INDUSTRIAL SPACE LEASE (GROSS)
EXHIBIT
10.16
(GROSS)
THIS LEASE, dated January 1,
2010, for reference purposes only, is made by and between XXXXXX X. XXXXXX and XXXX X. XXXXXX (“Landlord”),
and MERIX CORPORATION
(“Tenant”), to be effective and binding upon the parties as of the date of the
last designated signatories to this Lease shall have executed this Lease (the
“Effective Date of this Lease”).
ARTICLE
1
REFERENCES
1.1
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REFERENCES:
All references in this Lease (subject to any further clarification
contained in this Lease) to the following terms shall have the following
meaning or refer to the respective address, person, date, time period,
amount, percentage, calendar year or fiscal year as below set
forth:
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A. |
Tenant’s
Address for Notice:
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000
Xxxxxx Xxxxx Xxxxx
Xxx
Xxxx, XX. 00000
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B. |
Tenant’s
Representative:
Phone
number:
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Xxxx
X. Xxxxxxxx
000-000-0000,
503-805-7972FAX
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C. |
Landlord’s
Address for Notice:
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00000
Xxxxxxxx Xxxxx
Xxxxxxxx,
XX. 00000
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D. |
Landlord’s
Representative:
Phone
Number:
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Xxxxxx
Xxxxxx
873-2300,
257-7144FAX
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E. |
Intended
Commencement Date:
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January
1, 2010
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F. |
Intended
Term:
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30
Months
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G. |
Lease
Expiration Date:
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June
30, 2012
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H. |
Tenant’s
Punch List Period:
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Fifteen
(15) days
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I. |
First
Month’s Prepaid Rent:
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$ | 13,500.00 | ||||
J. |
Last
Month’s Prepaid Rent:
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$ | 807.61 | ||||
K. |
Tenant’s
Security Deposit:
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Not
applicable
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L. |
Late
Charge Amount:
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$ | 100.00 | ||||
M. |
Real
Property Tax Base Year:
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2010-2011 | |||||
N. |
Insurance
Base Year:
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2010-2011 | |||||
O. |
Tenant’s
Required Liability Coverage:
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$ | 500,000.00 | ||||
P. |
Tenant’s
Number of Parking Spaces:
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Entire
lot for 000 Xxxxxx Xxxxx Xxxxx
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Initial
_____ _____ _____
Q.
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Project
and Building: That certain real property situated in the City of San Xxxx,
County of Santa Xxxxx, State of California, as presently improved with one
(1) building, which real property is shown on the Site Plan attached
hereto as Exhibit “A” and is commonly known as or otherwise described as
follows:
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“A one
story concrete tilt-up building consisting of approximately 13,990 square feet
located at 000 Xxxxxx Xxxxx Xxxxx, Xxx Xxxx, XX 00000”
R.
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Leased
Premises: That certain interior space within the Building, which space is
shown outlined in red on the Floor Plan attached hereto as Exhibit “B”
consisting of approximately 13,990 square feet and, for purposes of this
Lease, agreed to contain said number of square feet. The Leased Premises
are commonly known as or otherwise described as
follows:
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“Approximately
13,990 square feet of office and warehouse space consisting of that one story
concrete tilt-up building located at 000 Xxxxxx Xxxxx Xxxxx, Xxx Xxxx, XX 00000,
in its entirety”
S.
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Base
Monthly Rent: The term “Base Monthly Rent” shall mean the following:
Without prior demand, Tenant shall pay monthly rent on or before the tenth
day of each month as follows:
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MONTHS
1-30: THIRTEEN THOUSAND FIVE HUNDRED and NO/100 DOLLARS
($13,500.00)
T.
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Permitted
Use: The term “Permitted Use” shall mean the following: Office use and
machining and fabrication of electronic components. Such use shall not
include the manufacture, use, or storage of industrial solvents, excepting
ordinary janitorial cleaning solutions and then only in quantities
necessary for routine janitorial cleaning of the demised premises.
Notwithstanding the foregoing sentence, such solvents may be used or
stored on the premises if and only if Tenant obtains written authorization
executed by Landlord specifying the solvent or solvents permitted to be
used or stored and the permissible quantities of each
solvent.
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U.
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Exhibits:
The term “Exhibits” shall mean the Exhibits to this Lease, which is
described as follows:
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Exhibit
“A” - Site Plan showing the Project and delineating the building in which the
Leased Premises are located.
V.
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Addenda:
The term “Addenda” shall mean the Addendum or (Addenda) to this
Lease.
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Initial
_____ _____ _____
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ARTICLE
2
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LEASED
PREMISES TERM AND POSSESSION
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2.1
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DEMISE
OF LEASED PREMISES: Landlord hereby leases to Tenant and tenant hereby
leases from Landlord for Tenant’s own use in the conduct of Tenant’s
business and not for purposes of speculating in real estate, for the Lease
Term and upon the terms and subject to the conditions of this Lease, that
certain interior space described in Article 1 as the Leased Premises,
reserving and excepting to Landlord the exclusive right to all profits to
be derived from any assignments or sub-lettings by Tenant during the Lease
Term by reason of the appreciation in the fair market rental value of the
Leased Premises. Landlord further reserves the right to install,
maintains, use and replace ducts, wires, conduits and pipes leading
through the Leased Premises in locations which will not materially
interfere with Tenant’s use of the Lease Premises. Tenant’s Lease of the
Leased Premises, together with the appurtenant right to use the Common
Areas as described in Paragraph 2.2 below, shall be conditioned upon and
be subject to the continuing compliance by Tenant with (i) ail the terms
and conditions of this Lease, (ii) all Laws governing the use of the
Leased Premises and the Project, (iii) all Private Restrictions, easements
and other matters now of public record respecting the use of the Leased
Premises and the Project, and (iv) all reasonable rules and regulations
from time to time established by
Landlord.
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2.2
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RIGHT
TO USE COMMON AREAS: As an appurtenant right to Tenant’s right to the use
of the Leased Premises, Tenant shall have the non-exclusive right to use
the Common Areas in conjunction with other tenants of the Project and
their invitees, subject to the limitations on such use as set forth in
Article 4, and solely for the purposes for which they were designed and
intended. Tenant’s right to use the Common Areas shall terminate
concurrently with any termination of this
Lease.
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2.3
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LEASE
COMMENCEMENT DATE AND LEASE TERM: The term of this Lease shall begin, and
the Lease Commencement Date shall be deemed to have occurred, on the
Intended Commencement Date (as set forth in Article 1) unless either (i)
Landlord is unable to deliver possession of the Leased Premises to Tenant
on the Intended Commencement Date, in which case the Lease Commencement
Date shall be as determined pursuant to Paragraph 2.7 below (the “Lease
Commencement Date”). The term of this Lease shall end on the Lease
Expiration Date (as set forth in Article 1), irrespective of whatever date
the Lease Commencement Date is determined to be pursuant to the foregoing
sentence. The Lease Term shall be that period of time commencing on the
Lease Commencement Date and ending on the Lease Expiration Date (the
“Lease Term”).
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2.4
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DELIVERY
OF POSSESSION: Landlord shall deliver to Tenant possession of the Leased
Premises on or before the Intended Commencement Date (as set forth in
Article 1) in their presently existing condition, broom clean, unless
Landlord shall have agreed, as a condition to Tenant’s obligation, to
accept possession of the Leased Premises, pursuant to an Addenda attached
to and made a part of this Lease to modify existing interior improvements
or to make, construct and/or install additional specified improvements
within the Leased Premises, in which case Landlord shall deliver to Tenant
possession of the Leased Premises on or before the Intended Commencement
Date as so modified and/or improved. If Landlord is unable to so deliver
possession of the Leased Premises to Tenant on or before the Intended
Commencement Date, for whatever reason, Landlord shall not be in default
under this Lease, nor shall this Lease be void, voidable or cancelable by
Tenant until the lapse of one hundred twenty days after the Intended
Commencement Date (the “delivery grace period”); however, the Lease
Commencement Date shall not be deemed to have occurred until such date as
Landlord notifies Tenant that the Leased Premises are Ready for Occupancy.
Additionally, the delivery grace period above set forth shall be extended
for such number of days as Landlord may be delayed in delivering
possession of the Leased Premises to Tenant by reason of Force Majeure or
the actions of Tenant. If Landlord is unable to deliver possession of the
Leased Premises to Tenant within the described delivery grace period
(including any extensions thereof by reason of Force Majeure of the
actions of Tenant), then Tenant’s sole remedy shall be to cancel and
terminate this Lease, and in no event shall Landlord be liable to Tenant
for such delay. Tenant may not cancel this Lease at any time after the
date Landlord notifies Tenant the Lease Premises are Ready for
Occupancy.
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Initial
_____ _____ _____
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2.5
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ACCEPTANCE
OF POSSESSION: Tenant acknowledges that it has inspected the Leased
Premises and is willing to accept them in their existing condition, broom
clean, unless Landlord shall have agreed, as a condition to Tenant’s
obligation to accept possession of the Leased Premises, pursuant to an
Addenda attached to and made a part of this Lease to modify existing
interior improvements or to make, construct and/or install additional
specified improvements within the Leased Premises, in which case Tenant
agrees to accept possession of the Lease Premises when Landlord has
substantially completed such modifications or improvements and the Lease
Premises are Ready for Occupancy. If Landlord shall have so modified
existing improvements or constructed additional improvements within the
Leased Premises for Tenant, Tenant shall, with Tenant’s punch list Period
(as set forth in Article 1) which shall commence on the date that Landlord
notifies Tenant that the Leased Premises are Ready for Occupancy, submit
to Landlord a punch list of all incomplete and/or improper worked
performed by Landlord. Upon the expiration of Tenant’s punch list Period,
Tenant shall be conclusively deemed to have accepted the Leased Premises
in their then-existing condition as so delivered by landlord to Tenant,
except as to those items reasonably set forth in Tenant’s punch list,
provided that such punch list was submitted to Landlord with Tenant’s
Punch list Period. Additionally, Landlord agrees to place in good working
order all existing plumbing, lighting, heating, ventilating and air
conditioning systems within the Leased Premises and all man doors and
roll-up truck doors serving the Leased Premises to the extent that such
systems and/or items are not in good operating condition as of the date
Tenant accepts possession of the Leased Premises; provided that, an only
if, Tenant notifies Landlord in writing of such failures or deficiencies
within five business days from the date Tenant so accepts possession of
the Lease Premises.
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2.6
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SURRENDER
OF POSSESSION: Immediately prior to the expiration or upon the sooner
termination of this Lease, tenant shall remove all of Tenant’s signs from
the exterior of the Building and shall remove all of Tenant’s equipment,
trade fixtures, furniture, supplies, wall decorations and other personal
property from the Leased Premises, and shall vacate and surrender the
Leased Premises to Landlord in the same condition, broom clean, as existed
at the Lease Commencement Date, reasonable wear and tear expected. Tenant
shall repair all damage to the Leased Premises caused by Tenant’s removal
of tenant’s property and all damage to the exterior of the Building caused
by Tenant’s removal of Tenant’s signs. Tenant shall patch and refinish, to
Landlord’s reasonable satisfaction, all penetrations made by Tenant or its
employees to the floor, walls or ceiling of the Lease Premises, whether
such penetrations were made with Landlord’s approval or not. Tenant shall
repair or replace all stained or damaged ceiling tiles, wall coverings and
floor coverings to the reasonable satisfaction of Landlord. Tenant shall
repair all damage caused by Tenant to the exterior surface of the Building
and the paved surfaces of the outside areas adjoining the Leased Premises
and, where necessary, replace or resurface same. Additionally, Tenant
shall, prior to the expiration or sooner termination of this Lease, remove
any improvements constructed or installed by Tenant which Landlord
requests be so removed by Tenant and repair all damage caused by such
removal. If the Leased Premises are not surrendered to Landlord in the
condition required by this Paragraph at the expiration or sooner
termination of this Lease, Landlord may, at Tenant’s expense, so remove
Tenant’s signs, property and/or improvements not so removed and make such
repairs and replacements not so made or hire, at Tenant’s expense,
independent contractors to perform such work. Tenant shall be liable to
Landlord for all costs incurred by Landlord in returning the Leased
Premises to the required condition, plus interest on all costs incurred
from the date paid by Landlord at the then maximum rate of interest not
prohibited by Law until paid, payable by Tenant to Landlord within tent
days after receipt of a statement therefore from Landlord. Tenant shall
indemnify Landlord against loss or liability resulting from delay by
Tenant in so surrendering the Leased Premises, including, without
limitation, any claims made by any succeeding tenant or any losses to
Landlord due to the lost opportunities to lease succeeding
tenants.
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2.7
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EARLY
OCCUPANCY: If Tenant enters into possession of the Lease Premises prior to
the Intended Commencement Date (or permits its contractors to enter the
Leased Premises prior to the Intended Commencement Date), unless otherwise
agreed in writing by Landlord, the Lease Commencement Date shall be deemed
to have occurred on such sooner date, and Tenant shall be obligated to
perform all its obligations under this Lease, including the obligation to
pay rent, from that sooner date.
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Initial
_____ _____ _____
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ARTICLE
3
RENT,
LATE CHARGES AND SECURITY DEPOSITS
3.1
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BASE
MONTHLY RENT: Commencing on the Lease Commencement Date (as determined
pursuant to Paragraph 2.3 above) and continuing throughout the Lease Term,
Tenant shall pay to Landlord, without prior demand therefore, in advance
on the first day of each calendar month, as base monthly rent, the amount
set forth as “Base Monthly Rent” in Article 1 (the “Base Monthly
Rent”).
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3.2
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ADDITIONAL
RENT: Commencing on the Lease Commencement Date (as determined pursuant to
Paragraph 2.3 above) and continuing throughout the Lease Term, Tenant
shall pay to Landlord as additional rent (the “Additional Rent”) the
following amounts:
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A.
