulted hereunder, Lessor
may require an increase in the amount of the Cleaning Deposit required
hereunder for the then balance of the Lease term and Lessee shall, immediately
on demand, pay to Lessor additional sums in the amount of such increase. As
soon as practicable after the termination of this Lease, Lessor shall return
the Cleaning Deposit to Lessee, less such amounts as are reasonably necessary
to remedy Lessee's default(s) hereunder or to otherwise restore the Premises to
a clean and safe condition as determined by Lessor. Lessor shall not be
required to keep the Cleaning Deposit separate from other funds, and, unless
otherwise required by law, Lessee shall not be entitled to interest on the
Cleaning Deposit. In no event or circumstance shall Lessee have the right to
any use of the Cleaning Deposit and, specifically, Lessee may not use the
Cleaning Deposit as a credit or to otherwise offset any payments required
hereunder, including, but not limited to, Rent or any portion thereof.
5. CONDITION OF PREMISES: Lessee hereby accepts the Premises in its
current "as is" condition unless otherwise specified in Exhibit B, attached
hereto and incorporated herein by this reference. If so specified in Exhibit B
hereto, Lessor or Lessee, as the case may be, shall install the improvements
("Tenant Improvements") on the Premises as described and in accordance with the
terms, conditions, criteria and provisions set forth in Exhibit B, attached and
incorporated herein by this reference. Lessee acknowledges that neither Lessor
nor any of Lessor's agents, representatives or employees has made any
representations as to the suitability or fitness of the Premises for the
conduct of Lessee's business or for any other purpose, and that neither Lessor
nor any of Lessor's agents, representatives or employees has agreed to
undertake any alterations or construct any Tenant Improvements to the Premises
except as expressly provided in Exhibit B to this Lease.
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6. Expenses:
A. OPERATING EXPENSES: In addition to the Base Rent set forth in
Xxxxxxxxx 0, Xxxxxx shall pay its share, which is defined on Page 1, of all
Operating Expenses in excess of the amount of said expenses for the calendar
year in which this Lease commenced ("Increases in Operating Expenses") as
additional rent. The term "Operating Expenses" as used herein shall mean the
total amounts paid or payable by Lessor in connection with the ownership,
maintenance, repair and operation of the Premises, the Building and the Lot, and
where applicable, of the Park referred to on Page 1. The amount of Lessee's
share of Increases in Operating Expenses shall be reviewed from time to time by
Lessor and shall be subject to modification by Lessor, as reasonably determined
by Lessor, including, but not limited to modifications due to the sale or
addition of a building or additional space within the Lot or the Park. These
Operating Expenses may include, but are not limited to:
(i) Lessor's cost of non-structural repairs to and
maintenance of the roof and exterior walls of the Building;
(ii) Lessor's cost of maintaining the outside paved area,
landscaping and other common areas for the Park. The term "Common Area"
shall mean all areas and facilities within the Park exclusive of the
Premises and the other portions of the Park lased exclusively to other
tenants. The Common Area includes, but is not limited to, interior
lobbies, mezzanines, parking areas, access and perimeter roads,
sidewalks, landscaped areas and similar areas and facilities;
(iii) Lessor's annual cost of insurance insuring against fire
and extended coverage (including, if Lessor elects, "all risk" coverage)
and all other insurance, including, but not limited to, earthquake,
flood and/or surface water endorsements for the Building, the Lot and
the Park (including the Common Area), and rental value insurance against
loss of Rent in an amount equal to the amount of Rent for a period of at
least six (6) months commencing on the date of loss;
(iv) Lessor's cost of modifications to the Building, the
Common Area and/or the Park occasioned by any rules, laws or
regulations effective subsequent to the commencement of the Lease;
(v) Lessor's cost of modifications to the Building, the
Common Area and/or the Park occasioned by any rules, laws or regulations
became effective;
(vi) If Lessor elects to so procure, Lessor's cost of
preventative maintenance, repair and replacement contracts including,
but not limited to, contracts for elevator systems and heating,
ventilation and air conditioning systems, and trash or refuse
collection;
(vii) Lessor's cost of security and fire protection services
for the Park, if in Lessor's sole discretion such services are provided;
(viii) Lessor's establishment of reasonable reserves for
replacements and/or repairs of Common Area improvements, equipment and
supplies;
(ix) Lessor's cost for the creation and negotiation of, and
pursuant to, any rail spur or track agreements, licenses, easements or
other similar undertakings; and
(x) Lessor's cost of supplies, equipment, rental equipment
and other similar items used in the operation and/or maintenance of the
Park.
B. TAX EXPENSES: In addition to the Base Rent set forth in
Xxxxxxxxx 0, Xxxxxx shall pay its share, which is defined on Page 1, of all
real property taxes applicable to the land and improvements included within the
Lot on which the Premises are situated in excess of the amount of the Tax
Expenses for the calendar year in which this Lease commenced ("Increases in
Tax Expenses") and one hundred percent (100%) of all personal property taxes
now or hereafter assessed or levied against the Premises or Lessee's personal
property. The amount of Lessee's share of Increases in Tax Expenses shall be
reviewed from time to time by Lessor and shall be subject to modification by
Lessor, as reasonably determined by Lessor, including, but not limited to
modifications due to the sale or addition of a building or additional space
within the Lot or the Park. Lessee shall also pay any increase in real
property taxes attributable, in Lessor's sole discretion, to any and all
alterations, Tenant Improvements or other improvements of any kind whatsoever
placed in, on or about the Premises for the benefit of, at the request of, or
by Lessee. The term "Tax Expenses" includes, but is not limited to, any form
of tax and assessment (general, special, ordinary or extraordinary), commercial
rental tax, payments under any improvement bond or bonds,
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license, rental tax, transaction tax, levy, or penalty imposed by authority
having the direct or indirect power of tax (including any city, county, state
or federal government, or any school, agricultural, lighting, drainage or other
improvement district thereof) as against any legal or equitable interest of
Lessor in the Premises, Lot or Park, as against Lessor's right to rent or other
income therefrom, or as against Lessor's business of leasing the Premises or
the occupancy of Lessee or any other tax, fee, or excise, however described
(excluding inheritance or estate taxes), including any value added tax, or any
tax imposed in substitution, partially or totally, of any tax previously
included within the definition of real property taxes, or any additional tax
the nature of which was previously included within the definition of real
property tax.
C. PAYMENT OF EXPENSES AND ADMINISTRATIVE EXPENSES: Lessor shall
estimate Lessee's share of the Increases in Operating Expenses and Increases in
Tax Expenses for the calendar year in which the Lease commences. Commencing in
January of the following calendar year, one-twelfth (1/12th) of this estimated
amount shall be paid by Lessee to Lessor, as additional rent, on the first
(1st) day of each month and throughout the remaining months of such calendar
year. Thereafter, Lessor may estimate such expenses as of the beginning of each
calendar year and Lessee shall pay one-twelfth (1/12th) of such estimated
amount as additional rent hereunder on the first day of each month during such
calendar year and for each ensuing calendar year throughout the term of this
Lease (including any extensions of the term). Not later than March 31 of each
of the following calendar years, or as soon thereafter as reasonably possible,
including the calendar year after the calendar year in which this Lease
terminates or the term expires, Lessor shall endeavor to furnish Lessee with a
true and correct accounting of actual Increases in Operating Expenses and
Increases in Tax Expenses. Within thirty (30) days of Lessor's delivery of such
accounting, Lessee shall pay to Lessor the amount of any underpayment.
Notwithstanding the foregoing, failure by Lessor to give such accounting by
such date shall not constitute a waiver by Lessor of its right to collect any
of Lessee's underpayment at anytime. Lessor shall credit the amount of any
overpayment by Lessee toward the next estimated monthly installment(s) falling
due, or where the term of the Lease has expired, refund the amount of
overpayment to Lessee. Lessee, at its sole cost and expense through any
certified public accountant designated by it, shall have the right to examine
and/or audit the books and records evidencing such costs and expenses for the
previous one (1) calendar year, during Lessor's reasonable business hours and
not more frequently than once during any calendar year. Lessee's obligations to
pay its share of Increased Operating Expenses and Increased Tax Expenses shall
survive the expiration or earlier termination of this Lease.
If the term of the Lease expires prior to the annual reconciliation of
expenses, if any, Lessor shall have the right to reasonably estimate Lessee's
share of such expenses, and if Lessor determines that an underpayment is due,
Lessee hereby agrees that Lessor shall be entitled to deduct such underpayment
from Lessee's Security Deposit. If Lessor reasonably determines that an
overpayment has been made by Lessee, Lessor shall refund said overpayment
together with the return of Lessee's Security Deposit. Notwithstanding the
foregoing, failure of Lessor to accurately estimate Lessee's share of such
expenses shall not constitute a waiver of Lessor's right to collect any of
Lessee's underpayment at anytime.
In addition to the Base Rent set forth in Paragraph 3 hereof, Lessee
shall pay Lessor, without prior notice or demand, on the first (1st) day of
each month throughout the term of this Lease (including any extensions of such
term), as compensation to Lessor for accounting and management services
rendered on behalf of the Park, an amount equal to ten percent (10%) of the
aggregate of Lessee's share of (i) the total Increases in Operating Expenses
and Increases in Tax Expenses as described in Paragraphs 6.A. and 6.B. above,
respectively, and (ii) all Increases in Common Area Utility Costs for the Park
as described in Paragraph 7. Lessee's obligations to pay its share of such
administrative expenses shall survive the expiration or earlier termination of
this Lease.
7. UTILITIES: Lessee shall pay the cost of all water, sewer use
and connection fees, gas, heat, electricity, refuse pickup, janitorial service,
telephone and other utilities billed or metered separately to the Premises
and/or Lessee. Lessee shall also pay its share of any assessments or charges
for utility or similar purposes included within any tax xxxx for the Lot on
which the Premises are situated. For any such utility fees or use charges that
are not billed or metered separately to Lessee, Lessee shall pay to Lessor, as
additional rent, without prior notice or demand, on the first (1st) day of each
month throughout the term of this Lease the amount which is attributable to
Lessee's use of the Premises as reasonably estimated and determined by Lessor
based upon factors such as size of the Premises and intensity of use of such
utilities by Lessee such that Lessee shall pay the portion of such charges
reasonably consistent with Lessee's use of such utilities ("Utility Expenses").
If Lessee disputes any such estimate or determination, then Lessee shall either
pay the estimated amount or cause the Premises to be separately metered at
Lessee's sole expense. In addition, Lessee shall pay Lessor a trash and water
charge (the "Trash and Water Charge") in the amount set forth on Page 1, as
additional rent. Lessee shall also pay to Lessor its share, which is described
on Page 1, as additional rent, of any Common Area utility costs, fees, charges
or expenses in excess of the amount of such costs, fees, charges or expenses
for the calendar year in
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which this Lease commenced ("Increases in Common Area Utility Costs") within
fifteen (15) days after receiving a xxxx from Lessor. The amount of Lessee's
share of Increases in Common Area Utility Costs shall be reviewed from time to
time by Lessor and shall be subject to modification by Lessor, as reasonably
determined by Lessor, including, but not limited to modifications due to the
sale or addition of a building or additional space within the Lot or the Park.
