EXHIBIT 10.67
SOUTHERN CALIFORNIA CHAPTER OF THE
SOCIETY OF INDUSTRIAL AND OFFICE REALTORS, INC.
INDUSTRIAL REAL ESTATE LEASE
(SINGLE-TENANT FACILITY)
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Lease between the
Landlord and Tenant named below. Other Articles, Sections and Paragraphs of the
Lease referred to in this Article One explain and define the Basic Terms and are
to be read in conjunction with the Basic Terms.
Section 1.01. DATE OF LEASE: MARCH 22, 1999
Section 1.02. LANDLORD (INCLUDE LEGAL ENTITY): XXXX XXXXXXXXX PARTNERS,
L.L.C., a Delaware limited liability company.
Address of Landlord: 00000 Xxxxxxxxxx Xxxxxxx Xxxxx, 0xx Xxxxx, Xxxx xx
Xxxxxxxx, XX 00000
Section 1.03. TENANT (INCLUDE LEGAL ENTITY): XXXXXXXX NEWS, LLC, a Delaware
limited liability company
Address of Tenant: 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
Section 1.04. PROPERTY: (include street address, approximate square footage
and description) that approximately 160,000 square foot building located on
approximately 7.08 acres of land as outlined in red on Exhibit "A", subject to
the non-exclusive use of the area outlined in green on Exhibit "A" and more
commonly known as 0000 Xxxx Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx
Section 1.05. LEASE TERM: 5 years 1 months BEGINNING ON * or such other
date as is specified in this Lease, and ENDING ON **
Section 1.06. PERMITTED USES: (See Article Five) Only for the warehousing
and distribution of magazines and other printed matter, promotional items
related thereto and associated administrative uses.
Section 1.07. TENANT'S GUARANTOR: (If none, so state) NONE
Section 1.08. BROKERS: (See Article Fourteen) (If none, so state)________
Landlord's Broker: Majestic Realty Co.
Tenant's Broker: Xxxxx & Xxxxx
Section 1.09. COMMISSION PAYABLE TO LANDLORD'S BROKER: (See Article
Fourteen) $ per separate agreement
Section 1.10. INITIAL SECURITY DEPOSIT: (See Section 3.03) $47,280.00
Section 1.11. VEHICLE PARKING SPACES ALLOCATED TO TENANT: PER EXHIBIT "A"
Section 1.12. RENT AND OTHER CHARGES PAYABLE BY TENANT:
(a) BASE RENT: FORTY-SEVEN THOUSAND TWO HUNDRED EIGHTY AND NO/100 Dollars
($47,280.00) per month for the first sixty-one (61) months, as provide in
Section 3.01.
(b) OTHER PERIODIC PAYMENTS: (i) Real Property Taxes (See Section 4.02);
(ii) Utilities (See Section 4.03); (iii) Insurance Premiums (See Section 4.04);
(iv) Impounds for Insurance Premiums and Property Taxes (See Section 4.07); (v)
Maintenance, Repairs and Alterations (See Article Six).
Section 1.13. XXXXXXXX'S SHARE OF PROFIT ON ASSIGNMENT OR SUBLEASE: (See
Section 9.05) fifty percent (50%) of the Profit (the "Landlord's Share").
Section 1.14. RIDERS: The following Riders are attached to and made a part
of this Lease: (If none, so state) ADDENDUM PAGES 1 THROUGH 8, OPTION TO EXTEND
TERM LEASE RIDER AND EXHIBITS "A", "B", "C", "D" AND "E"
* the earlier to occur of (i) the date upon which Xxxxxx first commences to
conduct business in the Property and (ii) the date upon which the Property
is "Ready for Occupancy" as that term is defined in the Tenant work letter
attached hereto as Exhibit "E", which is anticipated to be November 1,
1999.
** the date upon which is sixty-one (61) months after the Lease Commence Date.
ARTICLE TWO: LEASE TERM
Section 2.01. LEASE OF PROPERTY FOR LEASE TERM. Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the Lease
Term. The Lease Term is for the period stated in Section 1.05 above and shall
begin and end on the dates specified in Section 1.05 above, unless the beginning
or end of the Lease Term is changed under any provision of this Lease. The
"Commencement Date" shall be the date specified in Section 1.05 above for the
beginning of the Lease Term, unless advanced or delayed under any provision of
this Lease.
Section 2.02. DELAY IN COMMENCEMENT. See Addendum Section 2.02
Section 2.03. EARLY OCCUPANCY. If Tenant occupies the Property prior to the
Commencement Date, Xxxxxx's occupancy of the Property shall be subject to all of
the provisions of this Lease. Early occupancy of the Property shall not advance
the expiration date of this Lease. Tenant shall pay Base Rent and all other
charges specified in this Lease for the early occupancy period.
Section 2.04. HOLDING OVER. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse Landlord
for and indemnify Landlord against all damages (except for punitive damages)
which Landlord incurs from Xxxxxx's delay in vacating the Property. If Tenant
does not vacate the Property upon the expiration or earlier termination of the
Lease and Landlord thereafter accepts rent from Tenant, Xxxxxx's occupancy of
the Property shall be a "month-to-month" tenancy, subject to all of the terms of
this Lease applicable to a month-to-month tenancy, except that the monthly Base
Rent then in effect shall be increased by twenty-five percent (25%).
Section 2.05. See Addendum
ARTICLE THREE: BASE RENT
Section 3.01. TIME AND MANNER OF PAYMENT. Upon execution of this Lease,
Tenant shall pay Landlord the Base Rent in the amount stated in Paragraph
1.12(a) above for the second month of the Lease Term. On the first day of the
third month of the Lease Term and each month thereafter, Tenant shall pay
Landlord the Base Rent, in advance, without offset, deduction or prior demand.
The Base Rent shall be payable at Landlord's address or at such other place as
Landlord may designate in writing.
See Addendum Section 3.01
Section 3.02. COST OF LIVING INCREASES. The Base Rent shall be increased on
each date (the "Rental Adjustment Date") stated in Option to Extend Term Lease
Rider, attached hereto, in accordance with the increase in the United States
Department of labor, Bureau of Labor Statistics, Consumer Price Index for All
Urban Consumers (all items for the geographical Statistical Area in which the
Property is located on the basis of 1982-1984=100) (the "Index") as follows:
(a) The Base Rent (the "Comparison Base Rent") in effect immediately before
each Rental Adjustment Date shall be increased by the percentage that the Index
has increased from the date (the "Comparison Date") on which payment of the
Comparison Base Rent began through the month in which the applicable Rental
Adjustment Date occurs. The Base Rent shall into be reduced by reason of such
computation. Landlord shall notify Tenant of each increase by a written
statement which shall include the Index for the applicable Comparison Date, the
Index for the applicable Rental Adjustment Date, the percentage increase between
those two Indices, and the new Base Rent. Any increase in the Base Rent provided
for in this Section 3.02 shall be subject to any minimum or maximum increase, if
provided for in Option to Extend Term lease Rider.
(b) Tenant shall pay the new Base Rent from the applicable Rental
Adjustment Date until the next Rental Adjustment Date. Landlord's notice may be
given after the applicable Rental Adjustment Date of the increase, and Tenant
shall pay Landlord the accrued rental adjustment for the months elapsed between
the effective date of the increase and Landlord's notice of such increase within
ten (10) days after Landlord's notice. If the format or components of the Index
are materially changed after the Commencement date, Landlord shall substitute an
index which is published by the Bureau of labor Statistics or similar agency and
which is most nearly equivalent to the Index in effect on the Commencement Date.
The substitute index shall be used to calculate the increase in the Base Rent
unless Tenant objects to such index in writing within fifteen (15) days after
receipt of Landlord's notice. If Tenant objects, Landlord and Tenant shall
submit the selection of the substitute index for binding arbitration in
accordance with the rules and regulations of the American Arbitration
Association at its office closest to the Property. The costs of arbitration
shall be borne equally by Landlord and Tenant.
Section 3.03. SECURITY DEPOSIT; INCREASES.
(a) Upon the execution of this Lease, Tenant shall deposit with Landlord a
cash Security Deposit in the amount set forth in Section 1.10 above. Landlord
may apply all or part of the Security Deposit to any unpaid rent or other
charges due from Tenant or to cure any other defaults of Tenant. If Landlord
uses any part of the Security Deposit, Tenant shall restore the Security Deposit
to its full amount within ten (10) days after Landlord's written request.
Tenant's failure to do so shall be a material default under this Lease. No
interest shall be paid on the Security Deposit. Landlord shall not be required
to keep the Security Deposit separate from its other accounts and no trust
relationship is created with respect to the Security Deposit.
Section 3.04. TERMINATION; ADVANCE PAYMENTS. Upon termination of this Lease
under Article Seven (Damage or Destruction). Article Eight (Condemnation) or any
other termination not resulting from Tenant's default, and within sixty (60)
days after Xxxxxx has vacated the Property in the manner required by this lease,
Landlord shall refund or credit to Tenant (or Xxxxxx's successor) the unused
portion of the Security Deposit, any advance rent or other advance payments made
by Tenant to Landlord, and any amounts paid for real property taxes and other
reserves which apply to any time periods after termination of the Lease.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
Section 4.01. ADDITIONAL RENT. All charges payable by Tenant other than
Base Rent are called "Additional Rent." Unless this Lease provides otherwise,
Tenant shall pay all Additional Rent then due with the next monthly installment
of Base Rent. The term "rent" shall mean Base Rent and Additional Rent.
Section 4.02. PROPERTY TAXES.
(a) REAL PROPERTY TAXES. Tenant shall pay all real property taxes on the
Property (including any fees, taxes or assessments against, or as a result of,
any tenant improvements installed on the Property by or for the benefit of
Tenant) during the Lease Term. Subject to Paragraph 4.02 (c) and Section 4.07
below, such payment shall be made at least ten (10) days prior to the
delinquency date of the taxes. Within such ten (10)-day period, Tenant shall
furnish Landlord with satisfactory evidence that the real property taxes have
been paid. Landlord shall reimburse Tenant for any real property taxes paid by
Tenant covering any period of time prior to or after the Lease Term. If Tenant
fails to pay the real property taxes when due, Landlord may pay the taxes and
Tenant shall reimburse Landlord for the amount of such tax payment as Additional
Rent. Alternatively, Landlord may elect to xxxx Xxxxxx in advance for such taxes
and Tenant shall pay Landlord the amount of such taxes, as Additional Rent, at
least ten (10) days prior to delinquency. Landlord shall pay such taxes prior to
delinquency provided Tenant has timely made such payments to Landlord. Any
penalty caused by Xxxxxx's failure to timely make such payments shall also be
Additional Rent owed by Xxxxxx immediately upon demand. Alternatively, Landlord
may elect to xxxx Xxxxxx in advance for such taxes and tenant shall pay Landlord
the amount of such taxes, as Additional Rent, at least ten (10) days prior to
delinquency. Landlord shall pay such taxes prior to delinquency provided Tenant
has timely made such payments to Landlord. Any penalty caused by Xxxxxx's
failure to timely make such payments shall also be Additional Rent owed by
Xxxxxx immediately upon demand.
(b) DEFINITION OF "REAL PROPERTY TAX." "Real property tax" means: (i) any
fee, license fee, license tax, business license fee, commercial rental tax,
levy, charge, assessment, penalty or tax imposed by any taxing authority against
the Property; (ii) any tax on the Landlord's right to receive, or the receipt
of, rent or income from the Property or against Landlord's business of leasing
the Property; (iii) any tax or charge for fire protection, streets, sidewalks,
road maintenance, refuse or other services provided to the Property by any
governmental agency; (iv) any tax imposed or based upon a re-assessment of the
Property due to a change of ownership, as defined by applicable law, or other
transfer of all or part of Xxxxxxxx's interest in the Property; and (v) any
charge or fee replacing any tax previously included within the definition of
real property tax. "Real property tax" does not, however, include Landlord's
federal or state income, franchise, inheritance or estate taxes.
(c) JOINT ASSESSMENT. If the Property is not separately assessed, Landlord
shall reasonably determine Tenant's share of the real property tax payable by
Tenant under Paragraph 4.02(a) from the assessor's worksheets or other
reasonably available information. Tenant shall pay such share to Landlord within
fifteen (15) days after receipt of Landlord's written statement.