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Tenant’s
Proportionate Share of all increases in Landlord’s Insurance Costs and
Real Property Taxes over those paid during the period set forth in Article
1 as the “Insurance Base Year” and the “Real Property Tax Base Year”,
respectively, plus an accounting fee equal to five percent of such
increase. Payment shall be made by whichever of the following methods is
from time to time designated by
Landlord:
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(1)
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Landlord
may xxxx to Tenant, on a periodic basis not more frequent than monthly,
Tenant’s Proportionate Share of any increases in Landlord’s Insurance
Costs or Real Property Taxes, as paid or incurred by Landlord during the
current period over those paid or incurred in the same period during the
applicable Base Year, and Tenant shall pay such share of such increases,
together with an accounting fee equal to five percent of the amount
billed, within ten days after receipt of a written xxxx therefore from
Landlord; or
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(2)
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Landlord
may deliver to Tenant Landlord’s reasonable estimate of the increase in
Landlord’s Insurance Costs and/or Real Property Taxes it anticipates will
be paid or incurred for the ensuing calendar or fiscal year, as the case
requires, over those paid or incurred during the applicable Base Year, and
Tenant shall pay its Proportionate Share of the estimated increases for
such year, together with an accounting fee equal to five percent of the
amount billed, in equal monthly installments during such year with the
installments of Base Monthly Rent. Landlord reserves the right to change
from time to time the method of billing Tenant its Proportionate Share of
such increases or the periodic basis on which such increases are
billed.
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B.
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Landlord’s
share of the consideration received by Tenant upon certain assignments and
subletting as required by Article
7;
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C.
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Any
legal fees and costs that Tenant is obligated to pay or reimburse to
Landlord pursuant to Article 13;
and
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D.
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Any
other charges or reimbursements due Landlord from Tenant pursuant to the
terms of this Lease.
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E.
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For
the purposes of this Lease, the term “Additional Rent” shall not include
an accounting fee equal to five percent (5%) of the increase in the
Tenant’s Proportionate Share in any increases in Landlord’s Insurance
Costs or Real Property Taxes. No such charge shall be imposed on the
Tenant during the term of the
Lease.
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Initial
_____ _____ _____
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3.3.
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YEAR-END
ADJUSTMENTS: If Landlord shall have elected to charge Tenant its
Proportionate Share of the increases in Landlord’s Insurance Costs and/or
Real Property Taxes on an estimated basis in accordance with the
provisions of Paragraph 3.2A(2) above, Landlord shall furnish to Tenant
within three months following the end of the applicable calendar or fiscal
year, as the case may be, a statement setting forth (i) the amount of
Landlord’s Insurance Costs and/or Real Property Taxes paid or incurred
during the just ended calendar or fiscal year, as appropriate, (ii) the
amount of Landlord’s Insurance Costs and/or Real Property Taxes paid or
incurred during the applicable Base Year, and (iii) Tenant’s Proportionate
Share of the increases, if any, in Landlord’s Insurance Costs and/or Real
Property Taxes for the just ended fiscal or calendar year, as appropriate.
If Tenant shall have paid more than its Proportionate Share of such
increases for the previous year, Landlord shall, at its election, either
(i) credit the amount of such overpayment toward the next ensuing payment
or payments of Additional Rent that would otherwise be due or (ii) refund
in cash to Tenant the amount of such overpayment. If such year-end
statement shall show that Tenant did not pay its Proportionate Share of
any such increases in full, then Tenant shall pay to Landlord the amount
of such underpayment, together with the accounting fee applicable thereto,
within ten days from Landlord’s billing of same to Tenant. The provisions
of this Paragraph shall survive the expiration or sooner termination of
this Lease.
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3.4
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LATE
CHARGE AND INTEREST ON RENT IN DEFAULT: Tenant acknowledges that the late
payment by Tenant of any monthly installment of Base Monthly Rent or any
Additional Rent will cause Landlord to incur certain costs and expenses
not contemplated under this Lease, the exact amounts of which are
extremely difficult or impractical to fix. Such costs and expenses will
include, without limitation, administration and collection costs and
processing and accounting expenses. Therefore, if any installment of Base
Monthly Rent is not received by Landlord from Tenant with six calendar
days after the same becomes due, Tenant shall immediately pay to Landlord
a late charge in an amount equal to the amount set forth in Article 1 as
the “Late Charge Amount”, and if any Additional Rent is not received by
Landlord within six calendar days after same becomes due, Tenant shall
immediately pay to Landlord a late charge in an amount equal to ten
percent of the Additional Rent not so paid. Landlord and Tenant agree that
this late charge represents a reasonable estimate of such costs and
expenses and is fair compensation to Landlord for its loss suffered by
reason of Tenant’s failure to make timely payment. In no event shall this
provision for a late charge be deemed to grant to Tenant a grace period or
extension of time within which to pay any rental installment or prevent
Landlord from exercising any right or remedy available to Landlord upon
Tenant’s failure to pay each rental installment due under this Lease when
due, including the right to terminate this Lease. If any rent remains
delinquent for a period in excess of six calendar days, then, in addition
to such late charge, Tenant shall pay to Landlord interest on any rent
that is not so paid from said sixth day at the then maximum interest rate
not prohibited by Law until paid.
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3.5
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PAYMENT
OF RENT: All rent shall be paid in lawful money of the United States,
without any abatement, deduction or offset for any reason whatsoever, to
Landlord at such address as Landlord may designate from time to time.
Tenant’s obligation to pay Base Monthly Rent and all Additional Rent shall
be prorated at the commencement and expiration of the Lease Term. The
failure of Tenant to pay any of the Additional Rent as required pursuant
to this Lease when due shall be treated the same as a failure by Tenant to
pay Base Monthly Rent when due, and Landlord shall have the same rights
and remedies against Tenant as Landlord would have if Tenant failed to pay
the Base Monthly Rent when due.
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3.6
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PREPAID
RENT: Tenant has paid to Landlord the amount set forth in Article 1 as
“First Month’s Prepaid Rent” as prepayment of rent for credit against the
first installment(s) of Base Monthly Rent due hereunder. Additionally,
Tenant has paid to Landlord the Monthly Rent due hereunder, subject,
however, to the provisions of Paragraph 3.7
below.
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Initial
_____ _____ _____
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3.7
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SECURITY
DEPOSIT: Tenant has deposited with Landlord the amount set forth in
Article 1 as the “Security Deposit” as security for the performance by
Tenant of the terms of this Lease to be performed by Tenant, and not as
prepayment of rent. Landlord may apply such portion or portions of the
Security Deposit as are reasonably necessary for the following purposes:
(i) to remedy any default by Tenant in the payment of Base Monthly Rent or
Additional Rent or a late charge or interest on default rent; (ii) to
repair damage to the Lease Premises caused by Tenant; (iii) to clean and
repair the Lease Premises following their surrender to Landlord if not
surrendered in the condition required pursuant to the provisions of
Article 2; and (iv) to remedy any other default of Tenant to the extent
permitted by Law including, without limitation, paying in full on Tenant’s
behalf any sums claimed by material-men or contractors of Tenant to be
owing to them by Tenant for work done or improvements made at Tenant’s
request to the Lease Premises. In this regard, Tenant hereby waives any
restriction on the uses to which the Security Deposit may be applied as
contained in Section 1950.7(c) of the California Civil Code and/or any
successor statute. In the event the Security Deposit or any portion
thereof is so used, Tenant shall pay to Landlord, promptly upon demand, an
amount in cash sufficient to restore the Security Deposit to the full
original sum if Tenant fails to promptly restore the Security Deposit and
if Tenant shall have paid to promptly restore the Security Deposit and if
Tenant shall have paid to Landlord any sums as “Last Month’s Prepaid Rent”
Landlord may, in addition to any other remedy Landlord may have under this
Lease reduce the amount of Tenant’s Last Month’s Prepaid Rent by
transferring all or portions of such Last Month’s Prepaid Rent to Tenant’s
Security Deposit until such Security Deposit is restored to the amount set
forth in Article 1. Landlord shall not be deemed a trustee of the Security
Deposit. Landlord may use the Security Deposit in Landlord’s ordinary
business and shall not be required to segregate it from its general
accounts. Tenant shall not be entitled to any interest on the Security
Deposit. If Landlord transfers the Building during the Lease Term,
Landlord may pay the Security Deposit to any subsequent owner in
conformity with the provisions of Section 1905.7 of the California Civil
Code and/or any successor statute. In which event the transferring
landlord shall be released from all liability for the return of the
Security Deposit. Tenant specifically grants to Landlord (and hereby
waives the provisions of California Civil Code Section to the contrary) a
period of sixty days following a surrender of the Leased Premises by
Tenant to Landlord within which to restore the Security Deposit (less
permitted deductions) to Tenant, if being agreed between Landlord and
Tenant that sixty days is a reasonable period of time within which to
inspect the Lease Premises, make required repairs, receive and verify
workmen’s xxxxxxxx therefore, and prepare a final accounting with respect
to such deposit. In no event shall the Security Deposit, or any portion
thereof, be considered prepaid
rent.
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For the
purposes of this Lease, paragraph 3.7 “Security Deposit” above, shall not be applicable
during this Lease Term.
ARTICLE
4
USE
OF LEASED PREMISES AND COMMON AREAS
4.1
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PERMITTED
USE: Tenant shall be entitled to use the Leased Premises solely for the
“Permitted use” as set forth in Article 1 and for no other purpose
whatsoever. Tenant shall continuously and without interruption use the
Lease Premises for such purpose for the entire Lease Term. Any
discontinuance of such use for a period of thirty consecutive calendar
days shall be, at Landlord’s election, a default by Tenant under the terms
of this Lease. Subject to the limitations contained in this Article 4,
Tenant shall have the right to use the Common Areas, in conjunction with
other tenants and during normal business hours, solely for the purposes
for which they were intended and for no other purposes whatsoever. Tenant
shall not have the right to use the exterior surfaces of exterior walls,
the area beneath the floor or the area above the ceiling of the Leased
Premises.
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Initial
_____ _____ _____
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4.2
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GENERAL
LIMITATIONS ON USE: Tenant shall not do or permit anything to be done in
or about the Leased Premises, the Building, the Common Areas or the
Project which does or could (i) interfere with the rights of other tenants
or occupants of the Building or the Project, (ii) jeopardize the
structural integrity of the Building or (iii) cause damage to any part of
the Building or the Project. Tenant shall not operate any equipment within
the Leased Premises which does or could (i) injure, vibrate or shake the
Leased Premises or the building, (ii) damage, overload or impair the
efficient operation of any electrical, plumbing, heating, ventilating or
air conditioning systems within or servicing the Lease Premises or the
Building or (iii) damage or impair the efficient operation of the
sprinkler system (if any) within or servicing the Leased Premises or the
Building. Tenant shall not install any equipment or antennas on or make
any penetrations of the exterior walls or roof of the Building. Tenant
shall not affix any equipment to or make any penetrations or cuts in the
floor, ceiling or walls of the Leased Premises. Tenant shall not place any
loads upon the floors, walls ceilings or roof systems, which could
endanger the structural integrity of the Building or damage its floors,
foundations or supporting structural components. Tenant shall not place
any explosive, flammable or harmful fluids or other waste materials in the
drainage systems of the Building or the Project. Tenant shall not drain or
discharge any fluids in the landscaped areas or across the paved areas o
the Project. Tenant shall not use any area located outside the Leased
Premises for the storage of its materials, supplies, inventory or
equipment, and all such materials, supplies, inventory and equipment shall
at all times be stored within the Leased Premises. Tenant shall not commit
nor permit to be committed any waste in or about the Leased Premises, the
Common Areas or the Project.
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4.3
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NOISE
AND EMISSIONS: All noise generated by Tenant in its use of the Leased
Premises shall be confined or muffled so that it does not interfered with
the businesses or annoy other tenants of the Building or the Project. All
dust, fumes odors and other emissions generated by Tenant’s use of the
Leased Premises shall be sufficiently dissipated in accordance with sound
environmental practices and exhausted from the Leased Premises in such a
manner so as not to interfere with the businesses of or annoy other
tenants of the Building or the Project, or cause any damage to the Leased
Premises or the Building or any component part thereof or the property of
other tenants of the Building of the
Project.
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4.4
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TRASH
DISPOSAL: Tenant shall provide trash and garbage disposal facilities
inside the Leased Premises for all of its trash, garbage and waste
requirements (other than general office waste which may be disposed of in
the trash bins provided by Landlord), and shall cause such trash, garbage
and waste to be regularly removed from the Leased Premises at Tenant’s
sole cost. Tenant shall keep all areas outside the Leased Premises and all
fire corridors and mechanical equipment rooms in or about the Leased
Premises free and clear of all trash, garbage, waste and boxes containing
same at all times.
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Initial
_____ _____ _____
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4.5
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PARKING:
Tenant is allocated, and Tenant and its employees and invitees shall have
the non-exclusive right to use, not more than the number of parking spaces
set forth in Article 1 as “Tenant’s Number of Parking Spaces”. Tenant
shall not, at any time, use or permit its employees or invitees to use
more parking spaces than the number so allocated to Tenant. Tenant shall
not have the exclusive right to use any specific parking space, and
Landlord reserves the right to designate from time to time the location of
the parking spaces allocated for Tenant’s use. In the event Landlord
elects or is required by any Law to limit or control parking within the
Project, whether by validation of parking tickets or any other method,
Tenant agrees to participate in such validation or other program as
reasonably established by Landlord. Tenant shall not, at any time, park or
permit to be parked any trucks or vehicles adjacent to entryways or
loading areas within the Project so as to interfere in any way with the
use of such areas, nor shall Tenant, at any time, park or permit the
parking of Tenant’s trucks or other vehicles, or the trucks and vehicles
of Tenant’s suppliers or others, in any portion of the Common Areas not
designated by Landlord for such use by Tenant. Tenant shall not, at any
time, park or permit to be parked any recreational vehicles, inoperative
vehicles or equipment on any portion of the common parking area or other
Common Areas of the Project. Tenant agrees to assume responsibility for
compliance by its employees and invitees with the parking provisions
contained herein. If Tenant or its employees park any vehicle within the
Project in violation of these provisions, then Landlord may charge Tenant,
as Additional Rent, and Tenant agrees to pay, as Additional Rent, Ten
Dollars per day for each day or partial day that each such vehicle is
parked in any area other than that designated. Tenant hereby authorizes
Landlord, at Tenant’s sole expense, to tow away from the Project and store
until redeemed by its owner any vehicle belonging to Tenant or Tenant’s
employees parked in violation of these
provisions.