Lessee acknowledges that the Premises may become subject to the rationing of
utility services or restrictions on utility use as required by a public utility
company, governmental agency or other similar entity having jurisdiction
thereof. Notwithstanding any such rationing or restrictions on use of any such
utility services, Lessee acknowledges and agrees that its tenancy and occupancy
hereunder shall be subject to such rationing restrictions as may be imposed
upon Lessor, Lessee, the Premises, the Building or the Park, and Lessee shall
in no event be excused or relieved from any covenant or obligation to be kept
or performed by Lessee by reason of any such rationing or restrictions. Lessee
further agrees to pay and discharge, prior to delinquency, any amount, tax,
charge, surcharge, assessment or imposition levied, assessed or imposed upon
the Premises, or Lessee's use and occupancy thereof, or as a result directly or
indirectly of any such rationing or restrictions.
8. LATE CHARGES: Lessee acknowledges that late payment (the second day of
each month or anytime thereafter) by Lessee to Lessor of Base Rent, Lessee's
share of Increases in Operating Expenses, Increases in Tax Expenses, Increases
in Common Area Utility Costs, the Trash and Water Charge, Utility Expenses or
other sums due hereunder, will cause Lessor to incur costs not contemplated by
this Lease, the exact amount of such costs being extremely difficult and
impracticable to fix. Such costs include, without limitation, processing and
accounting charges, and late charges that may be imposed on Lessor by the terms
of any note secured by any encumbrance against the Premises, and late charges
and penalties due to the late payment of real property taxes on the Premises.
Therefore, if any installment of Rent or any other sum due from Lessee is not
received by Lessor when due, Lessee shall promptly pay to Lessor all of the
following, as applicable: (a) an additional sum equal to ten percent (10%) of
such delinquent amount plus interest on such delinquent amount at the rate equal
to the prime rate plus three percent (3%) for the time period such payments are
delinquent as a late charge for every month or portion thereof that such sums
remain unpaid, (b) the amount of seventy-five dollars ($75) for each three-day
notice prepared for, or served on, Lessee, (c) the amount of fifty dollars ($50)
relating to checks for which there are not sufficient funds. The parties agree
that this late charge and the other charges referenced above represent a fair
and reasonable estimate of the costs that Lessor will incur by reason of late
payment by Lessee. Acceptance of any late charge or other charges shall not
constitute a waiver by Lessor of Lessee's default with respect to the delinquent
amount, nor prevent Lessor from exercising any of the other rights and remedies
available to Lessor for any other breach of Lessee under this Lease. If a late
charge or other charge becomes payable for any three (3) installments of Rent
within any twelve (12) month period, then Lessor, at Lessor's sole option, can
either require the Rent to be paid quarterly in advance, or be paid monthly in
advance by cashier's check or by electronic funds transfer.
9. USE OF PREMISES: The Premises are to be used solely for the uses stated
on Page 1 and for no other uses or purposes without Lessor's prior written
consent. The use of the Premises by Lessee and its agents, invitees and
employees shall be subject to, and at all times in compliance with, (a) any and
all applicable laws, ordinances, statutes, orders and regulations as same exist
from time to time (collectively, the "Laws"), and (b) any and all declarations
of covenants, conditions and restrictions ("CC&Rs") and any supplement thereto
which has been or hereafter is recorded in any official or public records with
respect to the Premises, the Building, the Lot and/or the Park, or any portion
thereof.
Lessee shall not use the Premises or permit anything to be done in or
about the Premises nor keep or bring anything therein which will in any way
conflict with any of the requirements of the Board of Fire Underwriters or
similar body now or hereafter constituted or in any way increase the existing
rate of or affect any policy of fire or other insurance upon the Building or any
of its contents, or cause a cancellation of any insurance policy. Lessee shall
not do or permit anything to be done in or about the Premises which will in any
way obstruct or interfere with the rights of Lessor, other tenants or occupants
of the Building, other buildings in the Park, or other persons or businesses in
the Park, or injure or annoy other tenants or use or allow the Premises to be
used for any improper, immoral, unlawful or objectionable purpose, as determined
by Lessor, in its sole discretion, for the benefit, quiet enjoyment and use by
Lessor and all other tenants or occupants of the Building or other buildings in
the Park; nor shall Lessee cause, maintain or permit any private or public
nuisance in, on or about the Premises, Building, Park and/or the Common Area,
including, but not limited to, any offensive odors, fumes or vibrations. Lessee
shall not damage or deface or otherwise commit or suffer to be committed any
waste in, upon or about the Premises. Lessee shall not store, nor permit any
other person or entity to store, any property, equipment, materials, supplies,
personal property or any other items or goods outside of the Premises. Lessee
shall not permit any animals, including, but not limited to, any household pets,
to be brought or kept in or about the Premises. Lessee shall place no loads upon
the floors, walls, or ceilings in excess of the
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maximum designed load permitted by the applicable Uniform Building Code or
which may damage the Building or outside areas; nor place any harmful liquids
in the drainage systems; nor dump or store waste materials, refuse or other
such materials, or allow such to remain outside the Building area, except in
refuse dumpsters or in any enclosed trash areas provided. Lessee shall honor
the terms of all recorded CC&Rs relating to the Premises, the Building, the Lot
and/or the Park. Lessee shall honor the rules and regulations set forth in
Exhibit C, attached to and made a part of this Lease, and any other reasonable
rules and regulations of Lessor now or hereafter enacted relating to parking
and the operation of the Building and the Park. If Lessee fails to comply with
such Laws, CC&Rs, rules and regulations or the provisions of this Lease, Lessor
shall have the right to collect from Lessee a reasonable sum as a penalty, in
addition to all rights and remedies of Lessor hereunder including, but not
limited to, the payment by Lessee to Lessor of all Enforcement Expenses and
Lessor's costs and expenses, if any, to cure any of such failures of Lessee, if
Lessor, at its sole option, elects to undertake such cure.
10. ALTERATIONS AND ADDITIONS: Lessee shall not install any signs,
fixtures, improvements, nor make or permit any other alterations or additions
to the Premises without the prior written consent of Lessor. If any such
alteration or addition is expressly permitted by Lessor, Lessee shall deliver
at least twenty (20) days prior notice to Lessor, from the date Lessee intends
to commence construction, sufficient to enable Lessor to post a Notice of
Non-Responsibility. In all events, Lessee shall obtain all permits or other
governmental approvals prior to commencing any of such work and deliver a copy
of same to Lessor. All alterations and additions shall be installed by a
licensed contractor approved by Lessor, at Lessee's sole expense in compliance
with all applicable Laws, CC&Rs, and Lessor's rules and regulations. Lessee
shall keep the Premises and the property on which the Premises are situated
free from any liens arising out of any work performed, materials furnished or
obligations incurred by or on behalf of Lessee. As a condition to Lessor's
consent to the installation of any fixtures or improvements, Lessor may require
Lessee to post and obtain a completion and indemnity bond for up to one hundred
fifty percent (150%) of the cost of the work. Upon termination of this Lease,
Lessee shall remove all signs, fixtures, furniture and furnishings and if
requested by Lessor, remove any improvements made by Lessee and repair any
damage caused by the installation or removal of such signs, fixtures,
furniture, furnishings and improvements and leave the Premises in as good
condition as they were in at the time of the commencement of this Lease,
excepting for reasonable wear and tear. Reasonable wear and tear shall not
include any damage or deterioration that would have been prevented by proper
maintenance by Lessee or Lessee otherwise performing all of its obligations
under this Lease.
11. REPAIRS AND MAINTENANCE: Lessee shall, at Lessee's sole cost and
expense, keep and maintain the Premises and the adjacent Park in good, clean
and safe condition and repair to the satisfaction of Lessor including, but not
limited to, repairing any damage caused by Lessee or its employees,
representatives, agents, invitees, licensees or contractors. Without limiting
the generality of the foregoing, Lessee shall be solely responsible for
maintaining, repairing and replacing all interior plumbing and mechanical
systems, heating, ventilation and air conditioning systems, interior electrical
wiring and equipment, interior lighting, all interior glass, interior window
easements, partitions, tenant signage, interior doors and door closers,
fixtures, equipment, interior painting, and interior walls and floors of the
Premises. Lessee's obligation to keep, maintain, preserve and repair the
Premises and the adjacent Park shall specifically extend to the cleanup and
removal of any and all Hazardous Materials (hereafter defined) occurring in, on
or about the Premises.
Subject to the provisions of Paragraphs 6 and 9 of this Lease and
except for repairs rendered necessary by the active or passive negligent acts
or omissions of Lessee, its agents, customers, employees and invitees, Lessor
agrees, at Lessor's expense, subject to reimbursement pursuant to Paragraph 6
above, to keep in good repair the plumbing and mechanical systems exterior to
the Premises, roof membranes, signage (exclusive of tenant signage), exterior
electrical wiring and equipment, exterior lighting, all exterior glass,
exterior doors and entrances, exterior window easements, exterior doors and door
closers, exterior painting, and underground utility and sewer pipes outside the
exterior walls of the Building. Lessor reserves the right, but without the
obligation, to procure and maintain the heating, ventilation and air
conditioning systems maintenance contract and if Lessor so elects, Lessee will
reimburse Lessor for the cost thereof in accordance with the provisions of
Paragraph 6 above.
Except for repairs rendered necessary by the active or passive
negligent acts or omissions of Lessee, its agents, customers, employees and
invitees, Lessor agrees, at Lessor's sole cost and expense, to keep in good
repair the structural portions of the floors, foundations, exterior walls
(exclusive of glass and exterior doors), and the structural portions of the
roof (excluding the roof membrane) of the Building.
Except for normal maintenance and repair of the items outlined above,
Lessee shall have no right of access to or right to install any device on the
roof of the Building nor make any penetrations of the roof of the Building
without the express prior written consent of Lessor. If Lessee refuses or
neglects to
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repair and maintain the Premises and the adjacent Park properly as required
herein and to the reasonable satisfaction of Lessor, Lessor may, but without
obligation to do so, at anytime make such repairs and/or maintenance without
Lessor having any liability to Lessee for any loss or damage that may accrue to
Lessee's merchandise, fixtures or other property, or to Lessee's business by
reason thereof. In the event Lessor makes such repairs and/or maintenance, upon
completion thereof Lessee shall pay to Lessor, as additional rent, the Lessor's
costs for making such repairs and/or maintenance, plus twenty percent (20%) for
overhead, upon presentation of a xxxx thereof, plus any Enforcement Expenses.