(d) PERSONAL PROPERTY TAXES.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging
to Xxxxxx. Tenant shall try to have personal property taxed
separately from the Property.
(ii) If any of Tenant's personal property is taxed with the Property,
Tenant shall pay Landlord the taxes for the personal property
within fifteen (15) days after Xxxxxx receives a written
statement from Landlord for such personal property taxes.
(e) TENANT'S RIGHT TO CONTEST TAXES. Tenant may attempt to have the
assessed valuation of the Property reduced or may initiate proceedings to
contest the real property taxes. If required by law, Landlord shall join in the
proceedings brought by Xxxxxx. However, Tenant shall pay all costs of the
proceedings, including any costs or fees incurred by Landlord. Upon the final
determination of any proceeding or contest, Xxxxxx shall immediately pay the
real property taxes due, together with all costs, charges, interest and
penalties incidental to the proceedings. If Tenant does not pay the real
property taxes when due and contests such taxes, Tenant shall not be in default
under this Lease for nonpayment of
such taxes if Tenant posts any statutory bond or if no bond is permitted,
deposits funds with Landlord or opens an interest-bearing account reasonably
acceptable to Landlord in the joint names of Landlord and Tenant. The amount of
such bond or deposit shall be sufficient to pay the real property taxes plus a
reasonable estimate of the interest, costs, charges and penalties which may
accrue if Tenant's action is unsuccessful, less any applicable tax impounds
previously paid by Tenant to Landlord. The deposit shall be applied to the real
property taxes due, as determined at such proceedings. The real property taxes
shall be paid under protest from such deposit if such payment under protest is
necessary to prevent the Property from being sold under a "tax sale" or similar
enforcement proceeding.
Section 4.03. UTILITIES. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, water, refuse, disposal and other utilities and services supplied to
the Property. However, if any services or utilities are jointly metered with
other property, Landlord shall make a reasonable determination of Tenant's
proportionate share of the cost of such utilities and services and Tenant shall
pay such share to Landlord within fifteen (15) days after receipt of Landlord's
written statement. Notwithstanding the foregoing, Tenant shall have the right,
at Tenant's sole cost and expense, to have separate meters installed.
Section 4.04. INSURANCE POLICIES.
(a) LIABILITY INSURANCE. During the Lease Term, Tenant shall maintain a
policy of commercial general liability insurance (sometimes known as broad form
comprehensive general liability insurance) insuring Tenant against liability for
bodily injury, property damage (including loss of use of property) and personal
injury arising out of the operation, use or occupancy of the Property. Tenant
shall name Landlord as an additional insured under such policy. The initial
amount of such insurance shall be One Million Dollars ($1,000,000) per
occurrence and shall be subject to periodic increase based on inflation,
increased liability awards, recommendation of Landlord's professional insurance
advisers and other relevant factors. The liability insurance obtained by Tenant
under this Paragraph 4.04(a) shall (i) be primary and non-contributing; (ii)
contain cross-liability endorsements; and (iii) insure Landlord against Tenant's
performance under Section 5.05, if the matters giving rise to the indemnity
under Section 5.05 result from the negligence of Tenant. The amount and coverage
of such insurance shall not limit Tenant's liability nor relieve Tenant of any
other obligation under this Lease. Landlord may also obtain comprehensive public
liability insurance in an amount and with coverage determined by Landlord
insuring Landlord against liability arising out of ownership, operation, use or
occupancy of the Property. The policy obtained by Landlord shall not be
contributory and shall not provide primary insurance.
(b) PROPERTY AND RENTAL INCOME INSURANCE. During the lease Term, Landlord
shall maintain policies of insurance covering loss of or damage to the Property
in the full amount of its replacement value. Such policy shall contain an
Inflation Guard Endorsement and shall provide protection against all perils
included within the classification of fire, extended coverage, vandalism,
malicious mischief, special extended perils (all risk), sprinkler leakage and
any other perils which Landlord deems reasonably necessary. Landlord shall have
the right to obtain flood and earthquake insurance if required by any lender
holding a security interest in the Property. Landlord shall not obtain insurance
for Tenant's fixtures or equipment or building improvements installed by Tenant
on the Property. During the lease Term, Landlord shall also maintain a rental
income insurance policy, with loss payable to Landlord, in an amount equal to
one year's Base Rent, plus estimated real property taxes and insurance premiums.
Tenant shall be liable for the payment of any deductible amount under Xxxxxxxx's
or Tenant's insurance policies maintained pursuant to this Section 4.04, in an
amount not to exceed Ten Thousand Dollars ($10,000). Tenant shall not do or
permit anything to be done which invalidates any such insurance policies.
(c) PAYMENT OF PREMIUMS. Subject to Section 4.07, Tenant shall pay all
premiums for the insurance policies described in Paragraphs 4.04(a) and (b)
(whether obtained by Landlord or Tenant) within fifteen (15) days after Xxxxxx's
receipt of a xxx of the premium statement or other evidence of the amount due,
except Landlord shall pay all premiums for non-primary comprehensive public
liability
insurance which Landlord elects to obtain as provided in Paragraph 4.04(a). If
insurance policies maintained by Landlord cover improvements on real property
other than the Property, Landlord shall reasonably determine the premium
applicable to the Property and deliver to Tenant a statement of the premium
applicable to the Property showing in reasonable detail how Tenant's share of
the premium was computed. If the Lease Term expires before the expiration of an
insurance policy maintained by Landlord, Tenant shall be liable for Tenant's
prorated share of the insurance premiums. Before the Commencement Date, Tenant
shall deliver to Landlord a copy of any policy of insurance which Tenant is
required to maintain under this Section 4.04. At least thirty (30) days prior to
the expiration of any such policy, Tenant shall deliver to Landlord a renewal of
such policy. As an alternative to providing a policy of insurance, Tenant shall
have the right to provide Landlord a certificate of insurance, executed by an
authorized officer of the insurance company, showing that the insurance which
Tenant is required to maintain under this Section 4.04 is in full force and
effect and containing such other information which Landlord reasonably requires.
(d) GENERAL INSURANCE PROVISIONS.
(i) Any insurance which Tenant is required to maintain under this
Lease shall include a provision which requires the insurance
carrier to give Landlord not less than thirty (30) days written
notice prior to any cancellation or modifications of such
coverage.
(ii) If Tenant fails to deliver any policy, certificate or renewal to
Landlord required under this lease within the prescribed time
period or if any such policy is cancelled or modified during the
Lease Term without Landlord's consent, Landlord may obtain such
insurance, in which case Tenant shall reimburse Landlord for the
cost of such insurance within fifteen (15) days after receipt of
a statement that indicates the cost of such insurance.
(iii) Tenant shall maintain all insurance required under this lease
with companies holding a "General Policy Rating" of A-12 or
better, as set forth in the most current issue of "Best Key
Rating Guide." Landlord and Tenant acknowledge the insurance
markets are rapidly changing and that insurance in the form and
amounts described in this Section 4.04 may not be available in
the future. Tenant acknowledges that the insurance described in
this Section 4.04 is for the primary benefit of Landlord. If at
any time during the Lease Term, Tenant is unable to maintain the
insurance required under the Lease, Tenant shall nevertheless use
its reasonable best efforts to maintain insurance coverage which
is customary and commercially reasonable in the insurance
industry for Tenant's type of business, as that coverage may
change from time to time. Xxxxxxxx makes no representation as to
the adequacy of such insurance to protect Xxxxxxxx's or Xxxxxx's
interests. Therefore, Tenant shall obtain any such additional
property or liability insurance which Tenant deems necessary to
protect Landlord and Tenant. See Addendum Section 4.04 (d)(iii)
(iv) Unless prohibited under any applicable insurance policies
maintained, Landlord and Tenant each hereby waive any and all
rights of recovery against the other, or against the officers,
employees, agents or representatives of the other, for loss of or
damage to its property or the property of others under its
control, if such loss or damage is covered by any insurance
policy in force (whether or not described in this Lease) at the
time of such loss or damage. Upon obtaining the required policies
of insurance, Landlord and Tenant shall give notice to the
insurance carriers of this mutual waiver of subrogation. See
Addendum Section 4.04 (d)(iv)
Section 4.05. LATE CHARGES. Xxxxxx's failure to pay rent promptly may cause
Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include,
but are not limited to, processing and accounting charges and late charges
which may be imposed on Landlord by any ground lese, mortgage or trust deed
encumbering the Property. Therefore, if Landlord does not receive any rent
payment within ten (10) days after it becomes due, Tenant shall pay
Landlord a late charge equal to ten percent (10%) of the overdue amount.
The parties agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of such late payment.
Section 4.06. INTEREST ON PAST DUE OBLIGATIONS. Any amount owed by Tenant
to Landlord which is not paid when due shall bear interest at the rate of
twelve percent (12%) per annum from the due date of such amount. However,
interest shall not be payable on late charges to be paid by Tenant under
this Lease. The payment of interest on such amounts shall not excuse or
cure any default by Tenant under this Lease. If the interest rate specified
in this Lease is higher than the rate permitted by law, the interest rate
is hereby decreased to the maximum legal interest rate permitted by law.
Section 4.07 IMPOUNDS FOR INSURANCE PREMIUMS AND REAL PROPERTY TAXES. If
requested by any ground lesser or lender to whom Landlord has granted a
security interest in the Property, or if Tenant is more than ten (10) days
late in the payment of rent more than once in any consecutive twelve
(12)-month period, Tenant shall pay Landlord a sum equal to one-twelfth
(1/12) of the annual real property taxes and insurance premiums payable by
Tenant under this Lease, together with each payment of Base Rent. Landlord
shall hold such payments in a non-interest bearing impound account. If
unknown, Landlord shall reasonably estimate the amount of real property
taxes and insurance premiums when due. Tenant shall pay any deficiency of
funds in the impound account to Landlord upon written request. If Tenant
defaults under this lease, Landlord may apply any funds in the impound
account to any obligation then due under this Lease.
ARTICLE FIVE: USE OF PROPERTY
Section 5.01 PERMITTED USES. Tenant may use the Property only for the
Permitted Uses set forth in Section 1.06 above.
Section 5.02 MANNER OF USE. Tenant shall not cause of permit the Property
to be used in any way which constitutes a violation of any law, ordinance, or
governmental regulation or order, which annoys or interferes with the rights of
other tenants of Landlord, or which constitutes a violation of any law,
ordinance, or governmental regulation or order, which annoys or interferes with
the rights of other tenants of Landlord, or which constitutes a nuisance or
waste. Tenant shall obtain and pay for all permits, including a Certificate of
Occupancy, required for Tenant's occupancy of the Property and shall promptly
take all actions necessary to comply with all applicable statutes, ordinances,
rules, regulations, orders and requirements regulating the use by Tenant of the
Property, including the Occupational Safety and Health Act.
Section 5.03 HAZARDOUS MATERIALS. See Addendum Section 5.04
Section 5.04 SIGNS AND AUCTIONS. Tenant shall not place any signs on the
Property without Landlord's prior consent. Tenant shall not conduct or permit
any auctions or sheriff's sales at the Property. See Addendum Section 5.04
Section 5.05 INDEMNITY. Tenant shall indemnify Landlord against and hold
Landlord harmless from any and all costs, claims or liability arising from: (a)
Tenant's use of the Property; (b) the conduct of Tenant's business or anything
else done or permitted by Tenant to be done in
or about the Property; (c) any breach or default in the performance of Tenant's
obligations under this Lease; (d) any misrepresentation or breach of warranty by
Tenant under this Lease; or (e) other acts or omissions of Tenant. Tenant shall
defend Landlord against any such cost, claim or liability at Xxxxxx's expense
with counsel reasonably acceptable to Landlord or, at Landlord's election,
Tenant shall reimburse Landlord for any legal fees or costs incurred by Landlord
in connection with any such claim. As a material part of the consideration to
Landlord, Xxxxxx assumes all risk of damage to property or injury to persons in
or about the Property arising from any cause, and Tenant hereby waives all
claims in respect thereof against Landlord, except for any claim arising out of
Landlord's gross negligence or willful misconduct. As used in this Section, the
term "Tenant" shall include Tenant's employees, agents, contractors and
invitees, if applicable.
