FIRST AMENDMENT TO COMMERCIAL
SINGLE-TENANT LEASE
THIS FIRST AMENDMENT TO SINGLE-TENANT LEASE (this "Amendment") is entered into
for reference purposes only as of October __, 1996, by and between 3811
PARTNERS, LLLP, a Colorado limited liability limited partnership, XXXXXX X.
XXXXX AND XXXXXX DELL XXXXX AND PACIFICA JOLIET INDUSTRIAL, LLC, a Colorado
limited liability company, as tenants in common, d/b/a/ PRL Joliet ("landlord"),
and CRYENCO SCIENCES, INC. a Colorado corporation ("Tenant").
WITNESSETH:
A. Landlord and Tenant entered into that certain Commercial Single-Tenant
Lease, dated June 19, 1996 (the "Lease").
B. Landlord and Tenant desire to amend the Lease in the manner and form
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. The reference in Lease to "3811 Partners, LLLP" shall be changed to read as
"3811 Joliet, L.L.L.P."
2. Miscellaneous.
a. The Lease as modified herein remains in full force and effect and is
ratified by Landlord and Tenant. In the event of any conflict between
the Lease and this Amendment, the terms and conditions of this
Amendment shall control. Capitalized terms not defined herein shall
have the same meaning as set forth in the Lease.
b. This Amendment is binding upon and inures to the benefit of the
parties hereto and their heirs, personal representatives, successors
and assigns.
c. This Amendment shall be governed by an construed in accordance
with the laws of the State of Colorado.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS Amendment. This Amendment is
effective upon delivery of a fully executed copy to Tenant ("Effective Date");
the day and year first above written is for reference purposes only.
3811 JOLIET, L.L.L.P., a Colorado limited liability
limited partnership
By: ___________________________________
Xxxxxx X. Xxxxxxx, General Partner
XXXXXX X. XXXXX AND XXXXXX DELL XXXXX
__________________________________________
Xxxxxx X. Xxxxx
__________________________________________
Xxxxxx Dell Xxxxx
PACIFICA JOLIET INDUSTRIAL, LLC, a
Colorado limited liability company
By: ___________________________________
Xxxxx Xxxxxxx, Manager
"Landlord"
CRYENCO SCIENCES, INC., a Colorado
corporation
By: _______________________________
Print Name: _______________________
Its: ______________________________
Date: _____________________________
"Tenant"
2
** Upon purchase of this property by Lessor from current owner, approximately
October 1, 1996.
*** Lessee is currently in possession under existing lease with current owner,
which lease shall terminate effective with Lessor's purchase of the property
from current owner and commencement of the Lease.
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE-NET
(Do not use this form for Multi-Tenant Property)
1. Basic Provisions ("Basic Provisions")
1.1 PARTIES: This Lease ("LEASE"), dated for reference purposes only, June
19, 1996, is made by and between 3811 Partners, LLLP, a Colorado
limited liability limited partnership, Xxxxxx X. Xxxxx and Xxxxxx Dell
Xxxxx, and Pacifica Joliet Industrial, LLC, a Colorado limited
liability company, as Tenants-in-Common dba PRL Joliet ("LESSOR") AND
Cryenco Sciences, Inc. ("LESSEE"), (collectively the "PARTIES", or
individually a "PARTY").
1.2 PREMISES: That certain real property, including all improvements
therein or to be provided by Lessor under the terms of this Lease, and
commonly known by the street address of 0000 Xxxxxx Xxxxxx located in
the County of Denver, State of Colorado and generally described as
(describe briefly the nature of the property) 124,290 square foot
manufacturing and warehouse facility on 14.3 acres of land.
("PREMISES"). (See Paragraph 2 for further provisions.)
1.3 TERM: Ten (10) years and 0 months ("ORIGINAL TERM") commencing **
("COMMENCEMENT DATE") and ending ten (10) years from commencement date
("EXPIRATION DATE"). However, this original Term may be modified
pursuant to Addendum A, Paragraph 11(b) attached hereto. (SEE ADDENDUM
A, ADDITIONAL PROVISIONS, PARA. 11 (2)) (See Paragraph 2 for further
provisions.)