The obligations of Lessee hereunder shall survive the expiration of the term of
this Lease or the earlier termination thereof. Lessee hereby waives any right
to repair at the expense of Lessor under any applicable Laws now or hereafter
in effect respecting the Premises.
12. INSURANCE: Lessee shall maintain in full force and effect at all times
during the term of this Lease, at Lessee's sole cost and expense, for the
protection of Lessee and Lessor, as their interests may appear, policies of
insurance issued by a carrier or carriers acceptable to Lessor and its
lenders(s) which afford the following coverages: (i) worker's compensation:
statutory limits; (ii) employer's liability: as required by law with a minimum
of $1,000,000; (iii) comprehensive general liability insurance (occurrence form)
including blanket contractual liability, broad form property damage, premises,
personal injury, completed operations, products liability, personal and
advertising coverage, a plate-glass rider to provide coverage for all glass in,
on or abbot the Premises including, without limitation, skylights, and fire
damage with a combined single limit of not less than (the amount set forth on
Page 1) per occurrence, and (the amount set forth on Page 1) per occurrence per
location if Lessee has multiple locations, with deletion of (a) the exclusion
for operations within fifty (50) feet of a railroad track (railroad protective
liability), if applicable, and (b) the exclusion for explosion, collapse or
underground hazard, if applicable, and if necessary, Lessee shall provide for
restoration of the aggregate limit; (iv) comprehensive automobile liability
insurance: a combined single limit of not less than $2,000,000 per occurrence
and insuring Lessee against liability for claims arising out of the ownership,
maintenance, or use of any owned, hired or non-owned automobiles; and (v) "all
risk" property insurance including boiler and machinery comprehensive form, if
applicable, covering damage to or loss of any personal property, fixtures and
equipment, including, without limitation, electronic data processing equipment,
of Lessee (and coverage for the full replacement cost thereof including business
interruption of Lessee), together with, if the property of Lessee's invitees is
to be kept in the Premises, warehouser's legal liability or bailee customers
insurance for the full replacement cost of the property belonging to invitees
and located in the Premises.
Insurance required to be maintained by lessee shall be written by
companies licensed to do business in the State of California and having a
"General Policyholders Rating" of at least A (or such higher 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 deliver to Lessor
certificates of insurance for all insurance required to be maintained by Lessee
hereunder at the time of execution of this Lease by Lessee. Lessee shall, at
least thirty (30) days prior to expiration of each policy, furnish Lessor with
certificates of renewal or "binders" thereof. Each certificate shall expressly
provide that such policies shall not be cancelable or otherwise subject to
modification except after thirty (30) days prior written notice to the parties
named as additional insureds as required in this Lease (except for cancellation
for nonpayment of premium, in which event cancellation shall not take effect
until at least ten (10) days' notice has been given to Lessor). If Lessee fails
to maintain any insurance required in this Lease, Lessee shall be liable for
all losses and costs resulting from such failure.
Lessor, any property management company of Lessor for the Premises, any
lender(s) of Lessor having a lien against the Premises, the Building, the Lot
or the Park, and any joint venture partners of Lessor shall be named as
additional insureds under all of the policies required in Paragraph 12.(iii)
above. Additionally, such policies shall provide for severability of interest.
All insurance to be maintained by Lessee shall, except for workers'
compensation and employer's liability insurance, be primary, without right of
contribution from insurance maintained by Lessor. Any umbrella liability policy
or excess liability policy (which shall be in "following form") shall provide
that if the underlying aggregate is exhausted, the excess coverage will drop
down as primary insurance. The limits of insurance maintained by Lessee shall
not limit Lessee's liability under this Lease.
13. LIMITATION OF LIABILITY AND INDEMNITY: Except for damage resulting from
the sole active gross negligence or willful misconduct of Lessor or its
authorized representatives, Lessee agrees to protect, defend (with counsel
acceptable to Lessor) and hold Lessor and Lessor's lender(s), partners,
employees, representatives, legal representatives, successors and assigns
(collectively, the "Indemnitees") harmless and indemnify the Indemnitees from
and against all liabilities, damages, claims, losses, judgments, charges and
expenses (including reasonable attorneys' fees, costs of court and expenses
necessary in the prosecution or defense of any litigation including the
enforcement of this provision) arising from or in any way related to, directly
or indirectly, Lessee's use of the Premises and/or the Park, or the conduct of
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Lessee's business, or from any activity, work or thing done, permitted or
suffered by Lessee in or about the Premises, or in any way connected with the
Premises or with the improvements or personal property therein, including, but
not limited to, any liability for injury to person or property of Lessee, its
agents or employees or third party persons. Lessee agrees that the obligations
of Lessee herein shall survive the expiration or earlier termination of this
Lease.
Except for damage resulting from the sole active gross negligence or
willful misconduct of Lessor or its authorized representative, Lessor shall not
be liable to Lessee for any loss or damage to Lessee or Lessee's property, for
any injury to or loss of Lessee's business or for any damage or injury to any
person from any cause whatsoever, including, but not limited to, any acts,
errors or omissions by or on behalf of any other tenants or occupants of the
Building and/or the Park. Lessee shall not, in any event or circumstance, be
permitted to offset or otherwise credit against any payments of Rent required
herein for matters for which Lessor may be liable hereunder. Lessor and its
authorized representatives shall not be liable for any interference with light
or air, or for any latent defect in the Premises or the Building. To the
fullest extent permitted by law, Lessee agrees that neither Lessor nor any of
Lessor's lender(s), partners, employees, representatives, legal representatives,
successors and assigns shall at any time or to any extent whatsoever be liable,
responsible or in any way accountable for any loss, liability, injury, death or
damage to persons or property which at any time may be suffered or sustained by
Lessee or by any person(s) whomsoever who may at any time be using or occupying
or visiting the Premises, the Building or the Park.
14. ASSIGNMENT AND SUBLEASING:
A. PROHIBITION: Lessee shall not assign, mortgage, hypothecate,
encumber, grant any license or concession, pledge or otherwise transfer this
Lease (collectively, "assignment"), in whole or in part, whether voluntarily or
involuntarily or by operation of law, nor sublet or permit occupancy by any
person other than Lessee of all or any portion of the Premises without first
obtaining the prior written consent of Lessor, which shall not be unreasonably
withheld. If Lessee seeks to sublet or assign all or any portion of the
Premises, Lessee shall deliver to Lessor at least thirty (30) days prior to the
proposed commencement of the sublease or assignment (the "Proposed Effective
Date") the following: (i) the name of the proposed assignee or sublessee; (ii)
such information as to such assignee's or sublessee's financial responsibility
and standing as Lessor may reasonably require; and (iii) a copy of the proposed
sublease or assignment agreement and all agreements collateral thereto, which
instrument shall include a provision whereby the assignee or sublessee assumes
all of Lessee's obligations hereunder and agrees to be bound by the terms
hereof. As additional rent hereunder, Lessee shall pay to Lessor a fee in the
amount of five hundred dollars ($500) plus Lessee shall reimburse Lessor for
actual legal and other expenses incurred by Lessor in connection with any
request by Lessee for Lessor's consent to assignment or subletting. In the
event the sublease (1) by itself or taken together with prior sublease(s) covers
or totals, as the case may be, more than twenty-five percent (25%) of the
rentable square feet of the Premises or(2) is for a term which by itself or
taken together with prior or other subleases is greater than fifty percent
(50%) of the period remaining in the term of this Lease as of the time of the
Proposed Effective Date, then Lessor shall have the right, to be exercised by
giving written notice to Lessee, to recapture the space described in the
sublease. If such recapture notice is given, it shall serve to terminate this
Lease with respect to the proposed sublease space, or, if the proposed sublease
space covers all the Premises, it shall serve to terminate the entire term of
this Lease, in either case as of the Proposed Effective Date. However, no
termination of this Lease with respect to part or all of the Premises shall
become effective without the prior written consent, where necessary, of the
holder of each deed of trust encumbering the Premises or any part thereof. If
this Lease is terminated pursuant to the foregoing with respect to less than the
entire Premises, the Rent shall be adjusted on the basis of the proportion of
square feet retained by Lessee to the square feet originally demised and this
Lease as so amended shall continue thereafter in full force and effect. Each
permitted assignee or sublessee shall assume and be deemed to assume this
Lease and shall be and remain liable jointly and severally with Lessee for
payment of Rent and for the due performance of, and compliance with all the
terms, covenants, conditions and agreements herein contained on Lessee's part
to be performed or complied with, for the term of this Lease. No assignment or
subletting shall affect the continuing primary liability of Lessee (which,
following assignment, shall be joint and several with the assignee), and Lessee
shall not be released from performing any of the terms, covenants and
conditions of this Lease. For purposes hereof, in the event Lessee is a
corporation, partnership, joint venture, trust or other entity other than a
natural person, any change in the direct or indirect ownership of Lessee
(whether pursuant to one or more transfers) which results in a change of more
than fifty percent (50%) in the direct or indirect ownership of Lessee shall be
deemed to be an assignment within the meaning of this Paragraph 14 and shall be
subject to all the provisions hereof. Any and all options, first rights of
refusal, tenant improvement allowances and other similar rights granted to
Lessee in this Lease, if any, shall not be assignable by Lessee unless
expressly authorized in writing by Lessor.
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B. EXCESS SUBLEASE RENTAL OR ASSIGNMENT CONSIDERATION: In the
event of any sublease or assignment of all or any portion of the Premises where
the rent or other consideration provided for in the sublease or assignment
either initially or over the term of the sublease or assignment exceeds the
Rent or pro rata portion of the Rent, as the case may be, for such space
reserved in the Lease, Lessee shall pay the Lessor monthly, as additional rent,
at the same time as the monthly installments of Rent are payable hereunder,
fifty percent (50%) of the excess of each such payment of rent or other
consideration in excess of the Rent called for hereunder.
C. WAIVER: Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Lessor to any assignee or
sublessee, or failure by Lessor to take action against any assignee or
sublessee, Lessee waives notice of any default of any assignee or sublessee and
agrees that Lessor may, at its option, proceed against Lessee without having
taken action against or joined such assignee or sublessee, except that Lessee
shall have the benefit of any indulgences, waivers and extensions of time
granted to any such assignee or sublessee.
15. WAIVER OF SUBROGATION: Lessee waives any right to recover against
Lessor for claims for damages to Lessee's property, including, but not limited
to, personal property, fixtures and equipment, covered by insurance. This
provision is intended to waive fully, and for the benefit of Lessor, any rights
and/or claims which might give rise to a right of subrogation in favor of any
insurance carrier. The coverage obtained by Lessee pursuant to this Lease
shall include, without limitation, a waiver of subrogation endorsement
attached to the certificate of insurance.