Section 5.06 LANDLORD'S ACCESS. Landlord or its agents may enter the
Property at all reasonable times to show the Property to potential buyers,
investors or tenants (during the last six (6) months of the Lease) or other
parties; or do any other act; or for any other purpose Landlord deems necessary.
Landlord shall give Tenant prior notice of such entry, except in the case of an
emergency. Landlord may place customary "For Sale" or "For Lease" signs on the
Property.
Section 5.07 QUIET POSSESSION. If Tenant pays the rent and complies with
all other terms of this Lease, Tenant shall have quiet possession of the
Property for the full Lease Term, subject to the provisions of this Lease.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENACE, REPAIRS AND ALTERATIONS
Section 6.01 EXISTING CONDITIONS. Except as set forth in the Tenant Work
Letter attached hereto as Exhibit E, Tenant accepts the Property in its
condition as of the execution of the Lease, subject to all recorded matters,
laws, ordinances, and governmental regulations and orders. Except as provided
herein, Xxxxxx acknowledges that neither Xxxxxxxx nor any agent of Landlord has
made any representation as to the condition of the Property or the suitability
of the Property for Xxxxxx's intended use. Tenant represents and warrants that
Tenant has made its own inspection of and inquiry regarding the condition of the
Property and is not relying on any representations of Landlord or any Broker
with respect thereto. If Landlord or Landlord's Broker has provided a Property
Information Sheet or other Disclosure Statement regarding the Property, a xxx is
attached as an exhibit to the Lease.
Section 6.02 EXEMPTION OF LANDLORD FROM LIABILITY. Landlord shall not be
liable for any damage or injury to the person, business (or any loss of income
therefrom), goods, wares, merchandise or other property of Tenant, Tenant's
employees, invitees, customers or any other person in or about the Property,
whether such damage or injury is caused by or results from: (a) fire, steam,
electricity, water, gas or rain; (b) the breakage, leakage, obstruction or other
defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or
lighting fixtures or any other cause; (c) conditions arising in or about the
Property or from other sources or places; or (d) any act or omission of any
other tenant of Landlord. Landlord shall not be liable for any such damage or
injury even though the cause of or the means of repairing such damage or injury
are not accessible to Tenant. The provisions of this Section 6.02 shall not,
however, exempt Landlord from liability for Landlord's gross negligence or
willful misconduct.
Section 6.03 LANDLORD'S OBLIGATIONS. Subject to the provisions of Article
Seven (Damage or Destruction) and Article Eight (Condemnation), Landlord shall
have absolutely no responsibility to repair, maintain or replace any portion of
the Property at any time. Tenant waives the benefit of any present or future law
which might give Tenant the right to repair the Property at Landlord's expense
or to terminate the Lease due to the condition of the Property. See Addendum
Section 6.03
Section 6.04 TENANT'S OBLIGATIONS.
(a) Except as provided in Section 6.03 (including the addendum
thereto), Article Seven (Damage or Destruction) and Article Eight
(Condemnation), Tenant shall keep all portions of the Property (including
nonstructural, interior, exterior, and landscaped areas, portions, systems and
equipment) in good order, condition and repair (including interior repainting
and refinishing, as needed). If any portion of the Property or any system or
equipment in the Property which Tenant is obligated to repair cannot be fully
repaired or restored, Tenant shall promptly replace such portion of the Property
or system or equipment in the Property, regardless of whether the benefit of
such replacement extends beyond the Lease Term; but if the benefit or useful
life of such replacement extends beyond the Lease Term (as such term may be
extended by exercise of any option) the useful life of such replacement shall be
prorated over the remaining portion of the Lease Term (as extended), and Tenant
shall be liable only for that portion of the cost which is applicable to the
Lease Term (as extended). Tenant shall maintain a preventive maintenance
contract providing for the regular inspection and maintenance of the heating and
air conditioning system by a licensed heating and air conditioning contractor.
If any part of the Property is damaged by any act or omission of Tenant. Tenant
shall pay Landlord the cost of repairing or replacing such damaged property,
whether or not Landlord would otherwise be obligated to pay the cost of
maintaining or repairing such property. It is the intention of Landlord and
Tenant that at all times Tenant shall maintain the portions of the Property
which Tenant is obligated to maintain in an attractive, first-class and fully
operative condition.
(b) Tenant shall fulfill all of Tenant's obligations under this
Section 6.04 at Tenant's sole expense. If Tenant fails to maintain, repair or
replace the Property as required by this Section 6.04, Landlord may, upon ten
(10) days prior notice to Tenant (except that no notice shall be required in the
case of any emergency), enter the Property and perform such maintenance or
repair (including replacement as needed) on behalf of Tenant. In such case,
Tenant shall reimburse Landlord for all costs incurred in performing such
maintenance or repair immediately upon demand.
Section 6.05 ALTERATIONS, ADDITIONS, AND IMPROVEMENTS.
(a) Tenant shall not make any alterations, additions, or improvements
to the Property without Landlord's prior written consent, except for
non-structural alterations which do not exceed Twenty Thousand Dollars ($20,000)
in cost cumulatively over the Lease term and which are not visible from the
outside of any building of which the Property is part. Landlord may require
Tenant to provide demolition and/or lien and completion bonds in form and amount
satisfactory to Landlord. Tenant shall promptly remove any alterations,
additions, or improvements constructed in violation of this Paragraph 6.05(a)
upon Landlord's written request. All alterations, additions, and improvements
shall be done in a good and workmanlike manner, in conformity with all
applicable laws and regulations, and by a contractor approved by Landlord. Upon
completion of any such work, Tenant shall provide Landlord with "as built"
plans, copies of all construction contracts, and proof of payment for all labor
and materials.
(b) Tenant shall pay when due all claims for labor and material
furnished to the Property. Tenant shall give Landlord at least twenty (20) days'
prior written notice of the commencement of any work on the Property, regardless
of whether Xxxxxxxx's consent to such work is required. Landlord may elect to
record and post notices of non-responsibility on the Property.
Section 6.06 CONDITION UPON TERMINATION. Upon the termination of the Lease,
Xxxxxx shall surrender the Property to Landlord, broom clean and in the same
condition as received except for ordinary wear and tear which Tenant was not
otherwise obligated to remedy under any provision of this Lease. However, Tenant
shall not be obligated to repair any damage which Landlord is required to repair
under Article Seven (Damage or Destruction). In addition, Landlord may require
Tenant to remove any alterations, additions or improvements (whether or not made
with Xxxxxxxx's consent) prior to the expiration of the Lease and to restore the
Property to its prior condition, all at Tenant's expense. Nothwithstanding the
foregoing, Tenant may request, at the time it seeks Landlord's consent to an
improvement, that Landlord state at the time it grants approval, whether or not
removal will be required at the end of the Lease Term. Such request shall
specifically cite this Lease provision and Xxxxxxxx's obligation to make such
statement. Any improvement Landlord consents to remain on the Property shall be
delivered at the end of the Lease Term in the condition installed, reasonable
wear and tear excepted. All alterations, additions an improvements which
Landlord has not required Tenant to remove shall become Landlord's property and
shall be surrendered to Landlord upon the expiration or earlier termination of
the Lease, except that Tenant may remove any of Tenant's machinery or equipment
which can be removed without material damage to the Property. Tenant shall
repair, at Tenant's expense, any damage to the Property caused by the removal of
any such machinery or equipment. In no event, however, shall Tenant remove any
of the following materials or equipment (which shall be deemed Landlord's
property) without Landlord's prior written consent: any power wiring or power
panels; lighting or lighting fixtures: wall coverings: drapes, blinds or other
window coverings: carpets or other floor coverings; heaters, air conditioners or
any other heating or air conditioning equipment: fencing or security gates: or
other similar building operating equipment and decorations.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
Section 7.01 PARTIAL DAMAGE TO PROPERTY.
(a) Tenant shall notify Landlord in writing immediately upon the
occurrence of any damage to the property. If the Property is only partially
damaged (i.e., less than fifty percent (50%) of the Property is untenantable as
a result of such damage or less than fifty percent (50%) of Tenant's operations
are materially impaired) and if the proceeds received by Landlord from the
insurance policies described in Paragraph 4.04(b) are sufficient to pay for the
necessary repairs, this Lease shall remain in effect and Landlord shall repair
the damage as soon as reasonably possible. Landlord may elect (but is not
required) to repair any damage to Tenant's fixtures, equipment, or improvements.
(b) If the insurance proceeds received by Landlord are not sufficient
to pay the entire cost of repair, or if the cause of the damage is not covered
by the insurance policies which Landlord maintains under Paragraph 4.04(b),
Landlord may elect either to (i) repair the damage as soon as reasonably
possible, in which case this Lease shall remain in full force and effect, or
(ii) terminate this Lease as of the date the damage occurred. Landlord shall
notify Tenant within thirty (30) days after receipt of notice of the occurrence
of the damage whether Landlord elects to repair the damage or terminate the
Lease. If Landlord elects to repair the damage, Tenant shall pay Landlord the
"deductible amount" (if any) under Landlord's insurance policies and, if the
damage was due to an act or omission of Tenant, or Tenant's employees, agents,
contractors or invitees, the difference between the actual cost of repair and
any insurance proceeds received by Landlord. If Landlord elects to terminate
this Lease, Tenant may elect to continue this Lease in full force and effect, in
which case Tenant shall repair any damage to the Property and any building in
which the Property is located. Tenant shall pay the cost of such repairs, except
that upon satisfactory completion of such repairs, Landlord shall deliver to
Tenant any insurance proceeds received by Landlord for the damage repaired by
Tenant. Tenant shall give Landlord written notice of such election within ten
(10) days after receiving Landlord's termination notice.
(c) If the damage to the Property occurs during the last six (6)
months of the Lease Term and such damage will require more than thirty (30) days
to repair, either Landlord or Tenant may elect to terminate this Lease as of the
date the damage occurred, regardless of the sufficiency of any insurance
proceeds. The party electing to terminate this Lease shall give written
notification to the other party of such election within thirty (30) days after
Xxxxxx's notice to Landlord of the occurrence of the damage.
Section 7.02. SUBSTANTIAL OR TOTAL DESTRUCTION. If the Property is
substantially or totally destroyed by an cause whatsoever (i.e., the damage to
the Property is greater than partial damage as described in Section 7.01), and
regardless of whether Landlord receives any insurance proceeds, this
Lease shall terminate the later of the (i) date the destruction occurred and
(ii) the date Tenant ceases to do business at the Property. Notwithstanding the
preceding sentence, if the Property can be rebuilt within six (6) months after
the date of destruction, Landlord may elect to rebuild the Property at
Landlord's own expense, in which case this Lease shall remain in full force and
effect. Landlord shall notify Tenant of such election within thirty (30) days
after Xxxxxx's notice of the occurrence of total or substantial destruction. If
Landlord so elects, Landlord shall rebuild the Property at Landlord's sole
expense, except that if the destruction was caused by an act or omission of
Tenant, Tenant shall pay Landlord the difference between the actual cost of
rebuilding and any insurance proceeds received by Landlord.
Section 7.03. TEMPORARY REDUCTION OF RENT. If the Property is destroyed or
damaged and Landlord or Tenant repairs or restores the Property pursuant to the
provisions of this Article Seven, any rent payable during the period of such
damage, repair and/or restoration shall be reduced according to the degree, if
any, to which Xxxxxx's use of the Property is impaired. Except for such possible
reduction in Base Rent, insurance premiums and real property taxes, Tenant shall
not be entitled to any compensation, reduction, or reimbursement from Landlord
as a result of any damage, destruction, repair, or restoration of or to the
Property.
Section 7.04. WAIVER. Tenant waives the protection of any statute, code or
judicial decision which grants a tenant the right to terminate a lease in the
event of the substantial or total destruction of the leased property. Tenant
agrees that the provisions of Section 7.02 above shall govern the rights and
obligations of Landlord and Tenant in the event of any substantial or total
destruction to the Property.
ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Property is taken under the power of eminent
domain or sold under the threat of that power (all of which are called
"Condemnation"), this Lease shall terminate as to the part taken or sold on the
date the condemning authority takes title or possession, whichever occurs first.
If more than thirty percent (30%) of the floor area of the building in which the
Property is located, or which is located on the Property, is taken, either
Landlord or Tenant may terminate this Lease as of the date the condemning
authority takes title or possession, by delivering written notice to the other
within ten (10) days after receipt of written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
takes title or possession ). If neither Landlord nor Tenant terminates this
Lease, this Lease shall remain in effect as to the portion of the Property not
taken, except that the Base Rent and Additional Rent shall be reduced in
proportion to the reduction in the floor area of the Property. Any Condemnation
award or payment shall be distributed in the following order: (a) first, to any
ground lessor, mortgagee or beneficiary under a deed of trust encumbering the
Property, the amount of its interest in the Property; (b) second, to Tenant,
only the amount of any award specifically designated for loss of or damage to
Tenant's trade fixtures or removable personal property and any award
specifically designated for any relocation expenses; and (c) third, to Landlord,
the remainder of such award, whether as compensation for reduction in the value
of the leasehold, the taking of the fee, or otherwise. If this Lease is not
terminated, Landlord shall repair any damage to the Property caused by the
Condemnation, except that Landlord shall not be obligated to repair any damage
for which Tenant has been reimbursed by the condemning authority. If the
severance damages received by Landlord are not sufficient to pay for such
repair, Landlord shall have the right to either terminate this Lease or make
such repair at Landlord's expense.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. LANDLORD'S CONSENT REQUIRED. No portion of the Property or of
Tenant's interest in this Lease may be acquired by any other person or entity,
whether by sale, assignment, mortgage, sublease, transfer, operation of law, or
act of Tenant, without Xxxxxxxx's prior written consent, except as provided in
Section 9.02 below. Landlord has the right to grant or withhold its consent as
provided in Section 9.05 below. Any attempted transfer without consent shall be
void and shall constitute a non-curable breach of this Lease. If Tenant is a
corporation, any change in the ownership of a
controlling interest of the voting stock of the corporation shall require
Landlord's consent. Notwithstanding the foregoing, Tenant may transfer its stock
to an individual related to the present owners of the stock, as of the date of
this Lease, without Landlord's consent, provided Tenant gives Landlord written
notice of such transfer.
Section 9.02. TENANT AFFILIATE. Tenant may assign this Lease or sublease
the Property, without Landlord's consent, to any corporation which controls, is
controlled by or is under common control with Tenant, or to any corporation
resulting from the merger of or consolidation with Tenant ("Tenant's
Affiliate"). In such case, any Tenant's Affiliate shall assume in writing all of
Tenant' obligations under the Lease.
Section 9.03. NO RELEASE OF TENANT. No transfer permitted by this Article
Nine, whether with or without Landlord's consent, shall release Tenant or change
Tenant's primary liability to pay the rent and to perform all other obligations
of Tenant under this Lease. Xxxxxxxx's acceptance of rent from any other person
is not a waiver of any provision of this Article Nine. Consent to one transfer
is not a consent to any subsequent transfer. If Xxxxxx's transferee defaults
under this Lease, Landlord may proceed directly against Tenant without pursuing
remedies against the transferee. Landlord may consent to subsequent assignments
or modifications of this Lease by Xxxxxx's transferee, without notifying Tenant
or obtaining its consent. Such action shall not relieve Xxxxxx's liability under
this Lease.
Section 9.05. LANDLORD'S CONSENT.
(a) Xxxxxx's request for consent to any transfer described in Section 9.01
shall set forth in writing the details of the proposed transfer, including the
name, business and financial condition of the prospective transferee, financial
details of the proposed transfer (e.g., the term of and the rent and security
deposit payable under any proposed assignment or sublease), and any other
information Landlord deems relevant. Landlord shall have the right to withhold
consent, if reasonable, or to grant consent, based on the following factors: (i)
the business of the proposed assignee or subtenant and the proposed use of the
Property; (ii) the net worth and financial reputation of the proposed assignee
or subtenant; (iii) Tenant's compliance with all of its obligations under the
Lease; and (iv) such other factors as Landlord may reasonably deem relevant. If
Landlord objects to a proposed assignment solely because of the net worth and/or
financial reputation of the proposed assignee, Tenant may nonetheless sublease
(but not assign), all or a portion of the Property to the proposed transferee,
but only on the other terms of the proposed transfer.
(b) If Tenant assigns or subleases, the following shall apply:
(i) Tenant shall pay to Landlord as Additional Rent under the Lease
the Landlord's Share (stated in Section 1.13) of the Profit (defined below) on
such transaction as and when received by Xxxxxx, unless Xxxxxxxx gives written
notice to Xxxxxx and the assignee or subtenant that Landlord's Share shall be
paid by the assignee or subtenant to Landlord directly. The "Profit" means (A)
all amounts paid to Tenant for such assignment or sublease, including "key"
money, monthly rent in excess of the monthly rent payable under the Lease, and
all fees and other consideration paid for the assignment or sublease, including
fees under any collateral agreements, less (B) costs and expenses directly
incurred by Tenant in connection with the execution and performance of such
assignment or sublease for real estate broker's commissions and costs of
renovation or construction of tenant improvements required under such assignment
or sublease. Tenant is entitled to recover such costs and expenses before Tenant
is obligated to pay the Landlord's Share to Landlord. The Profit in the case of
a sublease of less than all the Property is the rent allocable to the subleased
space as a percentage on a square footage basis.
(ii) Tenant shall provide Landlord a written statement certifying all
amounts to be paid from any assignment or sublease of the Property within thirty
(30) days after the transaction documentation is signed, and Landlord may
inspect Tenant's books and records to verify the accuracy of such statement. On
written request, Tenant shall promptly furnish to Landlord copies of all the
transaction documentation, all of which shall be certified by Tenant to be
complete, true and correct. Xxxxxxxx's receipt of Landlord's Share shall not be
a consent to any further assignment or subletting. The breach of Tenant's
obligation under this Paragraph 9.05(b) shall be a material default of the
Lease.
Section 9.06. NO MERGER. No merger shall result from Xxxxxx's sublease of
the Property under this Article Nine, Xxxxxx's surrender of this Lease or the
termination of this Lease in any other manner. In any such event, Landlord may
terminate any or all subtenancies or succeed to the interest of Xxxxxx as
sublandlord under any or all subtenancies.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. COVENANTS AND CONDITIONS. Xxxxxx's performance of each of
Tenant's obligations under this Lease is a condition as well as a covenant.
Xxxxxx's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants and
conditions.
Section 10.02. DEFAULTS. Tenant shall be in material default under this
Lease:
(a) If Xxxxxx abandons the Property and fails to pay rent or if Xxxxxx's
vacation of the Property results in the cancellation of any insurance described
in Section 4.04;
(b) If Tenant fails to pay rent or any other charge when due;
(c) If Tenant fails to perform any of tenant's non-monetary obligations
under this Lease for a period of thirty (30) days after written notice from
Landlord; provided that if more than thirty (30) days are required to complete
such performance, Tenant shall not be in default if Tenant commences such
performance within the thirty (30) days period and thereafter diligently pursues
its completion. However, Landlord shall not be required to give such notice if
Xxxxxx's failure to perform constitutes a non-curable breach of this Lease. The
notice required by this Paragraph is intended to satisfy any and all notice
requirements imposed by law on Landlord and is not in addition to any such
requirement.
(d) (i) If Tenant makes a general assignment or general arrangement for the
benefit of creditors; (ii) if a petition for adjudication of bankruptcy or for
reorganization or rearrangement is filed by or against Tenant and is not
dismissed within thirty (30) days; (iii) if a trustee or receiver is appointed
to take possession of substantially all of Tenant's assets located at the
Property or of Tenant's interest in this Lease and possession is not restored to
Tenant within thirty (30) days; or (iv) if substantially all of Tenant's assets
located at the Property or of Tenant's interest in this Lease is subjected to
attachment, execution or other judicial seizure which is not discharged within
thirty (30) days. If a court of competent jurisdiction determines that any of
the acts described in this subparagraph (d) is not a default under this Lease,
and a trustee is appointed to take possession (or if Tenant remains debtor in
possession) and such trustee or Tenant transfers Tenant's interest hereunder,
then Landlord shall receive, as Additional Rent, the excess, if any, of the rent
(or any other consideration) paid in connection with such assignment or sublease
over the rent payable by Tenant under this Lease.
(e) If any guarantor of the Lease revokes or otherwise terminates, or
purports to revoke or otherwise terminate, any guaranty of all or any portion of
Tenant's obligations under the Lease. Unless otherwise expressly provided, no
guaranty of the Lease is revocable.
Section 10.03. REMEDIES. On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have:
(a) Terminate Xxxxxx's right to possession of the Property by any lawful
means, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Property to
Landlord. (1) In such event, Landlord shall be entitled to recover from Tenant
all damages incurred by Landlord by reason of Tenant's default, including (i)
the worth at the time of the award of the unpaid Base Rent, Additional Rent and
other charges which Xxxxxxxx had earned at the time of the termination; (ii) the
worth at the time of the award of the amount by which the unpaid Base Rent,
Additional Rent and other charges which Landlord would have earned after
termination until the time of the award exceeds the amount of such rental loss
that Tenant proves Landlord could have reasonably avoided; (iii) the worth at
the time of the award of the amount by which the unpaid Base Rent, Additional
Rent and other charges which Xxxxxx would have paid for the balance of the Lease
term after the time of award exceeds the amount of such rental loss that Tenant
proves Landlord could have reasonably avoided; and (iv) any other amount
necessary to compensate Landlord for all the detriment proximately caused by
Tenant's failure to perform its obligations under the Lease or which in the
ordinary course of things would be likely to result therefrom, including, but
not limited to, any costs or expenses Landlord incurs in maintaining or
preserving the Property after such default, the cost of recovering possession of
the Property, expenses of reletting, including necessary renovation or
alteration of the Property, Landlord's reasonable attorneys' fees incurred in
connection therewith, and any real estate commission paid or payable. As used in
subparts (i) and (ii) above, the "worth at the time of the award" is computed by
allowing interest on unpaid amounts at the rate of fifteen percent (15%) per
annum, or such lesser amount as may then be the maximum lawful rate. As used in
subpart (iii) above, the "worth at the time of the xxxx" is computed by
discounting such amount at the prime rate of the Xxxxx Fargo Bank at the time of
the award, plus one percent (1%) interest. If Tenant has abandoned the Property,
Landlord shall have the option of (i) retaking possession of the Property and
recovering from Tenant the amount specified in this Paragraph 10.03 (a), or
(iii) proceeding under Paragraph 10.03 (b);
(b) Maintain Tenant's right to possession, in which case this Lease shall
continue in effect whether or not Tenant has abandoned the Property. In such
event, Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to recover the rent as it becomes
due; Landlord shall have the remedy described in California Civil Code Section
1951.4 (lessor may continue lease in effect after xxxxxx'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);
(c) Pursue any other remedy now or hereafter available to Landlord under
the laws or judicial decisions of the state in which the Property is located.
Section 10.04. REPAYMENT OF "FREE" RENT. If this Lease provides for
postponement of any monthly rental payments, a period of "free" rent or other
rent concession, such postponed rent or "free" rent is called the "Abated Rent".
Tenant shall be credited with having paid all of the Abated Rent on the
expiration of the Lease Term only if Xxxxxx has fully, faithfully, and
punctually performed all of Tenant's obligations hereunder, including the
payment of all rent (other than the Abated Rent) and all other monetary
obligations and the surrender of the Property in the physical condition required
by this Lease. Tenant acknowledges that its right to receive credit for the
Abated Rent is absolutely conditioned upon Tenant's full, faithful and punctual
performance of its obligations under this Lease. If Tenant defaults and does not
cure within any applicable grace period the Abated Rent shall immediately become
due and payable in full and this Lease shall be enforced as if there were no
such rent abatement or other rent concession. In such case Abated Rent shall be
calculated based on the full initial rent payable under this Lease.