1.4 EARLY POSSESSION: *** ("Early Possession Date"). (See Paragraphs 3.2
and 3.3 for further provisions.)
1.5 BASE RENT: $38,840.63 per month ("BASE RENT"), payable on the first
day of each month commencing (See Paragraph 4 for further provisions.)
If this box is checked, there are provisions in this lease for the Base
Rent to be adjusted.
1.6 BASE RENT PAID UPON EXECUTION: $38,840.63 as Base Rent for the period.
1.7 SECURITY DEPOSIT: $116,521.89 (3 months' rent) * ("SECURITY DEPOSIT").
(See Paragraph 5 for further provisions.)
1.8 PERMITTED USE: Manufacturing and warehousing of vehicles for
cryogenically cooled liquids (See Paragraph 6 for further provisions.)
1.9 INSURING PARTY: Lessor is the "INSURING PARTY" unless otherwise stated
herein. (See Paragraph 8 for further provisions.)*
1.10 REAL ESTATE BROKERS: The following real estate brokers (collectively,
the "BROKERS") and brokerage relationships exist in this transaction
and are consented to by the Parties (check applicable boxes):
Pacifica Holding Company represents [ ] Lessor exclusively ("LESSOR'S
BROKER"); [ ] both Lessor and Lessee, and CB Commercial represents [ ]
Lessee exclusively "LESSEE'S BROKER"); [ ] both Lessee and Lessor. (See
Paragraph 15 for further provisions).
1.11
1.12 ADDENDA. Attached hereto is an Addendum or Addenda consisting of
Paragraphs I through VII.1 and Exhibits A - Colorado Statutes -
Substitution Bonds; B- List of Chemicals and * all of which constitute
a part of this Lease.
*Option(s) to Extend
2. Premises.
2.1 LETTING. Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, the Premises, for the term, at the rental, and upon all of the
terms, covenants and conditions set forth in this Lease. Unless
otherwise provided herein, any statement of square footage set forth in
this Lease, or that may have been used in calculating rental, is an
approximation which Lessor and Lessee agree is reasonable and the
rental based thereon is not subject to revision whether or not the
actual square footage is more or less.
2.2 CONDITION. Lessor shall deliver the Premises to Lessee clean and free
of debris on the Commencement Date and warrants to Lessee that the
existing plumbing, fire sprinkler system, lighting, air conditioning,
heating, and loading doors, if any, in the Premises, other than those
constructed by Lessee, shall be in good operating condition on the
Commencement Date. If a non-compliance with said warranty exists as of
the Commencement Date, Lessor shall, except as otherwise provided in
this Lease, promptly after receipt of written notice from Lessee
setting forth with specificity the nature and extent of such
non-compliance, rectify same at Lessor's expense. If Lessee does not
give Lessor written notice of a non-compliance with this warranty
within (30) days after the Commencement Date, correction of that
non-compliance shall be the obligation of Lessee at Lessee's sole cost
and expense.
2.3 COMPLIANCE WITH COVENANTS, RESTRICTIONS AND BUILDING CODE. Lessor
warrants to Lessee that the improvements on the Premises comply with
all applicable covenants or restrictions of record and applicable
building codes, regulations and ordinances in effect on the
Commencement Date. Said warranty does not apply to the use to which
Lessee will put the Premises or to any Alterations or Utility
installations (as defined in Paragraph 7.3(a) made or to be made by
Lessee. If the Premises do not comply with said warranty, Lessor shall,
except as otherwise provided in this Lease, promptly after receipt of
written notice from Lessee setting forth with specificity the nature
and extent of such non-compliance, rectify the same at Lessor's
expense. If Lessee does not give Lessor written notice of a
non-compliance with this warranty within six (6) months following the
Commencement Date, correction of that non-compliance shall be the
obligation of Lessee at Lessee's sole cost and expense.