16. AD VALOREM TAXES: Prior to delinquency, Lessee shall pay all taxes and
assessments levied upon trade fixtures, alterations, additions, improvements,
inventories and personal property located and/or installed on or in the
Premises by, or on behalf of, Lessee; and if requested by Lessor, Lessee shall
promptly deliver to Lessor copies of receipts for payment of all such taxes and
assessments. To the extent any such taxes are not separately assessed or
billed to Lessee, Lessee shall pay the amount thereof as invoiced by Lessor.
17. SUBORDINATION: Without the necessity of any additional document being
executed by Lessee for the purpose of effecting a subordination, and at the
election of Lessor or any bona fide mortgagee or deed of trust beneficiary with
a lien on all or any portion of the Premises or any ground lessor with respect
to the land of which the Premises are a part, this Lease shall be subject and
subordinate at all times to: (i) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building or the land upon
which the Building is situated or both, and (ii) the lien of any mortgage or
deed of trust which may now exist or hereafter be executed in any amount for
which the Building, the Lot, ground leases or underlying leases, or Lessor's
interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Lessor or any such ground lessor, mortgagee, or
any beneficiary shall have the right to subordinate or cause to be subordinated
any such ground leases or underlying leases or any such liens to this Lease. If
any ground lease or underlying lease terminates for any reason or any mortgage
or deed of trust is foreclosed or a conveyance in lieu of foreclosure is made
for any reason, Lessee shall, notwithstanding any subordination and upon the
request of such successor to Lessor, attorn to and become the Lessee of the
successor in interest to Lessor, provided such successor in interest will not
disturb Lessee's use, occupancy or quiet enjoyment of the premises so long as
Lessee is not in default of the terms and provisions of this Lease. The
successor in interest to Lessor following foreclosure, sale or deed in lieu
thereof shall not be (a) liable for any act or omission of any prior lessor or
with respect to events occurring prior to acquisition of ownership; (b) subject
to any offsets or defenses which Lessee might have against any prior lessor;
(c) bound by prepayment of more than one (1) month's Rent; or (d) liable to
Lessee for any Security Deposit not actually received by such successor in
interest. Lessee covenants and agrees to execute (and acknowledge if required
by Lessor, any lender or ground lessor) and deliver, within five (5) days of a
demand or request by Lessor and in the form requested by Lessor, ground lessor,
mortgagee or beneficiary, any additional documents evidencing the priority or
subordination of this Lease with respect to any such ground leases or
underlying leases or the lien of any such mortgage or deed of trust. Lessee's
failure to timely execute and deliver such additional documents shall, at
Lessor's option, constitute a material default hereunder. It is further agreed
that Lessee shall be liable to Lessor, and shall indemnify Lessor from and
against any loss, cost, damage or expense, incidental, consequential, or
otherwise, arising or accruing directly or indirectly, from any failure of
Lessee to execute or deliver to Lessor any such additional documents. Lessee
hereby irrevocably appoints Lessor as attorney-in-fact of Lessee, which
appointment is coupled with an interest, to execute, deliver and record any
such documents in the name and on behalf of Lessee.
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18. RIGHT OF ENTRY: Lessee grants Lessor or its agents the right to enter
the Premises at all reasonable times for purposes of inspection, exhibition,
posting of notices, repair or alteration. At Lessor's option, Lessor shall at
all times have and retain a key with which to unlock all the doors in, upon and
about the Premises, excluding Lessee's vaults and safes. It is further agreed
that Lessor shall have the right to use any and all means Lessor deems necessary
to enter the Premises in an emergency. Lessor shall also have the right to place
"for rent" and/or "for sale" signs on the outside of the Premises. Lessee hereby
waives any claim from damages or for any injury or inconvenience to or
interference with Lessee's business, or any other loss occasioned thereby except
for any claim for any of the foregoing arising out of the gross active negligent
acts of willful misconduct of Lessor or its authorized representatives.
19. ESTOPPEL CERTIFICATE: Lessee shall execute (and acknowledge if required
by any lender or ground lessor) and deliver to Lessor, within five (5) days
after Lessor provides such to Lessee, a statement in writing certifying that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification), the date to which the Rent and other charges
are paid in advance, if any, acknowledging that there are not, to Lessee's
knowledge, any uncured defaults on the part of Lessor hereunder or specifying
such defaults as are claimed, and such other matters as Lessor may reasonably
require. Any such statement may be conclusively relied upon by Lessor and any
prospective purchaser or encumbrancer of the Premises. Lessee's failure to
deliver such statement within such time shall be conclusive upon the Lessee that
(a) this Lease is in full force and effect, without modification except as may
be represented by Lessor, (b) there are no uncured defaults in Lessor's
performance; and (c) not more than one month's Rent has been paid in advance,
except in those instances when Lessee pays Rent quarterly in advance pursuant to
Paragraph 8 hereof, the not more than three month's Rent has been paid in
advance. Failure by Lessee to so deliver such certified estoppel certificate
shall be a default of the provisions of this Lease. Lessee shall be liable to
Lessor, and shall indemnify Lessor from and against any loss, cost, damage or
expense, incidental, consequential, or otherwise, arising or accruing directly
or indirectly, from any failure of Lessee to execute or deliver to Lessor any
such certified estoppel certificate.
Lessee hereby irrevocably appoints Lessor as attorney-in-fact of Lessee, which
appointment is coupled with an interest, to act in Lessee's name, place and
stead to execute and deliver such estoppel certificate on behalf of Lessee.
20. LESSEE'S DEFAULT: The occurrence of any one or more of the following
events shall, at Lessor's option, constitute a default and breach of this
Lease by Lessee:
(i) The vacation or abandonment of the Premises by Lessee
for a period of ten (10) consecutive days, and Lessee waives any right
to notice Lessee may have under applicable law;
(ii) The failure by Lessee to make any payment of Rent or any
other payment required hereunder on the date said payment is due;
(iii) The failure by Lessee to observe, perform or comply with
any of the conditions, covenants or provisions of this Lease (except
default in the payment of Rent); provided, if such default is
susceptible of cure and Lessee has promptly commenced the cure of such
default and is diligently prosecuting such cure to completion, the
same must remain uncured for a period, unless otherwise noted herein, of
fifteen (15) days after written notice;
(iv) The making of a general assignment by Lessee for the
benefit of creditors, the filing of voluntary petition by Lessee or the
filing of an involuntary petition by any of Lessee's creditors seeking
the rehabilitation, liquidation, or reorganization of Lessee under any
law relating to bankruptcy, insolvency or other relief of debtors and,
in the case of an involuntary action, the failure to remove or discharge
the same within sixty (60) days of such filing, the appointment of a
receiver or other custodian to take possession of substantially all of
Lessee's assets or this leasehold, Lessee's insolvency or inability to
pay Lessee's debts or failure generally to pay Lessee's debts when due,
any court entering a decree or order directing the winding up or
liquidation of Lessee or of substantially all of Lessee's assets, Lessee
taking any action toward the dissolution or winding up of Lessee's
affairs, the cessation or suspension of Lessee's use of the Premises, or
the attachment, execution or other judicial seizure of substantially all
of Lessee's assets or this leasehold;
(v) Lessee's use or storage of Hazardous Materials on the
Premises other than as permitted by the provisions of Paragraph 29
below;
(vi) The making of any material misrepresentation or omission
by Lessee in any materials delivered by or on behalf of Lessee to Lessor
pursuant to this Lease; or
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(vii) Lessee's default or other breach of any covenant, condition or
provision of any lease agreement between Lessee or an affiliated entity of
Lessee, as the tenant, and Lessor or an affiliated entity of Lessor, as
landlord, with regard to any and all leased premises other than the Premises as
described herein.
21. REMEDIES FOR LESSEE'S DEFAULT: In the event of Lessee's default or
breach of the Lease, Lessor may terminate Lessee's right to possession of the
Premises by any lawful means in which case upon delivery of written notice by
Lessor this Lease shall terminate on the date specified by Lessor in such notice
and Lessee shall immediately surrender possession of the Premises to Lessor. In
addition, the Lessor shall have the immediate right of re-entry whether or not
this Lease is terminated, and if this right of re-entry is exercised following
abandonment of the Premises by Lessee, Lessor may consider any personal property
belonging to Lessee and left on the Premises to also have been abandoned. No
re-entry or taking possession of the Premises by Lessor pursuant to this
Paragraph 21 shall be construed as an election to terminate this Lease unless a
written notice of such intention is given to Lessee. If Lessor relets the
Premises or any portion thereof, (i) Lessee shall be liable immediately to
Lessor for all costs Lessor incurs in reletting the Premises or any part
thereof, including, without limitation, broker's commissions, expenses of
cleaning, redecorating, and further improving the Premises and other similar
costs and (ii) the rent received by Lessor from such reletting shall be applied
to the payment of, first, any indebtedness from Lessee to Lessor other than Base
Rent, Increases in Operating Expenses, Increases in Tax Expenses, Increases in
Common Area Utility Costs, the Trash and Water Charge and Utility Expenses;
second, all costs including maintenance, incurred by Lessor in reletting; and,
third, Base Rent, Increases in Operating Expenses, Increases in Tax Expenses,
Increases in Common Area Utility Costs, the Trash and Water Charge and Utility
Expenses due under this Lease. After deducting the payments referred to above,
any sum remaining from the rental Lessor receives from reletting shall be held
by Lessor and applied in payment of future Rent as Rent becomes due under this
Lease. In no event shall Lessee be entitled to any excess rent received by
Lessor. Reletting may be for a period shorter or longer than the remaining term
of this Lease. No act by Lessor other than giving written notice to Lessee
shall terminate this Lease. Acts of maintenance, efforts to relet the Premises
or the appointment of a receiver on Lessor's initiative to protect Lessor's
interest under this Lease shall not constitute a termination of Lessee's right
to possession. So long as this Lease is not terminated, Lessor shall have the
right to remedy any default of Lessee, to maintain or improve the Premises, to
cause a receiver to be appointed to administer the Premises and new or existing
subleases and to add to the Rent payable hereunder all of Lessor's reasonable
costs in so doing, with interest at the maximum rate permitted by law from the
date of such expenditure.