Section 10.05. AUTOMATIC TERMINATION. Notwithstanding any other term or
provision hereof to the contrary, the Lease shall terminate on the occurrence of
any act which affirms the Landlord's intention to terminate the Lease as
provided in Section 10.03 hereof, including the filing of an unlawful detainer
action against Tenant. On such termination, Xxxxxxxx's damages for default shall
include all costs and fees, including reasonable attorneys' fees that Landlord
incurs in connection with the filing, commencement, pursuing and/or defending of
any action in any bankruptcy court or other court with
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(1) If Tenant shall be served with a demand for the payment of past due rent or
any other charge, any payments rendered thereafter to cure any default by
Tenant shall be made only by cashier's check.
respect to the Lease; the obtaining of relief from any stay in bankruptcy
restraining any action to evict Tenant; or the pursuing of any action with
respect to Xxxxxxxx's right to possession of the Property. All such damages
suffered (apart from Base Rent and other rent payable hereunder) shall
constitute pecuniary damages which must be reimbursed to Landlord prior to
assumption of the Lease by Tenant or any successor to Xxxxxx in any bankruptcy
or other proceeding.
Section 10.06. CUMULATIVE REMEDIES. Xxxxxxxx's exercise of any right or
remedy shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01. SUBORDINATION. Landlord shall have the right to subordinate
this Lease to any ground lease, deed of trust or mortgage encumbering the
Property, any advances made on the security thereof and any renewals,
modifications, consolidations, replacements or extensions thereof, whenever made
or recorded. Tenant shall cooperate with Landlord and any lender which is
acquiring a security interest in the Property or Lease. Tenant shall execute
such further documents and assurances as such lender may require in the form
attached hereto as Exhibit "B" or such other form as is then required by
Landlord's lender, provided that Tenant's obligations under this Lease shall not
be increased in any material way (the performance of ministerial acts shall not
be deemed material), and Tenant shall not be deprived of its rights under this
Lease. Landlord shall use commercially reasonable efforts to provide Tenant with
a nondisturbance agreement from Landlord's future lenders. Xxxxxx's right to
quiet possession of the Property during the Lease Term shall not be disturbed if
Tenant pays the rent and performs all of Tenant's obligations under this Lease
and is not otherwise in default. If any ground lessor, beneficiary or mortgagee
elects to have this Lease prior to the lien of its ground lease, deed of trust
or mortgage and gives written notice thereof to Tenant, this Lease shall be
deemed prior to such ground lease, deed of trust or mortgage whether this Lease
is dated prior or subsequent to the date of said ground lease, deed of trust or
mortgage or the date of recording thereof. Tenant waives the provisions of any
current or future statute, rule or law which may give or purport to give Tenant
any right or election to terminate or otherwise adversely affect this Lease and
the obligations of the Tenant hereunder in the event of any foreclosure
proceeding or sale.
Section 11.02. ATTORNMENT. If Xxxxxxxx's interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, Tenant shall attorn to the transferee of or
successor to Xxxxxxxx's interest in the Property and recognize such transferee
or successor as Landlord under this Lease. Tenant waives the protection of any
statute or rule of law which gives or purports to give Tenant any right to
terminate this Lease or surrender possession of the Property upon the transfer
of Landlord's interest.
Section 11.03. SIGNING OF DOCUMENTS. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such attornment
or subordination or agreement to do so. If Tenant fails to do so within twenty
(20) days after written request, Xxxxxx hereby makes, constitutes and
irrevocably appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
Section 11.04. ESTOPPEL CERTIFICATES.
(a) Upon Landlord's written request, Xxxxxx shall execute, acknowledge and
deliver to Landlord a written statement in the form attached hereto as Exhibit
"C" or such other form as is then required by Landlord's lender, certifying: (i)
that none of the terms or provisions of this Lease have been changed (or if they
have been changed, stating how they have been changed); (ii) that this Lease has
not been cancelled or terminated; (iii) the last date of payment of the Base
Rent and other charges and the time period covered by such payment; (iv) that
Landlord is not in default under this Lease (or, if Landlord is claimed to be in
default, stating why); and (v) such other representations or information with
respect to Tenant or the Lease as Landlord may reasonably request or which any
prospective purchaser or
encumbrancer of the Property may require. Tenant shall deliver such statement to
Landlord within thirty (30) days after Xxxxxxxx's request. Landlord may give any
such statement by Tenant to any prospective purchaser or encumbrancer of the
Property. Such purchaser or encumbrancer may rely conclusively upon such
statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within a thirty
(30)-day period, Landlord, and any prospective purchaser or encumbrancer, may
conclusively presume and rely upon the following facts: (i) that the terms and
provisions of this Lease have not been changed except as otherwise represented
by Landlord; (ii) that this Lease has not been cancelled or terminated except as
otherwise represented by Landlord; (iii) that not more than one month's Base
Rent or other charges have been paid in advance; and (iv) that Landlord is not
in default under the Lease. In such event, Tenant shall be estopped from denying
the truth of such facts.
Section 11.05. TENANT'S FINANCIAL CONDITION. Within ten (10) days after
written request from Landlord, Tenant shall deliver to Landlord such financial
statements as Landlord reasonably requires to verify the net worth of Tenant or
any assignee, subtenant, or guarantor of Tenant. In addition, Tenant shall
deliver to any lender designated by Landlord any financial statements required
by such lender to facilitate the financing or refinancing of the Property.
Tenant represents and warrants to Landlord that each such financial statement is
a true and accurate statement as of the date of such statement. All financial
statements shall be confidential and shall be used only for the purposed set
forth in this Lease. See Addendum Section 11.05.
ARTICLE TWELVE: LEGAL COSTS
Section 12.01. LEGAL PROCEEDINGS. If Tenant or Landlord shall be in breach
or default under this Lease, such party (the "Defaulting Party") shall reimburse
the other party (the "Nondefaulting party") upon demand for any costs or
expenses that the Nondefaulting Party incurs in connection with any breach or
default of the Defaulting Party under this Lease, whether or not suit is
commenced or judgment entered. Such costs shall include legal fees and costs
incurred for the negotiation of a settlement, enforcement of rights or
otherwise. Furthermore, if any action for breach of or to enforce the provisions
of this Lease is commenced, the court in such action shall award to the party in
whose favor a judgment is entered, a reasonable sum as attorneys' fees and
costs. The losing party in such action shall pay such attorneys' fees and costs.
Tenant shall also indemnify Landlord against and hold Landlord harmless from all
costs, expenses, demands and liability Landlord may incur if Landlord becomes or
is made a party to any claim or action (a) instituted by Tenant against any
third party, or by any third party against Tenant, or by or against any person
holding any interest under or using the Property by license of or agreement with
Tenant; (b) for foreclosure of any lien for labor or material furnished to or
for Tenant or such other person; (c) otherwise arising out of or resulting from
any act or transaction of Tenant or such other person; or (d) necessary to
protect Landlord's interest under this Lease in a bankruptcy proceeding, or
other proceeding under Title 11 of the United States Code, as amended. Tenant
shall defend Landlord against any such claim or action at Tenant's expense with
counsel reasonably acceptable to Landlord or, at Landlord's election, Tenant
shall reimburse Landlord for any legal fees or costs Landlord incurs in any such
claim or action.
Section 12.02. LANDLORD'S CONSENT. Tenant shall pay Landlord's reasonable
attorneys' fees incurred in connection with Xxxxxx's request for Xxxxxxxx's
consent under Article Nine (Assignment and Subletting) at a cost not to exceed
FIVE HUNDRED AND NO/100 DOLLARS ($500.00) for each consent in the ordinary
course of business provided that Xxxxxxxx's standard consent form if used, or in
connection with any other act which Xxxxxx proposed to do and which requires
Landlord's consent.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. NON-DISCRIMINATION. Tenant promises, and it is a condition
to the continuance of this Lease, that there will be no discrimination against,
or segregation of, any person or group of
persons on the basis of race, color, sex, creed, national origin or ancestry in
the leasing, subleasing, transferring, occupancy, tenure or use of the Property
or any portion thereof.
Section 13.02. LANDLORD'S LIABILITY; CERTAIN DUTIES.
(a) As used in this Lease, the term "Landlord" means only the current owner
or owners of the fee title to the Property or the leasehold estate under a
ground lease of the Property at the time in question. Each Landlord is obligated
to perform the obligations of Landlord under this Lease only during the time
such Landlord owns such interest or title. Any Landlord who transfers its title
or interest is relieved of all liability with respect to the obligations of
Landlord under this Lease to be performed on or after the date of transfer.
However, each Landlord shall deliver to its transferee all funds that Tenant
previously paid if such funds have not yet been applied under the terms of this
Lease.
(b) Tenant shall give written notice of any failure by Landlord to perform
any of its obligations under this lease to Landlord and to any ground lessor,
mortgagee or beneficiary under any deed of trust encumbering the Property whose
name and address have been furnished to Tenant in writing. Landlord shall not be
in default under this Lease unless Landlord (or such ground lessor, mortgagee or
beneficiary) fails to cure such non-performance within thirty (30) days after
receipt of Tenant's notice. However, if such non-performance reasonably requires
more than thirty (30) days to cure, Landlord shall not be in default if such
cure is commenced within such thirty (30)-day period and thereafter diligently
pursued to completion.
(c) Notwithstanding any term or provision herein to the contrary, the
liability of Landlord for the performance of its duties and obligations under
this Lease is limited to Landlord's interest in the Property, and neither the
Landlord nor its partners, shareholders, officers or other principals shall have
any personal liability under this Lease.
Section 13.03. SEVERABILITY. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect.
Section 13.04. INTERPRETATION. The captions of the Articles or Sections of
this Lease are to assist the parties in reading this Lease and are not a part of
the terms or provisions of this Lease. Whenever required by the context of this
Lease, the singular shall include the plural and the plural shall include the
singular. The masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions of Tenant,
the term "Tenant" shall include Tenant's agents, employees, contractors,
invitees, successors or others using the Property with Xxxxxx's expressed or
implied permission.
Section 13.05. INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This Lease
is the only agreement between the parties pertaining to the lease of the
Property and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
Section 13.06. NOTICES. All notices required or permitted under this Lease
shall be in writing and shall be personally delivered or sent by certified mail,
return receipt requested, postage prepaid. Notices to Tenant shall be delivered
to the address specified in Section 1.03 above. Notices to Landlord shall be
delivered to the address specified in Section 1.02 above. All notices shall be
effective upon delivery or evidence of refusal of delivery. Either party may
change its notice address upon written notice to the other party.
Section 13.07. WAIVERS. All waivers must be in writing and signed by the
waiving party. Landlord's failure to enforce any provision of this Lease or its
acceptance of rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the
future. No statement on a payment check from Tenant or in a letter accompanying
a payment check shall be binding on Landlord. Landlord may, with or without
notice to Tenant, negotiate such check without being bound to the conditions of
such statement.
Section 13.08. NO RECORDATION. Tenant shall not record this Lease without
prior written consent from Landlord. However, either Landlord or Tenant may
require that a "Short Form" memorandum of this Lease executed by both parties be
recorded. The party requiring such recording shall pay all transfer taxes and
recording fees.
Section 13.09. BINDING EFFECT; CHOICE OF LAW. This Lease binds any party
who legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, Landlord shall have no obligation to Xxxxxx's successor unless
the rights or interests of Xxxxxx's successor are acquired in accordance with
the terms of this Lease. The laws of the state in which the Property is located
shall govern this lease.
Section 13.10. CORPORATE AUTHORITY; PARTNERSHIP AUTHORITY. If Tenant is a
corporation, each person signing this Lease on behalf of Tenant represents and
warrants that he has full authority to do so and that this Lease binds the
corporation. Within thirty (30) days after this Lease is signed, Tenant shall
deliver to Landlord a certified copy of a resolution of Tenant's Board of
Directors authorizing the execution of this Lese or other evidence of such
authority reasonably acceptable to Landlord. If Tenant is a partnership, each
person or entity signing this Lease for Tenant represents and warrants that he
or it is a general partner of the partnership, that he or it has full authority
to sign for the partnership and that this Lease binds the partnership and all
the general partners of the partnership. Tenant shall give written notice to
Landlord of any general partner's withdrawal or addition. Within thirty (30)
days after this Lease is signed, Xxxxxx shall deliver to Landlord a copy of
Xxxxxx's recorded statement of partnership or certificate of limited
partnership.
