EXHIBIT 10.27
COMMERCIAL LEASE
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Dated: June 18 , 1999
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BETWEEN: AstroPower West, LLC, a California
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Limited Liability Company
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(Lessee)
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AND: Allied Investments, a California General
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Partnership
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(Lessor)
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A
TABLE OF CONTENTS
Page
1. PARTIES 1
2. PREMISES 1
3. TERM 1
4. DELAY IN POSSESSION 2
5. EARLY POSSESSION 2
6. MONTHLY RENT 2
7. LATE CHARGES 2-3
8. BAD CHECK CHARGE 3-4
9. SECURITY DEPOSIT 4
10. PERSONAL PROPERTY TAXES 4
11. UTILITY AND ALLIED SERVICES 5
12. PUBLIC LIABILITY AND PROPERTY DAMAGE
INSURANCE COSTS 5
13. INTEREST ON DELINQUENT RENT, PERSONAL PROPERTY
TAXES AND PUBLIC LIABILITY AND PROPERTY DAMAGE
INSURANCE COSTS 5
14. USE OF PREMISES 5-6
15. CONDITION OF PREMISES 6
16. REPAIRS AND MAINTENANCE 6-7
17. ALTERATIONS AND ADDITIONS 7-8
18. LESSOR'S ACCESS 8-9
19. SIGNS 9
20. COVENANT AGAINST ASSIGNMENT AND SUBLETTING 9
21. EXEMPTION OF LESSOR FROM LIABILITY 9
22. INDEMNITY 9-10
23. BUILDING RULES 10
24. EARTHQUAKE AND WATER DAMAGE 10
25. SECURITY MEASURES 10
26. COMPLIANCE WITH ALL LAWS AND REGULATIONS - NUISANCES 10
27. LESSEE NOT TO SUFFER LIENS 11
28. PUBLIC LIABILITY, PROPERTY DAMAGE, PLATE, DOOR AND
WINDOW GLASS AND WORKMEN'S COMPENSATION INSURANCE
TO BE MAINTAINED BY LESSEE 11
29. FIRE, CASUALTY AND EXTENDED COVERAGE INSURANCE 12
30. DAMAGE OR DESTRUCTION - OBLIGATIONS TO RESTORE, ETC. 12-13
31. SURRENDER UPON TERMINATION 13
32. HOLDING OVER 14
33. DEFAULT 14-15-16
34. CONDEMNATION 16-17
35. NOTICES 17
36. SALE OF PREMISES 17
37. SUBORDINATION 18
38. PERSONAL PROPERTY LEFT ON PREMISES AT
LEASE TERMINATION 18
B
Page
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39. BREACH OF SECURITY 18
40. ATTORNEY'S FEES 19
41. OPTION TO EXTEND TERM OF LEASE 19
42. COMMON AREA EXPENSES 19-20
43. REAL PROPERTY TAXES AND ASSESSMENTS AND
INSURANCE PREMIUM INCREASES 20
44. MISCELLANEOUS PROVISIONS 20-21-22
C
LEASE
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SEE ATTACHED CORRECTED PAGE
1. PARTIES
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This lease is made this 18th day of June, 1999 , between Allied
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Investments, a California General Partnership, hereinafter called "Lessor" and
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AstroPowerWest, LLC a California Limited Liability Company, hereinafter called
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"Lessee".
2. PREMISES
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Lessor, for and in consideration of the rents, covenants and agreements
hereinafter contained on the part and on behalf of the Lessee to be paid, kept
and performed, does hereby lease and demise unto said Lessee, and said Lessee
does hereby hire and rent from said Lessor, the following described premises
situated in the City of Concord County of Contra Costa, State of California,
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commonly known as 0000 Xxxxxxxxxx Xxxxxx, Xxxxx X, Xxxxxxx, XX 00000 and more
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particularly described as follows:
A portion of the above described concrete tilt-up building consisting of
approximately 1200 square feet of office space and 1792 square feet of
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warehouse space for a total of 2992 square feet, including 4 designated
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parking spaces in the front of said building, n/a designated parking spaces
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at the rear of the said building, n/a designated parking spaces at the side of
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the building and an undesignated number of common parking spaces for invitees
of all tenants of AstroPower, Inc., in the common area, all as more
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particularly described in Exhibit "A" attached hereto and made a part hereof.
The common area in front, in the rear and at the side of the building is not
available for parking other than as set forth above nor for the accumulation
or storage of merchandise, equipment, loading pallets, trash, debris or garbage
containers for Lessee nor may the common area be used for the loading or
unloading of vehicles or equipment unless otherwise permitted expressly
herein..
Lessee is not allowed at any time to wash, maintain or repair cars, trucks or
any other types of vehicles inside building or outside the building including
the parking lot and common area.
3. TERM
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The term of this Lease shall be for 36 months commencing July 1, 1999, and
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ending June 30, 2002, unless sooner terminated pursuant to any provisions
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hereof.
4. DELAY IN POSSESSION
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Notwithstanding said commencement date, if for any reason Lessor cannot deliver
possession of the premises to Lessee on said date, Lessor shall not be subject
to any liability therefore, nor shall such failure affect the validity of this
Lease or the obligations of Lessee hereunder or extend the term hereof, but in
such case, Lessee shall not be obligated to pay rent until possession of the
premises is tendered to Lessee, provided, however, that if Lessor shall not
have delivered possession of the premises within sixty (60) days from said
commencement date, Lessee may, at Lessee's option, by notice in writing to
Lessor within ten (10) days thereafter, cancel this Lease, in which event the
parties shall be discharged from all obligations hereunder; provided further,
however, that if such written notice of Lessee is not received by Lessor
within said ten (10) day period, Lessee's right to cancel this lease hereunder
shall terminate and be of no further force or effect.
5. EARLY POSSESSION
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If Lessee Occupies the premises prior to said commencement date, such occupancy
shall be subject to all provisions hereof. Such occupancy shall not advance
the termination date, and Lessee shall pay rent for such period at the initial
monthly rates set forth below.
6. MONTHLY RENT
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Lessee shall pay to Lessor as monthly rent, without deduction, setoff, prior
notice or demand, except as hereinafter provided, the sum of Two Thousand Three
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Hundred Ninety-Four and No/100 Dollars ($2,394.00) per month for the first 12
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months of the Lease term. All rents shall be paid on the first day of each
month of the Lease term, commencing July 1, 1999 and continuing during the
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term. Starting with the 13th month and for each and all succeeding 12 month
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periods thereafter, rent shall be increased by*. All rents shall be paid to
Lessor at the address to which notices to Lessor are given in accordance with
Paragraph 35, below. Rent for any period during the term hereof which is for
less than one month shall be a prorata portion of the monthly installment.