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4.6
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SIGNS:
Tenant shall not place or install on or within any portion of the Leased
Premises, the Building, the Common Areas or the Project any sign (other
than a business identification sign first approved by Landlord in
accordance with this Paragraph), advertisements, banners, placards or
pictures which are visible from the exterior of the Leased Premises.
Tenant shall not place or install on or within any portion of the Leased
Premises, the Building, the Common Areas or the Project any business
identification sign which is visible from the exterior of the Leased
Premises until Landlord shall have first approved in writing the location,
sized, content, design, method of attachment and material to be used in
the making of such sign. Any signs, once approved by Landlord, shall be
installed only in strict compliance with Landlord’s approval, at Tenant’s
expense, using a person first approved by Landlord to install same.
Landlord may remove any signs (not first approved in writing by Landlord),
advertisements, banners, placards or pictures so placed by Tenant on or
with the Leased Premises, the Building, the Common Areas or the Project
and charge to tenant the cost of such removal, together with any costs
incurred by landlord to repair any damage caused thereby, including any
cost incurred to restore the surface upon which such sign was so affixed
to its original condition. Tenant shall remove any such signs, repair any
damage caused thereby, and restore the surface upon which the sign was
affixed to its original condition, all to Landlord’s reasonable
satisfaction, upon the termination of this
Lease.
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4.7
|
COMPLIANCE
WITH LAWS AND PRIVATE RESTRICTIONS: Tenant shall not use or permit any
person to use the Leased Premises in any manner, which violates any Laws
or Private Restrictions. Tenant shall abide by and shall promptly observe
and comply with, at its sole cost and expense, all Laws and Private
Restrictions respecting the use and occupancy of the Lease Premises, the
Building, the Common Areas or the Project and shall defend with competent
counsel, indemnify and hold Landlord harmless from any claims, damages or
liability resulting from Tenant’s failure to do
so.
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Initial
_____ _____ _____
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4.8
|
COMPLIANCE
WITH INSURANCE REQUIREMENTS: With respect to any insurance policies
carried by Landlord in accordance with the provisions of this Lease,
Tenant shall not conduct (nor permit any other person to conduct) any
activities with the Leased Premises, or store, keep or use anything with
the Leased Premises with (i) is prohibited under the terms of any of such
policies, (ii) could result in the termination of the coverage afforded
under any of such policies, (iii) could give to the insurance carriers the
right to cancel any of such policies, or (iv) could cause an increase in
the rates (over standard rates) charged for the coverage afforded under
any such policies. Tenant shall comply with all requirements of any
insurance company, insurance underwriter, or Board of Fire Underwriters
which are necessary to maintain, at standard rates, the insurance
coverage’s carried by either Landlord or Tenant pursuant to this
Lease.
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4.9
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LANDLORD’S
RIGHT TO ENTER: Landlord and its agents shall have the right to enter the
Leased Premises during normal business hours and subject to Tenant’s
reasonable security measures for the purpose of (i) inspecting the same;
(ii) supplying any services to be provided by Landlord to Tenant; (iii)
showing the Leased Premises to prospective purchasers, mortgagees or
tenants; (iv) making necessary alternations, additions or repairs; (v)
performing any of Tenant’s obligations when Tenant has failed to do so
after giving Tenant reasonable written notice of its intent to do so; and
(vi) posting notices of non-responsibility. Additionally, Landlord shall
have the right to enter the Leased Premises at times of emergency. Any
entry into the Leased Premises or portions thereof obtained by Landlord in
accordance with this Paragraph shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into, or a detainer
of, the Leased Premises, or an eviction, actual or constructive, of Tenant
from the Leased Premises or any portion
thereof.
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4.10
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CONTROL
OF COMMON AREAS: Landlord shall at all times have exclusive control of the
Common Areas. Landlord shall have the right, without the same constituting
an actual or constructive eviction and without entitling Tenant to any
reduction in or abatement of rent, to: (i) temporarily closed any part of
the Common Areas to whatever extent required in the opinion of Landlord’s
counsel to prevent a dedication thereof or the accrual of any prescriptive
rights therein: (ii) temporarily close all or any part of the Common Areas
to perform maintenance or for any other reason deemed sufficient by
Landlord; (iii) change the shape, size, location, number and extent of
improvements within the Common Areas including, without limitation,
changing the location of driveways, entrances, exits, parking spaces,
parking areas, sidewalks, directional or locator signs, or the direction
of the flow of traffic; and (iv) to make additions to the Common Areas
including, without limitation, the construction of parking structures.
Landlord shall have the right to change the name or address of the
Building. Tenant in its use of the Common Areas, shall keep the Common
Areas free and clear of all obstructions created or permitted by Tenant.
If, in the opinion of Landlord, unauthorized persons are using any of the
Common Areas by reason of, or under claim of, the express or implied
authority or consent of Tenant, then Tenant, upon demand of Landlord,
shall restrain, to the fullest extent then allowed by Law, such
unauthorized use, and shall initiate such appropriate proceedings as may
be required to so restrain such use. Nothing contained herein shall affect
the right of Landlord at any time to remove any unauthorized person from
the Common Areas or to prohibit the use of the Common Areas by
unauthorized persons, including without limitation, the right to prohibit
mobile food and beverage vendors. In exercising any such right regarding
the Common Areas, Landlord shall make a reasonable effort to minimize any
disruption to Tenant’s business.
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4.11
|
RULES
AND REGULATIONS: Landlord shall have the right from time to time to
establish reasonable rules and regulations and/or amendments or additions
thereto respecting the use within the Project and the use of the Common
Areas for the care and orderly management of the Project and the safety of
its tenants, occupants and invitees. Upon delivery to Tenant of a copy of
such rules and regulations or any amendments or additions thereto, Tenant
shall comply with such rules and regulations. A violation by Tenant of any
of such rules and regulations shall constitute a default by Tenant under
this Lease. If there is a conflict between the rules and regulations and
any of the provisions of this Lease, the provisions of this Lease shall
prevail. Landlord shall not be responsible or liable to Tenant for the
violation of such rules and regulations by any other tenant of the
Project.
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Initial
_____ _____ _____
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4.12
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ENVIRONMENTAL
PROTECTION: Landlord may voluntarily cooperate in a reasonable manner with
the efforts of all governmental agencies in reducing actual or potential
environmental damage. Tenant shall not be entitled to terminate this Lease
or to any reduction or abatement of rent by reason of such compliance or
cooperation. Tenant agrees at all times to cooperate fully with Landlord
and to abide by all rules and regulations and requirements which Landlord
may reasonably prescribe in order to comply with the requirements and
recommendations of governmental agencies regulating, or otherwise involved
in, the protection of the
environment.
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ARTICLE
5
REPAIRS,
MAINTENANCE, SERVICES AND UTILITIES
5.1
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REPAIRS
AND MAINTENANCE: Except in the case of damage to or destruction of the
Leased Premises, the Building or the Project caused by an Act of God or
other peril, in which case the provisions of Article 10 shall control, the
parties shall have the following obligations and responsibilities with
respect to the repair and maintenance of the Leased Premises, the Building
and the Common Areas.
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A.
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Tenant’s
Obligation: Tenant shall, at all times during the Leased Term and at its
sole cost and expense, regularly clean and continuously keep and maintain
in good order, condition and repair the Leased Premises and every part
thereof and all appurtenances thereto, including, without limiting the
generality of the foregoing, (i) all interior walls, floors and ceilings,
(ii) all windows, doors and skylights, (iii) all electrical wiring,
conduits, connectors and fixtures, (iv) all plumbing, pipes, sinks,
toilets, faucets and drains, (v) all lighting fixtures, bulbs and lamps,
(vi) all heating, ventilating and air conditioning equipment located
within the Leased Premises or located outside the Leased Premises (e.g.
rooftop compressors) and serving the Leased Premises (other tan Common
HVAC as defined in Subparagraph B below), and all entranceways to the
Leased Premises. Tenant, if requested to do so by Landlord, shall have at
Tenant’s sole cost and expense, a licensed heating, ventilating and air
conditioning contractor to regularly and periodically inspect (not less
frequently than every three months) and perform required maintenance on
the heating, ventilating and air conditioning equipment and systems
serving the Leased Premises, or alternately, Landlord may so contract in
its own name for such regular and periodic inspections of and maintenance
on such heating, ventilating and air conditioning equipment and systems
and charge to Tenant, as Additional Rent, the cost thereof. Tenant shall,
at its sole cost and expense, repair all damage to the Building, the
Common Areas or the Project caused by the activities of Tenant, its
employees, invitees or contractors promptly following written notice from
Landlord to so repair such damage. If Tenant shall fail to perform the
required maintenance or fail to make repairs required of it pursuant to
Paragraph within a reasonable period of time following notice from
Landlord to do so, then Landlord may, at its election and without waiving
any other remedy it may otherwise have under this Lease or at Law, perform
such maintenance or make such repairs and charge to Tenant, as Additional
Rent, the costs so incurred by Landlord for same. All glass within or a
part of the Leased Premises, both interior and exterior, is at the sole
risk of Tenant and any broken glass shall promptly be replaced by Tenant
at Tenant’s expense with glass of the same kind, size and
quality.
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Initial
_____ _____ _____
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B.
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Landlord’s
Obligation: Landlord shall, at all times during the Lease Term, maintain
in good condition and repair; (i) the exterior and structural parts of the
Building (including the foundation, sub-flooring, load- bearing and
exterior walls, and roof); (ii) the Common Areas; and (iii) the electrical
and plumbing systems located outside the Leased Premises which service the
Building. Additionally, to the extent that the Building contains central
heating, ventilating and or air conditioning systems located outside the
Leased Premises and designed to service, and then servicing, more than a
single tenant within the Building, (“Common HVAC”), Landlord shall
maintain in good operating condition and repair such Common HVAC equipment
and systems.
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5.2
|
SERVICES
AND UTILITIES: The parties shall have the following responsibilities and
obligations with respect to obtaining and paying the cost of providing the
following utilities and other services to the Leased
Premises.
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A.
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Gas
and Electric: Tenant shall arrange, at its sole expense and in its own
name, for the supply of gas and electricity to the Leased Premises. In the
event that such services are not separately metered, Tenant shall, at its
sole expense, cause such meters to be installed. Tenant shall be
responsible for determining if the local supplier of gas and/or
electricity can supply the needs of Tenant and whether or not the existing
gas and/or electrical distribution systems within the Building and the
Leased Premises are adequate for Tenant’s needs. Tenant shall pay all
charges for gas and electricity as so supplied to the Leased
Premises.
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B.
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Water:
Landlord shall provide the Leased Premises with water and Tenant shall
pay, as Additional Rent, the cost to Landlord of providing water to the
Leased Premises; provided, however, to the
extent that Landlord shall be providing water to the Leased Premises for
the use of more than a single tenant, Tenant shall be responsible to pay
as Additional Rent only so much of the cost to Landlord of providing water
to the Leased Premises as is related to Tenant’s water usage. The costs of
Tenant’s water usage shall include any costs to Landlord in keeping
account of such usage and all governmental fees, public charges or the
like (such as sewer usage fees) attributable to or based upon
usage.
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C.
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Security
Services: Tenant acknowledges that Landlord is not responsible for the
security of the Leased Premises or the protection of Tenant’s property or
Tenant’s employees, invitees or contractors, and that to the extent Tenant
determines that such security or protection services are advisable or
necessary, Tenant shall arrange for an pay the costs of providing
same.
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D.
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Trash
Disposal: Landlord will provide one trash bin or each building within the
Project for use by the tenants of such building for disposal of general
office waste only and for no other purpose. In no event shall Tenant use
the trash bins provided by Landlord for disposal of any of its industrial
waste, garbage or trash, and in no event shall Landlord be required to
provide extra bins for such purpose to because other tenants of the
Building or the Project are using such bins for such
purpose.
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Initial
_____ _____ _____
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5.3
|
ENERGY
AND RESOURCE CONSUMPTION: Landlord may voluntarily cooperate in a
reasonable manner with the efforts to governmental agencies and/or utility
suppliers in reducing energy or other resource consumption within the
Project. Tenant shall not be entitled to terminate this Lease or to any
reduction in or abatement of rent by reason of such compliance or
cooperation. Tenant agrees at all times to cooperate fully with Landlord
and to abide by all reasonable rules established by Landlord (i) in order
to maximize the efficient operation of the electrical, heating,
ventilating and air conditioning systems and all other energy or other
resource consumption systems within the Project and/or (ii) in order to
comply with the requirements and recommendations of utility suppliers and
governmental agencies regulating the consumption of energy and/or other
resources.
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5.4
|
LIMITATION
OF LANDLORD’S LIABILITY: Landlord shall not be liable to Tenant for injury
to Tenant, its employees, agents, invitees or contractors, damage to
Tenant’s property or loss of Tenant’s business or profits, nor shall
Tenant be entitled to terminate this Lease or to any reduction in or
abatement of rent by reason of (i) Landlord’s failure to perform any
maintenance or repairs to the Project until Tenant shall have first
notified Landlord, in writing, of the need for such maintenance or
repairs, and then only after Landlord shall have had a reasonable period
of time following its receipt of such notice within which to perform such
maintenance or repairs, or (ii) any failure, interruption, rationing or
other curtailment in the supply of water, electric current, gas or other
utility service to the Leased Premises, the Building or the Project from
whatever cause (other than Landlord’s gross negligence or willful
misconduct), or (iii) the unauthorized intrusion or entry into the Leased
Premises by third parties (other than
Landlord).