2.4 ACCEPTANCE OF PREMISES. Lessee hereby acknowledges: (a) that it has
been advised by the Brokers to satisfy itself with respect to the
condition of the Premises (including but not limited to the electrical
and fire sprinkler systems, security, environmental aspects, compliance
with Applicable Law, as defined in Paragraph 6.3) and the present and
future suitability of the Premises for Lessee's intended use , (b) that
Lessee has made such investigation as it deems necessary with reference
to such matters and assumes all responsibility therefor as the same
relate to Lessee's occupancy of the Premises and/or the term of this
Lease, and (c) that neither Lessor, nor any of Lessor's agents, has
made any oral or written representations or warranties with respect to
the said matters other than as set forth in this Lease.
2.5 LESSEE PRIOR OWNER/OCCUPANT. The warranties made by Lessor in this
Paragraph 2 shall be of no force or effect if immediately prior to the
date set forth in Paragraph 1.1 Lessee was the owner or occupant of the
Premises. In such event, Lessee shall, at Lessee's sole cost and
expense, correct any non-compliance of the Premises with said
warranties.
3. Term.
3.1 TERM. The Commencement Date, Expiration Date and Original Term of this
Lease are as specified in Paragraph 1.3.
3.2 EARLY POSSESSION. If Lessee totally or partially occupies the Premises
prior to the Commencement Date, the obligation to pay Base Rent shall
be abated for the period of such early possession. All other terms of
this Lease, however, (including but not limited to the obligations to
pay Real Property Taxes and insurance premiums and to maintain the
Premises) shall be in effect during such period. Any such early
possession shall not affect nor advance the Expiration Date of the
Original Term..
3.3 DELAY IN POSSESSION. If for any reason Lessor cannot deliver possession
of the Premises to Lessee as agreed herein by the Early Possession
Date, if one is specified in Paragraph 1.4, or, if no Early Possession
Date is specified, by the Commencement Date, Lessor shall not be
subject to any liability therefor, nor shall such failure affect the
validity of this Lease, or the obligations of Lessee hereunder or
extend the term hereof, but in such case, Lessee shall not, except as
otherwise provided herein, be obligated to pay rent or perform any
other obligation of Lessee under the terms of this Lease until Lessor
delivers possession of the Premises to Lessee. If possession of the
Premises is not delivered to Lessee within sixty (60) days after the
Commencement Date, Lessee may, as its 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, however, that if such written notice by Lessee is not
received by Lessor within said ten (10) day period, Lessee's right to
cancel this Lease shall terminate and be of no further force or effect.
Except as may be otherwise provided, and regardless of when the term
actually commences, if possession is not tendered to Lessee when
required by this Lease and Lessee does not terminate this Lease, as
aforesaid, the period free of the obligation to pay Base Rent, if any,
that Lessee would otherwise have enjoyed shall run from the date of
delivery of possession and continue for a period equal to what Lessee
would otherwise have enjoyed under the terms hereof, but minus any days
of delay caused by the acts, changes or omissions of Lessee.
4. Rent.
4.1 BASE RENT. Lessee shall cause payment of Base Rent and other rent or
charges, as the same may be adjusted from time to time, to be received
by Lessor in lawful money of the United States, without offset or
deduction, on or before the day on which it is due under the terms of
this lease. Base Rent and all other rent and charges for any period
during the term hereof which is for less than one (1) full calendar
month shall be prorated based upon the actual number of days of the
calendar month involved. Payment of Base Rent and other charges shall
be made to Lessor at its address stated herein or to such other persons
or at such other addresses as Lessor may from time to time designate in
writing to Lessee.