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7. LATE CHARGES
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Lessee hereby acknowledges that late payment by Lessee to Lessor of rent and
other sums due hereunder will cause Lessor to incur costs not contemplated by
this Lease, the exact amount of which will be extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting charges,
and late charges which may be imposed on Lessor by the terms of any mortgage or
trust deed covering the premises. Accordingly, if any installment of rent or
any other sum due from Lessee shall not be received by Lessor or Lessor's
designee within ten (10) days after such amount shall be due then without any
requirement for notice to Lessee, Lessee shall pay to Lessor a late charge (of
$144.00 Dollars which may be treated as additional rent) (equal to 6% of such
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overdue amount which may be treated as additional rent). The parties hereby
agree that such late charge represents a fair and reasonable estimate of the
costs Lessor
* Per the following Rent Schedule:
Month Monthly Rent
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1-12 = $2,394.00
13-24 = $2,453.00
25-36 = $2,513.00
Will incur by reason of late payment by Lessee. Acceptance of such late
charge by Lessor shall in no event constitute a waiver, of Lessee's Default
with respect to such overdue amounts nor prevent Lessor from exercising any of
the other rights and remedies granted hereunder. The ten (10) days, period is
not a grace period. Lessor may make written demand for any rent unpaid on
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the second day of the month. The late charge shall be in addition to all
other remedies available to Lessor. In the event that a late charge is
payable hereunder, whether or not collected, for three (3) consecutive
installments of rent then rent shall, in the discretion of Lessor, become due
and payable upon written advance notice to Lessee quarterly in advance rather
than monthly notwithstanding any other provision of this Lease to the contrary.
8. BAD CHECK CHARGE
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In the event rent Is tendered by check which is, for any reason, dishonored by
the maker's financial institution, Lessee shall pay to Lessor $ 100.00 as
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reimbursement to Lessor for administrative expense in processing such
dishonored check. This charge shall be deemed additional rent and shall be in
addition to all other remedies available to Lessor.
9. SECURITY DEPOSITS
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Lessor acknowledges receipt of Security Deposit in the amount $ 2,600-00, as
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security for the full and faithful performance by the Lessee of the terms,
conditions and covenants or this Lease. Lessee and Lessor agree that the
following disposition shall apply to the Security Deposit.
(a) If the monthly rent shall from time to time increase during the term or any
extension of the term of this Lease, Lessee shall thereupon deposit with
Lessor additional Security Deposit so that the total Security Deposit is
equal to the then current rent.
(b) Lessor can maintain the Security Deposit separate and apart from Lessor's
general funds or can co-mingle the Security Deposit with Lessor's general
and other funds.
(c) Lessor shall not be required to pay Lessee interest on the Security
Deposit.
(d) Lessor's obligation with respect to the Security Deposit are those of a
debtor and not a trustee.
(e) If at any time during the term hereof Lessee shall be in default. in the
payment of rent or any portion thereof, or of any sums expressly
constituting additional rent, Lessor may appropriate and apply any portion
of the Security Deposit as may be necessary to the payment of overdue
rent or other sums expressly constituting additional rent.
(f) If at any time during the term hereof Lessee should fail to repair any
damage to the premises leased or any part of the common portions of the
complex caused by such Lessor or his agent, employees, invitees or other
visitors through lack of ordinary care for a period of greater than 30 days
after written demand to make such repairs is served on Lessee by Lessor,
then Lessor may appropriate and apply any portion of the Security Deposit
as may be reasonably necessary to fund the repair.
(g) If on termination of this Lease for any reason Lessee does not leave the
premises in as good condition as when received by Lessee from Lessor,
reasonable wear and tear expected, then Lessor may appropriate and apply
any portion of the Security Deposit as may be reasonably necessary to put
the premises in such condition.
(h) If on termination of the Lease or incident to any actions to enforce the
agreements, terms and conditions of this Lease, it becomes necessary for
Lessor to obtain the services of attorneys, sheriffs, or moving and storage
firms to secure full possession of the premises or other legal proceedings,
Lessor may appropriate and apply any portion of the Security Deposit as may
be reasonably necessary to fund such services. None of the above shall
prevent or limit Lessor from bringing suit to recover any and all funds for
such costs which may exceed the amount of the Security Deposit.
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(i) Lessee agrees to restore the Security Deposit to its original amount should
resort to funds be required by Lessor during the period of this Lease.
Refusal to restore such amount within 15 days after written demand shall be
cause for termination of this Lease.
(j) Lessor agrees to hold such Security Deposit for Lessee, free from the claim
of any creditor of Lessee except a trustee in bankruptcy.
(k) Should Lessor transfer his interest under the Lease in any manner, he or
his agent shall do one of the following acts, either of which shall relieve
him of further liability with respect to such depsoit:
1. Transfer the portion of such deposit remaining after any lawful
deductions, as above, to his successor in interest, and thereafter
notify the Lessee by registered mail at the address under this Lease or
such transfer, and of the transferee's name and address. On receipt of
such remaining deposit, the successor is interest of Lessor shall have
all rights and obligations of Lessor holding such deposit with respect
to such deposit.
2. Return the portion of such deposit remaining after any lawful
deductions as above have been made.
(l) The security Deposit shall not be treated by Lessee as in lieu of payment
of the last month's rent.
10. PERSONAL PROPERTY TAXES
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Lessee shall pay, before delinquency, all taxes, assessments, license fees,
and other charges that are levied and assessed on Lessee's personal property
installed or located in and on the premises that becomes payable during the
term hereof. On demand by Lessor, Lessee shall furnish Lessor with
satisfactory evidence of such payment. If any of Lessee's said personal
property shall be assessed with Lessor's real property, Lessee shall pay
Lessor the taxes attributable to Lessee within ten (10) days after receipt of
a written statement setting forth the taxes applicable to Lessee's property.
Such payment shall be deemed additional rent, payable as such on the next date
upon which rent becomes due.
11. UTILITY AND ALLIED SERVICES
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Lessee shall promptly pay for all heat, electric light and power, telephone,
gas, water, garbage, cable-vision and all other services of whatsoever kind or
nature furnished to or used or consumed in or about the demised premises by
Lessee during the term hereof.
12. PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE COSTS
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Lessee shall promptly pay all premiums or other costs and expenses for
maintaining public liability and property damage insurance as required under
the provisions of paragraph 28 hereof.
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13. INTEREST ON DELINQUENT RENT, PERSONAL PROPERTY TAXES AND PUBLIC LIABILITY
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AND PROPERTY DAMAGE INSURANCE COSTS
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Any rent, personal property taxes and Insurance charges owing by Lessee
hereunder not paid when the same shall become due, shall bear interest from
the date the same becomes due until paid at the rate of ten percent (10%) per
annum.
14. USE OF PREMISES
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The demised premises are leased to Lessee for the sole and exclusive purpose of
administrative offices, storage, distribution, testing, light manufacturing,
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and assembly of solar electric power systems. Lessee agrees not to use or
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permit said demised premises to be used for any other purpose or purposes.
Lessee shall not do, bring or keep anything in or about the premises that will
cause a cancellation of any insurance covering the building in which the
premises are located.
If the rate of insurance carried by Lessor is increased as a result of Lessee's
use, Lessee shall pay to Lessor within ten (10) days before the date Lessor is
obligated to pay an increased premium on the insurance, or within (10) days
after Lessor delivers to Lessee a certified statement from Lessor's insurance
carrier stating that the rate increase was caused solely by an activity of
Lessee in the premises, whichever date is later, a sum equal to the difference
between the original premium and the increased premium. Such payment shall be
deemed additional rent, payable as such on the next date upon which rent
becomes due.
Lessee agrees not to use or permit to be used, stored, transported to, or
maintained on, for however briefly, any "hazardous waste" or "hazardous
substance" as defined in accordance with the California Health and Safety Code
and/or any federal statute as well as any state or federal judicial decision
without complying with all applicable Federal, State and Local laws or
ordinances pertaining to the storage, use or disposal including, but not
limited to, obtaining proper permits, Lessor shall have the right upon
reasonable notice and cause to re-enter the premises for the purpose of
performing contamination tests.