Section 13.11. JOINT AND SEVERAL LIABILITY. All parties signing this Lease
as Tenant shall be jointly and severally liable for all obligations of Tenant.
Section 13.12. FORCE MAJEURE. If Landlord cannot perform any of its
obligations due to events beyond Landlord's control, the time provided for
performing such obligations shall be extended by a period of time equal to the
duration of such events. Events beyond Xxxxxxxx's control include, but are not
limited to, acts of God, war, civil commotion, labor disputes, strikes, fire,
flood or other casualty, shortages of labor or material, government regulation
or restriction and weather conditions.
Section 13.13. EXECUTION OF LEASE. This Lease may be executed in
counterparts and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument. Xxxxxxxx's delivery of this Lease
to Tenant shall not be deemed to be an offer to lease and shall not be binding
upon either party until executed and delivered by both parties.
Section 13.14. SURVIVAL. All representations and warranties of Landlord and
Tenant shall survive the termination of this Lease.
ARTICLE FOURTEEN: BROKERS
Section 14.01. BROKER'S FEE. When this lease is signed by and delivered to
both Landlord and Tenant, Landlord shall pay a real estate commission to
Xxxxxxxx's Broker named in Section 1.08 above, if any, as provided in the
written agreement between Landlord and Landlord's Broker, or the sum stated in
Section 1.09 above for services rendered to Landlord by Landlord's Broker in
this transaction. Landlord shall pay Landlord's Broker a commission if Tenant
exercises any option to extend the Lease Term or to buy the Property, or any
similar option or right to which Landlord may grant to Tenant, or if Landlord's
Broker is the procuring cause of any other lease or sale entered into between
Landlord and Tenant covering the Property. Such commission shall be the amount
set forth in Landlord's Broker's
commission schedule in effect as of the execution of this Lease. If a Tenant's
Broker is named in Section 1.08 above, Xxxxxxxx's Broker shall pay an
appropriate portion of its commission to Tenant's Broker if so provided in any
agreement between Xxxxxxxx's Broker and Xxxxxx's Broker. Nothing contained in
this Lease shall impose any obligation on Landlord to pay a commission or fee to
any party other than Xxxxxxxx's Broker.
Section 14.02. PROTECTION OF BROKERS. If Landlord sells the Property, or
assigns Landlord's interest in this Lease, the buyer or assignee shall, by
accepting such conveyance of the Property or assignment of the Lease, be
conclusively deemed to have agreed to make all payments to Landlord's Broker
thereafter required of Landlord under this Article Fourteen. Xxxxxxxx's Broker
shall have the right to bring a legal action to enforce or declare rights under
this provision. The prevailing party in such action shall be entitled to
reasonable attorneys' fees to be paid by the losing party. Such attorneys' fees
shall be fixed by the court in such action. This Paragraph is included in this
Lease for the benefit of Landlord's Broker.
Section 14.03. BROKER'S DISCLOSURE OF AGENCY. Xxxxxxxx's Broker hereby
discloses to Landlord and Tenant and Landlord and Tenant hereby consent to
Xxxxxxxx's Broker acting in this transaction as the agent of (check one):
[X] Landlord exclusively; or
[ ] both Landlord and Tenant.
Section 14.04. NO OTHER BROKER. Tenant represents and warrants to Landlord
that the brokers name in Section 1.08 above are the only agents, brokers,
finders or other parties with whom Xxxxxx has dealt who are or may be entitled
to any commission or fee with respect to this Lease or the Property.
ADDITIONAL PROVISIONS MAY BE SET FORTH IN A RIDER OR RIDERS ATTACHED HERETO
OR IN THE BLANK SPACE BELOW. IF NO ADDITIONAL PROVISIONS ARE INSERTED, PLEASE
DRAW A LINE THROUGH THE SPACE BELOW.
Landlord and Xxxxxx have signed this Lease at the place and on the dates
specified adjacent to their signatures below and have initialed all Riders which
are attached to or incorporated by reference in this Lease.
"LANDLORD"
Signed on May 13, 1999 XXXX XXXXXXXXX
PARTNERS, L.L.C. a Delaware
at 00000 Xxxxxxxxxx Xxxx. N., limited liability company
6th Floor, City of Industry, CA
91746 By: Majestic Realty Co., its manager
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Its: Executive Vice President
By: /s/ Xxx X. Xxxxxxxx
-----------------------------------
Its: Vice Resident-Finance
"TENANT"
Signed on , 19 XXXXXXXX NEWS LLC, a Delaware
-------------- -- limited liability company
at .
---------------------------------
By:
-----------------------------------
Its: President
By: /s/ Xxx Xxxxx
-----------------------------------
Its: CFO
IN ANY REAL ESTATE TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT WITH A
PROFESSIONAL, SUCH AS A CIVIL ENGINEER, INDUSTRIAL HYGIENIST OR OTHER PERSON
WITH EXPERIENCE IN EVALUATING THE CONDITION OF THE PROPERTY, INCLUDING THE
POSSIBLE PRESENCE OF ASBESTOS, HAZARDOUS MATERIALS AND UNDERGROUND STORAGE
TANKS.
THIS PRINTED FORM LEASE HAS BEEN DRAFTED BY LEGAL COUNSEL AT THE DIRECTION
OF THE SOUTHERN CALIFORNIA CHAPTER OF THE SOCIETY OF INDUSTRIAL AND OFFICE
REALTORS, (R) INC. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE SOUTHERN
CALIFORNIA CHAPTER OF THE SOCIETY OF INDUSTRIAL AND OFFICE REALTORS, (R) INC.,
ITS LEGAL COUNSEL, THE REAL ESTATE BROKERS NAMED HEREIN, OR THEIR EMPLOYEES OR
AGENTS, AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT OR TAX CONSEQUENCES OF THIS
LEASE OR OF THIS TRANSACTION. LANDLORD AND TENANT SHOULD RETAIN LEGAL COUNSEL TO
ADVISE THEM ON SUCH MATTERS AND SHOULD RELY UPON THE ADVISE OF SUCH LEGAL
COUNSEL.
OPTION TO EXTEND TERM
LEASE RIDER
This Rider is attached to and made part of that certain Lease (the "Lease")
dated March 22, 1999 between XXXX XXXXXXXXX PARTNERS, L.L.C., a Delaware limited
liability company, as Landlord and XXXXXXXX NEWS LLC, a Delaware limited
liability company, as Tenant, covering the Property commonly known as 0000 Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx (the "Property"). The terms used herein
shall have the same definitions as set forth in the Lease. The provisions of
this Rider shall supersede any inconsistent or conflicting provisions of the
Lease.
A. OPTION(S) TO EXTEND TERM.
1. Landlord hereby grants to Tenant two (2) option(s) (the "Option(s)") to
extend the Lease Term for additional term(s) of five (5) years each (the
"Extension(s)"), on the same terms and conditions as set forth in the Lease, but
at an increased rent as set forth below. Each Option shall be exercised only by
written notice delivered to Landlord at least one hundred eighty (180) days
before the expiration of the Lease Term or the preceding Extension of the Lease
Term, respectively. If Tenant fails to deliver Landlord written notice of the
exercise of an Option within the prescribed time period, such Option and any
succeeding Options shall lapse, and there shall be no further right to extend
the Lease Term. Each Option shall be exercisable by Tenant on the express
conditions that (a) at the time of the exercise, and at all times prior to the
commencement of such Extension, Tenant shall not be in default under any of the
provisions of this Lease and (b) Tenant has not been ten (10) or more days late
in the payment of rent more than a total of five (5) times during the Lease Term
and all preceding Extensions.
2. Personal Options.
The Option(s) are personal to the Tenant named in Section 1.03 of the Lease
or any Tenant's Affiliate described in Section 9.02 of the Lease. If Tenant
subleases any portion of the Property or assigns or otherwise transfers its
interest under the Lease to an entity other than a Tenant Affiliate prior to the
exercise of an Option (whether with or without Landlord's consent), such Option
and any succeeding Options shall lapse. If Tenant subleases any portion of the
Property or assigns or otherwise transfers any interest of Tenant under the
Lease to an entity other than a Tenant Affiliate after the exercise of an Option
but prior to the commencement of the respective Extension (whether with or
witout Landlord's consent), such Option and any succeeding Options shall lapse
and the Lease Term shall expire as if such Option were not exercised. If Tenant
subleases any portion of the Property or assigns or otherwise transfers any
interest of Tenant under the Lease in accordance with Article 9 of the Lease
after the exercise of an Option and after the commencement of the Extension
related to such Option, then the term of the Lease shall expire upon the
expiration of the Extension during which such subleases or transfer occurred and
only the succeeding Options shall lapse.
B. CALCULATION OF RENT.
The Base Rent during the Extension(s) shall be determined by one or a
combination of the following methods (INDICATE YOUR CHOICE UPON EXECUTION OF THE
LEASE):
1. Cost of Living Adjustment (Section B(1), below) [X]
2. Fair Rental Value Adjustment (Section B(2) below) [ ]
3. Fixed Adjustment (Section B(3) below) [ ]
1. Cost of Living Adjustment
The Base Rent shall be increased on the first day of the first and
thirtieth month(s) of the first and second Extension(s) of the Lease Term (the
"Rental Adjustment Date") by reference to the Index defined in Section 3.02 of
the Lease or the substitute index described in Section 3.02 of the Lease, as
follows: The Base Rent in effect immediately prior to the applicable Rental
Adjustment Date (the "Comparison Base Rent") shall be increased by the
percentage that the Index has increased from the month in which the payment of
the Comparison Base Rent commenced through the month in which the applicable
Rental Adjustment Date occurs. In no event shall the Base Rent be reduced by
reason of such computation.
ADDENDUM TO INDUSTRIAL REAL ESTATE LEASE
This Addendum ("ADDENDUM") is made and entered into by XXXX XXXXXXXXX
PARTNERS, L.L.C., a Delaware limited liability company ("LANDLORD") and XXXXXXXX
NEWS LLC, a Delaware limited liability company ("TENANT"), and is dated as of
the date set forth on Section 1.01 of the Industrial Real Estate Lease between
Landlord and Tenant ("LEASE") to which this Addendum is attached. The promises,
covenants, agreements and declarations made and set forth herein are intended to
and shall have the same force and effect as if set forth at length in the body
of the Lease. To the extent that the provisions of this Addendum are
inconsistent with the terms and conditions of the Lease, the terms and
conditions of this Addendum shall control.
SECTION 2.02 DELAY IN COMMENCEMENT.
Landlord shall provide Tenant with forty-two (42) days prior notice of the
date Landlord estimates as the estimated Lease Commencement Date (the "Estimate
Date"). If Landlord does not deliver the Property within seven (7) days after
the Estimate Date ("Grace Period"), then the sole remedy of Tenant for such
failure shall be the right to rent abatement in the amount equal to One Thousand
Five Hundred Twenty-Five and 16/100 Dollars ($1,525.16) for each day of actual
delay commencing after the Grace Period and continuing until the Lease
Commencement Date, which rent abatement shall be applied to the Base Rent
payable beginning in the third month of the Lease Term (the first month being
abated pursuant to Section 3.01) and continuing thereafter until fully applied.
Estimate Date shall be extended to the extent of any delays (i) beyond the
reasonable control of Landlord, including a Force Majeure and any delays in
obtaining permits or approvals and (ii) as a result of any "Tenant Delay," as
that term is defined in Section 5 of Exhibit "E", the Tenant Work Letter
attached hereto. Xxxxxx's rights to rent abatement as set forth in this Section
2.02 shall be Tenant's sole and exclusive remedy at law or in equity for the
failure of the Lease Commencement Date by the Grace Period.
SECTION 2.05 TENANT'S ENTRY INTO THE PROPERTY PRIOR TO COMMENCEMENT DATE.