If Lessee breaches this Lease and abandons the property before the end
of the term, or if Lessee's right to possession is terminated by Lessor because
of a breach or default of the Lease, then in either such case, Lessor may
recover from Lessee all damages suffered by Lessor as a result of Lessee's
failure to perform its obligations hereunder, including, but not limited to,
the cost of any tenant improvements, and all costs Lessor incurs in reletting
the Premises or any part thereof, including without limitation, brokerage or
leasing commissions, expenses of cleaning, redecorating, and further improving
the Premises and like costs, and the worth at the time of the award (computed
in accordance with paragraph (3) of Subdivision (a) of Section 1951.2 of the
California Civil Code) of the amount by which the Rent then unpaid hereunder
for the balance of the Lease term exceeds the amount of such loss of Rent for
the same period which Lessee proves could be reasonably avoided by Lessor and
in such case, Lessor prior to the award, may relet the Premises for the purpose
of mitigating damages suffered by Lessor because of Lessee's failure to perform
its obligations hereunder; provided, however, that even though Lessee has
abandoned the Premises following such breach, this Lease shall nevertheless
continue in full force and effect for as long as Lessor does not terminate
Lessee's right of possession, and until such termination, Lessor shall have the
remedy described in Section 1951.4 of the California Civil Code (Lessor may
continue this Lease in effect after Lessee's breach and abandonment and recover
Rent as it becomes due, if Lessee has the right to sublet or assign, subject
only to reasonable limitations) and may enforce all its rights and remedies
under this Lease, including the right to recover the Rent from Lessee as it
becomes due hereunder. The "worth at the time of the award" within the meaning
of Subparagraphs (a)(1) and (a)(2) of Section 1951.2 of the California Civil
Code shall be computed by allowing interest at the rate of ten percent (10%)
per annum. Lessee waives redemption or relief from forfeiture under California
Code of Civil Procedure Sections 1174 and 1179, or under any other present or
future law, in the event Lessee is evicted or Lessor takes possession of the
Premises by reason of any default of Lessee hereunder.
The foregoing rights and remedies of Lessor are not exclusive; they are
cumulative in addition to any rights and remedies now or hereafter existing at
law, in equity by statute or otherwise, or to any equitable remedies Lessor may
have, and to any remedies Lessor may have under bankruptcy laws or laws
affecting creditor's rights generally. In addition to all remedies set forth
above, if Lessee defaults or otherwise breaches this Lease, any and all Base
Rent waived by Lessor under Paragraph 3 above shall
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be immediately due and payable to Lessor and all options granted to Lessee
hereunder shall automatically terminate, unless otherwise expressly agreed to in
writing by Lessor.
The waiver by Lessor of any default or breach of any provision of this
Lease shall not be deemed or construed a waiver of any other breach or default
by Lessee hereunder or of any subsequent breach or default of this Lease, except
for the default specified in the waiver.
22. HOLDING OVER: If Lessee holds possession of the Premises after the
expiration of the term of this Lease with Lessor's consent, Lessee shall become
a tenant from month-to-month upon the terms and provisions of this Lease,
provided the monthly Base Rent during such hold over period shall be 200% of the
Base Rent due on the last month of the Lease term, payable in advance on or
before the first day of each month. Such month-to-month tenancy shall not
constitute a renewal or extension for any further term. All options, if any,
granted under the terms of this Lease shall be deemed automatically terminated
and be of no force or effect during said month-to-month tenancy. Lessee shall
continue in possession until such tenancy shall be terminated by either Lessor
or Lessee giving written notice of termination to the other party at least
thirty (30) days prior to the effective date of termination. This paragraph
shall not be construed as Lessor's permission for Lessee to hold over.
Acceptance of Base Rent by Lessor following expiration or termination of this
Lease shall not constitute a renewal of this Lease.
23. LESSOR'S DEFAULT: Lessor shall not be deemed in breach or default of
this Lease unless Lessor fails within a reasonable time to perform an obligation
required to be performed by Lessor hereunder. For purposes of this provision, a
reasonable time shall in no event be more than thirty (30) days after receipt by
Lessor of written notice specifying the nature of the obligation Lessor has not
performed; provided, however, that if the nature of Lessor's obligation is such
that more than thirty (30) days, after receipt of written notice, is reasonably
necessary for its performance, then Lessor shall not be in breach or default of
this Lease if performance of such obligation is commenced within such thirty
(30) day period and thereafter diligently pursued to completion.
24. PARKING: Lessee shall have a license to use the number of undesignated
and nonexclusive parking spaces set forth on Page 1. Lessor shall exercise
reasonable efforts to insure that such spaces are available to Lessee for its
use, but Lessor shall not be required to enforce Lessee's right to use the same.
25. SALE OF PREMISES: In the event of any sale of the Premises by Lessor,
Lessor shall be and is hereby entirely released from any and all of its
obligations to perform or further perform under this Lease and from all
liability hereunder as of the date of such sale; and the purchaser, at such sale
or any subsequent sale of the Premises shall be deemed, without any further
agreement between the parties or their successors in interest or between the
parties and any such purchaser, to have assumed and agreed to carry out any and
all of the covenants and obligations of the Lessor under this Lease. Lessee
agrees to attorn to such new owner provided such new owner does not disturb
Lessee's use, occupancy or quiet enjoyment of the Premises so long as Lessee is
not in default of any of the provisions of this Lease.
26. WAIVER: No delay or omission in the exercise of any right or remedy of
Lessor on any default by Lessee shall impair such a right or remedy or be
construed as a waiver.
The subsequent acceptance of Rent by Lessor after breach by Lessee of
any covenant or term of this Lease shall not be deemed a waiver of such breach,
other than a waiver of timely payment for the particular Rent payment involved,
and shall not prevent Lessor from maintaining an unlawful detainer or other
action based on such breach.
No payment by Lessee or receipt by Lessor of a lesser amount than the
monthly Rent and other sums due hereunder shall be deemed to be other than on
account of the earliest Rent or other sums due, nor shall any endorsement or
statement on any check or accompanying any check or payment be deemed an accord
and satisfaction; and Lessor may accept such check or payment without prejudice
to Lessor's right to recover the balance of such Rent or other sum or pursue
any other remedy provided in this Lease.
27. CASUALTY DAMAGE: If the Premises or any part thereof shall be damaged by
fire or other casualty, Lessee shall give prompt written notice thereof to
Lessor. In case the Building shall be so damaged by fire or other casualty that
substantial alteration or reconstruction of the Building shall, in Lessor's sole
opinion, be required (whether or not the Premises shall have been damaged by
such fire or other casualty), Lessor may, at its option, terminate this Lease by
notifying Lessee in writing of such termination within
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sixty (60) days after the date of such damage, in which event the Rent shall be
abated as of the date of such damage. If Lessor does not elect to terminate this
Lease and provided insurance proceeds and any contributions from Lessee, if
necessary, are available to fully repair the damage, Lessor shall within ninety
(90) days after the date of such damage commence to repair and restore the
Building and shall proceed with reasonable diligence to restore the Building
(except that Lessor shall not be responsible for delays outside its control) to
substantially the same condition in which it was immediately prior to the
happening of the casualty; provided, Lessor shall not be required to rebuild,
repair, or replace any part of Lessee's furniture, furnishings or fixtures and
equipment removable by Lessee or any improvements, alterations or additions
installed by or for the benefit of Lessee under the provisions of this Lease.
Lessor shall not in any event be required to spend for such work an amount in
excess of the insurance proceeds and any contributions from Lessee, if
necessary, actually received by Lessor as a result of the fire or other
casualty. Lessor shall not be liable for any inconvenience or annoyance to
Lessee, injury to the business of Lessee, loss of use of any part of the
Premises by the Lessee or loss of Lessor's personal property resulting in any
way from such damage or the repair thereof, except that, subject to the
provisions of the next sentence, Lessor shall allow Lessee a fair diminution of
Rent during the time and to the extent the Premises are unfit for occupancy. If
the Premises or any other portion of the Building be damaged by fire or other
casualty resulting from the fault or active or passive negligence or omissions
of Lessee or any of Lessee's agents, employees, or invitees, the Rent shall not
be diminished during the repair of such damage and Lessee shall be liable for
the cost and expense of the repair and restoration of the Building caused
thereby to the extent such cost and expense is not covered by insurance
proceeds. In the event the holder of any indebtedness secured by the Premises
requires that the insurance proceeds be applied to such indebtedness, then
Lessor shall have the right to terminate this Lessee by delivering written
notice of termination to Lessee within thirty (30) days after the date of notice
to Lessee of any such event, whereupon all rights and obligations shall cease
and terminate hereunder.
Except as otherwise provided in this Xxxxxxxxx 00, Xxxxxx hereby waives
the provisions of Sections 1932(2), 1933(4.), 1941 and 1942 of the California
Civil Code.
28. CONDEMNATION. If twenty-five percent (25%) or more of the Premises is
condemned by eminent domain, inversely condemned or sold in lieu of condemnation
for any public or quasi-public use or purpose ("Condemned"), then Lessee or
Lessor may terminate this Lease as of the date when physical possession of the
Premises is taken and title vests in such condemning authority, and Rent shall
be adjusted to the date of termination. Lessee shall not because of such
condemnation asset any claim against Lessor or the condemning authority for any
compensation because of such condemnation, and Lessor shall be entitled to
receive the entire amount of any award without deduction for any estate of
interest or interest of Lessee. If a substantial portion of the Premises,
Building or the Lot is so Condemned, Lessor at its option may terminate this
Lease. If Lessor does not elect to terminate this Lease, Lessor shall, if
necessary, promptly proceed to restore the Premises or the Building to
substantially its same condition prior to such partial condemnation, allowing
for the reasonable effects of such partial condemnation, and a proportionate
allowance shall be made to Lessee, as solely determined by Lessor, for the Rent
corresponding to the time during which, and to the part of the Premises of
which, Lessee is deprived on account of such partial condemnation and
restoration. Lessor shall not be required to spend funds for restoration in
excess of the amount received by Lessor as compensation awarded.