If Lessee's storage, use or disposal of toxic materials on the property results
in contamination of the soil or surface or ground water in excess of the
minimum standards set by governmental agencies having jurisdiction, Lessee
agrees to cleanup the contamination and
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indemnify, defend and hold the Lessor and brokers harmless from and against any
claims, suits, causes of action, costs, fees, including attorneys' fees,
arising from or connected with any such contamination. However, this does not
extend to contamination by other tenants.
Lessee shall immediately notify, in writing, Lessor of any release or
threatened release of any hazardous substance on or beneath the premises upon
the discovery by Lessee or upon the discovery of facts giving Lessee reasonable
cause to believe such release or threatened release has or will occur. The
provisions of Health and Safety Code Section 25359.7 are incorporated herein
and made a part hereof.
Lessee may not, under any circumstances, store or maintain anything outside nor
have anything touching or leaning against the building of which the premises
are a part including, but not limited to, equipment, merchandise, products,
vehicles, dumpsters, pallets and supplies.
15. CONDITION OF PREMISES
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(a) Lessor shall deliver the premises to Lessee clean and free of
debris on Lease commencement date (unless Lessee is already in
possession) and Lessor further warrants to Lessee that the plumbing,
electrical system, lighting, air-conditioning, heating and loading
doors in the premises shall be in good operating condition on the lease
commencement date. In the event that it is determined that this
warranty has been violated then it shall be the obligation of Lessor,
after receipt of written notice from Lessee setting forth with
specificity the nature or the violation to promptly at Lessor's sole
cost rectify such violation. Lessee's failure to give such written
notice to Lessor within thirty (30) days after the Lease commencement
date shall cause the conclusive presumption that Lessor has complied
with all of Lessor's obligations hereunder. The warrants contained in
this paragraph shall be of no force or effect if prior to the date of
this Lease Lessee was the occupant of the premises.
(b) Except as otherwise provided in this Lease, Lessee hereby accepts the
premises "as is" in their condition existing as of the Lease
commencement date or the date that Lessee takes possession of the
premises, whichever is earlier, subject to all applicable zoning,
municipal, county and state laws, ordinances and regulations governing
and regulating the use of the premises, and any covenants or
restrictions of record and accepts this lease subject thereto and to
all matters disclosed thereby and by any exhibits attached hereto.
Lessee acknowledges that neither Lessor nor Lessor's agent has made any
representation or warranty as to the present or future suitability of
the premises for the conduct of Lessee's business.
16. REPAIRS AND MAINTENANCE
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(a) Lessee acknowledges that it has inspected the demised premises and
knows the condition thereof and that said premises are in a good and
tenantable condition and state of repair. The Lessor shall keep and
maintain the foundation, exterior roof, exterior walls and fire
sprinkler system of the building in which the demised premises are
situated in good order and repair, except as to any damages done
thereto by reason of any negligence, willful act or omission of Lessee,
its agents, servants, employees and contractors. Lessor shall not,
however, be obligated to pain such exterior nor shall Lessor be
required to maintain the interior surface of exterior walls, windows,
doors or plate glass. Lessor shall have no obligation to make repairs
under this paragraph until a reasonable time after receipt of written
notice of the need for such repairs. Lessee expressly waives the
benefits of any statute now or hereafter in effect which would
otherwise afford Lessee the right to make repairs at Lessor's expense
or to terminate this Lease because of Lessor's failure to keep the
premises in good order, condition and repair.
(b) The Lessee at its cost shall maintain and keep in good condition,
order and repair all of the premises, inside and outside, except the
exterior walls, roof, foundation and fire sprinkler system, including
without limitation, all doors, lights, plate glass and other door and
window glass, plumbing and electrical systems including junction
boxes/power panel and the adjacent common area. Lessee shall also
maintain any air-conditioning and heating system serving the premises,
including no less than semi-annual filter servicing, such maintenance
to be performed only by a licensed air-conditioning and heating service
company with all such maintenance to be in full compliance with the
manufacturer's requirements. Lessee shall procure and maintain at
Lessee's expense an air-conditioning and heating system maintenance
contract to be approved by Lessor. If Lessee fails to perform Lessee's
obligations under this paragraph or under any other paragraph of this
Lease, Lessor may at Lessor's option enter upon the premises after (10)
days prior written notice to Lessee (except in the case of emergency,
in which case no notice shall be required), perform such obligations on
Lessee's behalf and put the premises in good order, condition and
repair, and the cost thereof together with interest thereon at the
maximum rate then allowable by law shall be due and payable as
additional rent to Lessor together with Lessee's next rental
installment. On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the premises to Lessor in the same
condition as received, ordinary wear and tear excepted, clean and free
of debris. Lessee shall repair any damage to the premises occasioned
by the installation or removal of its trade fixtures, furnishings and
equipment. Notwithstanding anything to the contrary otherwise stated
in this Lease, Lessee shall leave the air lines, junction box/power
panels, electrical distribution systems, lighting fixtures, space
heaters, air-conditioning, and plumbing on the premises in good
operating condition.
(c) Lessee, specifically, at its own cost, shall maintain and keep in
good condition, order and repair, the roll up doors on the premises
regardless of the cause of any problems with such doors, except if
caused by Lessor or Lessor's agents.
17. ALTERATIONS AND ADDITIONS
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(a) Lessee shall not, without Lessor's prior written consent, make any
alterations, improvements, additions or utility installations in, on or
about the premises, except for nonstructural alterations not exceeding
$2,500.00 in cumulative costs during the term of this Lease. In any
event, whether or not in excess of $2,500.00 in cumulative cost, Lessee
shall make no change or alteration in the exterior of the premises nor
the exterior of the building(s) on the premises without Lessor's prior
written consent. As used in this paragraph the term "Utility
Installation" shall mean carpeting, window coverings, air lines,
junction box/power panels, electrical distribution systems, lighting
fixtures, space heaters, air-conditioning and plumbing. Lessor may
require that Lessee remove any or all of said alterations,
improvements, additions or Utility Installations at the expiration of
the term, and restore the premises to their prior condition. Lessor
may require Lessee to provide Lessor at Lessee's sale cost and expense
a lien and completion bond in an amount equal to one and one-half times
the estimated cost of such improvements to insure Lessor against any
liability for mechanic's and materialmen's liens and to insure
completion of the work. Should Lessee make any alterations,
improvements, additions or Utility Installations without the prior
approval of Lessor, Lessor may require that Lessee remove any or all of
the same. Lessee may not tint windows or damage or puncture metal
window frames by drilling and/or piercing, etc. Lessor's consent to a
proposed alteration shall not be unreasonably withheld or delayed.
(b) Any alterations, improvements, additions or Utility Installations in
or about the premises that Lessee shall desire to make and which
requires the consent of the Lessor shall be presented to Lessor in
written form with proposed detailed plans. If Lessor shall give its
consent, the consent shall be deemed conditioned upon Lessee acquiring
a permit to do so from appropriate governmental agencies, the
furnishings of a copy thereof to Lessor prior to the commencement of
the work and the compliance by Lessee of all conditions of said permit
in a prompt and expeditious manner.