* See Addendum A, Additional Provisions Initials _________
NET _________
1
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof the
Security Deposit set forth in Paragraph 1.7 as security for Lessee's
faithful performance of Lessee's obligations under this Lease. If Lessee
fails to pay Base Rent or other rent or charges due hereunder, or otherwise
Defaults under this Lease (as defined in Paragraph 13.1), Lessor may use,
apply or retain all or any portion of said Security Deposit for the payment
of any amount due Lessor or to reimburse or compensate Lessor for any
liability, cost, expense, loss or damage (including attorneys' fees) which
Lessor may suffer or incur by reason thereof. If Lessor uses or applies all
or any portion of said Security Deposit, Lessee shall within ten (10) days
after written request therefor deposit moneys with Lessor sufficient to
restore said Security Deposit to the full amount required by this Lease. Any
time the Base Rent increases during the term of this Lease, Lessee shall,
upon written request from Lessor, deposit additional moneys with Lessor
sufficient to maintain the same ratio between the Security Deposit and the
Base Rent as those amounts are specified in the Basic Provisions. Lessor
shall not be required to keep all or any part of the Security Deposit
separate from its general accounts. Lessor shall, at the expiration or
earlier termination of the term hereof and after Lessee has vacated the
Premises, return to Lessee (or, at Lessor's option, to the last assignee, if
any, of Lessee's interest herein), that portion of the Security Deposit not
used or applied by Lessor. Unless otherwise expressly agreed in writing by
Lessor, no part of the Security Deposit shall be considered to be held in
trust, to bear interest or other increment for its use, or to be prepayment
for any moneys to be paid by Lessee under this Lease. (SEE ADDENDUM A,
ADDITIONAL PROVISIONS, PARAGRAPH V)
6. Use.
6.1 USE. Lessee shall use and occupy the Premises only for the purposes set
forth in Paragraph 1.8, or any other use which is comparable thereto,
and for no other purpose. Lessee shall not use or permit the use of the
Premises in a manner that creates waste or a nuisance, or that disturbs
owners and/or occupants of, or causes damage to, neighboring premises
or properties.
6.2 Hazardous Substances.
(a) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS SUBSTANCE" as
used in this Lease shall mean any product, substance, chemical,
material or waste whose presence, nature, quantity and/or intensity
of existence, use, manufacture, disposal, transportation, spill,
release or effect, ether by itself or in combination with other
materials expected to be on the Premises, is either: (i)
potentially injurious to the public health, safety or welfare, the
environment or the Premises, (ii) regulated or monitored by any
governmental authority, or (iii) a basis for liability of Lessor to
any governmental agency or third party under any applicable statute
or common law theory. Hazardous Substance shall include, but not be
limited to, hydrocarbons, petroleum, gasoline, crude oil or any
products, by-products or fractions thereof. Lessee shall not engage
in any activity in, on or about the Premises which constitutes a
Reportable Use (as hereinafter defined) of Hazardous Substances
without the express prior written consent of Lessor and compliance
in a timely manner (at Lessee's sole cost and expense) with all
Applicable Law (as defined in Paragraph 6.3). "REPORTABLE USE"
shall mean (i) the installation or use of any above or below ground
storage tank, (ii) the generation, possession, storage, use,
transportation, or disposal of a Hazardous Substance that requires
a permit from, or with respect to which a report, notice,
registration or business plan is required to be filed with, any
governmental authority. Reportable Use shall also include Lessee's
being responsible for the presence in, on or about the Premises of
a Hazardous Substance with respect to which any Applicable Law
requires that a notice be given to persons entering or occupying
the Premises or neighboring properties. Notwithstanding the
foregoing, Lessee may, without Lessor's prior consent, but in
compliance with all Applicable Law, use any ordinary and customary
materials reasonably required to be used by Lessee in the normal
course of Lessee's business permitted on the Premises, so long as
such use is not a Reportable Use and does not expose the Premises
or neighboring properties to any meaningful risk of contamination
or damage or expose Lessor to any liability therefor. In addition,
Lessor may (but without any obligation to do so) condition its
consent tot he use or presence of any Hazardous Substance, activity
or storage tank by Lessee upon Lessee's giving Lessor such
additional assurances as Lessor, in its reasonable discretion,
deems necessary to protect itself, the public, the Premises and the
environment against damage, contamination or injury and/or
liability therefrom or therefor, including, but not limited to, the
installation (and removal on or before Lease expiration or earlier
termination) of reasonably necessary protective modifications to
the Premises (such as concrete encasements), and/or the deposit of
an additional Security Deposit under Paragraph 5 hereof. (SEE
ADDENDUM A, ADDITIONAL PROVISIONS, PARAGRAPH VII (1)).