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ARTICLE
6
ALTERATIONS
AND IMPROVEMENTS
6.1
|
BY
TENANT: Tenant shall not make any alterations to or modifications of the
Leased Premises or construct any improvements to or within the Leased
Premises without Landlord’s prior written approval, and then not until
Landlord shall have first approved, in writing, the plans and
specifications therefore, which approval shall not be unreasonably
withheld. All such modifications, alterations or improvements, once so
approved, shall be made, constructed or installed by Tenant at Tenant’s
expense, using a licensed contractor first approved by Landlord, in
substantial compliance with the Landlord-approved plans and specifications
therefore. All work undertaken by Tenant shall be done in accordance with
all Laws and in good and workmanlike manner using new materials of good
quality. Tenant shall not commence the making of any such modifications or
alterations or the construction of any such improvements until (i) all
required governmental approvals and permits shall have been obtained, (ii)
all requirements regarding insurance imposed by this Lease have been
satisfied, (iii) Tenant shall have given Landlord at least five business
days prior to written notice of its intention to commence such work so
that Landlord may post and file notices of non-responsibility, and (iv) if
requested by Landlord, Tenant shall have obtained contingent liability and
broad form builder’s risk insurance in an amount satisfactory to Landlord
to cover any perils relating the proposed work not covered by insurance
carried by Tenant pursuant to Article 9. In no event shall Tenant make any
modifications, alterations or improvements to the Common Areas or any
areas outside the Leased Premises. As used in the Article, the term
“modifications”, alterations and/or improvements” shall include, without
limitation, the installation of additional electrical outlets, overhead
lighting fixtures, drains, sinks, partitions, doorways, or the
like.
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Initial
_____ _____ _____
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6.2
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OWNERSHIP
OF IMPROVEMENTS: All modifications, alternations and improvements made or
added to the Leased Premises by Tenant (other than Tenant’s inventory,
equipment, movable furniture, wall decorations and trade fixtures) shall
be deemed real property and a part of the Leased Premises, but shall
remain the property of Tenant during the Lease Term. Any such
modifications, alterations or improvements, once completed, shall not be
altered or removed from the Leased Premises during the Lease Term without
Landlord’s written approval first obtained in accordance with the
provisions of Paragraph 6.1 above. At the expiration or sooner termination
of this Lease, all such modifications, alterations and improvements (other
than Tenant’s inventory, equipment, movable furniture, wall decorations
and trade fixtures) shall automatically become the property of the
Landlord and shall be surrendered to Landlord as part of the Leased
Premises as required pursuant to Article unless Landlord shall require
Tenant to remove any of such modifications, alterations or improvements in
accordance with the Provision of Article 2, in which case Tenant shall so
remove same. Landlord shall have no obligation to reimburse to Tenant all
or any portion of the cost or value of any such modifications, alterations
or improvements so surrendered to Landlord. All modifications, alterations
or improvements which are installed or constructed on or attached to the
Leased Premises by Landlord at Landlord’s expense shall be deemed real
property and a part of the Leased Premises and shall be the property of
Landlord. All lighting, plumbing, electrical, heating, ventilating and air
conditioning fixtures, partitioning, window coverings, wall coverings and
floor coverings installed by Tenant shall be deemed improvements to the
Leased Premises and not trade fixtures of
Tenant.
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6.3
|
ALTERATIONS
REQUIRED BY LAW: Tenant shall make all modifications, alterations, and
improvements to the Leased Premises, at its sole cost, that are required
by Law because of (i) Tenant’s use or occupancy of the Leased Premises,
(ii) Tenant’s application for any permit or governmental approval, or
(iii) Tenant’s making of any modifications, alterations, or improvements
to or within the Leased Premises.
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6.4
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LIENS:
Tenant shall keep the Leased Premises, the Building and the Project free
from any liens and shall pay value due all bills arising out of any work
performed, materials furnished, or obligations incurred by Tenant, its
agents, employees or contractors related to the Leased Premises, if any
such claim of lien is recorded against Tenant’s interest in this Lease,
the Leased Premises, the Building or the Project, Tenant shall bond
against, discharge or otherwise cause such lien to be entirely released
within ten days after the same has been so
recorded.
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ARTICLE
7
ASSIGNMENT
AND SUBLETTING BY TENANT
7.1
|
BY
TENANT: Tenant shall neither assign this Lease nor sublet the Lease
Premises without obtaining the written consent of the Landlord to do so,
however, that Landlord shall not arbitrarily or unreasonably refuse to
grant consent to such assignment or subletting, and provided further that
a consent to one assignment or subletting by Landlord shall not be deemed
a consent to any subsequent assignment or subletting. Any assignment or
subletting without the consent of the Landlord shall be void and shall, at
the option of the Landlord, terminate this Lease. The acceptance of rent
by Landlord from any person or entity other than the Tenant, or the
acceptance of rent by Landlord from Tenant with knowledge of a violation
of the provisions of this paragraph, shall not be deemed a waiver by
Landlord of any provision of this Article or this Lease or to be a consent
to any assignment or subletting by
Tenant.
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7.2
|
MERGER
OR REORGANIZATION: If Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or the sale or other
transfer in the aggregate over the Lease Term of a controlling percentage
of the capital stock of Tenant shall not be deemed a voluntary assignment
of Tenant’s interest in this Lease. However, should Tenant dissolve,
merge, consolidate, or otherwise reorganize, Tenant shall notify Landlord
in writing of the proposed change in its status fifteen (15) days prior to
the effective date of such dissolution or
reorganization.
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Initial
_____ _____ _____
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7.3
|
LANDLORD’S
CONSENT: If Tenant shall desire to assign its interest under this Lease or
to sublet the Leased Premises, Tenant must first notify Landlord, in
writing, of its intent to so assign or sublet, specifying in detail the
terms of such assignment or subletting, including, by way of illustration
but not of limitation, the name of the proposed assignee or sublessee, the
proposed assignee’s sublessee’s intended use of the leased premises, a
current financial statement of such proposed assignee or sublessee, and
the form of documents to be used in effectuating such assignment or
subletting. Land lord shall have a period of fifteen (15) days following
receipt of such notice to either (i) consent to such assignment or
subletting, or (ii) refuse to consent to such requested assignment or
subletting, provided that such consent shall not be unreasonably or
arbitrarily refused. During said fifteen (15) day period, Tenant covenants
and agrees to supply Landlord, upon request, all necessary or relevant
information which Landlord may reasonably request respecting such proposed
assignment or subletting and/or the proposed assignee or
sublessee.
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7.4
|
CONDITIONS
TO LANDLORD’S CONSENT: If Landlord elects to consent to such requested
assignment or subletting, such consent shall be expressly conditioned upon
the occurrence of each of the conditions set forth below. Any purported
assignment or subletting made prior to the full and complete satisfaction
of each of the following conditions shall be void and shall, at the option
of Landlord, constitute a material default of this Lease permitting
Landlord to terminate this Lease unless such default is cured by Tenant
satisfying each condition within five (5) days of receipt of written
notice of the default. The conditions are as
follows:
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|
A.
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Landlord
having approved in form and substance the assignment or sublease
agreement, which approval shall not be unreasonably
withheld.
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B.
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Each
such sublessee or assignee having agreed in writing satisfactory to
Landlord to assume, to be bound by, and to perform the obligations of this
Lease to be performed by Tenant.
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C.
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Tenant
having delivered to Landlord a complete and fully executed duplicate
original of each sublease agreement or assignment
agreement.
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D.
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Tenant
and Tenant’s sublessee shall have entered into a written agreement with
and for the benefit of Landlord satisfactory to Landlord whereby Tenant
and Tenant’s sublessee jointly agree to pay to Landlord one hundred
percent of all excess rentals to be paid by such sublessee as and when
such excess rentals are so paid.
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7.5
|
EXCESS
RENTALS DEFINED: The term “excess rentals” shall mean all consideration to
be paid by the sublessee to Tenant or to any other on Tenant’s behalf or
for Tenant’s benefit for the sublease of the Leased Premises in excess of
the rent due Landlord under the terms of this Lease for the same period,
less any commissions paid by Tenant to a licensed real estate broker for
arranging such sublease. Tenant agrees that the portion of any excess
rentals arising from any subletting by Tenant, which is to be paid to
Landlord pursuant to this Article, now is and shall then be the property
of Landlord and not the property of
Tenant.
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7.6
|
EFFECT
OF LANDLORD’S CONSENT: No assignment or subletting, even with the consent
of Landlord, shall relieve Tenant of it’s primary obligation to pay rent
and to perform all of the other obligations to be performed by Tenant
hereunder. Consent by Landlord to one or more assignments or sublettings
by Tenant shall not be deemed to be a consent to any subsequent assignment
or subletting.
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Initial
_____ _____ _____
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7.7
|
GOOD
FAITH: The rights granted to Tenant by this Article are granted in
consideration of Tenant’s express covenant that all pertinent allocations
which are made by Tenant between the value of this Lease and the value of
any of Tenant’s personal property which may be conveyed or leased
generally concurrently with and which may reasonably be considered a part
of the same transaction as the permitted assignment or subletting shall be
made fairly, honestly and in good faith. If Tenant shall breach this
Covenant of Good Faith, Landlord may immediately declare Tenant to be in
default under the terms of this Lease and terminate this Lease and/or
exercise any other rights and remedies Landlord would have under the terms
of this Lease in the case of a material default by Tenant under this
Lease.
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7.8
|
EFFECT
OF LANDLORD’S CONSENT: No subletting, assignment or encumbrance, even with
the consent of Landlord shall relieve Tenant of its personal and primary
obligation to pay rent and to perform all of the other obligations to be
performed by Tenant hereunder. Consent by Landlord to one or more
assignments or encumbrances of Tenant’s interest in this Lease or to one
or more subletting of the Leased Premises shall not be deemed to be a
consent to any subsequent assignment, encumbrance or subletting. If
Landlord shall have been ordered by a court of competent jurisdiction to
consent to a requested assignment or subletting, or such an assignment or
subletting shall have been ordered over the objection of Landlord, such
assignment or subletting shall not be binding between the assignee (or
sub-lessee) and Landlord until such a time as all conditions set forth in
Paragraph 7.4 above have been fully satisfied (to the extent not then
satisfied) by the assignee or sub-lessee, including, without limitation,
the payment to Landlord of all agreed assignment considerations and/or
excess rentals then due Landlord.
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ARTICLE
8
LIMITATION
ON LANDLORD’S LIABILITY AND INDEMNITY
8.1
|
LIMITATION
ON LANDLORD’S LIABILITY AND RELEASE: Landlord shall not be liable to
Tenant for, and Tenant hereby releases Landlord and its partners and
officers from, any and all liability, whether in contract, tort or any
other basis, for any injury to or any damage sustained by Tenant, its
agents, employees, contractors or invitees; any damage to Tenant’s
property; or any loss to Tenant’s business, loss of Tenant’s profits or
other financial loss of Tenant resulting from or attributable to the
condition of, the management of, the maintenance of, or the protection of
the Leased Premises, the Building, the Project or the Common Areas,
including, without limitation, any such injury, damage or loss resulting
from (i) the failure, interruption, rationing or other curtailment or
cessation in the supply of electricity, water, gas or other utility
service to the Project, the Building or the Leased Premises; (ii) the
vandalism or forcible entry into the Building or the Leased Premises;
(iii) the penetration of water into or onto any portion of the Leased
Premises through roof leaks or otherwise; (iv) the failure to provide
security and/or adequate lighting in or about the Project, the Building or
the Leased Premises; (v) the existence of any design or construction
defects within the Project, the Building or the Leased Premises; (vi) the
failure of any mechanical systems to function properly (such as the HVAC
systems); or (vii) the blockage of access to any portion of the Project,
the Building or the Leased Premises, except to the extent such damage was
proximately caused by Landlord’s active negligence, willful misconduct, or
Landlord’s failure to perform an obligation expressly undertaken pursuant
to this Lease but only if Tenant shall have given Landlord prior written
notice to perform such obligation and Landlord shall have failed to
perform such obligation within a reasonable period of time following
receipt of written notice from Tenant to so perform such obligation. In
this regard, Tenant acknowledges that it is fully apprised of the
provisions of Law relating to releases, and particularly to those
provisions contained in Section 1542 of the California Civil Code, which
read as follows:
|
“A
general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the
debtor.”
Initial
_____ _____ _____
Notwithstanding
such statutory provision, and for the purpose of implementing a full and
complete release and discharge, Tenant hereby (i) waives the benefit of such
statutory provision and (ii) acknowledges that, subject to the exceptions
specifically set forth herein, the release and discharge set forth in this
Paragraph is a full and complete settlement and release and discharge of all
claims and is intended to include in its effect, without limitation, all claims
which Tenant, as of the date hereof, does not know of our suspect to exist in
its favor.
8.2
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TENANT’S
INDEMNIFICATION OF LANDLORD: Tenant shall defend, with counsel
satisfactory to Landlord, any claims made or legal actions filed or
threatened by third parties against Landlord with respect to the death,
bodily injury, personal injury, damage to property or interference with
contractual or property rights suffered by any third party (including
other tenants within the Project) which (i) occurred within the Leased
Premises or (ii) resulted from Tenant’s use or occupancy of the Leased
Premises or the Common Areas or (iii) resulted from Tenant’s activities in
or about the Leased Premises, the Building or the Project, and Tenant
shall indemnify and hold Landlord, Landlord’s principals, employees and
agents harmless from any loss, including loss of rents by reason of vacant
space which otherwise would have been leased but for such activities,
liability, penalties, or expense whatsoever (including any legal fees
incurred by Landlord with respect to defending such claims) resulting
therefrom, except to the extent proximately caused by the active
negligence or willful misconduct of Landlord. This indemnity agreement
shall survive until the latter to occur of (i) the date of the expiration,
or sooner termination, of this Lease, or (ii) the date Tenant actually
vacates the Leased Premises. Notwithstanding the foregoing, Tenant shall
be under no duty to indemnify and hold Landlord harmless, nor defend
Landlord, against any liability, claims, or damages arising because of
Landlord’s failure to make any repairs required by this Lease or to take
any action required by this Lease or to take any action required of
Landlord by this Lease, provided that the Landlord has been properly
notified by Tenant of the required repair or action. The term “properly
notified” shall mean notice as prescribed in Paragraph 13.10 of this
Lease.
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ARTICLE
9
INSURANCE
9.1
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TENANT’S
INSURANCE: Tenant shall maintain insurance complying with all of the
following:
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A.