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS: Concurrently with executing
this Lease, and within thirty (30) days of each anniversary of the Commencement
Date during the term of this Lease, Lessee shall execute, and deliver to Lessor,
the Hazardous Materials Disclosure Certificate in substantially the form
attached as Exhibit F, and any other reasonably necessary documents as
requested by Lessor. Subject to the remaining provisions of this paragraph,
Lessee shall be entitled to use and store only those Hazardous Materials
(defined below), that are necessary for Lessee's business and to the extent
disclosed in the Hazardous Materials Disclosure Certificate, provided that such
usage and storage is in full compliance with any and all local, state and
federal environmental, health and/or safety-related laws, statutes, orders,
standards, court's decisions, ordinances, rules and regulations (as interpreted
by judicial and administrative decisions), decrees, directives, guidelines,
permits or permit conditions, currently existing and as amended, enacted,
issued or adopted in the future which are or become applicable to Lessee or the
Premises (collectively, the "Environmental Laws"). Lessor shall have the right
at all times during the term of this Lease to (i) inspect the Premises, (ii)
conduct tests and investigations to determine whether Lessee is in compliance
with the provisions of this paragraph, and (iii) request lists of all Hazardous
Materials used, stored or located on, under or about the Premises; the cost of
all such inspections, tests and investigations to be borne by Lessee, if Lessor
reasonably believes they are necessary. Lessee shall give to Lessor immediate
verbal and follow-up written notice of any spills, releases or discharges of
Hazardous Materials on, under or about the Premises, or in any Common Areas or
parking lots (if not considered part of the Premises). Lessee covenants to
promptly investigate, cleanup and otherwise remediate any spill, release or
discharge of Hazardous Materials caused by the acts
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(active or passive) or omissions of Lessee, or its agents, employees,
representatives, invitees, licensees, subtenants, customers or contractors at
Lessee's sole cost and expense; such investigation, clean up and remediation to
be performed after Lessee has obtained Lessor's written consent, which shall not
be unreasonably withheld; provided, however, that Lessee shall be entitled to
respond immediately to an emergency without first obtaining Lessor's written
consent. If Lessee fails to so promptly investigate, clean up or otherwise
remediate, Lessor may, but without obligation to do so, take any and all steps
necessary to rectify the same and Lessee shall promptly reimburse Lessor, upon
demand, for all costs and expenses to Lessor of performing investigation and
remediation work. Lessee shall indemnify, defend (with counsel acceptable to
Lessor) and hold Lessor and Lessor's lenders, partners, property management
company (if other than Lessor), directors, officers, employees, representatives,
contractors and shareholders and each of their respective successors and assigns
harmless from and against any and all claims, judgments, damages, penalties,
fines, liabilities, losses, suits, administrative proceedings and costs
(including, but not limited to, attorneys' and consultant fees and court costs)
arising at any time during or after the term of this Lease in connection with or
related to the use, presence, transportation, storage, disposal, spill, release
or discharge of Hazardous Materials on, in or about the Premises as a result
(directly or indirectly) of the acts (active or passive) or omissions of Lessee,
its agents, employees, representatives, invitees, licensees, subtenants,
customers or contractors. Lessee shall not be entitled to install any tanks
under, on or about the Premises for the storage of Hazardous Materials without
the express written consent of Lessor, which may be given or withheld in
Lessor's sole discretion. Neither the written consent of Lessor to the presence
of Hazardous Materials on, under or about the Premises nor the strict compliance
by Lessee with all Environmental Laws shall excuse Lessee from its obligation of
indemnification pursuant hereto. As used herein, the term Hazardous Materials
shall mean (i) any hazardous or toxic wastes, materials or substances, and other
pollutants or contaminants, which are or become regulated by any Environmental
Laws; (ii) petroleum and petroleum by products; (iii) asbestos; (iv)
polychlorinated biphenyls; and (v) radioactive materials. The provisions of this
paragraph shall survive the termination of this Lease. If it is determined by
Lessor that Lessee, its use of the Premises, Building and/or Park, or the
condition of the Premises, Building and/or Park is not in compliance with all
Environmental Laws at the expiration or termination of this Lease, then at
Lessor's sole option, Lessor may require Lessee to hold over possession of the
Premises until Lessee can surrender the Premises to Lessor in compliance with
all Environmental Laws. Any such holdover by Lessee will be with Lessor's
consent, and will not be terminable by Lessee in any event or circumstance, and
will otherwise be subject to the provisions of Paragraph 22 of this Lease.
30. FINANCIAL STATEMENTS: Lessee, for the reliance of Lessor, any lender
holding or anticipated to acquire a lien upon the Premises, the Building or the
Park or any portion thereof, or any prospective purchaser of the Building or the
Park or any portion thereof, within ten (10) days after Lessor's request
therefor, but not more often than once annually so long as Lessee is not in
default of this Lease, shall deliver to Lessor the then current audited
financial statements of Lessee (including interim periods following the end of
the last fiscal year for which annual statements are available) which statements
shall be prepared or compiled by a certified public accountant and shall present
fairly the financial condition of Lessee at such dates and the result of its
operations and changes in its financial positions for the periods ended on such
dates. If an audited financial statement has not been prepared, Lessee shall
provide Lessor with an unaudited financial statement and/or such other
information, the type and form of which are acceptable to Lessor in Lessor's
reasonable discretion, which reflects the financial condition of Lessee. If
Lessor so requests, Lessee shall deliver to Lessor an opinion of a certified
public accountant, including a balance sheet and profit and loss statement for
the most recent prior year, all prepared in accordance with generally accepted
accounting principles consistently applied. Any and all options granted to
Lessee hereunder shall be subject to and conditioned upon Lessor's reasonable
approval of Lessee's financial condition at the time of Lessee's exercise of any
such option.
31. GENERAL PROVISIONS:
(i) TIME. Time is of the essence in this Lease and with respect to
each and all of its provisions in which performance is a factor.
(ii) SUCCESSORS AND ASSIGNS. The covenants and conditions herein
contained, subject to provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of the parties hereto.
(iii) RECORDATION. Lessee shall not record this Lease or a short form
memorandum hereof without the prior written consent of the Lessor.
(iv) LESSOR'S PERSONAL LIABILITY. The liability of Lessor (which,
for purposes of this Lease, shall include Lessor and the owner of the Building
if other than Lessor) to Lessee for any default by
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Lessor under the terms of this Lease shall be limited to the actual interest of
Lessor and its present or future partners in the Premises or the Building and
Lessee agrees to look solely to the Premises for satisfaction of any liability
and shall not look to other assets of Lessor nor seek any recourse against the
assets of the individual partners, directors, officers, shareholders, agents or
employees of Lessor; it being intended that Lessor and the individual partners,
directors, officers, shareholders, agents or employees of Lessor shall not be
personally liable in any manner whatsoever for any judgment or deficiency. The
liability of Lessor under this Lease is limited to its actual period of
ownership of title to the Building, and Lessor shall be automatically released
from further performance under this Lease and from all further liabilities and
expenses hereunder upon transfer of Lessor's interest in the Premises or the
Building. Lessee agrees to attorn to any entity purchasing or otherwise
acquiring the Premises.
(v) SEPARABILITY. Any provisions of this Lease which shall prove to
be invalid, void or illegal shall in no way affect, impair or invalidate any
other provisions hereof and such other provision shall remain in full force and
effect.
(vi) CHOICE OF LAW. This Lease shall be governed by the laws of the
State of California.
(vii) ATTORNEYS' FEES. In the event any legal action is brought to
enforce or interpret the provisions of this Lease, the prevailing party therein
shall be entitled to recover all costs and expenses including reasonable
attorneys' fees.
(viii) ENTIRE AGREEMENT. This Lease supersedes any prior agreements,
representations, negotiations or correspondence between the parties, and
contains the entire agreement of the parties on matters covered. No other
agreement, statement or promise made by any party that is not in writing and
signed by all parties to this Lease shall be binding.
(ix) WARRANTY OF AUTHORITY. Each person executing this agreement on
behalf of a party represents and warrants that (1) such person is duly and
validly authorized to do so on behalf of the entity it purports to so bind, and
(2) if such party is a partnership, corporation or trustee, that such
partnership, corporation or trustee has full right and authority to enter into
this Lease and perform all of its obligations hereunder.
(x) NOTICES. All notices and demands required or permitted to be
sent to Lessor or Lessee shall be in writing and shall be sent by United States
mail, certified and postage prepaid, or by personal delivery or by overnight
courier, addressed to Lessor at 00 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx
00000, or to Lessee at the Premises, or to such other place as such party may
designate in a notice to the other party given as provided herein. Notice
shall be deemed given upon the earlier of actual receipt or the third day
following deposit in the United States mail.
(xi) JOINT AND SEVERAL. If Lessee consists of more than one person
or entity, the obligations of all such persons or entities shall be joint and
several.
(xii) COVENANTS AND CONDITIONS. Each provision to be performed by
Lessee hereunder shall be deemed to be both a covenant and a condition.
(xiii) WAIVER OF JURY TRIAL. The parties hereto shall and they hereby
do waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other on any matters whatsoever
arising out of or in any way related to this Lease, the relationship of Lessor
and Lessee, Lessee's use or occupancy of the Premises, the Building or the
Park, and/or any claim of injury, loss or damage.
(xiv) COUNTERCLAIMS. In the event Lessor commences any proceedings
for nonpayment of Rent, or any other sums or amounts due hereunder, Lessee shall
not interpose any counterclaim of whatever nature or description in any such
proceedings, provided, however, nothing contained herein shall be deemed or
construed as a waiver of the Lessee's right to assert such claims in any
separate action brought by Lessee or the right to offset the amount of any
final judgment owed by Lessor to Lessee.
32. SIGNS: All signs and graphics of every kind visible in or from public
view or corridors or the exterior of the Premises shall be subject to Lessor's
prior written approval and shall be subject to any applicable governmental laws,
ordinances, and regulations and in compliance with Lessor's Sign Criteria as
set forth in Exhibit E hereto and made a part hereof. Lessee shall remove all
such signs and graphics prior to the termination of this Lease. Such
installations and removals shall be made in a manner as to avoid damage or
defacement of the Premises; and Lessee shall repair any damage or defacement,
including without limitation, discoloration caused by such installation or
removal. Lessor shall have the right, at its option, to deduct from the
Security Deposit such sums as are reasonably necessary to remove
17
such signs, including but not limited to, the costs and expenses associated
with any repairs necessitated by such removal. Notwithstanding the foregoing,
in no event shall any: (a) neon, flashing or moving sign(s) or (b) sign(s)
which shall interfere with the visibility of any sign, awning, canopy,
advertising matter, or decoration of any kind of any other business or occupant
of the Building or the Park be permitted hereunder. Lessee further agrees to
maintain any such sign, awning, canopy, advertising matter, lettering,
decoration or other thing as may be approved in good condition and repair at
all times.
33. MORTGAGEE PROTECTION: Upon any breach or default on the part of Lessor,
Lessee will give written notice by registered or certified mail to any
beneficiary of a deed of trust or mortgagee of a mortgage covering the Premises
who has provided Lessee with notice of their interest together with an address
for receiving notice, and shall offer such beneficiary or mortgagee a reasonable
opportunity to cure the default (which, in no event shall be more than ninety
(90) days), including time to obtain possession of the Premises by power of sale
or a judicial foreclosure, if such should prove necessary to effect a cure. If
such breach or default cannot be cured within such time period, then such
additional time as may be necessary will be given to such beneficiary or
mortgagee to effect such cure so long as such beneficiary or mortgagee has
commenced the cure within the original time period and thereafter diligently
pursues such cure to completion, in which event this Lease shall not be
terminated while such cure is being diligently pursued. Lessee agrees that each
lender to whom this Lease has been assigned by Lessor is an express third party
beneficiary hereof. Lessee shall not make any prepayment of Rent more than one
(1) month in advance without the prior written consent of each such lender,
except if Lessee is required to make quarterly payments of Rent in advance
pursuant to the provisions of Paragraph 8 above. Lessee waives the collection of
any deposit from such lender(s) or any purchaser at a foreclosure sale of such
lender(s)' deed of trust unless the lender(s) or such purchaser shall have
actually received and not refunded the deposit. Lessee agrees to make all
payments under this Lease to the lender with the most senior encumbrance upon
receiving a direction, in writing, to pay said amounts to such lender. Lessee
shall comply with such written direction to pay without determining whether an
event of default exists under such lender's loan to Lessor.