Tenant shall have the right to access the Property commencing thirty (30)
days prior to the Lease Commencement Date for the purpose of installing and/or
storing over standard equipment or fixtures and preparing the Property for
Tenant's use; provided that: (i) this Lease has been fully executed and
delivered; (ii) Landlord has received the Security Deposit and first month's
Base Rent; (iii) Tenant and its agents do not interfere with Xxxxxxxx's work on
the Property; (iv) prior to Tenant's entry into the Property, Tenant shall
submit a schedule to Landlord for approval, which schedule shall detail the
timing and purpose of Tenant's entry; (v) Tenant has obtained its insurance
policies as set forth in Section 4.04 of this Lease and Landlord is in receipt
of Tenant's insurance binder or certificate naming Landlord as additional
insured; and (vi) all of the terms and conditions of this Lease shall apply,
other than Tenant's obligation to pay Base Rent, as though the Commencement Date
had occurred (although the Commencement Date shall not actually occur until the
occurrence of the same pursuant to the terms of the third sentence of Section
2.01) upon such entry into the Property by Xxxxxx. Tenant shall hold Landlord
harmless from and indemnify, protect and defend Landlord against any loss or
damage to the Property and against injury to any persons caused by Xxxxxx's
actions or anyone's actions who are directly or indirectly employed by the
Tenant. Tenant shall assume all risk of loss to Xxxxxx's personal property,
merchandise and fixtures.
SECTION 3.01 TIME & MANNER OF PAYMENT.
Provided that Tenant is not in default under the terms of this Lease,
Tenant shall be entitled to a one-time Base Rent credit in an amount equal to
FORTY-SEVEN THOUSAND TWO HUNDRED EIGHTY AND NO/100 DOLLARS ($47,280.00), which
is attributable to the Base Rent due for the first month beginning on the Lease
Commencement Date.
SECTION 4.04 INSURANCE POLICIES.
Section 4.04(d) (iii) is hereby amended by adding the following at the end
thereof:
"Tenant may carry such insurance under a 'blanket' policy provided such
blanket policy expressly affords the coverage required by this Lease and
contains a per location aggregate endorsement and evidence thereof is
furnished to Landlord."
Section 4.04(d) (iv) is hereby amended by adding the following at the end
thereof:
"If Landlord or Tenant fails to carry the amounts and types of insurance
required to be carried pursuant to this Section 4.04, in addition to any
remedies Landlord or Tenant may have under this Lease, such failure shall
be deemed to be a covenant and agreement by the party failing to carry such
insurance to self-insure with respect to the type and amount of insurance
such party so failed to carry, with full waiver of subrogation with respect
thereto."
SECTION 5.03 HAZARDOUS MATERIALS.
5.03.1 DEFINITIONS.
A. "Hazardous Material" means any substance, whether solid, liquid or
gaseous in nature:
(i) the presence of which requires investigation or remediation under
any federal, state or local statute, regulation, ordinance, order, action,
policy or common law; or
(ii) which is or becomes defined as a "hazardous waste," "hazardous
substance," pollutant or contaminant under any federal state or local statute,
regulation, rule or ordinance or amendments thereto including, without limiting,
the Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. section 9601 et seq.) and/or the Resource Conservation and Recovery Act
(42 U.S.C. section 6901 et seq.), the Hazardous Materials Transportation Act (49
U.S.C. section 1801 et seq.), the Federal Water Pollution Control Act (33 U.S.C.
section 1251 et seq.), the Clean Air Act (42 U.S.C. section 7401 et seq.), the
Toxic Substance Control Act, as amended (15 U.S.C. section 2601 et seq.), and
the Occupational Safety and Health Act (29 U.S.C. section 651 et seq.), as these
laws have been amended or supplemented; or
(iii) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous or is or becomes
regulated by any governmental authority, agency, department, commission, board,
agency or instrumentality of the United States, the State of California or any
political subdivision thereof; or
(iv) the presence of which on the Property causes or threatens to
cause a nuisance upon the Property or to adjacent properties or poses or
threatens to pose a hazard to the health or safety of persons on or about the
Property; or
(v) the presences of which on adjacent properties could constitute a
trespass by Tenant; or
(vi) without limitation which contains gasoline, diesel fuel or other
petroleum hydrocarbons; or
(vii) without limitation which contains polychlorinated biphenyls
(PCBs), asbestos or urea formaldehyde foam insulation; or
(viii) without limitation which contains radon gas.
B. "Environmental Requirements" means all applicable present and future:
(i) statutes, regulations, rules, ordinances, codes, licenses,
permits, orders, approvals, plans, authorization, concessions, franchises, and
similar items (including, but not limited to those pertaining to reporting,
licensing, permitting, investigation and remediation), of all Governmental
Agencies; and
(ii) all applicable judicial, administrative, and regulatory decrees,
judgments, and orders relating to the protection of human health or the
environment, including, without limitation, all requirements pertaining to
emissions, discharges, releases, or threatened releases of Hazardous Materials
or chemical substances into the air, surface water, groundwater or land, or
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of Hazardous Materials or chemical substances.
C. "Environmental Damages" means all claims, judgments, damages, losses,
penalties, fines, liabilities (including strict liability), encumbrances, liens,
costs, and expenses (including the expense of investigation and defense of any
claim, whether or not such claim is ultimately defeated, or the amount of any
good faith settlement or judgment arising from any such claim) of whatever kind
or nature, contingent or otherwise, matured or unmatured, foreseeable or
unforeseeable (including without limitation reasonable attorneys' fees and
disbursements and consultants' fees) any of which are incurred at any time as a
result of the existence of Hazardous Material upon, about, or beneath the
Property or migrating or threatening to migrate to or from the Property, or the
existence of a violation of Environmental Requirements pertaining to the
Property and the activities thereon, regardless of whether the existence of such
Hazardous Material or the violation of Environmental Requirements arose prior to
the present ownership or operation of the Property. Environmental Damages
include, without limitation:
(i) damages for personal injury, or injury to property or natural
resources occurring upon or off of the Property, including, without limitation,
lost profits, consequential damages, the cost of demolition and rebuilding of
any improvements on real property, interest, penalties and damages arising from
claims brought by or on behalf of employees of Tenant (with respect to which
Tenant waives any right to raise as a defense against Landlord any immunity to
which it may be entitled under any industrial or workers compensation laws);
(ii) fees, costs or expenses incurred for the services of attorneys,
consultants, contractors, experts, laboratories and all other costs incurred in
connection with the investigation or remediation of such Hazardous Materials or
violation of such Environmental Requirements, including, but not limited to, the
preparation of any feasibility studies or reports or the performance of any
cleanup, remediation, removal, response, abatement, containment, closure,
restoration or monitoring work required by any Governmental Agency or reasonably
necessary to make full economic use of the Property or any other property in a
manner consistent with its current use or otherwise expended in connection with
such conditions, and including without limitation any attorneys' fees, costs and
expenses incurred in enforcing the provisions of this Lease or collecting any
sums due hereunder;
(iii) liability to any third person or Governmental Agency to
indemnify such person or Governmental Agency for costs expended in connection
with the items referenced in subparagraph (ii) above; and
(iv) diminution in the fair market value of the Property including
without limitation any reduction in fair market rental value or life expectancy
oF the Property or the improvements located thereon or the restriction on the
use of or adverse impact on the marketing of the Property or any portion
thereof.
D. "Governmental Agency" means all governmental agencies, departments,
commissions, boards, bureaus or instrumentalities of the United States, states,
counties, cities and political subdivisions thereof.
E. The "Tenant Group" means Tenant, Xxxxxx's successors, assignees,
guarantors, officers, directors, agents, employees, invitees, permitees or other
parties under the supervision or control of Tenant or entering the Property
during the term of this Lease with the permission or knowledge of Tenant other
than Landlord or its agents or employees.
5.03.2 PROHIBITIONS.
A. Other than normal quantities of general office supplies and except
specified on Exhibit "D" attached hereto, Tenant shall not cause, permit or
suffer any Hazardous Material to be brought upon, treated, kept, stored,
disposed of, discharged, released, produced, manufactured, generated, refined or
used upon, about or beneath the Property by the Tenant Group, or any other
person without the prior written consent of Landlord. From time to time during
the term of this Lease, Tenant may request Xxxxxxxx's approval of Xxxxxx's use
of other Hazardous Materials, which approval may be withheld in Landlord's sole
discretion. Tenant shall, prior to the Commencement Date, provide to Landlord
for those Hazardous Materials described on Exhibit "D" (a) a description of
handling, storage, use and disposal procedures, and (b) all "community right to
know" plans or disclosures and/or emergency response plans which Tenant is
required to supply to local governmental agencies pursuant to any Environmental
Requirements.
B. Tenant shall not cause, permit or suffer the existence or the commission
by the Tenant Group, or by any other person, of a violation of any Environmental
Requirements upon, about or beneath the Property.
C. Tenant shall neither create or suffer to exist, nor permit the Tenant
Group to create or suffer to exist any lien, security interest or other charge
or encumbrance of any kind with respect to the Property, including without
limitation, any lien imposed pursuant to section 107(f) of the Superfund
Amendments and Reauthorization Act of 1986 (42 U.S.C. section 9607 (1)) or any
similar state statute.
D. Tenant shall not install, operate or maintain any above or below grade
tank, sump, pit, pond, lagoon or other storage or treatment vessel or device on
the property without Landlord's prior written consent.
5.03.3 INDEMNITY.
X. Xxxxxx, its successor, assigns and guarantors, agree to indemnify,
defend, reimburse and hold harmless:
(i) Landlord; and
(ii) any other person who acquires all or a portion of the Property in any
manner (including purchase at a foreclosure sale) or who becomes entitled to
exercise the rights and remedies of Landlord under this Lease; and
(iii) the directors, officers, shareholders, employees, partners, agents,
contractors, subcontractors, experts, licensees, affiliates, lessees,
mortgagees, trustees, heirs, devisees, successors, assigns and invitees of such
persons, from and against any and all Environmental Damages which exist as a
result of the activities or negligence of the Tenant Group or which exist as a
result of the breach of any warranty or covenant or the inaccuracy of any
representation of Tenant contained in this Lease, or by Xxxxxx's remediation of
the Property or failure to meet its obligations contained in this Lease.
B. The obligations contained in this Section 5.03 shall include, but not be
limited to, the burden and expense of defending all claims, suits and
administrative proceedings, even if such claims, suits or proceedings are
groundless, false or fraudulent, and conducting all negotiations of any
description, and paying and discharging, when and as the same become due, any
and all judgments, penalties or other sums due against such indemnified persons.
Landlord, at its sole expense, may employ additional counsel of its choice to
associate with counsel representing Xxxxxx.
C. Landlord shall have the right but not the obligation to join and
participate in, and control, if it so elects, any legal proceedings or actions
initiated in connection with Xxxxxx's activities. Landlord may also negotiate,
defend, approve and appeal any action taken or issued by any applicable
governmental authority with regard to contamination of the Property by a
Hazardous Material.
D. The obligations of Tenant in this paragraph shall survive the expiration
or termination of this Lease.
E. The obligations of Tenant under this paragraph shall not be affected by
any investigation by or on behalf of Landlord, or by any information which
Landlord may have or obtain with respect hereto.
5.03.4 OBLIGATION TO REMEDIATE.
In addition to the obligation of Tenant to indemnify Landlord pursuant to
this Lease, Tenant shall, upon approval and demand of Landlord, at its sole cost
and expense and using contractors approved by Landlord, promptly take all
actions to remediate the Property which are required by any Governmental Agency,
or which are reasonably necessary to mitigate Environmental Damages or to allow
full economic use of the Property, which mitigation or remediation is
necessitated from the presence upon, about or beneath the Property, at any time
during or upon termination of this Lease, of a Hazardous Material existing as a
result of the activities or negligence of the Tenant Group or a violation of
Environmental Requirements existing as a result of the activities or negligence
of the Tenant Group. Such actions shall include, but not be limited to, the
investigation of the environmental condition of the Property, the preparation of
any feasibility studies, reports or remedial plans, and the performance of any
cleanup, remediation, containment, operation, maintenance, monitoring or
restoration work, whether on or off the Property, which shall be performed in a
manner approved by Landlord. Tenant shall take all actions necessary to restore
the Property to the condition existing prior to the introduction by the Tenant
Group of Hazardous Material upon, about or beneath the Property, notwithstanding
any lesser standard of remediation allowable under applicable law or
governmental policies.