(c) Lessee shall pay when due all claims for labor or materials furnished
or alleged to have been furnished to or for Lessee at or for use in the
premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the premises or any interest therein.
Lessee shall give Lessor not less than ten (10) days' notice prior to
the commencement of any work in the premises and Lessor shall have the
right to post notices of non-responsibility in or on the premises as
provided by law. If Lessee shall, in good faith, content the validity
of any such lien, claim or demand, then Lessee shall, at its sole
expense defend itself and Lessor against the same and shall pay and
satisfy any such adverse judgement that may be rendered thereon before
the enforcement thereof against the Lessor or the premises upon the
condition that if Lessor shall require, Lessee shall furnish to Lessor
a surety bond satisfactory to Lessor in an amount equal to such
contested lien claim or demand indemnifying Lessor against liability
for the same and holding the premises free from the effect of such lien
or claim. In addition, Lessor may require Lessee to pay Lessor's
attorney's fees and costs in participating in such action if Lessor
shall decide it is to its best interest to do so.
(d) Unless Lessor requires their removal as set forth above, all
alterations, improvements, additions and Utility Installations (whether
or not such Utility Installations constitute trade fixtures of Lessee)
which may be made on the premises shall become the property of Lessor
and remain upon and be surrendered with the premises at the expiration
of the term. Notwithstanding the provisions of this paragraph,
Lessee's machinery and equipment other than that which is affixed to
the premises so that it cannot be removed without material damage to
the premises shall remain the property of Lessor and may be removed by
Lessee subject to the provisions of this Lease.
(e) If Lessee wished to install window coverings at the front office
portion of the building of which the premises are a part which are
visible from outside the building, such window coverings shall be mini-
blinds only and shall match the color of the window frame.
(f) Lessee may not fasten, bolt or affix any signs to any portion of the
building which the premises are a part including, but not limited to,
any door within said building.
18. LESSOR'S ACCESS
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(a) Lessor and Lessor's agents shall have the right to enter the premises
without notice in case of an emergency, upon court order or when Lessee
has abandoned or surrendered the premises. Lessor and Lessor's agents
shall have the right to enter the premises upon reasonable notice, with
entrance during normal business hours from 8:00am to 6:00pm, Monday
through Saturday, holidays excepted, to make necessary or agreed
repairs, decorations, alterations or improvements, supply necessary or
agreed services or exhibit the premises to prospective or actual
purchasers, mortgagees, tenants, workmen or contractors, or for the
purpose of inspecting the premises for compliance with the lease.
Twenty-four hours shall be presumed to be reasonable notice.
(b) Lessor may at any time place on or about the premises any ordinary
"For Sale" signs and Lessor may at any time during the last 120 days of
the term hereof place on or about the premises any ordinary "For Lease"
signs, all without rebate of rent or liability to Lessee.
19. SIGNS
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Lessee shall not place any sign upon the building and or premises without
Lessor's prior written consent. Lessee may place a white lettered sign of a
removable print on glass front door only.
20. COVENANT AGAINST ASSIGNMENT AND SUBLETTING
------------------------------------------
Lessee agrees not to assign, transfer, mortgage or hypothecate this Lease in
whole or in part or any interest therein nor to sublease or sublet the herein
demised premises or any part or portion thereof, either voluntarily or by
operation of law without Lessor's prior written consent, which consent will
not be unreasonably withheld or delayed. The acceptance of rent by Lessor
from Lessee or from any other person or entity after a purported assignment
or subletting shall not be deemed a waiver by Lessor of any provision herein.
In the event Lessee shall assign, transfer or hypothecate this Lease or any
interest therein, or in the event the Lessee shall sublet the whole of any
part of the herein demised premises, or in the event that any interest in the
Lease shall be affected or transferred by operation of law, or by any
proceedings against the Lessee in attachment, execution, judgement, voluntary
or involuntary proceedings in bankruptcy, or insolvency of Lessee, or
moratorium proceedings in bankruptcy, or otherwise, then at the option of the
Lessor, his successors and assigns, this Lease shall immediately terminate.
21. EXEMPTION OF LESSOR FROM LIABILITY
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Lessee hereby agrees that Lessor shall not be liable for injury to Lessee's
business or any loss of income therefrom or for damage to the equipment,
goods, wares, merchandise or other property of Lessee, Lessee's employees,
invitees, customers, or any other person in or about the premises, nor shall
Lessor be liable for injury to the person of Lessee, Lessee's employees,
agents or contractors whether such damage or injury is caused by or results
from fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air-conditioning or lighting fixtures, or from any other cause,
whether the said damage or injury results from conditions arising upon the
premises or upon other portions of the building of which the premises are a
part or from other sources or places and regardless of whether the cause of
such damage or injury or the means of repairing the same is inaccessible to
Lessee. Lessor shall not be liable for any damage arising from any act or
neglect of any other tenant, if any, of the building in which the premises are
located.
22. INDEMNITY
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Lessee shall indemnify and hold harmless Lessor from and against any and all
claims arising from Lessee's use of the premises, or from the conduct of
Lessee's business or from any activity, work or things done, permitted or
suffered by Lessee in or about the premises or elsewhere and shall further
indemnify and hold harmless Lessor from and against any and all claims arising
from any breach or default in the performance of any obligation on Lessee's
part to be performed under the terms of this Lease, or arising from any
negligence of the Lessee, or any of Lessee's agents, contractors, or
employees, and from and against all costs, attorney's fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon and in case any such claim, Lessee upon notice from
Lessor shall defend the same at Lessee's expense by counsel satisfactory to
Lessor, Lessee, as a material part of the consideration to Lessor, hereby
assumes all risk of damage to property or injury to persons, in, upon, or
about the premises arising from the negligence or willful misconduct of
Lessee, Lessee's agents, employees, guests and invitees, and Lessee hereby
waives all claims in respect thereof against Lessor.
23. BUILDING RULES
--------------
Lessee agrees that it will abide by, keep and observe any reasonable rules and
regulations which Lessor may make from time to time for the management,
safety, care and cleanliness of the building and grounds of which the demised
premises are a part, the parking of vehicles and the preservation of good
order therein as well as for the convenience of other occupants and tenants of
the building. The violations of any such rules and regulations shall be
deemed a material breach of this Lease by Lessee.
24. EARTHQUAKE AND WATER DAMAGE
---------------------------
It is understood and agreed that the Lessor shall not be held liable for any
damages to any equipment, goods, property, or effects in, or upon, the herein
demised premises during the term of this Lease caused by earthquake or by
water from any source whatsoever, provided, however, that if Lessee shall
notify Lessor that the roof is leaking or causing water damage and if Lessor
shall fail to promptly repair or cause said roof to be repaired, the foregoing
provision exonerating the Lessor from liability to Lessee for water damage
shall not apply.
25. SECURITY MEASURES
-----------------
Lessee hereby acknowledges that the rental payable to Lessor hereunder does
not include the cost of guard service or other security measures, and that
Lessor shall have no obligation whatsoever to provide same. Lessee assumes
all responsibility for the protection of Lessee, its agents and invitees from
acts of third parties.
26. COMPLIANCE WITH ALL LAWS AND REGULATIONS - NUISANCES
----------------------------------------------------
Lessee shall not maintain or suffer or permit to be maintained on the demised
premises any nuisances nor permit the demised premises to be used in whole or
in part, during the term of this Lease, for any purpose or use in violation of
any laws, ordinances, rules or regulations of any public authority applicable
thereto; and Lessee agrees at all times during the term hereof, to keep and
maintain the demised premises in a clean, tidy and sanitary manner and
condition and in compliance with any and all statutes, laws, rules,
regulations and ordinances applicable thereto.