(b)
(c) INDEMNIFICATION. Lessee shall indemnify, protect, defend and hold
Lessor, its agents, employees, lenders and ground lessor, if any,
and the Premises, harmless from and against any and all loss of
rents and/or damages, liabilities, judgments, costs, claims, liens,
expenses, penalties, permits and attorney's and consultant's fees
arising out of or involving any Hazardous Substance or storage tank
brought onto the Premises by or for Lessee or under Lessee's
control. Lessee's obligations under this Paragraph 6 shall include,
but not be limited to, the effects of any contamination or injury
to person, property or the environment created or suffered by
Lessee, and the cost of investigation (including consultant's and
attorney's fees and testing), removal, remediation, restoration
and/or abatement thereof, or of any contamination therein involved,
and shall survive the expiration or earlier termination of this
Lease. No termination, cancellation or release agreement entered
into by Lessor and Lessee shall release Lessee from its obligations
under this Lease with respect to Hazardous Substances or storage
tanks, unless specifically so agreed by Lessor in writing at the
time of such agreement.
6.3 LESSEE'S COMPLIANCE WITH LAW. Except as otherwise provided in this
Lease, Lessee, shall, at Lessee's sole cost and expense, fully,
diligently and in a timely manner, comply with all "APPLICABLE LAW,"
which term is used in this Lease to include all laws, rules,
regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, the requirements of any applicable
fire insurance underwriter or rating bureau, and the reasonable
recommendations of Lessor's engineers and/or consultants, relating in
any manner to the Premises (including but not limited to matters
pertaining to (i) industrial hygiene, (ii) environmental conditions on,
in, under or about the Premises, including soil and groundwater
conditions, and (iii) the use, generation, manufacture, production,
installation, maintenance, removal, transportation, storage, spill or
release of any Hazardous Substance or storage tank), now in effect or
which may hereafter come into effect, and whether or not reflecting a
change in policy from any previously existing policy. Lessee shall,
within five (5) days after receipt of Lessor's written request, provide
Lessor with copies of all documents and information, including, but not
limited to, permits, registrations, manifests, applications, reports
and certificates, evidencing Lessee's compliance with any Applicable
Law specified by Lessor, and shall immediately upon receipt, notify
Lessor in writing (with copies of any documents involved) of any
threatened or actual claim, notice, citation, warning, complaint or
report pertaining to or involving failure by Lessee or the Premises to
comply with any Applicable Law.
6.4 INSPECTION; COMPLIANCE. Lessor and Lessor's Lender(s) (as defined in
Paragraph 8.3(a) shall have the right to enter the Premises at any
time, in the case of an emergency, and otherwise at reasonable times,
for the purpose of inspecting the condition of the Premises and for
verifying compliance by Lessee with this Lease and all Applicable Laws
(as defined in Paragraph 6.3), and to employ experts and/or consultants
in connection therewith and/or to advise Lessor with respect to
Lessee's activities, including but not limited to the installation,
operation, use, monitoring, maintenance, or removal of any Hazardous
Substance or storage tank on or from the Premises. The costs and
expenses of any such inspections shall be paid by the party requesting
same, unless a Default or Breach of this Lease, violation of Applicable
Law, or a contamination, caused or materially contributed to by Lessee
is found to exist or be imminent, or unless the inspection is requested
or ordered by a governmental authority as the result of any such
existing or imminent violation or contamination. In any such case,
Lessee shall upon request reimburse Lessor or Lessor's Lender, as the
case may be, for the costs and expenses of such inspections. (SEE
ADDENDUM A, ADDITION PROVISIONS, PARAGRAPH VII (3)).