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Tenant
shall procure pay for and keep in full force and effect, at all times
during the Lease Term, the
following:
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(1)
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Comprehensive
general liability insurance insuring Tenant against liability for personal
injury, bodily injury, death and damage to property occurring within the
Leased Premises, or resulting from Tenant’s use or occupancy of the Leased
Premises or the Common Areas, or resulting from Tenant’s activities in or
about the Leased Premises, with combined single limit coverage of not less
than the amount of Tenant’s Required Liability Coverage (as set forth in
Article 1), which insurance shall contain a “broad form liability”
endorsement insuring Tenant’s performance of Tenant’s obligation to
indemnify Landlord as contained in Article
8.2.
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(2)
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Fire
and property damage insurance in so-called “fire and extended coverage”
form insuring Tenant against loss from physical damage to Tenant’s
personal property, inventory, trade fixtures and improvements within the
Leased Premises with coverage for the full actual replacement cost
thereof:
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(3)
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Pressure
vessel insurance, if applicable;
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Initial
_____ _____ _____
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(4)
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Product
liability insurance (including, without limitation, if food and/or
beverages are distributed, sold and/or consumed within the Leased
Premises, to the extent obtainable, coverage for liability arising out of
the distribution, sale or consumption of food and/or beverages (including
alcoholic beverages, if applicable) at the Leased Premises) for not less
than Tenant’s Required Liability Coverage (as set forth in Article
1);
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(5)
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Workers’
compensation insurance and any other employee benefit insurance sufficient
to comply with all Laws; and
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(6)
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With
respect to making of alterations or the construction of improvements or
the like undertaken by Tenant, contingent liability and builder’s risk
insurance, in an amount and with coverage satisfactory to
Landlord.
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B.
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Each
policy of liability insurance required to be carried by Tenant pursuant to
this Paragraph or actually carried by Tenant with respect to the Leased
Premises (i) shall, except with respect to insurance required by
Subparagraph A (6) above, name Landlord, and such others as are designated
by Landlord, as additional insured; (ii) shall be primary insurance
providing that the insurer shall be liable for the full amount of the
loss, up to and including the total amount of liability set forth in the
declaration of coverage, without the right of contribution from or prior
payment by any other insurance coverage of Landlord; (iii) shall be in a
form satisfactory to Landlord; (iv) shall be carried with companies
reasonably acceptable to Landlord; (v) shall provide that such policy
shall not be subject to cancellation, lapse or change except after at
least thirty days prior written notice to Landlord; and (vi) shall contain
a so-called “severability” or “cross liability” endorsement. Each policy
of property insurance maintained by tenant with respect to the Leased
Premises or any property therein (i) shall provide that such policy shall
not be subject to cancellation, lapse or change except after at least
thirty days prior written notice to Landlord and (ii) shall contain a
waiver and/or a permission to waive by the insurer of any right of
subrogation against Landlord, its principals, employees, agents and
contractors, which might arise by reason of any payment under such policy
or by reason of any act or omission of Landlord, its principals,
employees, agents or contractors.
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C.
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Prior
to the time Tenant or any of its contractors enters the Leased Premises,
Tenant shall deliver to the Landlord, with respect to each policy of
insurance required to be carried by Tenant pursuant to this Article, a
copy of such policy (appropriately authenticated by the insurer as having
been issued, premium paid, providing the coverage required by this
Paragraph and containing the provisions specified herein. With respect to
each renewal or replacement of any such insurance, the requirements of
this Paragraph must be complied with not less than thirty days prior to
the expiration or cancellation of the policy being renewed or replaced.
Landlord may, at any time and from time to time, inspect and/or copy any
and all insurance policies required to be carried by Tenant pursuant to
this Article. If Landlord’s Lender, insurance broker or advisor or counsel
reasonably determines at any time that the amount of coverage set forth in
Paragraph 9.1A for any policy of insurance Tenant is required to carry
pursuant to this Article is not adequate, then Tenant shall increase the
amount of coverage for such insurance to such greater amount as Landlord’s
Lender, insurance broker or advisor or counsel reasonably deems adequate;
provided, however, such increased level of coverage may not exceed the
level of coverage for such insurance commonly carried by comparable
businesses similarly situated and operating under similar
circumstances.
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Initial
_____ _____ _____
9.2
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LANDLORD’S
INSURANCE: With respect to insurance maintained by
Landlord:
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A.
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Landlord
shall maintain, as the minimum coverage required of it by this Lease, fire
and property damage insurance in so-called “fire and extended coverage”
form insuring Landlord (and such others as Landlord may designate) against
loss from physical damage to the Building with coverage of not less than
ninety percent of the full actual replacement cost thereof and against
loss of rents for a period of not less than six months. Such fire and
property damage insurance, at Landlord’s election but without any
requirement on Landlord’s behalf to do so, (i) may be written in so-called
“all risk” form, excluding only those perils commonly excluded from such
coverage by Landlord’s then property damage insurer; (ii) may provide
coverage for physical damage to the improvements so insured for up to the
entire full actual replacement cost thereof; (iii) may be endorsed to
cover loss or damage caused by any additional perils against which
Landlord may elect to insure, including earthquake and/or flood; (iv) may
provide coverage for loss of rents for a period of up to twelve months;
and (v) may contain “deductibles” not exceeding One Thousand Dollars per
occurrence (or up to five percent of the Building’s replacement value in
the case of earthquake and/or flood insurance). Landlord shall not be
required to cause such insurance to cover any of Tenant’s personal
property, inventory and trade fixtures, or any modifications, alterations
or improvements made or constructed by Tenant to or within the Leased
Premises.
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B.
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Landlord
shall maintain comprehensive general liability insurance insuring Landlord
(and such others as are designated by Landlord) against liability for
personal injury, bodily injury, death, and damage to property occurring
in, on or about, or resulting from the use or occupancy of the Project, or
any portion thereof, with combined single limit coverage of at least Two
Million Dollars. Landlord may carry such greater coverage as Landlord or
Landlord’s Lender, insurance broker or advisor or counsel may from time to
time determine is reasonably necessary for the adequate protection of
Landlord and the Project.
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C.
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Landlord
may maintain any other insurance, which in the opinion of its insurance
broker or advisor or legal counsel is prudent to carry under the given
circumstances.
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9.3
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MUTUAL
WAIVER OF SUBROGATION: Landlord hereby releases Tenant, and Tenant hereby
releases Landlord and its respective partners and officers, agents,
employees and servants, from any and all liability for loss, damage or
injury to the property of the other in or about the Leased Premises which
is caused by or results from a peril or event or happening which would be
covered by insurance required to be carried under the terms of this Lease,
or is covered by insurance actually carried and in force at the time of
the loss, by the party sustaining such loss; however, that such waiver
shall be effective only to the extent permitted by the insurance covering
such loss and to the extent such insurance is not prejudiced
thereby.
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Initial
_____ _____ _____
ARTICLE
10
DAMAGE
TO LEASED PREMISES
10.1
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LANDLORD’S
DUTY TO RESTORE: If the Leased Premises are damaged by any peril after the
Effective Date of this Lease, Landlord shall restore the Leased Premises,
as and when required by this Paragraph, unless this Lease is terminated by
Landlord pursuant to Paragraph 10.2 or by Tenant pursuant to Paragraph
10.3. All insurance proceeds available from the fire and property damage
insurance carried by Landlord shall be paid to and become the property of
Landlord. If this Lease is terminated pursuant to either Paragraph 10.2 or
10.3, all insurance proceeds available from insurance carried by Tenant
which cover loss to property that is Landlord’s property or would become
Landlord’s property on termination of this Lease shall be paid to and
become the property of Landlord, and the remainder of such proceeds shall
be paid to and become the property of Tenant. If this Lease is not
terminated pursuant to either Paragraph 10.2 or 10.3, all insurance
proceeds available from insurance carried by Tenant which cover loss to
property that is Landlord’s property shall be paid to and become property
of Landlord, and all proceeds available which cover loss to property which
would become the property of Landlord upon the termination of this Lease
shall be paid to and remain the property of Tenant. If this Lease is not
so terminated, then upon receipt of the insurance proceeds (if the loss is
covered by insurance) and the issuance of all necessary governmental
permits, Landlord shall commence and diligently prosecute to completion
the restoration of the Leased Premises, to the extent then allowed by Law,
to substantially the same condition in which the Leased Premises existed
as of the Lease Commencement Date. Landlord’s obligation to restore shall
be limited to the Leased Premises and interior improvements constructed by
Landlord. Landlord shall have no obligation to restore any other
improvements to the Leased Premises or any of Tenant’s personal property,
inventory, trade fixtures, and other improvements constructed by Tenant to
like or similar condition as existed at the time of such damage or
destruction.
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10.2
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LANDLORD’S
RIGHT TO TERMINATE: Landlord shall have the option to terminate this Lease
in the event any of the following occurs, which option may be exercised
only by delivery to Tenant of a written notice of election to terminate
within thirty days after the date of such damage or
destruction:
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A.
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The
Building is damaged by any peril covered by valid collectible insurance
actually carried by Landlord and in force at the time of such damage or
destruction (an “insured peril”) to such an extent that the estimated cost
to restore the Building exceeds the lesser of (i) the insurance proceeds
available from insurance actually carried by Landlord, or (ii)
seventy-five percent of the then actual replacement cost
thereof:
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B.
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The
Building is damaged by an uninsured peril, which peril Landlord was
required to insure against pursuant to the provisions of Article 9 of this
Lease, to such an extent that the estimated cost to restore the Building
exceeds the lesser of (i) the insurance proceeds which would have been
available had Landlord carried such required insurance, or (ii)
seventy-five percent of the then actual replacement cost
thereof;
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C.
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The
Building is damaged by an uninsured peril, which peril Landlord was not
required to insure against pursuant to the provisions of Article 9 of this
Lease, to any extent.
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D.
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The
Building is damaged by any peril and, because of the Laws then in force,
(i) may not be restored at reasonable cost as required by Paragraph 10.1
above, or (ii) may not be used for the same use being made thereof before
such damage, whether or not restored as required by this
Article.
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Initial
_____ _____ _____
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10.3
|
TENANT’S
RIGHT TO TERMINATE: If the Leased Premises are damaged by any peril and
Landlord does not elect to terminate this Lease or is not entitled to
terminate this Lease pursuant to this Article, then as soon as reasonably
practicable, Landlord shall furnish Tenant with the written opinion of
Landlord’s architect or construction consultant as to when the restoration
work required of Landlord may be complete. Tenant shall have the option to
terminate this Lease in the event any of the following occurs, which
option may be exercised in the case of A or B below only by delivery to
Landlord of a written notice of election to terminate within seven days
after Tenant receives from Landlord the estimate of the time needed to
complete such restoration:
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A.
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The
Leased Premises are damaged by any peril and, in the reasonable opinion of
Landlord’s architect or construction consultant, the restoration of the
Leases Premises cannot be substantially completed within nine months after
the date of such damage; or
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B.
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The
Leased Premises are damaged by any peril within nine months of the last
day of the Lease Term and, in the reasonable opinion of Landlord’s
architect or construction consultant, the restoration of the Leased
Premises cannot be substantially completed within ninety days after the
date such restoration is commenced;
or
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C.
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Landlord
does not complete the restoration of the Leased Premises within nine
months from the date of the damage, provided that such nine-month period
of time shall be extended for such number of days as Landlord may be
delayed by reason of Force Majeure.
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10.4
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TENANT’S
WAIVER: Landlord and Tenant agree that the provisions of Paragraph 10.3
above, captioned “Tenant’s Right to Terminate”, are intended to supersede
and replace the provisions contained in California Civil Code, Section
1932, Subdivision 2, and California Civil Code Section 1934, and
accordingly, Tenant hereby waives the provisions of said Civil Code
Sections and the provisions of any successor Code Sections or similar Laws
hereinafter enacted.
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10.5
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ABATEMENT
OF RENT: In the event of damage to the Leased Premises, which does not
result in the termination of this Lease, the Base Monthly Rent (and any
Additional Rent) shall be temporarily abated during the period of
restoration in proportion to the degree to which Tenant’s use of the
Leased Premises is impaired by such
damage.
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ARTICLE
11
CONDEMNATION
11.1
|
LANDLORD’S
RIGHT TO TERMINATE: Subject to Xxxxxxxxx 00.0, Xxxxxxxx shall have the
option to terminate this Lease if, as a result of a taking by means of the
exercise of the power of eminent domain (including inverse condemnation
and/or voluntary sale or transfer by Landlord to an entity having the
power of eminent domain under threat of condemnation), (i) all or any part
of the Leased Premises is so taken, (ii) more than thirty-three and
one-third percent of the Building’s leasable area is so taken, (iii) more
than thirty-three and one-third percent of the Common Area is so taken, or
(iv) because of the Laws then in force, the Leased Premises may not be
used for the same use being made thereof before such taking, whether or
not restored as required by Paragraph 11.4 below. Any such option to
terminate by Landlord must be exercisable within a reasonable period of
time, to be effective as of the date of possession is taken by the
condemner.
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Initial
_____ _____ _____
11.2
|
TENANT’S
RIGHT TO TERMINATE: Subject to Paragraph 11.3, Tenant shall have the
option to terminate this Lease, if, as a result of any taking by means of
the exercise of the power of eminent domain (including inverse
condemnation and/or a voluntary sale or transfer by Landlord to an entity
having the power of eminent domain under threat of condemnation), (i) all
of the Leased Premises is so taken, (ii) thirty-three and one-third
percent or more of the Leased Premises is so taken and the part of the
Leased Premises that remains cannot, within a reasonable period of time,
be made reasonably suitable for the continued operation of the Tenant’s
business, or (iii) there is a taking of a portion of the Common Area and,
as a result of such taking, Landlord cannot provide parking spaces within
the Project (or within a reasonable distance therefrom) equal in number to
at least sixty-six and two-thirds percent of Tenant’s Number of Parking
Spaces (as set forth in Article 1), whether by rearrangement of the
remaining parking areas in the Common Area (including, if Landlord elects,
construction of multi-deck parking structures or re-striping for compact
cars where permitted by Law), or by providing alternative parking
facilities on other land within reasonable walking distance of the Leased
Premises. Tenant must exercise such option within a reasonable period of
time, to be effective on the later to occur of (i) the date that
possession of that portion of the Common Area or the Leased Premises that
is condemned is taken by condemner or (ii) the date Tenant vacates the
Leased Premises.