27. LESSEE NOT TO SUFFER LIENS
--------------------------
6
Lessee agrees not to permit or suffer any lien to attach encumber the demised
premises or any part or portion thereof during the term hereof.
28. PUBLIC LIABILITY, PROPERTY DAMAGE, PLATE, DOOR AND WINDOW GLASS AND
------------------------------------------------------------------------
WORKER'S COMPENSATION INSURANCE TO BE MAINTAINED BY LESSEE
----------------------------------------------------------
Lessee shall at Its own cost and expense take out, maintain, keep In full force
and effect throughout the term hereof, in a reputable insurance company or
companies authorized to engage in such business in the State of California, (or
in the State Worker's Compensation Insurance Fund as to workmen's compensation
insurance) the following insurance:
(a) Policy of Public Liability and Property Damage Insurance with a single
combined liability limit of not less than $1,000,000 and property
damage limits of not less than $ 300,000 insuring against all liability
of Lessee and its authorized representatives arising out of and in
connection with Lessee's use or occupancy of the leasehold premises.
All public liability insurance and property damage insurance shall
insure performance by Lessee of the indemnity provisions of Paragraph
22. Both parties shall be named as additional insureds, and the policy
shall contain cross-liability endorsements. Not more frequently than
each year throughout the term and any extended term hereof, if in the
considered opinion of Lessor's insurance broker the amount or such
coverage is not adequate, Lessee shall increase the coverage to such
amount as Lessor's insurance broker shall deem adequate. Coverage
hereunder shall include, but not necessarily be limited to
premises/operations liability coverage, personal injury liability
coverage, contractual liability coverage, and broad form property
damage liability coverage.
(b) Glass Insurance - Jointly insuring Lesser and Lessee against all loss
or damage to plate, window, skylights and door glass, and specifying
covering for replacement of all stained glass leaded windows on the
premises, if any.
(c) Worker's Compensation Insurance insuring the Lessee as employer against
liability for injury or death to employees of Lessee.
All such policies shall be nonassessable and shall contain language, to the
extent obtainable, to the effect that: (i) any loss be payable notwithstanding
any act or negligence of Lessor that might otherwise result in the forfeiture
of the insurance; (ii) the insurer waives the right of subrogation against
Lessor and against Lessor's agents and representative; (iii) the policies are
primary and noncontributing with any insurance that may be carried by Lessor;
and (iv) they cannot be cancelled or materially changed except after ten (10)
days' written notice by the insurer to the Lessor or Lessor's designated
representative. Lessee shall furnish Lessor with copies of all such required
insurance policies promptly upon receipt of them or with certificates
evidencing such insurance. Lessee agrees that if for any reason such insurance
is not in full force and effect, then, in such event, Lessor may obtain the
necessary insurance, pay the premium thereon and the repayment thereof shall be
deemed additional rent payable as such on the next date upon which rent becomes
due.
(d) Lessee shall, prior to opening business in the premises, furnish from
the insurers providing the above-referred to coverage, certificates of
such coverage evidencing the existence and amounts of such insurance.
29. FIRE, CASUABTY AND EXTENDED COVERAGE INSURANCE
-----------------------------------------------
(a) Lessee's Obligations To Insure Its Fixtures And Equipment. On the
----------------------------------------------------------
commencement of and throughout the team hereof Lessee shall take out
and maintain on all of its trade fixtures, appliances and equipment in
and on the premises, a policy or policies of fire insurance with
standard extended coverage and vandalism and malicious mischief
endorsements to the extent of at least ninety percent (90%) of their
full replacement value. In the event of loss or damage, the proceeds
from any such policy or policies shall be used by Lessee for the
replacement of the Lessee's personal property and/or the repair or
replacement of the Lessee's trade fixtures. machinery and equipment so
Insured, In the event this Lease is to continue In existence under the
provision of Paragraph 29, otherwise if said lease is terminated, to be
paid to Lessee.
(b) Waiver of Subrogation. Lessee hereby releases and relieves and
----------------------
waives its entire right of recovery against the Lessor for loss or
damage arising out of or incident to the perils insured against tinder
paragraph (a) above which perils occur in, on or about the premises,
whether due to the negligence of Lessor or Lessee or their agents,
employees, contractors and/or invitees. Lessee shall, upon obtaining
the policies of insurance hereunder, give notice to the insurance
carrier or carriers that the foregoing waiver of subrogation is
contained in this Lease.
30. DAMAGE OR DESTRUCTION - OBLIGATIONS TO RESTORE, ETC.
---------------------------------------------------
(a) Loss Due to Risk Covered by Insurance. In the event of damage or
-------------------------------------
destruction of the premises by an insured fire or casualty loss, Lessor
shall forthwith repair, rebuild and/or restore the same, provided such
repairs, rebuilding and/or restoration can be made and completed within
ninety (90) calendar days from the date construction of repairs,
rebuilding and/or restoration begins, and can be done under the then
laws and regulations of state, federal, county or municipal
authorities, but such damage or destruction shall in no way annul or
void this Lease, except that Lessee shall be entitled to an abatement
of or a proportionate reduction, as the case may be, of the monthly
rental while such repairs, rebuilding and/or reconstruction are being
made, such proportionate reduction to be based on the extent to which
the damage or destruction shall interfere with Lessee's business and
operations on the premises. If such repairs, rebuilding and/or
restoration cannot be made in the period of time stated above or cannot
be done under the then laws and regulations, Lessee may by written
notice to Lessor given within thirty (30) days of after receipt of
notice of such occurrence forthwith terminate this Lease and if Lessee
fails to
7
terminate, then Lessor may, at his option within forty-five (45) days
after such occurrence, by written notice to Lessee, either terminate
this Lease or make the repairs or restoration within a reasonable time,
in which latter event this Lease shall continue in full force and
effect with the monthly rental and other sums due hereunder
proportionately reduced as provided in this paragraph. If Lessor
undertakes to repair or restore the premises, Lessee shall make
available to Lessor for such purpose any insurance proceeds received by
Lessee for damage or destruction to leasehold improvements made by
Lessee to the premises and Lessor's work shall restore the leasehold
improvements to the extent that there are insurance proceeds available
for such purpose. Lessor shall not be required to restore Lessee's
trade fixtures and personal property, such excluded items being the
sole responsibility of Lessee to restore.