7. Maintenance; Repairs; Utility Installations; Trade Fixtures and Alterations.
7.1 Lessee's Obligations.
(a) Subject to the provisions of Paragraphs 2.2 (Lessor's warranty as
to condition), 2.3 (Lessor's warranty as to compliance with
covenants, etc.), 7.2 (Lessor's obligations to repair), 9 (damage
and destruction), and 14 (condemnation,) Lessee shall, at Lessee's
sole cost and expense and at all times, keep the Premises and every
part thereof in good order, condition and repair, structural and
non-structural (whether or not such portion of the Premises
requiring repair, or the means of repairing the same, are
reasonably or readily accessible to Lessee, and whether or not the
need for such repairs occurs as a result of Lessee's use, any prior
use, the elements or the age of such portion of the Premises),
including, without limiting the generality of the foregoing, all
equipment or facilities serving the Premises, such as plumbing,
heating, air conditioning, ventilating, electrical, lighting
facilities, boilers, fired or unfired pressure vessels, fire
sprinkler and/or standpipe and hose or other automatic fire
extinguishing system, including fire alarm and/or smoke detection
systems and equipment, fire hydrants, fixtures, walls (interior and
exterior), foundations, ceilings, roofs, floors, windows, doors,
plate glass, skylights, landscaping, driveways, parking lots,
fences, retaining walls, signs, sidewalks and parkways located in,
on, about, adjacent to the Premises. Lessee shall not cause or
permit any Hazardous Substance to be spilled or released in, on,
under or about the Premises (including through the plumbing or
sanitary sewer system) and shall promptly, at Lessee's expense,
take all investigatory and/or remedial action reasonably
recommended, whether or not formally ordered or required, for the
cleanup of any contamination of, and for the maintenance, security
and/or monitoring of, the Premises, the elements surrounding same,
or neighboring properties, that was caused or materially
contributed to by Lessee, or pertaining to or involving any
Hazardous Substance and/or storage tank brought onto the Premises
by or for Lessee or under its control. Lessee, in keeping the
Premises in good order, condition and repair, shall exercise and
perform good maintenance practices. Lessee's obligations shall
include restorations, replacements or renewals when necessary to
keep the Premises and all improvements thereon or a part thereof in
good
See Addendum A, Additional Provisions, Paragraph VII(2)
Initials __________
NET
2
(b) order, condition and state of repair. If Lessee occupies the
Premises for seven (7) years or more, Lessor may require Lessee to
repaint the exterior of the buildings on the Premises as reasonably
required, but not more frequently than once every seven (7) years,
AND REPAINTING SHALL OCCUR ON CURRENTLY PAINTED PORTIONS OF THE
BUILDING ONLY. *
(b) Lessee shall, at Lessee's sole cost and expense, procure and
maintain contracts, with copies to Lessor, in customary form and
substance for, and with contractors specializing and experienced
in, the inspection, maintenance and service of the following
equipment and improvements, if any, located on the Premises: (i)
heating, air conditioning and ventilation equipment, (ii) boiler,
fired or unfired pressure vessels, (iii) fire sprinkler and/or
standpipe and hose or other automatic fire extinguishing systems,
including fire alarm and/or smoke detection, (iv) landscaping and
irrigation systems, (v) roof covering and drain maintenance and
(vi) asphalt and parking lot maintenance.
7.2 LESSOR'S OBLIGATIONS. Except for the warranties and agreements of
Lessor contained in Paragraph 2.2 (relating to condition of the
Premises), 2.3 (relating to compliance with covenants, restrictions and
building code), 9 (relating to destruction of the Premises) and 14
(relating to condemnation of the Premises), it is intended by the
Parties hereto that Lessor have no obligation, in any manner
whatsoever, to repair and maintain the Premises, the improvements
located thereon, or the equipment therein, whether structural or non
structural, all of which obligations are intended to be that of the
Lessee under Paragraph 7.1 hereof. It is the intention of the Parties
that the terms of this Lease govern the respective obligations of the
Parties as to maintenance and repair of the Premises. Lessee and Lessor
expressly waive the benefit of any statute now or hereafter in effect
to the extent it is inconsistent with the terms of this Lease with
respect to, or which affords Lessee the right to make repairs at the
expense of Lessor or to terminate this Lease by reason of, any needed
repairs.