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11.3
|
TEMPORARY
TAKING: If any portion of the Leased Premises is temporarily taken for one
year or less, this Lease shall remain in effect. If any portion of the
Leased Premises is temporarily taken for a period which either exceeds one
year or which extends beyond the natural expiration of the Lease Term,
then Landlord and Tenant shall each independently have the option to
terminate this Lease, effective on the date possession is taken by the
condemner.
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11.4
|
RESTORATION
AND ABATEMENT OF RENT: If any part of the Leased Premises is taken by
condemnation and this Lease is not terminated, then Landlord shall repair
any damage occasioned thereby to the remainder of the Leased Premises to a
condition reasonably suitable for Tenant’s continued operations and
otherwise, to the extent practicable, in the manner and to the extent
provided in Paragraph 10.1. As of the date possession is taken by the
condemning authority, (i) the Base Monthly Rent shall be reduced in the
same proportion that the area of that part of the Leased Premises so taken
(less any addition to the area of the Leased Premises by reason of any
reconstruction) bears to the area of the Leased Premises immediately prior
to such taking, and (ii) Tenant’s Proportionate Share shall be
appropriately adjusted.
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11.5
|
DIVISION
OF CONDEMNATION AWARD: Any award made for any condemnation of the Project,
the Building, the Common Areas or the Leased Premises, or any portion
thereof, shall belong to and be paid to Landlord, and Tenant hereby
assigns to Landlord all of its right, title and interest in any such
award; provided, however, that Tenant shall be entitled to receive any
condemnation award that is made directly to Tenant (i) for the taking of
personal property, inventory or trade fixtures belonging to Tenant (ii)
for the interruption of Tenant’s business or its moving costs, (iii) for
loss of Tenant’s goodwill, or (iv) for any temporary taking where this
Lease is not terminated as a result of such taking. The rights of Landlord
and Tenant regarding any condemnation shall be determined as provided in
this Article, and each party hereby waives the provisions of Section
1265.130 of the California Code of Civil Procedure, and the provisions of
any similar law hereinafter enacted, allowing either party to petition the
Superior Court to terminate this Lease and/or allocating condemnation
awards between Landlord and Tenant in the event of a taking of the Leased
Premises.
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Initial
_____ _____ _____
ARTICLE
12
DEFAULTS
AND REMEDIES
12.1
|
EVENTS
OF TENANTS DEFAULTS: Tenant shall be in default of its obligations under
this Lease if any of the following events
occur:
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|
A.
|
Tenant
has failed to pay Base Monthly Rent or any Additional Rent within five (5)
days after written notice from Landlord that it is due (provided, however,
that Landlord shall not be required to give more than two (2) such notices
in any twelve (12) consecutive month period, after which Tenant shall be
in default if it fails to pay any rent or other charge when due);
or
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B.
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Tenant
shall have done or permitted to have been done any act, use or thing in
its use, occupancy or possession of the Leased Premises or in its use of
the Common Areas which is prohibited by the terms of this Lease and,
within thirty (30) days after written notice from Landlord specifying the
nature of the default with reasonable particularity has failed to cure
such default (provided, however, that if the default is of such a nature
that it cannot be completely remedied within such thirty (30) day period,
this provision shall be complied with if Tenant begins to cure the default
within the thirty (30) day period and thereafter proceeds with due
diligence and in good faith to effect the cure as soon as practicable);
or
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C.
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Tenant
has failed to perform any other term or provision of this Lease within
thirty (30) days after written notice from Landlord specifying the nature
of the default with reasonable particularity (provided, however, that if
the default is of such a nature that it cannot be completely remedied
within such thirty (30) day period, this provision shall be complied with
if Tenant begins to cure the default within the thirty (30) day period and
thereafter proceeds with due diligence and in good faith to effect the
cure as soon as practicable); or
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D.
|
Tenant
shall have sublet the Leased Premises or assigned or encumbered its
interest in this Lease in violation of the provisions contained in Article
7, whether voluntarily or by operation of Law;
or
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E.
|
Tenant
shall have abandoned the Leased Premises;
or
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F.
|
Tenant
or any Guarantor of this Lease shall have permitted or suffered the
sequestration or attachment of, or execution on, or the appointment of a
custodian or receiver with respect to, all or any substantial part of the
property or assets of Tenant (or such Guarantor) or any property or asset
essential to the conduct of Tenant’s (or such Guarantor’s) business, and
Tenant (or such Guarantor) shall have failed to obtain return or release
of the same within thirty days thereafter, or prior to sale pursuant to
such sequestration, attachment or levy, whichever is earlier;
or
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G.
|
Tenant
or any Guarantor of this Lease shall have made a general assignment of all
or a substantial part of its assets for the benefit of creditors;
or
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H.
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Tenant
or any Guarantor of this Lease shall have allowed (or sought) to have
entered against it a decree or order which: (i) grants or constitutes an
order for relief, appointment of a trustee, or confirmation of a
reorganization plan under the bankruptcy laws of the United States; (ii)
approves as properly filed a petition seeking liquidation or
reorganization under said bankruptcy laws or any other debtor’s relief law
or similar statute of the United States or any state thereof; or (iii)
otherwise directs the winding up or liquidation of Tenant; provided,
however, if any decree or order was entered without Tenant’s consent or
over Tenant’s objection, Landlord may not terminate this Lease pursuant to
this Subparagraph if such decree or order is rescinded or reversed within
thirty days after its original
entry.
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I.
|
Tenant
or any Guarantor of this Lease shall have availed itself of the protection
of any debtor’s relief law, moratorium law or other similar Law which does
not require the prior entry of a decree or
order.
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Initial
_____ _____ _____
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12.2
|
LANDLORD’S
REMEDIES: In the event of any default by Tenant, and without limiting
Landlord’s right to indemnification as provided in Article 8.2, Landlord
shall have the following remedies, in addition to all other rights and
remedies provided by Law or otherwise provided in this Lease, to which
Landlord may resort cumulatively, or in the
alternative:
|
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A.
|
Landlord
may, at Landlord’s election, keep this Lease in effect and enforce, by an
action at law or in equity, all of its rights and remedies under this
Lease including, without limitation, (i) the right to recover the rent and
other sums as they become due by appropriate legal action, (ii) the right
to make payments required of Tenant, or perform Tenant’s obligations and
be reimbursed by Tenant for the cost thereof with interest at the then
maximum rate of interest not prohibited by Law from the date the sum is
paid by Landlord until Landlord is reimbursed by Tenant, and (iii) the
remedies of injunctive relief and specific performance to prevent Tenant
from violating the terms of this Lease and/or to compel Tenant to perform
its obligations under this Lease, as the case may
be.
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B.
|
Landlord
may, at Landlord’s election, terminate this Lease by giving Tenant written
notice of termination in which event this Lease shall terminate on the
date set forth for termination in such notice. Any termination under this
Subparagraph shall not relieve Tenant from its obligation to pay Landlord
all Base Monthly Rent or Additional Rent then or thereafter due, or any
other sums due or thereafter accruing to Landlord, or from any claim
against Tenant for damages previously accrued or then or thereafter
accruing. In no event shall any one or more of the following actions by
Landlord, in the absence of a written election by Landlord to terminate
this Lease, constitute a termination of this
Lease:
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|
(1)
|
Appointment
of a receiver of keeper in order to protect Landlord’s interest
hereunder;
|
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(2)
|
Consent
to any subletting of the Leased Premises or assignment of this Lease by
Tenant, whether pursuant to the provisions hereof or otherwise;
or
|
|
(3)
|
Any
other action by Landlord or Landlord’s agents intended to mitigate the
adverse effects of any breach of this Lease by Tenant, including, without
limitation, any action taken to maintain and preserve the Leased Premises
or any action taken to re-let the Leased Premises, or any portion thereof,
for the account of Tenant and in the name of
Tenant.
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C.
|
In
the event Tenant breaches this Lease and abandons the Leased Premises,
Landlord may terminate this Lease, but his Lease shall not terminate
unless Landlord gives Tenant written notice of termination. No act by or
on behalf of Landlord intended to mitigate the adverse effect of such
breach, including those described by Subparagraph B (1), (2) and (3)
immediately preceding, shall constitute a termination of Tenant’s right to
possession unless Landlord gives Tenant written notice of termination. If
Landlord does not terminate this Lease by giving written notice of
termination, Landlord may enforce all its rights and remedies under this
Lease, including the right to recover rent as it becomes due under this
Lease as provided in California Civil Code Section 1951.4, as in effect on
the Effective Date of this Lease.
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D.
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In
the event Landlord terminates this Lease, Landlord shall be entitled, at
Landlord’s election, to damages in an amount as set forth in California
Civil Code Section 1951.2, as in effect on the Effective Date of this
Lease. For purposes of computing damages pursuant to said Section 1951.2,
an interest rate equal to the maximum rate of interest then not prohibited
by Law shall be used where permitted. Such damages shall include, without
limitation:
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Initial
_____ _____ _____
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(1)
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The
worth at the time of award of the amount by which the unpaid rent for the
balance of the term after the time of award exceeds the amount of such
loss that Tenant proves could be reasonably avoided, computed by
discounting such amount at the discount rate of the Federal Reserve Bank
of San Francisco at the time of award plus one percent:
and
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(2)
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Any
other amount necessary to compensate Landlord for all detriment
proximately caused by Tenant’s failure to perform Tenant’s obligations
under this Lease, or which in the ordinary course of things would be
likely to result therefrom, including, without limitation, the following:
(i) expenses for cleaning, repairing or restoring the Leased Premises;
(ii) expenses for altering, remodeling or otherwise improving the Leased
Premises for the purpose of re-letting, including removal of existing
leasehold improvements and/or installation of additional leasehold
improvements (regardless of how the same is funded, including reduction of
rent, a direct payment or allowance to a new tenant, or otherwise); (iii)
broker’s fees, advertising costs and other expenses of re-letting the
Leased Premises; (iv) costs of carrying the Leased Premises, such as
taxes, insurance premiums, utility charges and security precautions; (v)
expenses incurred in removing, disposing of and/or storing any of Tenant’s
personal property, inventory or trade fixtures remaining therein; (vi)
attorney’s fees, expert witness fees, court costs and other reasonable
expenses incurred by Landlord (nut not limited to taxable costs) in
retaking possession of the Leased Premises, establishing damages
hereunder, and re-leasing the Leased Premises; and (vii) any other
expenses, costs or damages otherwise incurred or suffered as a result of
Tenant’s default.
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12.3
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LANDLORD’S
DEFAULT AND TENANT’S REMEDIES: In the event Landlord fails to perform any
of its obligations under this Lease, Landlord shall nevertheless not be in
default under the terms of this Lease until such time as Tenant shall have
first given Landlord written notice specifying the nature of such failure
to perform its obligations, and then only after Landlord shall have had a
reasonable period of time following its receipt of such notice within
which to perform such obligations. In the event of Landlord’s default as
above set forth, then, and only then, Tenant shall have the following
remedies only:
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A.
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Tenant
may then proceed in equity or at law to compel Landlord to perform its
obligations and/or recover damages proximately caused by such failure to
perform (except as and to the extent Tenant has waived its right to
damages as provided in this Lease).
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B.
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Tenant,
at its option, may then cure any default of Landlord at Landlord’s cost.
If, pursuant to this Subparagraph, Tenant reasonably pays any sum to any
third party or does any act that requires the payment of any sum to any
third party at any time by reason of Landlord’s default, the sum paid by
Tenant shall be immediately due from Landlord to Tenant at the time Tenant
supplies Landlord with an invoice therefore (provided such invoice sets
forth and is accompanied by a written statement of Tenant setting forth in
reasonable detail the amount paid, the party to whom it was paid, the date
it was paid, and the reasons giving rise to such payment), together with
interest at twelve percent per annum from the date of such invoice until
Tenant is reimbursed by Landlord.
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12.4
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LIMITATION
ON TENANT’S RECOURSE: If Landlord is a corporation, trust, partnership,
joint venture, unincorporated association, or other form of business
entity, Tenant agrees that (i) the obligations of Landlord under this
Lease shall not constitute personal obligations of the officers,
directors, trustees, partners, joint venturers, members, owners,
stockholders, or other principals of such business entity and (ii) Tenant
shall have recourse only to the assets of such business entity for the
satisfaction of such obligations and not against the assets of such
officers, directors, trustees, partners, joint venturers, members, owners,
stockholders or principals (other than to the extent of their interest in
the assets owned by such business entity). Additionally, if Landlord is a
partnership, then Tenant covenants and
agrees:
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A.
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No
partner of Landlord shall be sued or named as a part in any suit or action
brought by Tenant with respect to any alleged breach of this Lease (except
to the extent necessary to secure jurisdiction over the partnership and
then only of that sole purpose);
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B.
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No
service of process shall be made against any partner of Landlord except
for the sole purpose of securing jurisdiction over the partnership;
and
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C.
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No
writ of execution will ever be levied against the assets of any partner of
Landlord other than to the extent of his interest in the assets of the
partnership. Tenant further agrees that each of the foregoing covenants
and agreements shall be enforceable by Landlord and by any partner of
Landlord and shall be applicable to any actual or alleged
misrepresentation or nondisclosure made respecting this Lease or the
Leased Premises or any actual or alleged failure, default or breach of any
covenant or agreement either expressly or implicitly contained in this
Lease or imposed by statute or at common
law.
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12.5
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TENANT’S
WAIVER: Landlord and Tenant agree that the provisions of Paragraph 12.3
above are intended to supercede and replace the provisions of California
Civil Code 1932. (1), 1941 and 1942, and accordingly, Tenant hereby waives
the provisions of Section 1932(1), 1941 and 1942 of the California Civil
Code and/or any similar or successor Law regarding Tenant’s right to
terminate this Lease or to make repairs and deduct the expenses of such
repair from the rent due under this Lease. Tenant hereby waives any right
of redemption or relief from forfeiture under the Laws of the State of
California, or under any other present or future Law, in the event Tenant
is evicted or Landlord takes possession of the Leased Premises by reason
of any default by Tenant.