(b) Loss Due to Risk Not Covered by Insurance. If the premises shall be
damaged or destroyed by a risk not covered and insured against by fire
and casualty insurance, Lessor shall forthwith and with due diligence
repair, rebuild and/or restore the same unless the then cost of such
repairs and/or reconstruction shall amount to five percent (5) or more
of the then replacement value of the building and/or improvement
damaged or destroyed, in which latter event Lessor shall have the
option (giving notice thereof to Lessee within fifteen (15) days after
ascertaining the repairs, rebuilding and/or restoration costs and
replacement value) whether to terminate this Lease or to proceed with
the reconstruction, provided, however, should Lessor elect to terminate
this Lease, Lessee shall have the option within fifteen (15) days after
Lessor's notice to terminate this Lease, to elect to pay to Lessor at
the time Lessee notifies Lessor of its election herein the difference
between five percent (5%) of the then replacement value of the building
and/or improvements damaged or destroyed and the actual cost to Lessor
in repairing, rebuilding and/or restoring the building and other
improvements, in which event Lessor shall forthwith commence said
repairs, rebuilding and reconstruction. It is agreed that the amount
payable by Lessor under these provisions shall be the only monies to be
paid by Lessor with respect to such work of restoration, and shall not
be payable by Lessor until Lessee shall have paid to Lessor its
required contribution to the costs and expenses thereof. If Lessor
elects to terminate this Lease, and if Lessee does not elect to
contribute toward the cost of reconstruction within the time and manner
provided herein, this Lease shall forthwith terminate and the parties
shall be relieved of further liability hereunder.
(c) Waiver of Civil Code Sections. In respect to any damage or
-----------------------------
destruction to the premises under the terms of this paragraph, the
provisions of Section 1932, Subdivision 2, and of Section 1933,
Subdivision 4 of the Civil Code of the State of California are waived
by Lessee.
(d) Loss During Last Part of Term. In the event damage or destruction to
-----------------------------
the premises shall occur during the last six (6) months of the term of
this Lease or of any extended term, Lessor or Lessee may terminate this
Lease by notice to the other given not more than fifteen (15) days
after the damage or destruction, provided, however, in the event the
damage or destruction shall occur during the last six (6) months of the
term, and if Lessee is given by the terms hereof an option to extend
this Lease and exercises said option within fifteen (15) days following
the damage or destruction, then Lessor shall repair, rebuild and/or
restore the premises as provided in subparagraphs (a) and (b) of this
paragraph. Should this Lease not be terminated as provided in this
subparagraph, then this Lease shall continue in full force and effect.
31. SURRENDER UPON TERMINATION
--------------------------
At the expiration of the term of this Lease, or upon the earlier termination
thereof for any reason, the Lessee shall quit and surrender said leased
premises and personal property to the Lessor in as good state and condition as
said premises and personal property are in when possession thereof is given to
the Lessee, reasonable wear and tear and damage by the elements excepted, and
the Lessor shall thereupon have the right to enter upon and take possession of
said premises and said leased personal property.
If Lessee has an option to extend the Lease term, exercises the same, and
holds over after the expiration of said extended term, then Lessee''
possession shall also be deemed merely a month to month tenancy at a monthly
rental equal to the rent in effect just prior to expiration of the extended
term increased by twenty percent (20%).
32. HOLDING OVER
------------
Should the Lessee hold over said demised premises with Lessor's consent after
this Lease is terminated, or upon the expiration of the term thereof, such
holding over shall be deemed merely a tenancy from month to month and at a
monthly rental equal to the rental in effect just prior to expiration of the
Lease term increased by twenty percent (20%), payable monthly in advance, but
otherwise on the same terms and conditions as herein provided.
If Lessee has an option to extend the Lease term, exercises the same, and
holds over after the expiration of said extended term, then Lessee's
possession shall also be deemed merely a month to month tenancy at a monthly
rental equal to the rent in effect just prior to expiration of the extended
term increased by twenty percent (20%).
33. DEFAULT
-------
(a) Lessee's Default. The occurrence of any of the following shall
----------------
constitute a default by Lessee:
8
1. Failure to pay rent or any other payment required of Lessee when due, if the
failure continues for three (3) days after notice has been given to Lessee.
2. Abandonment and vacation of the premises (failure to occupy and operate the
premises for seven (7) consecutive days shall be deemed an abandonment and
vacation.)
3. Failure to perform any other provisions of this Lease if the failure to
perform is not cured within ten (10) days after notice has been given to
Lessee. If the default cannot reasonably be cured within ten (10) days,
Lessee shall not be in default of this Lease if Lessee commences to cure the
default within the 10-day period and diligently and in good faith continues
to cure the default.
4. The discovery by Lessor that any financial statement given to Lessor by
Lessee, any assignee of Lessee, any subtenant of Lessee, any successor in
interest of Lessee or any guarantor of Lessee's obligation hereunder, and
any of them was materially false.
5. The filing of a petition in bankruptcy by any guarantor of Lessee's
obligations hereunder and the failure within ten days after written notice
from Lessor to Lessee to provide the substitute guarantor of Lessee's
obligation hereunder satisfactory to Lessor.
Notices given under this paragraph shall specify the alleged default and
shall demand that Lessee perform the provisions of this Lease or pay the
rent that is in arrears, as the case may be, within the applicable period of
time, or quit the premises. No such notice shall be deemed a forfeiture or a
termination of this Lease unless Lessor so elects in the notice.
(b) Lessor's Remedies. Lessor shall have the following remedies if Lessee
-----------------
commits a default. These remedies are not exclusive; they are cumulative in
addition to any remedies now or later allowed by law.
1. Lessor can continue this Lease in full force and effect, and the Lease will
continue in effect as long as Lessor does not terminate Lessee's right to
possession, and Lessor shall have the right to collect rent when due. During
the period Lessee is in default, Lessor can enter the premises and relet
them, or any part of them, to third parties for Lessee's account. Lessee
shall be liable immediately to Lessor for all costs Lessor incurs in
reletting the premises, including without limitations, broker's commissions,
expense of remodeling the premises required by the reletting, and like cost.
Reletting can be for a period shorter or longer than the remaining term of
this Lease. Lessee shall pay to Lessor the rent due under this Lease on the
dates the rent is due, less the rent Lessor receives from any reletting. No
act by Lessor allowed by this paragraph shall terminate this Lease unless
Lessor notifies Lessee that Lessor elects to terminate this Lease. After
Lessee's default and for as long as Lessor does not terminate Lessee's right
to possession of the premises, if Lessee obtains Lessor's consent, Lessee
shall have the right to assign or sublet its interest in this Lease, but
Lessee shall not be released from liability. Lessor's consent to a proposed
assignment or subletting shall not be unreasonably withheld.
2. Lessor can terminate Lessee's right to possession of the premises at any
time. No act by Lessor other than giving notice to Lessee shall terminate
this Lease. Acts of maintenance, efforts to relet the premises, or the
appointment of a receiver on Lessor's initiative to protect Lessor's
interest under this Lease shall not constitute a termination of Lessee's
right to possession. On termination, Lessor has the right to recover from
Lessee:
(i) The worth, at the time of the award, of the unpaid rent that had been
earned at the time of termination of this Lease;
(ii) The worth, at the time of the award, of the amount by which the unpaid
rent that would have been earned after the date of termination of this
Lease until the time of award exceeds the amount of the loss of rent that
Lessee proves could have been reasonably avoided.
(iii) Any other amount, and court costs, necessary to compensate Lessor for all
detriment proximately caused by Lessee's default.
"The worth, at the time of the award," as used in (i) and (ii) of this
paragraph, is to be computed by allowing interest at a maximum rate an
individual is permitted by law to charge.
(c) Appointment of Receiver. If Lessee is in default of this Lease, Lessor
-----------------------
shall have the right to have a received appointed to collect rent and
conduct Lessee's business. Neither the filing of a petition for the
appointment of a receiver nor the appointment itself shall constitute an
election by Lessor to terminate this Lease.