34. QUITCLAIM: Upon any termination of this Lease, Lessee shall, at
Lessor's request, execute, have acknowledged and deliver to Lessor a quitclaim
deed of Lessee's interest in and to the Premises.
35. MODIFICATIONS FOR LENDER: If, in connection with obtaining financing for
the Premises or any portion thereof, Lessor's lender shall request reasonable
modification(s) to this Lease as a condition to such financing, Lessee shall not
unreasonably withhold, delay or defer its consent thereto, provided such
modifications do not materially adversely affect Lessee's rights hereunder or
the use, occupancy or quiet enjoyment of Lessee hereunder.
36. WARRANTIES OF LESSEE: Lessee hereby warrants and represents to Lessor,
for the express benefit of Lessor, that Lessee has undertaken a complete and
independent evaluation of the risks inherent in the execution of this Lease and
the operation of the Premises for the use permitted hereby, and that, based upon
said independent evaluation, Lessee has elected to enter into this Lease and
hereby assumes all risks with respect thereto. Lessee hereby further warrants
and represents to Lessor, for the express benefit of Lessor, that in entering
into this Lease, Lessee has not relied upon any statement, fact, promise or
representation (whether express or implied, written or oral) not specifically
set forth herein in writing and that any statement, fact, promise or
representation (whether express or implied, written or oral) made at any time to
Lessee, which is not expressly incorporated herein in writing, is hereby waived
by Lessee.
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT: Lessor and Lessee
hereby agree and acknowledge that the Premises, the Building and/or the Park may
be subject to the requirements of the Americans with Disabilities Act (the
"ADA"), a federal law codified at 42 U.S.C. 12101 et seq, including, but not
limited to Title III thereof, all regulations and guidelines related thereto,
and any amendments thereof. Any Tenant Improvements to be constructed hereunder
shall be in compliance with the requirements of the ADA, and all costs incurred
for purposes of compliance therewith shall be a part of and included in the
costs of the Tenant Improvements. Lessee is responsible for conducting its own
independent investigation of this matter. Except for the construction of any
Tenant Improvements, for which Lessee shall be solely responsible for compliance
with the ADA, if any barrier removal work or other work is required to the
Building, the Common Area or the Park under Title III of the ADA, then such work
shall be performed by Lessor; provided, if such work is required under the ADA
as a result of Lessee's use of the Premises or any work or alteration made to
the Premises by or on behalf of Lessee, then such work shall be performed by
Lessor at the sole cost and expense of Lessee. Except as otherwise
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provided in this provision, Lessee shall be responsible at its sole cost and
expense for fully and faithfully complying with all applicable requirements of
the ADA.
38. BROKERAGE COMMISSION: Lessee hereby represents and warrants to Lessor
that Lessee's sole contact with Lessor or with the Premises in connection with
this Lease has been directly with Lessor and the Broker (as set forth on
Page 1), and that no other broker or finder can properly claim a right to a
commission or a finder's fee based upon contacts between the claimant and
Lessee. Lessee shall indemnify, defend by counsel acceptable to Lessor, protect
and hold Lessor harmless from and against any loss, liability, suit, judgment,
cost or expense, including, but not limited to, experts' and attorneys' fees and
costs, arising from or relating to any claim for a fee or commission by any
broker or finder in connection with the Premises and this Lease other than
Broker, if any.
IN WITNESS WHEREOF, this Lease is executed on the date and year first
written above.
LESSOR: RIVERSIDE BUSINESS CENTER, a California Limited Partnership
By: LINCOLN PROPERTY COMPANY NO. 1239, Limited Partnership,
the General Partner
By: Lincoln Property Company N.C., Inc., as Agent and Manager for
Riverside Business Center, a California Limited Partnership
By: /s/ Xxxxx Xxxxxxxx 10/24/96
---------------------------------------------------
Xxxxx Xxxxxxxx, Date
Vice President
LESSEE:
MUL ACRES, INC., a California Corporation
By: /s/ Xxxx Xxxxxxx 10/13/96
---------------------------------------------------
Xxxx Xxxxxxx, Date
President
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EXHIBIT "A"
FLOOR PLAN
[FLOOR PLAN MAP]
Building 12
00000 Xxxxxxxx Xxx.
19,748 Square Feet
SITE PLAN
[SITE PLAN MAP]
20
EXHIBIT C
RULES AND REGULATIONS
1. Lessee shall not suffer or permit the obstruction of any Common Areas,
including driveways, walkways and stairways.
2. Lessor reserves the right to refuse access to any persons Lessor in
good faith judges to be a threat to the safety, reputation, or property
of the Project and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or
interfere with other lessees or persons having business within the
Project.
4. Lessee shall not keep animals or birds within the Project, and shall
not bring bicycles, motorcycles or other vehicles into areas not
designated as authorized for the same.
5. Lessee shall not make, suffer or permit litter except in appropriate
receptacles for that purpose.
6. Lessee shall not alter any lock or install new or additional locks or
bolts, without Lessor's written prior consent.
7. Lessee shall be responsible for the inappropriate use of any toilet
rooms, plumbing or other utilities. No foreign substances of any kind
are to be inserted therein.
8. Lessee shall not deface the walls, partitions or other surfaces of the
premises of the Project.
9. Lessee shall not suffer or permit any thing in or around the Premises
or Building that causes excessive vibration or floor loading in any
part of the Project.
10. Lessee shall return all keys at the termination of its tenancy and
shall be responsible for the cost of replacing any keys that are lost.
11. No window coverings, shades or awnings shall be installed or used by
Lessee, without Lessor's written prior consent.
12. No Lessee, employee or Invitee shall go upon the roof of the Building
without Lessor's written prior consent.
13. Lessee shall not suffer or permit smoking or carrying of lighted
cigars or cigarettes in areas reasonably designated by Lessor or by
applicable governmental agencies as non-smoking areas.
14. Lessee shall not use any method of heating or air conditioning other
than as provided by Lessor.
15. Lessee shall not install, maintain or operate any vending machines upon
the Premises without Lessor's written consent.
16. The Premises shall not be used for lodging, cooking or food
preparation.
17. Lessee shall comply with all safety, fire protection and evacuation
regulations established by Lessor or any applicable governmental
agency.
18. Lessor reserves the right to waive any one of these rules or
regulations, and/or as to any particular Lessee, and any such waiver
shall not constitute a waiver of any other rule or regulation or any
subsequent application thereof to such Lessee.
19. Lessee assumes all risks from theft or vandalism and agrees to keep its
Premises locked as may be required.
20. Lessor reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the
appropriate operation and safety of the Project and its occupants.
Lessee agrees to abide by these and such rules and regulations.
PARKING RULES
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. Users of the parking area will obey all posted signs and park only
in the areas designated for vehicle parking.
3. Unless otherwise instructed, every person using the parking area is
required to park and lock his own vehicle. Lessor will not be
responsible for any damage to vehicles, injury to persons or loss of
property, all of which risks are assumed by the party using the parking
area.
4. The maintenance, washing, waxing or cleaning of vehicles in the Common
Area is prohibited.
5. Lessee shall be responsible for seeing that all of its employees,
agents and invitees comply with the applicable parking rules,
regulations, laws and agreements.
6. Lessor reserves the right to modify these rules and/or adopt such other
reasonable and non-discriminatory rules and regulations as it may deem
necessary for the proper operation of the parking area.
LESSOR'S INITIALS: ____________
LESSEE'S INITIALS: ____________
1
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EXHIBIT D
COVENANT AND AGREEMENT AND
DECLARATION OF RESTRICTIONS
This Covenant and Agreement and Declaration of Restriction is made and
entered into this 17th day of October, 1986, by LINCOLN RIVERSIDE BUSINESS
CENTER, a California Limited Partnership, the owner of record of the following
described real property situated in the City of Riverside, County of Riverside,
State of California:
Parcels 1, 2 and 3 of Parcel Map 21191 as shown by map on file in
Book 134 of Parcel Maps at pages 33 through 34 thereof, Records of
Riverside County, California,
which property is referred to herein as Parcels 1, 2 or 3 or collectively as
the property.
WHEREAS the undersigned desires to divide the property into three
parcels, as described above, pursuant to tentative Parcel Map 21191; and
WHEREAS the undersigned desires to establish a common driveway to serve
Parcels 1, 2 and 3; and
WHEREAS the undersigned desires to restrict the property with the
nonexclusive, reciprocal easements and the obligations contained herein;
NOW, THEREFORE, the undersigned hereby covenants and agrees with the
City of Riverside as follows:
1. A nonexclusive, reciprocal easement for ingress and egress is
hereby established over and across the northeasterly 15 feet and
the southeasterly 13 1/2 feet of Parcel 1 for the use and
benefit of Parcels 2 and 3.
2. A nonexclusive, reciprocal easement for ingress and egress is
hereby established over and across the southwesterly 15 feet and
the southeasterly 13 1/2 feet of Parcel 2 for the use and
benefit of Parcels 1 and 3.
3. A nonexclusive, reciprocal easement for ingress and egress is
hereby established over and across the northwesterly 13 1/2 feet
of Parcel 3 for the use and benefit of Parcels 1 and 2.
4. The easement areas described above are planned to be developed
as a common driveway and shall be kept in a free and open
condition at all times to permit unimpeded access to parcels 1,
2 and 3 and Magnolia Avenue, Xxxxxx Street and Merced Drive. No
structure shall be placed or constructed in the easement areas.
No parking of vehicles shall be permitted in the easement areas.
Each easement area shall be maintained in accordance with the
standards of the City of Riverside for private driveways and in
a good, usable and safe condition at all times by the fee owner
of such easement area.
5. In the event any of the property is sold or leased or the
ownership is otherwise changed, as the parcels are conveyed, the
grantor shall grant and/or reserve, as appropriate, the
above-described nonexclusive, reciprocal easements for ingress
and egress. This easement shall include all rights deemed
reasonable and necessary for the construction, maintenance and
use of common driveway facilities.
6. The terms of this Covenant and Agreement and Declaration of
Restrictions may be enforced by the City of Riverside, its
successors or assigns, or by any owner or tenant of any of the
property. Should the City or any owner or tenant bring an
action to enforce any of the terms of this Covenant and
Agreement and Declaration of Restrictions, the prevailing party
shall be entitled to reasonable attorneys' fees, expert
witnesses' fees and reasonable costs of unit.
7. This Covenant and Agreement and Declaration of Restrictions
shall run with the land and shall be binding upon the
undersigned, its successors and assigns and shall continue in
effect until such time as it is released by the City Council of
the City of Riverside.