7.3 Utility Installations; Trade Fixtures; Alterations.
(a) DEFINITIONS; CONSENT REQUIRED. The term "UTILITY INSTALLATIONS" is
used in this Lease to refer to all carpeting, window coverings air
lines, power panels, electrical distribution, security, fir
protection systems, communication systems, lighting fixtures,
heating, ventilating, and air conditioning equipment, plumbing, and
fencing in, on or about the Premises. The term "TRADE FIXTURES"
shall mean Lessee's machinery and equipment that can be removed
without doing material damage to the Premises. The term
"ALTERATIONS" shall mean any modification of the improvements on
the Premises from that which are provided by Lessor under the terms
of this Lease, other than Utility Installations or Trade Fixtures,
whether by addition or deletion. "LESSEE OWNED ALTERATIONS AND/OR
UTILITY INSTALLATIONS" are defined as Alterations and/or Utility
Installations made by Lessee that are not yet owned by Lessor as
defined in Paragraph 7.4(a). Lessee shall not make any Alterations
or Utility Installations in, on, under or about the Premises
without Lessor's prior written consent. Lessee may, however, make
non-structural Utility Installations to the interior of the
Premises (excluding the roof), as long as they are not visible from
the outside, do not involve puncturing, relocating or removing the
roof or any existing walls, and the cumulative cost thereof during
the term of this lease as extended does not exceed $25,000.
(b) CONSENT. Any Alterations or Utility Installations that Lessee shall
desire to make and which require the consent of the Lessor shall be
presented to Lessor in written form with proposed detailed plans.
All consents given by Lessor, whether by virtue of Paragraph 7.3(a)
or by subsequent specific consent, shall be deemed conditioned
upon: (i) Lessee's acquiring all applicable permits required by
governmental authorities, (ii) the furnishing of copies of such
permits together with a copy of the plans and specifications for
the Alteration or Utility Installation to Lessor prior to
commencement of the work thereon, and (iii) the compliance by
Lessee with all conditions of said permits in a prompt and
expeditious manner. Any Alterations or Utility Installations by
Lessee during the term of this Lease shall be done in a good and
workmanlike manner with good and sufficient materials and in
compliance with all Applicable Law. Lessee shall promptly upon
completion thereof furnish Lessor with as-built plans and
specifications therefor. Lessor may (but without obligation to do
so) condition its consent to any requested Alteration or Utility
Installation that cost $10,000 or more upon Lessee's providing
Lessor with a lien and completion bond in an amount equal to one
and one-half times the estimated cost of such Alteration or Utility
Installation and/or upon Lessee's posting an additional Security
Deposit with Lessor under Paragraph 36 hereof.
(c) INDEMNIFICATION. 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 on the Premises, which claims are or may be
secured by any mechanics' 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, on or about 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, contest the
validity of any such lien, claim or demand, then Lessee shall, at
its sole expense defend and protect itself, Lessor and the Premises
against the same and shall pay and satisfy any such adverse
judgment that may be rendered thereon before the enforcement
thereof against the Lessor or the Premises. If Lessor shall
require, Lessee shall furnish to Lessor a surely bond satisfactory
to Lessor in an amount equal to one and on-half times the amount of
such contested lien claim or demand, indemnifying Lessor against
liability for the same, as required by law for the holding of 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. (SEE ADDENDUM A, ADDITIONAL PROVISIONS,
PARAGRAPH VIII)
7.4 Ownership; Removal; Surrender; and Restoration.
(a) OWNERSHIP. Subject to Lessor's right to require their removal or
become the owner thereof as hereinafter provided in this Paragraph
7.4, all Alterations and Utility Additions made to the Premises by
Lessee shall be the property of and owned by Lessee, but considered
a part of the Premises. Lessor may, at any time and at its option,
elect in writing to Lessee to be the owner of all or any specified
part of the Lessee Owned Alterations and Utility Installations.
Unless otherwise instructed per subparagraph 7.4(b) hereof, all
Lessee Owned Alterations and Utility Installations shall, at the
expiration or earlier termination of this Lease, become the
property of Lessor and remain upon and be surrendered by Lessee
with the Premises.
(b) REMOVAL. Unless otherwise agreed in writing, Lessor may require
that any or all Lessee Owned Alterations or Utility Installations
by removed by the expiration or earlier termination of this Lease,
notwithstanding their installation may have been consented to
Lessor. Lessor may require the removal at any time of all or any
part of any Lessee Owned Alterations or Utility Installations made
without the required consent of Lessor.