(d) Lessor's Right to Cure Lessee's Default. Lessor, at any time after Lessee
---------------------------------------
commits a default, can cure the default at Lessee's cost. If Lessor at any
time, by reason of Lessee's default, pays any sum or does any act that
requires the payment of any sum, the sum paid by Lessor shall be due
immediately from Lessee to Lessor at the time the sum is paid, and if paid
at a later date shall bear interest at a maximum rate an individual is
permitted by law to charge from the date the sum is paid by Lessor until
Lessor is reimbursed by Lessee. The sum, together with interest on it, shall
be an additional rent.
(e) Limitation of Lessor's Liability. If Lessor is in default of this Lease,
--------------------------------
and as a consequence Lessee recovers a money judgement against Lessor, the
judgement shall be satisfied only out of the proceeds of sale received on
execution of the judgement and levy against the right, title and interest of
Lessor in the building, other improvements, and land of which the premises
are a part, and
9
out of rent or other income from such real property receivable by Lessor or
out of the consideration received by Lessor from the sale or other
disposition of all or any part of Lessor's right, title and interest in the
building, other improvements, and land of which the premises are a part, and
neither Lessor nor any of the partners comprising the partnership designated
as Lessor shall be personally liable for any deficiency.
34. CONDEMNATION
------------
(a) Effective Total Condemnation.
----------------------------
1. In the event that there shall be a total taking of the leased premises
during the Lease term, or any extension thereof, under the power of eminent
domain, the leasehold estate hereby created shall cease and terminate as of
the date actual physical possession of the leased premises is taken by the
condemnor.
2. All compensation and damages awarded for such total taking shall belong to
and be the sole property of Lessor, and Lessee shall have no claim thereto
and hereby irrevocably assigns and transfers to Lessor any right they might
have to compensation or damages to which they may become entitled; provided,
however, that Lessee shall be entitled to receive any award made for the
taking of or damage to Lessee's trade fixtures and any improvements made by
Lessee to the leased premises which Lessee would have had, but for the
condemnation, the right to remove on expiration or sooner termination of
this Lease.
3. On termination of this Lease by a total taking of the leased premises under
the power of eminent domain, all rentals and other charges payable by Lessee
to or on behalf of Lessor under the provisions of this Lease shall be paid
up to the date on which actual physical possession of the leased premises
shall be taken by the condemnor, and the parties hereto shall thereafter be
released from any further liability in relation thereto.
(b) Effective Partial Condemnation.
1. In the event that there shall be a partial taking of the leased premises
during the Lease term or any extension thereof under the power of eminent
domain, this Lease shall terminate as to the portion of the leased premises
so taken on the date when actual physical possession of said portion is
taken by the condemnor, but this Lease shall, at Lessor's option, continue
in force and effect as to the remainder of the leased premises provided the
remainder is suitable for Lessee's business purposes, and provided further
that the rental payable by Lessee for the balance of said term shall be
abated in the ratio that the square footage of floor space of the leased
premises taken bears to the total floor space of the leased premises
occupied by Lessee at the time of such taking.
2. On such partial condemnation as in tis subsection provided, all
compensation and damages awarded for such partial taking shall belong to and
be the sole property of Lessor, and Lessee shall have no claim thereto and
hereby irrevocably assigns and transfers to Lessor any right they may have
to compensation or damages for property condemned; provided, however, that
Lessee shall be entitled to receive any award made for the taking of or
damage to ssee's trade fixtures and any improvements made by Lessee to the
leased premises which Lessee would have, but for the condemnation, the right
to remove on expiration or sooner termination of this Lease.
3. On termination of this Lease in whole or in part as herein provided, all
rentals and other charges payable by Lessee to or on behalf of Lessor
hereunder shall be paid up to the date on which actual physical possession
shall be taken by the condemnor and in the event that the Lease is totally
terminated, the parties hereto shall thereafter be released from all further
liability in relation thereto, and in the event that the Lease is only
partially terminated, Lessee shall thereafter be liable only for that
portion of rent required for the balance of the Lease term as in this
subsection provided.
35. NOTICES
-------
In the event that any notice is to be given under this Lease by either
party hereto to the other, either expressly required to be given in writing,
or such notice as such party may desire to give, such notice may be given by
either personally delivering the same to the other or by mailing such notice
by certified or registered mail with return receipt requested thereon, in a
sealed envelope with all postage and certification charges thereon prepaid,
addressed as follows:
If to Lessor: Allied Investments
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
or to such other address as Lessor may hereafter notify Lessee in writing.
If to Lessee: AstroPowerWest, LLC
0000 Xxxxxxxxxx Xxxxxx
Xxxxx X
Xxxxxxx, XX 00000
10
or to such other address as Lessee may hereafter notify Lessor in writing.
The deposit of such notice in a United States Post Office as herein provided,
postage prepaid, shall constitute said notice, and the time of performance of
any act or obligation required to be made after said notice under the terms of
this Lease, shall commence to run from the date of the deposit of said notice
in a United States Post Office in the State of California.
36. SALE OF PREMISES
----------------
If Lessor sells or transfers all or any portion of the building, other
improvements, and land on which the premises are situated, Lessor on
consummation of the sale or transfer, shall be released from any liability
thereafter accruing under this Lease if Lessor's successor has assumed in
writing, for the benefit of Lessee, Lessor's obligations under this Lease.
37. SUBORDINATION
-------------
(a) This Lease, at Lessor's option, shall be subordinate to any ground lease,
mortgage, deed of trust, or any other hypothecation or security now or
hereafter placed upon the real property of which the premises are a part
and to any and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and extensions
thereof. Notwithstanding such subordination, Lessee's right to quiet
possession of the premises shall not be disturbed. If Lessee is not in
default and so long as Lessee shall pay the rent and observe and perform
all of the provisions of this Lease, unless this Lease is otherwise
terminated pursuant to its terms. If any mortgagee, trustee or ground
lessor shall elect to have this Lease prior to the lien of its mortgage,
deed of trust or ground lease, and shall given written notice thereof to
Lessee, this Lease shall be deemed prior to such mortgage, deed of trust,
or ground lease, whether this Lease is dated prior or subsequent to the
date of said mortgage, deed of trust or ground lease or the date of
recording thereof.
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be. Lessee's
failure to execute such documents within 10 days after written demand shall
constitute a material default by Lessee hereunder, or, at Lessor's option,
Lessor shall execute such documents on behalf of Lessee as Lessee's
attorney-in-fact. Lessee does hereby make, constitute and irrevocably
appoint Lessor as Lessee's attorney-in-fact and in Lessee's name, place and
stead, to execute such documents in accordance with this paragraph.
38. PERSONAL PROPERTY LEFT ON PREMISES AT LEASE TERMINATION
-------------------------------------------------------
On expiration of the term of this Lease, or upon the earlier termination
thereof for any reason, Lessor can elect to retain or dispose of in any
manner, any of Lessee's personal property or equipment that Lessee does not
remove from the premises by giving at least five (5) days notice to Lessee.
Title to any such personal property that Lessor elects to retain or dispose of
shall vest in Lessor. Lessee waives any and all claims against Lessor for any
damage to Lessee resulting from Lessor's retention or disposition of such
personal property items. Lessee shall be liable to Lessor for all of Lessor''
costs and expenses for storing, removing, and disposing of any of Lessee''
personal property left on the premises. Lessor shall be entitled to charge
reasonable rental for the storage of any personal property and equipment left
on the premises by Lessee whether claimed to be the property of Lessee or
others.