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EXHIBIT E
RIVERSIDE BUSINESS CENTER
SIGN CRITERIA
MULTI-TENANT AND INDUSTRIAL SUITES
All Tenants are required to install signage at the Tenant's expense and in
accordance with the sign criteria.
All signs shall be approved by the Landlord and properly permitted by local
governing authorities prior to installation.
I. TYPE
A. Multi-Tenant Buildings 1-10, 12 and 13 - Tenants leasing less
than 3,000 square feet may have a fiberglass mounted wall sign
with a maximum 1-1/2" thick x 16" high x 5' long sign dimension,
Tenants leasing 3,000 square feet or greater may have the
aforementioned sign or individually cut foam letters which are
2" thick and 24" high, with a maximum sign width which is equal
to no more than 75% of lineal leased frontage.
B. Industrial Buildings 14-19 - Maximum width shall be equal to no
more than 75% of lineal leased frontage, 24" maximum
channel-lite letters.
II. DESIGN
A. Channel Letters: 8" (maximum) thick internally illuminated
channel letters, with 60 mi. amp. neon tubing, shall be composed
of red faces (211-1 Acrylite Red, same as 2283 Red).
B. Foam Letter: 2" thick non-illuminated foam letters composed of
"Profound Blue" #260 (Ameritone) faces and "Badger Gray" #298
returns for Buildings 1-10, 12 and 13 and 14-19 with over 3,000
square feet of Tenant lease space.
C. Wall Mounted Fiberglass Plaques: Non-illuminated wall mounted
fiberglass identifications sign shall be composed of "Profound
Blue" #260 background and white copy #AGB-225D for Buildings
1-10, 12 and 13 less than 3,000 square feet of Tenant lease
space.
Tenants with two (2) frontage on a public street, parking lot or mall shall be
allowed two (2) wall signs.
III. GENERAL SPECIFICATIONS
A. No animated, flashing or audible signs will be permitted.
B. No exposed lamps or tubing will be permitted.
C. No exposed crossovers, raceways or conduit will be permitted.
D. Painted lettering will not be permitted.
E. Each Tenant shall be permitted to place upon each entrance of
its demised premises not more than 144 square inches of vinyl,
white lettering not to exceed two (2) inches in height,
indicating hours of business, emergency telephone numbers,
approved credit cards, etc.
F. Special event or sales advertising may be placed in or on the
interior windows for a maximum of 30 days, otherwise, no
advertising place cards, flags, balloons, banners, etc., shall
be affixed or maintained upon either the interior or exterior of
the glass panes and supports of the show windows and doors, or
upon the exterior wall of the buildings.
G. Each Tenant who has a non-customer door for receiving
merchandise may have uniformly applied on said door in location,
as directed by Landlord, in 2" high block letters, the Tenant's
name and address. Color letter shall be "Profound Blue" #260.
H. At the termination of Tenant's Lease, Tenant shall be required
to remove his signs and patch the area to match the surrounding
area.
2
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EXHIBIT F
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Lessor (identified below) to evaluate and finalize a lease agreement
with you as lessee. After a lease agreement is signed by you and the Lessor
(the "Lease Agreement"), on an annual basis in accordance with the provisions of
Paragraph 29 of the signed Lease Agreement, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Lessor subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchaser(s) of all or any portion of the property on which the
Premises are located, (iii) Lessor to defend itself or its lenders, partners or
representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders, decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which are
not otherwise defined herein, shall have the same meaning ascribed to such term
in the signed Lease Agreement. Any questions regarding this certificate should
be directed to, and when completed, the certificate should be delivered to:
Lessor: RIVERSIDE BUSINESS CENTER,
a California Partnership
C/O Lincoln Property Company Management Services
X.X. Xxx 00000
30 Executive Park, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: Mr. Xxxxx Xxxxxxxx
Phone: (000) 000-0000
Name of Lessee: Mul Acres, Inc.
Mailing Address: 00000 Xxxxxxxx Xxxxxx, Xxxxxx X & X
Xxxxxxxxx, XX 00000
Contact Person, Title and Telephone Number(s): Xxxx Xxxxxxx: (000) 000-0000
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):
Same as above.
Address of Premises: Same as above.
Length of initial Term: 25 months.
--------------------------------------------------------------------------------
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or about
the Premises, including, without limitation, principal products
processed, manufactured or assembled services and activities to be
provided or otherwise conducted. Existing lessees should describe any
proposed changes to on-going operations.
------------------------------------------------------------------------
------------------------------------------------------------------------
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated, stored or
disposed of in, on or about the Premises? Existing lessees
should describe any Hazardous Materials which continue to be
used, generated, stored or disposed of in, on or about the
Premises.
Wastes Yes [ ] No [X]
Chemical Products Yes [ ] No [X]
Other Yes [ ] No [X]
If Yes is marked, please explain:
------------------------------
--------------------------------------------------------------------------------
2.2 If Yes is marked in Section 2.1, attach a list of any Hazardous
Materials to be used, generated, stored or disposed of in, on or
about the Premises, including the applicable hazard class and an
estimate of the
24
quantities of such Hazardous Materials at any given time; estimated
annual throughput; the proposed location(s) and method of storage
(excluding nominal amounts of ordinary household cleaners and janitorial
supplies which are not regulated by any Environmental Laws); and the
proposed location(s) and method of disposal for each Hazardous Material,
including, the estimated frequency, and the proposed contractors or
subcontractors. Existing lessees should attach a list setting forth the
information requested above and such list should include actual data
from on-going operations and the identification of any variations in
such information from the prior year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps
proposed in, on or about the Premises? Existing lessees should
describe any such actual or proposed activities.
Yes [ ] No [X]
If yes, please explain:
____________________________________________________________
____________________________________________________________
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number? Existing lessees should describe any additional
identification numbers issued since the previous certificate.
Yes [ ] No [X]
4.2 Has your company filed a biennial or quarterly reports as a
hazardous waste generator? Existing lessees should describe any
new reports filed.
Yes [ ] No [X]
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
storm drain? sewer?
---- ----
surface water? X no wastewater or other wastes
---- ---- discharged.
Existing lessees should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
____________________________________________________________
____________________________________________________________
5.2 Will any such wastewater or waste be treated before discharge?
Yes [ ] No [X]
If yes, describe the type of treatment proposed to be
conducted. Existing lessees should describe the actual
treatment conducted.
____________________________________________________________
____________________________________________________________
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be used
in your company's operations in, on or about the Premises that
will discharge into the air; and will such air emissions be
monitored? Existing lessees should indicate whether or not there
are any such air filtration systems or stacks in use in, on or
about the Premises which discharge into the air and whether such
air emissions are being monitored.
Yes [ ] No [X]
If yes, please describe:
____________________________________________________________
25
-----------------------------------------------------------------
6.2 Do you propose to operate any of the following types of
equipment, or any other equipment requiring an air emissions
permit? Existing lessees should specify any such equipment being
operated in, or about the Premises.
______ Spray booth(s) ______ Incinerator(s)
______ Dip tanks(s) ______ Other (Please describe)
______ Drying oven(s) ______ No Equipment Requiring
Air Permits
If yes, please describe:
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-----------------------------------------------------------------
7. HAZARDOUS MATERIALS DISCLOSURES:
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("Management Plan") pursuant
to Fire Department or other governmental or regulatory agencies'
requirements? Existing lessees should indicate whether or not a
Management Plan is required and has been prepared.
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing lessees
should attach a copy of any required updates to the Management
Plan.
7.2 Are any of the Hazardous Materials, and in particular chemicals,
proposed to be used in your operations in, on or about the
Premises regulated under Proposition 65? Existing lessees should
indicate whether or not there are any new Hazardous Materials
being so used which are regulated under Proposition 65.
Yes [ ] No [ ]
If yes, please explain:
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-----------------------------------------------------------------
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has
your company ever been subject to any agency enforcement
actions, administrative orders, or consent decrees or has your
company received requests for information, notice or demand
letters, or any other inquiries regarding its operations?
Existing lessees should indicate whether or not any such
actions, orders or decrees have been, or are in the process of
being, undertaken or if any such requests have been received.
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any
continuing compliance obligations imposed as a result of these
actions, orders or decrees and also describe any requests,
notices or demands, and attach a copy of all such documents.
Existing lessees should describe and attach a copy of any new
actions, orders, decrees, requests, notices or demands not
already delivered to Lessor pursuant to the provisions of
Paragraph 29 of the signed Lease Agreement.
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-----------------------------------------------------------------
8.2 Have there ever been, or are there now pending, any lawsuits
against your company regarding any environmental or health and
safety concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other
documents related thereto as requested by Lessor. Existing
lessees should describe and attach a copy of any new
complaint(s), cross-complaint(s), pleadings and other related
documents not already delivered to Lessor pursuant to the
provisions of Paragraph 29 of the signed Lease Agreement.
-----------------------------------------------------------------
-----------------------------------------------------------------
26
8.3 Have there been any problems or complaints from adjacent
tenants, owners or other neighbors at your company's current
facility with regard to environmental or health and safety
concerns? Existing lessees should indicate whether or not there
have been any such problems or complaints from adjacent tenants,
owners or other neighbors at, about or near the Premises.
Yes [ ] No [X]
If yes, please describe. Existing lessees should describe any
such problems or complaints not already disclosed to Lessor
under the provisions of the signed Lease Agreement.
____________________________________________________________
__________________________________________________________
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
issued to your company with respect to its proposed operations
in, on or about the Premises, including, without limitation, any
wastewater discharge permits, air emissions permits, and use
permits or approvals. Existing lessees should attach copies of
any new permits and licenses as well as any renewals of permits
or licenses previously issued.
The undersigned hereby acknowledges and agrees that this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Lessor in connection with the evaluation and finalization of a Lease
Agreement and will be attached thereto as an exhibit. The undersigned further
acknowledges and agrees that this Hazardous Materials Disclosure Certificate is
being delivered in accordance with, and as required by, the provisions of
Paragraph 29 of the Lease Agreement. The undersigned further acknowledges and
agrees that the Lessor and its partners, lenders and representatives may, and
will, rely upon the statements, representations, warranties, and certifications
made herein and the truthfulness thereof in entering into the Lease Agreement
and the continuance thereof throughout the term, and any renewals thereof, of
the Lease Agreement. I (Xxxx Xxxxxxx), acting with full authority to bind the
(proposed) lessee and on behalf of the (proposed) Lessee, certify, represent
and warrant that the information contained in this certificate is true and
correct.
LESSEE:
MUL ACRES, INC., a California Corporation
By: /s/ XXXX XXXXXXX Date: 10-13-96
------------------------------ -------------------------
Xxxx Xxxxxxx,
President