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Initial
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ARTICLE
13
GENERAL
PROVISIONS
13.1
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TAXES
ON TENANT’S PROPERTY: Tenant shall pay before delinquency any and all
taxes, assessments, license fees, use fees and public charges of whatever
nature or description levied, assessed or imposed against Tenant or
Tenant’s estate in this Lease or Tenant’s property or improvements made by
Tenant to the Leased Premises. Tenant shall pay before delinquency and all
taxes, assessments, license fees, use fees and public charges of whatever
nature or description levied, assessed or imposed by a governmental agency
against Landlord by reason of or based upon Tenant’s use of public
facilities or services, or Tenant’s consumption of public utilities,
energy, water or other resources which become due during the Lease Term.
On demand by Landlord, Tenant shall furnish Landlord with satisfactory
evidence of these payments. If any such taxes, assessments, fees or public
charges are levied against Landlord, Landlord’s property, the Building or
the Project, or if the assessed value of the Building or the Project is
increased by the inclusion therein of a value placed upon same, then
Landlord, after giving written notice to Tenant, shall have the right,
regardless of the validity thereof, to pay such taxes, assessment, fee or
public charge and xxxx Tenant, as Additionally Rent, the amount of such
taxes, assessment, fee or public charge so paid on Tenant’s behalf. Tenant
shall, within ten days from the date it receives an invoice from Landlord
setting forth the amount of such taxes, assessment, fee or public charge
so levied, pay to Landlord, as Additional Rent, the amount set forth in
said invoice. Failure by Tenant to pay the amount so invoiced within said
ten-day period shall be conclusively deemed a default by Tenant under this
Lease. Tenant shall have the right, and with Landlord’s full cooperation
if Tenant is not then in default under the terms of this Lease, to bring
suit in any court of competent jurisdiction to recover from the taxing
authority the amount of any such taxes, assessment, fee or public charge
so paid.
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13.2
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HOLDING
OVER: This Lease shall terminate without further notice on the Leased
Expiration Date (as set forth in Article 1). Any holding over by Tenant
after expiration of the Lease Term shall neither constitute a renewal or
extension of this Lease nor give Tenant any rights in or to the Leased
Premises except as expressly provided in this Paragraph. Any such holding
over shall be deemed an unlawful detainer or the Leased Premises unless
Landlord has consented to same. Any such holding over to which Landlord
has consented shall be construed to be a tenancy from month to month, on
the same terms and conditions herein specified insofar as applicable,
except that the Base Monthly Rent shall be increased to an amount equal to
one hundred ten percent of the Base Monthly Rent payable during the last
full month immediately preceding such holding
over.
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Initial
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13.3
|
SUBORDINATION
TO MORTGAGES: This Lease is subject and subordinate to all underlying
ground leases and to all mortgages and deeds of trust which affect the
Building and are of public record as of the Effective Date of this Lease,
and to all renewals, modifications, consolidation, replacements and
extensions thereof. However, if the lessor under any such ground lease or
any Lender holding any such mortgage or deed of trust shall advise
landlord that it desires or requires this Lease to be made prior and
superior thereto, then, upon written request of Landlord to Tenant, Tenant
shall promptly execute, acknowledge and deliver any and all documents or
instruments which Landlord and such lessor or Lender deem necessary or
desirable to make this Lease prior thereto. Tenant hereby consents to
Landlord’s ground leasing the land underlying the Building and/or
encumbering the Building as security for future loans on such terms as
Landlord shall desire, all of which future ground leases, mortgages or
deeds of trust shall be subject and subordinate to this Lease. However, if
any lessor under any such future ground lease or any Lender holding such
future mortgage or deed of trust shall desire or require that this Lease
be made subject and subordinate to such future ground lease, mortgage or
deed of trust, then Tenant agrees, within ten days after Landlord’s
written request therefore, to execute, acknowledge and deliver to Landlord
any and all documents or instruments requested by Landlord or such lessor
or Lender as may be necessary or proper to assure the subordination of
this Lease to such future ground lease, mortgage or deed of trust; but
only if such lessor or Lender agrees to recognize Tenant’s rights under
this Lease and not to disturb Tenant’s quiet possession of the Leased
Premises so long as Tenant is not in default under this
Lease.
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13.4
|
TENANT’S
ATTORNMENT UPON FORECLOSURE: Tenant shall, upon request, attorn (i) to any
purchaser of the Building, (ii) to any grantee or transferee designated in
any deed given in lieu of foreclosure of any security interest encumbering
the Building, or (iii) to the lessor under any underlying ground lease of
the land underlying the Building, should such ground lease be terminated;
provided that such purchaser, grantee or lessor recognizes Tenant’s rights
under this Lease.
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13.5
|
MORTGAGEE
PROTECTION: In the event of any default on the part of Landlord, Tenant
will give notice by certified mail to any Lender or lessor under any
underlying ground lease who shall have requested, in writing, to Tenant
that it be provided with such notice, and Tenant shall offer such Lender
or lessor a reasonable opportunity to cure the default, including time to
maintain possession of the Lease Premises by power of sale or judicial
foreclosure or other appropriate legal proceedings as reasonably necessary
to effect a cure.
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13.6
|
ESTOPPEL
CERTIFICATES: Tenant will, following any request by Landlord, promptly
execute and deliver to Landlord an estoppel certificate (i) certifying
that this Lease is unmodified and in full force and effect, or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect, (ii) stating the date
to which the rent and other charges are paid in advance, if any, (iii)
acknowledging that there are not, to Tenant’s knowledge, any uncured
defaults on the part of the Landlord hereunder, or specifying such
defaults if any are claimed, and (iv) certifying such other information
about this Lease as may be reasonably requested by Landlord. Tenant’s
failure to execute and deliver such estoppel certificate within ten days
after Landlord’s request therefore shall be material default by Tenant
under this Lease, and Landlord shall have all of the rights and remedies
available to Landlord as Landlord would otherwise have in the case of any
other material default by Tenant, including the right to terminate this
Lease and xxx for damages proximately caused thereby it being agreed and
understood by Tenant that Tenant’s failure to so deliver such estoppel
certificate in a timely manner could result in Landlord being unable to
perform committed obligations to other third parties which were made by
landlord in reliance upon this covenant of Tenant. Landlord and Tenant
intend that any statement delivered pursuant to this Paragraph may be
relied upon by any Lender or purchaser or prospective Lender or purchaser
of the Building, the Project, or any interest
therein.
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Initial
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13.7
|
TRANSFER
BY LANDLORD: Landlord and its successor in interest shall have the right
to transfer their interest in the Building, Project, or any portion
thereof at any time and to any person or entity. In the event of any such
transfer, the Landlord originally named herein (and in the case of any
subsequent transfer, the transferor), from the date of such transfer, (i)
shall be automatically relieved without any further act by any person or
entity, of all liability for the performance of the obligations of the
Landlord hereunder which may accrue after the date of such transfer and
(ii) shall be relieved of all liability for the performance of the
obligations of the Landlord hereunder which have accrued before the date
of transfer if its transferee agrees to assume and perform all such prior
obligations of the Landlord hereunder. Tenant shall attorn to any such
transferee. After the date of any such transfer, the term “Landlord” as
used herein shall mean the transferee of such interest in the Building or
the Project.
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13.8
|
FORCE
MAJEURE: The obligations of each of the parties under this Lease (other
than the obligation to pay money) shall be temporarily excused if such
party is prevented or delayed in performing such obligation by reason of
any strikes, lockouts or labor disputes; inability to obtain labor,
materials, fuels or reasonable substitutes therefore; governmental
restrictions, regulations, controls, action or inaction; civil commotion;
inclement weather, fire or other acts of God; or other causes (except
financial inability) beyond the reasonable control of the party obligated
to perform (including acts or omissions of the other party) for a period
equal to the period of any such prevention, delay or
stoppage.
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13.9
|
NOTICES:
Any notice required or desired to be given by a party regarding this Lease
shall be in writing and shall be personally served, or in lieu of personal
service may be given by depositing such notice in the United States mail,
certified, postage prepaid, addressed to the other party as
follows:
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|
A.
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If
addressed to Landlord, to Landlord at its Address for Notices (as set
forth in Article 1)
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|
B.
|
If
addressed to Tenant, to Tenant at its Address for Notices (as set forth in
Article 1). Any notice given by certified mail shall be deemed given on
the date receipt was acknowledged to the postal authorities. Any notice
given by mail other than certified mail shall be deemed given only if
received by the other party, and then on the date of receipt. Each party
may, by written notice to the other in the manner aforesaid, change the
address to which notices addressed to it shall thereafter be
mailed.
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13.10
|
ATTORNEYS’
FEES: In the event any party shall bring any action, arbitration
proceeding or legal proceeding alleging a breach of any provision of this
Lease, to recover rent, to terminate this Lease, or to enforce, protect,
determine or establish any term or covenant of this Lease or rights or
duties hereunder of either party, the prevailing party shall be entitled
to recover from the non-prevailing party as a part of such action or
proceeding, or in a separate action for that purpose brought within one
year from the determination of such proceeding, reasonable attorney’s
fees, expert witness fees, court costs and other reasonable expenses
incurred by the prevailing party. In the event that Landlord shall be
required to retain counsel to enforce any provision of this Lease, and if
Tenant shall thereafter cure (or desire to cure) such default, Landlord
shall be conclusively deemed the prevailing party and Tenant shall pay to
Landlord all attorneys’ fees, expert witness fees, court costs and other
reasonable expenses so incurred by Landlord promptly upon demand. Landlord
may enforce this provision by either (i) requiring Tenant to pay such fees
and costs as a condition to curing its default or (ii) bringing a separate
action to enforce such payment, it being agreed by and between Landlord
and Tenant that Tenant’s failure to pay such fees and costs upon demand
shall constitute a breach of this Lease in the same manner as a failure by
Tenant to pay the Base Monthly Rent, giving Landlord the same rights and
remedies as if Tenant failed to pay the Base Monthly
Rent.
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Initial
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13.11
|
DEFINITIONS:
Any term that is given a special meaning by any provisions in this Lease
shall, unless otherwise specifically stated, have such meaning whenever
used in this Lease in any addendum or amendment hereto. In addition to the
terms defined in Article 1, the following terms shall have the following
meanings:
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A.
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REAL
PROPERTY TAXES: The terms “real Property Tax” and “Real Property Taxes”
shall each mean (i) all taxes, assessments, levies and other charges of
any kind or nature whatsoever, general and special, foreseen and
unforeseen (including all installments of principal and interest required
to pay any general or special assessments for public improvements and any
increases resulting from reassessments caused by any change in ownership
or new construction), now or hereafter imposed by any governmental or
quasi-governmental authority or special district having the direct or
indirect power to tax or levy assessments, which are levied or assessed
for whatever reason against the Project or any portion thereof, or
Landlord’s interest therein, or the fixtures, equipment and other property
of Landlord that is an integral part of the Project and located thereon,
or Landlord’s business of owing, leasing or managing the Project or the
gross receipts, income or rentals from the Project; (ii) all charges,
levies or fees imposed by any governmental authority against Landlord by
reason of or based upon the use of or number of parking spaces within the
Project, the amount of public services or public utilities used or
consumed (e.g. water, gas, electricity, sewage or surface water disposal)
at the Project, the number of persons employed by tenants of the Project,
the size (whether measured in area, volume, number of tenants or whatever)
or the value of the Project, or the type of use or uses conducted within
the Project; and (iii) all costs and fees (including attorneys’ fees)
incurred by Landlord in contesting any Real Property Tax and in
negotiating with public authorities as to any Real Property Tax. If, at
any time during the Lease Term, the taxation or assessment of the Project
prevailing as of the Effective Date of this Lease shall be altered so that
in lieu of or in addition to any Real Property Tax described above there
shall be levied, assessed or imposed (whether by reason of a change in the
method of taxation or assessment, creation of a new tax or charge, or any
other cause) and alternate, substitute, or additional tax or charge (i) on
the value, size, use or occupancy of the Project or Landlord’s interest
therein or (ii) on or measured by the gross receipts, income or rentals
from the Project, or on Landlord’s business of owning, leasing or managing
the Project or (iii) computed in any manner with respect to the operation
of the Project, then any such tax or charge, however designated, shall be
included within the meaning of the terms “Real Property Tax” or “Real
Property Taxes” for purposes of this Lease. If any Real Property Tax is
partly based upon property or rents unrelated to the Project, then only
that part of such Real Property Tax that is fairly allocable to the
Project shall be included within the meaning of the terms “Real Property
Tax” or “Real Property Taxes”. Notwithstanding the foregoing, the terms
“Real Property Tax” or “Real Property Taxes” shall not include estate,
inheritance, transfer, gift or franchise taxes of Landlord or the federal
or state income tax imposed on Landlord’s income from all
sources.
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B.
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LANDLORD’S
INSURANCE COSTS: The term “Landlord’s Insurance Costs” shall mean the
costs to Landlord to carry and maintain the policies of fire and property
damage insurance for the Project and general liability insurance required,
or permitted, to be carried by Landlord pursuant to Article 9, together
with any deductible amounts paid by Landlord upon the occurrence of any
insured casualty or loss.
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Initial
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C.
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READY
FOR OCCUPANCY: The term “Ready for Occupancy” shall mean the date upon
which (i) the Leased Premises are suitable for Tenants occupancy in a
broom clean condition and (ii) the improvements, if any, to be made to the
Leased Premises by Landlord as a condition to Tenant’s obligation to
accept possession of the Leased Premises have been substantially completed
and the appropriate governmental building department (i.e. the City
building department, if the Project is located within a City, or otherwise
the County building department) shall have approved the construction of
the improvements as complete or is willing to so approve the construction
of the improvements as complete subject only to compliance with specified
conditions which are the responsibility of Tenant to
satisfy.