39. BREACH OF SECURITY
------------------
Lessee shall be solely and exclusively responsible for the security of the
premises and shall be solely and exclusively liable to Lessor for any and all
damages resulting from any breach of security including property damage and
personal liability, whether caused by burglary, robbery or such other breaches
of security and specifically including any damage due to any break-ins through
the roof. Lessee further agrees to waive any rights against Lessor by way of
subrogation on behalf of Lessee's insurance carrier in the vent of any such
security breach, such waiver to extend to Lessor's insurance carrier.
40. ATTORNEY'S FEES
---------------
In case any action shall be brought by either the Lessor or the Lessee against
the other, under any of the terms, provisions and obligations of this Lease,
or for the breach of enforcement thereof or for the declaration of any rights
hereunder, the prevailing party shall be entitled to recover such legal fees
as the court may determine to be reasonable and proper in said action.
41. COMMON AREA EXPENSES
--------------------
Lessor will provide the premises with parking space intended for the
non-exclusive use of customers of Lessee (other than employees of Lessee),
which parking space will also be made available non-exclusively for similar
use by customers of tenants of other premises which Lessor owns in the center,
which such parking area will be marked or painted with lines to designate
parking areas and passageways. Lessor will also maintain certain outdoor
lights to illuminate the common area at night.
42. REAL PROPERTY TAXES AND ASSESSMENTS AND INSURANCE PREMIUM INCREASES
-------------------------------------------------------------------
Lessee shall pay all increases in real property taxes and assessments levied
and assessed against the land, building and other
11
improvements on the premises which are in excess of the real property taxes
and assessments on the premises for the fiscal year 1999/2000. Lessee's
payment shall be in proportion to Lessee's space leased compared to the total
square footage of the building assessed. Lessee shall pay all general and
special assessments levied and assessed against the land, building and other
improvements on the premises if any such general or special assessments are
levied and assessed against the property during the term of the Lease in
proportion to Lessee's space leased compared to the total square footage of
the building assessed. Such taxes and assessments shall include but need not
be limited to annual sewer taxes assessed by the City of Concord.
Lessee shall pay all increases in insurance premiums billed to Lessor for
fire, extended coverage, loss of rents and liability insurance policies held
by Lessor in proportion to Lessee's space leased compared to the total square
footage of the building assessed, over the existing premium amount.
Lessee's such proportionate share is currently 2.72%.
The amounts provided for in this paragraph shall be paid by Lessee within
thirty (30) days after written notice thereof from Lessor.
43. MISCELLANEOUS PROVISIONS
------------------------
(a) Paragraph Headings. The paragraph and subparagraph headings of this Lease
------------------
are not a part of this Lease and shall have no effect upon the construction
or interpretation of any part of this Lease.
(b) Integrated Agreement: Modification. This Lease contains all of the
-----------------------------------
agreements and conditions made between the parties hereto and may not be
modified orally or in any other manner than by an agreement in writing
signed by all of the parties to this Lease or their respective successors
in interest.
(c) Time of Essence. Time is of the essence of each term and provision of this
----------------
Lease.
(d) All Required Payments Are Additional Rent. Except as otherwise expressly
------------------------------------------
stated, each payment required to be made by Lessee shall be in addition to
and not in substitution for other payments to be made by Lessee and all
such payments shall be deemed to be additional rental.
(e) Separability. The invalidity or illegality of any provision shall not
-------------
affect the remainder of this Lease.
(f) Duration of Obligations. Unless otherwise stated in particular provisions
------------------------
of this Lease, an obligation resulting from the Lease or from the
relationship created by the Lease, is coterminous with the Lease, except
that defaults occurring during the term of this Lease are actionable until
the expiration of the period of limitations.
(g) Joint and Several Liability. In the event two or more persons or entities
----------------------------
execute this Lease as "Lessee", then the obligation of each such person
shall be joint and several.
(h) Guarantor. In the event that there is a guarantor of this Lease, said
------------
guarantor shall have the same obligations as Lessee under this Lease. In
the event that guarantor files a petition in bankruptcy in any court,
Lessor, in Lessor's sole discretion, may terminate this Lease unless
Lessee, within ten days after notification from Lessor, provides a new
guarantor satisfactory to Lessor.
(i) Covenants or Conditions. All the agreements in this Lease upon the part of
------------------------
Lessee, whether technically covenants or conditions, shall be deemed
conditions for the purpose hereof.
(j) Authority. If Lessee is a corporation, trust or general or limited
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partnership, each individual executing this Lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of said entity. If Lessee is a corporation,
trust or partnership, Lessee shall, within thirty (30) days after execution
of this Lease, deliver to Lessor evidence of such authority satisfactory to
Lessor.
(k) Waivers. No waiver by Lessor of any provision hereof shall be deemed a
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waiver of any other provision hereof or of any subsequent breach by Lessee
of the same or any other provision. Lessor's consent to or approval of any
act shall not be deemed to render unnecessary to obtaining of Lessor's
consent to or approval of any subsequent act by Lessee. The acceptance of
rent hereunder by Lessor shall not be a waiver of any preceding breach by
Lessee of any provision hereof, other than the failure of Lessee to pay the
particular rent so accepted, regardless of Lessor's knowledge of such
preceding breach at the time of acceptance of such rent.
(l) Words. Whenever the singular is used in this Lease, the same shall include
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the plural when required by the context, and the masculine gender shall
include the feminine and neuter genders and the word "person" shall include
corporation, firm and association. If there is more than one Lessor, the
obligations of this Lease shall be joint and several.
(m) California Law. This Lease shall be governed and interpreted solely by the
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laws of the State of California.
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(n) Heirs, etc. This Lease shall be binding upon the successors,
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administrators and assigns of the respective parties hereto.
(o) Exhibits. All exhibits, if any, that are attached to this Lease are hereby
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incorporated into the body of this Lease.
(p) No Real Estate Brokers or Finder's Fees. Each party represents that it has
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not had any dealings with any real estate broker, finder, or other person
with respect to this Lease in any manner other than Xxxx Xxxxxxx of CRS,
Commercial Real Estate Services, who will be paid by Lessor. Each party
shall hold harmless the other party from all damages resulting from any
claims that may be asserted against the other party by any broker, finder
or other person with whom the other party has or purportedly has dealt.
44. OPTION TO RELOCATE TO NORTH POINT III
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In the event Lessor constructs North Point III (a three building complex with
dock high loading), Lessee shall be given the Option to Relocate to this new
project upon completion of construction. Lessee shall be required to sign a
minimum five (5) year lease on the new premises. Rental terms and tenant
improvements shall be mutually agreed upon prior to execution of a "Lease
Amendment". In the event Lessee and Lessor can not agree upon a Rental Rate
Schedule and/or Tenant Improvements, Lessee shall be bound to the terms and
conditions of this Lease.
45. Lessor to install new building standard carpet in office area prior to
lease commencement.
IT WITNESS WHEREOF the Lessor and Lessee have hereunto executed this Lease in
triplicate the day and year first above written.
ASTROPOWERWEST, LLC, A CALIFORNIA
LIMITED LIABILITY COMPANY
BY ITS: Members
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Xxxxxx X. Xxxxxx
AstroPower, Inc.
BY:
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Xxxxx X. Xxxxxxx
President & CEO
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