5.03.5 RIGHT TO INSPECT.
Landlord shall have the right in its sole and absolute discretion, but not
the duty, to enter and conduct an inspection of the Property, including invasive
tests, at any reasonable time to determine whether Tenant is complying with the
terms of the Lease, including but not limited to the compliance of the Property
and the activities thereon with Environmental Requirements and the existence of
Environmental Damages as a result of the condition of the Property or
surrounding properties and activities thereon. Landlord shall have the right,
but not the duty, to retain any independent professional consultant (the
"Consultant") to enter the Property to conduct such an inspection or to review
any report prepared by or for Tenant concerning such compliance. The cost of the
Consultant shall be paid by Landlord unless such investigation discloses a
violation of any Environmental Requirement by the Tenant Group or the existence
of a Hazardous Material on the Property or any other property caused by the
activities or negligence of the Tenant Group (other than Hazardous Materials
used in compliance with all Environmental Requirements and previously approved
by Landlord), in which case Tenant shall pay the cost of the Consultant. Tenant
hereby grants to Landlord, and the agents, employees, consultants and
contractors of Landlord the right to enter the Property and to perform such
tests on the Property as are reasonably necessary to conduct such reviews and
investigations. Landlord shall use commercially reasonable efforts to minimize
interference with the business of Xxxxxx.
5.03.6 NOTIFICATION.
If Tenant shall become aware of or receive notice or other communication
concerning any actual, alleged, suspected or threatened violation of
Environmental Requirements, or liability of Tenant for Environmental Damages in
connection with the Property or past or present activities of any person
thereon, including but not limited to notice or other communication concerning
any actual or threatened investigation, inquiry, lawsuit, claim, citation,
directive, summons, proceeding, complaint, notice, order, writ, or injunction,
relating to same, then Tenant shall deliver to Landlord within ten (10) days of
the receipt of such notice or communication by Xxxxxx, a written description of
said violation, liability, or actual or threatened event or condition, together
with copies of any documents evidencing same. Receipt of such notice shall not
be deemed to create any obligation on the part of Landlord to defend or
otherwise respond to any such notification.
If requested by Landlord, Tenant shall disclose to Landlord the names and
amounts of all Hazardous Materials other than general office supplies referred
to in Section 5.03.2 of this Addendum, which were used, generated, treated,
handled, stored or disposed of on the Property or which Tenant intends to use,
generate, treat, handle, store or dispose of on the Property. The foregoing in
no way shall limit the necessity for Tenant obtaining Landlord's consent
pursuant to Section 5.03.2 of this Addendum.
5.03.7 SURRENDER OF PREMISES.
In the ninety (90) days prior to the expiration or termination of the Lease
Term, and for up to ninety (90) days after Xxxxxx fully surrenders possession of
the Property, Landlord may have an environmental assessment of the Property
performed in accordance with Section 5.03.5 of this Addendum. Tenant shall
perform, at its sole cost and expense, any clean-up or remedial work recommended
by the Consultant which is necessary to remove, mitigate or remediate any
Hazardous Materials and/or contamination of the Property caused by the
activities or negligence of the Tenant Group.
5.03.8 ASSIGNMENT AND SUBLETTING.
In the event the Lease provides that Tenant may assign the Lese or sublet
the Property subject to Landlord's consent and/or certain other conditions, and
if the proposed assignee's or sublessee's activities in or about the Property
involve the use, handling, storage or disposal of any Hazardous Materials other
than those used by Tenant and in quantities and processes similar to Tenant's
uses in compliance with the Addendum, (i) it shall be reasonable for Landlord to
withhold its consent to such assignment or sublease in light of the risk of
contamination posed by such activities and/or (ii) Landlord may impose an
additional condition to such assignment or sublease which requires Tenant to
reasonably establish that such assignee's or sublessee's activities pose no
materially greater risk of contamination to the Property than do Tenant's
permitted activities in view of the (a) quantities, toxicity and other
properties of the Hazardous Materials to be used by such assignee or sublessee,
(b) the precautions against a release of Hazardous Materials such assignee or
sublessee agrees to implement, (c) such assignee's or sublessee's financial
condition as it relates to its ability to fund a major clean-up and (d) such
assignee's or sublessee's policy and historical record respecting its
willingness to respond to the clean up of a release of Hazardous Materials.
5.03.9 SURVIVAL OF HAZARDOUS MATERIALS OBLIGATION.
Tenant's breach of any of its covenants or obligations under this Addendum
shall constitute a material default under the Lease. The obligations of Tenant
under this Addendum shall survive the expiration or earlier termination of the
Lease without limitation, and shall constitute obligations that are independent
and severable from Tenant's covenants and obligations to pay rent under the
Lease.
SECTION 5.04 SIGNS.
Notwithstanding the foregoing, subject to Landlord's prior written
approval, which shall not be unreasonably withheld, delayed or conditioned, and
provided all signs are in keeping with the quality, design and style of the
industrial park within which the Property is located, Tenant, at its sole cost
and expense, may install identification signs on the Property; provided,
however, that (i) the size, color, location, materials and design of such sign
shall be subject to Landlord's prior written consent, which shall not be
unreasonably withheld, delayed or conditioned; (ii) such sign shall comply with
all applicable governmental rules and regulations and the Property's covenants,
conditions and restrictions; (iii) such sign shall not be painted directly on
the building or attached or placed on the roof or exterior of the building; (iv)
such sign shall be personal to the original Tenant named in Section 1.03 of this
Lease (and not any assignee, sublessee or transferee of Tenant's interest in
this Lease) ("ORIGINAL TENANT"); (v) such sign shall only advertise the Original
Tenant's distribution of printed matter business; and (vi) Tenant's continuing
signage right shall be contingent upon the Original Tenant actually occupying
the entire Property. Tenant shall be responsible for all costs incurred in
connection with the design, construction, installation, repair and maintenance
of Tenant's sign. Upon the expiration or earlier termination of this Lease,
Tenant shall cause Tenant's sign to be removed and shall repair any damage
caused by such removal. Any signs, notices, logos, pictures, names or
advertisements which are installed and that have not been separately approved by
Landlord may be removed by Landlord without notice by Landlord to Tenant at
Tenant's sole cost and expense.
SECTION 6.03 LANDLORD'S OBLIGATIONS.
Subject to the provisions of Article Seven (Damage or Destruction) and
Article Eight (Condemnation), and except for damage caused by any act or
omission of Tenant, or Tenant's employees, agents, contractors or invitees,
Landlord shall keep the structural portions of the foundation, roof and the
exterior walls on the Property in good order, condition and repair.
However, Landlord shall not be obligated to maintain or repair roof membrane,
windows, doors, plate glass or the surfaces of walls. Landlord shall not be
obligated to make any repairs under this Section 6.03 until a reasonable time
after receipt of written notice from Tenant of the need for such repairs. Tenant
waives the benefit of any present or future law which might give Tenant the
right to repair the Property at Landlord's expense or to terminate the Lease
because of the condition of the Property. Landlord hereby assigns to Tenant all
warranties and guaranties by the contractor who constructed the building and
Tenant Improvements located on the Property and Tenant waives all claims against
Landlord relating thereto.
SECTION 11.05
Notwithstanding the forgoing, the Original Tenant shall not be required to
deliver to Landlord any financial statements provided however Xxxxxx provides
Landlord with the names of Xxxxxx's principal lenders and causes such lenders to
provide Landlord with financial information.
ARTICLE FIFTEEN
REVENUE AND EXPENSE ACCOUNT
Landlord and Tenant agree that, for all purposes (including any
determination under Section 467 of the Internal Revenue Code), rental income
will accrue to the Landlord and rental expenses will accrue to the Tenant in the
amounts and as of the dates rent is payable under the Lease.
ARTICLE SIXTEEN
LANDSCAPE, FIRE SYSTEM AND PUMP MAINTENANCE
Notwithstanding the provisions of Sections 6.03 and 6.04, Landlord shall
maintain, at Tenant's expense: (i) the landscaping of the Property and, if
applicable, the common areas; (ii) the ESFR fire system and (iii) pump. Such
landscape maintenance shall include gardening, tree trimming, replacement or
repair of landscaping, landscape irrigation systems and similar items and the
sweeping and cleaning of asphalt, concrete or other surfaces on the driveway,
parking areas, yard areas, loading areas or other paved or covered surfaces. In
connection with Landlord's obligations under this Article, Landlord may enter
into a contract with a contractor/maintenance provider of Landlord's choice to
provide some (but not necessarily all) of the maintenance services listed above.
Xxxxxx's monthly cost of such contract, hereinafter referred to as the
"Maintenance Fee" is currently SEVEN HUNDRED FIFTY-TWO AND 94/100 DOLLARS
($752.94). Landlord shall use its commercially reasonable efforts to maintain
competitive contracts and shall promptly notify Tenant of any increase in the
Maintenance Fee. Xxxxxx agrees to pay monthly to Landlord, as additional rent,
the Maintenance Fee. Tenant shall make such payment together with Tenant's
monthly rental payment, without the necessity of notice from Landlord. It is the
understanding of the parties that the Maintenance Fee only pertains to routine
maintenance on the Property and that Landlord may incur expenses in addition to
the Maintenance Fee in meeting its obligations set forth above. Tenant shall pay
Landlord, as additional rent, within ten (10) days after demand therefore, the
cost of such additional expenses.
ARTICLE SEVENTEEN
TERMINATION RIGHT
At any time after the First (1st) anniversary of the Lease Commencement
Date, Tenant shall have the right to terminate this Lease in respect to that
certain approximate 34,895 square foot area ("TERMINATION Space") as outlined in
orange on Exhibit A, attached hereto, effective as of the date this Lease is
terminated with respect to the Termination Space ("TERMINATION
DATE") provided that: (a) Landlord receives written notice (the "TERMINATION
NOTICE") from Tenant on or before the date which is six (6) months prior to the
Termination Date stating that Tenant intends to terminate this Lease with
respect to the Termination Space pursuant to the terms and conditions of this
Article 17; (b) concurrent with Xxxxxxxx's receipt of the Termination Notice,
Landlord receives from Tenant the sum of (i) Eighty Thousand and No/100 Dollars
($80,000.00) and (ii) the brokers fee paid by Landlord (pursuant to Article 14
of this Lease) for the Termination Space for the period of time after the
Termination Date, as consideration for and as a condition precedent to such
early termination; and (c) Tenant has not been in default under this Lease as of
the date of Tenant's delivery of the Termination Notice or Termination Date and
(d) Tenant has not exercised its right to extend the initial Lease Term.
Provided that Tenant terminates this Lease, with respect to the Termination
Space, pursuant to the terms of this Article 17, this Lease, with respect to the
Termination Space, shall automatically terminate and be of no further force or
effect as of the Termination Date, and Landlord and Tenant shall be relieved of
their respective obligations under this Lease, with respect to the Termination
Space, specifically including, without limitation, any right, if any, Tenant may
have to audit or review Landlord's books and records or to contest Tenant's
payment of Other Periodic Payments; provided, however, notwithstanding anything
to the contrary contained in this Lease, with respect to any obligation of
Tenant under this Lease, with respect to the Termination Space, which accrues
prior to the Termination Date and is not satisfied by Tenant prior to the
Termination Date (e.g., Xxxxxx's payment of Other Periodic Payments and Tenant's
repair obligations), and Tenant's obligations that survive the termination of
this Lease, with respect to the Termination Space, (including, without limiting
to, Tenant's obligation to remediate any Environmental Damages, Landlord shall
have all the rights and remedies with respect to such obligations as set forth
in this Lease, with respect to the Termination Space. Tenant shall vacate the
Termination Space pursuant to this Lease, and surrender and deliver exclusive
possession thereof to Landlord on or before the Termination Date in accordance
with the provisions of this Lease. In the event Tenant retains possession of the
Termination Space or any part thereof after the Termination Date, then the
provisions of Section 2.04 of this Lease shall apply. The rights contained in
this Article 17 shall be personal to the Original Tenant and Tenant Affiliate
and may only be exercised by the Original Tenant and Tenant Affiliate if the
Original Tenant and Tenant Affiliate occupies the entire Property.