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D.
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TENANT’S
PROPORTIONATE SHARE: The terms “Tenant’s Proportionate Share” and Tenant’s
Share” as used with respect to an item pertaining to the Building, shall
each mean that percentage obtained by dividing the leasable square footage
contained within the Leased Premises (as set forth in Article 1) by the
total leasable square footage contained within the Building as the same
from time to time exists or, as used with respect to an item pertaining to
the Project, shall each mean that percentage obtained by dividing the
leasable square footage contained within the Leased Premises (as set forth
in Article 1) by the total leasable square footage contained within the
Project as the same from time to time exists, unless, as to any given
item, such a percentage allocation unfairly burdens or benefits a given
tenant(s), in which case Landlord shall have the exclusive right to
equitably allocate such item so as to not unfairly burden or benefit a
given tenant(s). Landlord’s determination of any such special allocation
shall be final and binding upon Tenant unless made in bad
faith.
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E.
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BUILDINGS
PROPORTIONATE SHARE: The terms “Building’s Proportionate Share” and
“Building’s Share” shall each mean that percentage which is obtained by
dividing the leasable square footage contained within the Building by the
leasable square footage contained with all buildings located within the
Project, unless, as to any given item, such a percentage allocation
unfairly burdens or benefits a given building(s), in which case Landlord
shall have the exclusive right to equitably allocate such item so as to
not unfairly burden or benefit any given building(s). Landlord’s
determination of any such special allocation shall be final and binding
upon Tenant unless made in bad
faith.
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F.
|
LAW:
The term “Law” shall mean any judicial decision and any statute,
constitution, ordinance, resolution, regulation, rule, administrative
order, or other requirement of any municipal, county, state, federal, or
other governmental agency or authority having jurisdiction over the
parties to this Lease, the Leased Premises, the Building or the Project,
or any of them in effect either at the Effective Date of this Lease or at
any time during the Lease Term, including, without limitation, any
regulation, order, or policy of any quasi-official entity or body (e.g. a
board of fire examiners or a public utility or special
district).
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G.
|
LENDER:
The term “Lender” shall mean any beneficiary, mortgagee, secured party, or
other holder of any deed of trust, mortgage or other written security
device or agreement affecting the Project, and the note or other
obligations secured by it.
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H.
|
PRIVATE
RESTRICTIONS: The term “Private Restrictions” shall mean all recorded
covenants, conditions and restrictions, private agreements, easements, and
any other recorded instruments affecting the use of the Project, as they
may exist from time to time.
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I.
|
RENT:
The term “rent” shall mean collectively Base Monthly Rent and all
Additional Rent.
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Initial
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13.12
|
GENERAL
WAIVERS: One party’s consent to or approval of any act by the other party
requiring the first party’s consent or approval shall not be deemed to
waive or render unnecessary the first party’s consent to or approval of
any subsequent similar act by the other party. No waiver of any provision
hereof or any breach of any provision hereof shall be effective unless in
writing and signed by the waiving party. The receipt by Landlord of any
rent or payment with or without knowledge of the breach of any other
provision hereof shall not be deemed a waiver of any such breach. No
waiver of any provision of this Lease shall be deemed a continuing waiver
unless such a waiver specifically states so in writing and is signed by
both Landlord and Tenant. No delay or omission in the exercise of any
right or remedy accruing to either party upon any breach by the other
party under this Lease shall impair such right or remedy or be construed
as a waiver of any such breach theretofore or thereafter occurring. The
waiver by either party of any breach of any provision of this Lease shall
not be deemed to be a waiver of any subsequent breach of the same or any
other provisions herein contained.
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13.13
|
MISCELLANEOUS:
Should any provision of this Lease prove to be invalid or illegal, such
invalidity or illegality shall in no way affect, impair or invalidate any
other provision hereof, and such remaining provisions shall remain in full
force and effect. Time is of the essence with respect to the performance
of every provision of this Lease in which time of performance is a factor.
Any copy of this Lease, which is executed by the parties, shall be deemed
an original for all purposes. This Lease shall, subject to the provisions
regarding assignment, apply to and bind the respective heirs, successors,
executors, administrators and assigns of Landlord and Tenant. The term
“party” shall mean Landlord or Tenant as the context implies. If Tenant
consists of more than one person or entity, then all members of Tenant
shall be jointly and severally liable hereunder. This Lease shall be
construed and enforced in accordance with the Laws of the State of
California. The language in all parts of this Lease shall in all cases be
construed as a whole according to its fair meaning, and not strictly for
or against either Landlord or Tenant. The captions used in this Lease are
for convenience only and shall not be considered in the construction or
interpretation of any provision hereof. When the context of this Lease
requires, the neuter gender includes the masculine, the feminine, a
partnership or corporation or joint venture, and the singular includes the
plural. The terms “must”, “shall”, “will” and “agree” are mandatory. The
term “may” is permissive. When a party is required to do something by this
Lease, it shall do so at its sole cost and expense without right of
reimbursement from the other party unless specific provision is made
therefore. Where Tenant is obligated not to perform any act or is not
permitted to perform any act, Tenant is also obligated to restrain any
others reasonably within its control, including agents, invitees,
contractors, subcontractors and employees, from performing said act.
Landlord shall not become or be deemed a partner or a joint venturer with
Tenant by reason of any of the provisions of this
Lease.
|
ARTICLE
14
CORPORATE
AUTHORITY, BROKERS AND ENTIRE AGREEMENT
14.1
|
CORPORATE
AUTHORITY: If Tenant is a corporation, each individual executing this
Lease on behalf of said corporation represents and warrants that Tenant is
validly formed and duly authorized and existing, that Tenant is qualified
to do business in the State of California, that Tenant has the full right
and legal authority to enter into this Lease, that he is duly authorized
to execute and deliver this Lease on behalf of the Tenant in accordance
with the bylaws and/or a board of directors’ resolution of Tenant, and
that this Lease is binding upon Tenant in accordance with its terms.
Tenant shall, within thirty days after execution of this Lease, deliver to
Landlord a certified copy of the resolution of its board of directors
authorizing or ratifying the execution of this Lease, and if Tenant fails
to do so, Landlord at its sole election may elect to (i) extend the
Intended Commencement Date by such number of days that Tenant shall have
delayed in so delivering such corporate resolution to Landlord or (ii)
terminate this Lease.
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Initial
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14.2
|
BROKERAGE
COMMISSIONS: Tenant warrants that it has not had any dealings with any
real estate broker(s), leasing agent(s) or salesmen, other than those
persons or entities named in Article 1 as the “Brokers” with respect to
the lease by it of the Leased Premises pursuant to this Lease, and that it
will indemnify, defend with competent counsel, and hold Landlord harmless
from any liability for the payment of any real estate brokerage
commissions, leasing commissions or finder’s fees claimed by any other
real estate broker(s), leasing agent(s) or salesmen to be earned or due
and payable by reason of Tenant’s agreement or promise (implied or
otherwise) to pay (or have Landlord pay) such a commission or finder’s fee
by reason of its leasing the Leased Premises pursuant to this
Lease.
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14.3
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ENTIRE
AGREEMENT: This Lease, the Exhibits (as described in Article 1) and the
Addenda (as described in Article 1), which Exhibits and Addenda are by
this reference incorporate herein, constitute the entire agreement between
the parties, and there are no other agreements, understandings or
representations between the parties relating to the lease by Landlord of
the Leased Premises to Tenant, except as expressed herein. No subsequent
changes, modifications or additions to this Lease shall be binding upon
the parties unless in writing and signed by both Landlord and
Tenant.
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14.4
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LANDLORD’S
REPRESENTATIONS: Tenant acknowledges that neither Landlord nor any of its
agents made any representations or warranties respecting the Project, the
Building or the Leased Premises, upon which Tenant relied in entering into
this Lease, which are not expressly set forth in this Lease. Tenant
further acknowledges that neither Landlord nor any of its agents made any
representations as to (i) whether the Lease Premises may be used for
Tenant’s intended use under existing Law or (ii) the suitability of the
Leased Premises for the conduct of Tenant’s business or (iii) the exact
square footage of the Leased Premises, and that Tenant relied solely upon
its own investigations respecting said matters. Tenant expressly waives
any and all claims for damage by reason of any statement, representation,
warranty, promise or other agreement of Landlord or Landlord’s agent(s),
if any, not contained in this Lease or in any Addenda
hereto.
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ARTICLE
15
OPTION
TO RENEW LEASE
15.1
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OPTION
TO RENEW LEASE: Provided that Tenant is not in default under this Lease
beyond the applicable notice and cure period at the time of exercise of
any such option or at the time of commencement of any renewal term, Tenant
is hereby granted two (2) options to renew the term of the Lease. Each
option shall be for a period of thirty (36) months and each such period
being a “Renewal Term”.
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A.
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Tenant
shall occupy the Premises during the Renewal Term under the same terms and
conditions specified in the Lease, except the Tenant shall lease the
Premises in its then “as-is” condition, with Tenant being entitled to no
additional tenant improvement allowance or other right to require the
improvements to be made to the Premises. The Base Monthly Rent for the
first Renewal Term shall be as set forth in Article 1 of this Lease.
During the second Renewal Term, the Base Monthly Rent shall be the then
Market Rate, but not less than the Base Monthly Rate for the Premises in
effect immediately prior to the commencement of such Renewal
Term.
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Initial
_____ _____ _____
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B.
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As
used herein, the term “Market Rate” shall be initially determined by
Landlord as the amount as the base annual rent per square foot then being
charged in comparable industrial buildings located in the metropolitan
area of San Jose, California (the “Comparable Buildings”) for space
comparable to the Premises and taking into consideration all other
relevant factors establishing similarity or dissimilarity between the
comparable lease and the leasing of the Premises to Tenant for the Renewal
Term, including without limitation, escalations (including type, base year
and stop), concessions, length of lease term, size and location of the
Premises, tenant improvement allowances quality and quantity of any
existing tenant improvements, quality and creditworthiness of Tenant,
amenities offered, location of building, and other generally applicable
concessions, allowances, terms and conditions of tenancy. The reference to
the foregoing factors is illustrative only and the presence or absence of
such factors shall be taken into account in determining Market
Rate.
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C.
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Within
thirty (30) days after Landlord receives the notice of Tenant’s exercise
of the second renewal option, Landlord shall notify Tenant of the proposed
Market Rate, as well as any escalation rate applicable to the second
Renewal Term, In the event that landlord and Tenant are not able to agree
as to the market Rate and any applicable escalation rate within thirty
(30) days of good faith negotiation, then the Base Monthly Rate for the
second Renewal Term shall be determined by the arbitration provision set
forth below.
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D.
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If
Landlord and Tenant cannot agree on the Base Monthly rent to be paid
during the second Renewal Term as provided above, then each party shall
immediately select an arbitrator to determine the base Monthly Rent to be
paid by Tenant during the applicable period, if the two arbitrators agree
on the Base Monthly Rent to be paid by the Tenant, then their decision
shall be binding on the parties. If the arbitrators cannot agree within
fifteen (15) days following their appointment on the Base Monthly Rent to
be paid, then the two shall, within five (5) days thereafter, select a
third arbitrator who will consider the proposal of each party’s
arbitrator, and shall, within five (5) days from the third arbitrator’s
appointment, adopt the findings of either the Landlord’s or Tenant’s
arbitrator with respect to Base Monthly Rent to be paid during the
applicable period, which finding shall be final and binding upon the
parties. If one of the parties appoints an arbitrator and the other party
does not do so within the period provided herein, the decision of the
single arbitrator appointed by the one party shall be binding upon the
parties.
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E.
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Tenant
may exercise its right to renew the Lease by giving to Landlord written
notice of its election to renew the Lease not later than 90 days prior to
the expiration of the then current Term or Renewal Term, as
applicable.
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F.
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Tenant
shall not be entitled to more than two (2) renewal options. In the event
Tenant fails to timely notify Landlord in the manner herein specified,
Tenant shall be conclusively deemed to have waived its right to enter into
the applicable Renewal Term or any subsequent Renewal
Term.
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G.
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The
options to renew provided hereunder shall be automatically transferred to
any assignee of Tenant’s interest under this
Lease.
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Initial
_____ _____ _____
ARTICLE
16
INTENT
TO SELL PROPERTY
16.1
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LANDLORD’S
NOTICE OF INTENT TO SELL PROPERTY: Should Landlord actively pursue sale of
000 Xxxxxx Xxxxx Court, or receive an unsolicited offer on the property
during the Lease
term, then Landlord shall notify Tenant or Tenant’s management by
registered mail 30 days in advance of offering to others or within 30 days
of an unsolicited offer. Tenant shall reply with its interest or decline
within 15 days after Landlord’s
notice.
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IN WITNESS WHEREOF, Landlord
and Tenant have executed this Lease as of the respective dates below set forth
with the intent to be legally bound thereby as of the Effective Date of this
Lease first above set forth.
AS
LANDLORD:
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||||||
Dated:
Jan 5th, 2010
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||||||
By:
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/s/ Xxxx X. Xxxxxx
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|||||
Xxxx
X. Xxxxxx
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||||||
By:
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/s/ Xxxxxx X. Xxxxxx
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Xxxxxx
X. Xxxxxx
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||||||
AS
TENANT:
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||||||
Dated:
JAN 4,
2010
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||||||
MERIX
CORPORATION
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||||||
By:
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/s/ Xxxx X. Xxxxxxxx
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|||||
Xxxx
X. Xxxxxxxx
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||||||
V.P.
Global EH&S and Facilities
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If Tenant
is a corporation, the authorized officers must sign on behalf of the corporation
and indicate the capacity in which they are signing. This Lease must be executed
by the chairman of the board, president, or vice-president, and the secretary,
assistant secretary, the chief financial officer or assistant treasurer, unless
the bylaws or a resolution of the board of directors shall otherwise provide, in
which event a certified copy of the bylaws or a certified copy of the
resolution, as the case may be, must be attached to this Lease.
Initial
_____ _____ _____
EXHIBIT
A
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Initial
______ ______ ______
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EXHIBIT
B
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Initial
______ ______ ______
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