(c) SURRENDER/RESTORATION. Lessee shall surrender the Premises by the
end of the last day of the Lease term or any earlier termination
date, with all of the improvements, parts and surfaces thereof
clean and free of debris and in good operating order, condition and
state of repair, ordinary wear and tear excepted. "ORDINARY WEAR
AND TEAR" shall not include any damage or deterioration that would
have been prevented by good maintenance practice or by Lessee
performing all of its obligations under this Lease. Except as
otherwise agreed or specified in writing by Lessor, the Premises,
as surrendered, shall include the Utility Installations. The
obligation of Lessee shall include the repair of any damage
occasioned by the installation, maintenance or removal of Lessee's
Trade Fixtures, furnishings, equipment, and Alterations and/or
Utility Installations, as well as the removal of any storage tank
installed by or for Lessee, and the removal, replacement, or
remediation of any soil, material or ground water contaminated by
Lessee, all as may then be required by Applicable Law and/or good
practice. Lessee's Trade Fixtures shall remain the property of
Lessee and shall be removed by Lessee subject to its obligation to
repair and restore the Premises per this Lease.
8. Insurance; Indemnity.
8.1 PAYMENT FOR INSURANCE. Regardless of whether the Lessor or Lessee is
the Insuring Party, Lessee shall pay for all insurance required under
this Paragraph 8 except to the extent of the cost attributable to
liability insurance carried by Lessor in excess of $1,000,000 per
occurrence. Premiums for policy periods commencing prior to or
extending beyond the Lease term shall be prorated to correspond to the
Lease term. Payment shall be made by Lessee to lessor within ten (10)
days following receipt of an invoice for any amount due.
8.2 Liability Insurance.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in force during the
term of this Lease a Commercial General Liability policy of
insurance protecting Lessee and Lessor (as an additional insured)
against claims for bodily injury, personal injury and property
damage based upon, involving or arising out of the ownership, use,
occupancy, or maintenance of the Premises and all areas appurtenant
thereto. Such insurance shall be on an occurrence basis or a claim
made basis with a "tail" acceptable to Lessor providing single
limit coverage in an amount not less than $1,000,000 per occurrence
with an "Additional Insured-Managers or Lessors of Premises"
Endorsement and contain the "Amendment of the Pollution Exclusion"
for damage caused by heat, smoke or fumes from a hostile fire. The
policy shall not contain any intra-insured exclusions as between
insured persons or organizations, but shall include coverage for
liability assumed under this Lease as an "insured contract" for the
performance of Lessee's indemnity obligations under this lease. The
limits of said insurance required by this lease or as carried by
Lessee shall not, however, limit the liability of Lessee nor
relieve Lessee of any obligation hereunder. All insurance to be
carried by Lessee shall be primary to and not contributory with any
similar insurance carried by Lessor, whose insurance shall be
considered excess insurance only.
(b) CARRIED BY LESSOR. In the event Lessor is the Insuring Party,
Lessor shall also maintain liability insurance described in
Paragraph 8.2(a), above, in addition to, and not in lieu of, the
insurance required to be maintained by Lessee. Lessee shall not be
named as an additional insured therein.
8.3 Property Insurance - Building, Improvements and Rental Value.
(a) BUILDING AND IMPROVEMENTS. The Insuring Party shall obtain and keep
in force during the term of this Lease a policy or policies in the
name of Lessor, with loss payable to Lessor and to the holders of
any mortgages, deeds of trust or ground leases on the Premises
("LENDER(S)"), insuring loss or damage to the Premises. The amount
of such insurance shall be equal to the full replacement cost of
the Premises, as the same shall exist from time to time, or the
amount required by Lenders, but in no event more than the
commercially reasonable and available insurable value thereof if,
by
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reason of the unique nature or age of the improvements involved,
such latter amount is less than full replacement cost. If Lessor is
the Insuring Party, however, Lessee Owned Alterations and Utility
Installations shall be insured by Lessee under Paragraph 8.4 rather
than by Lessor. If the coverage is available and commercially
appropriate, such policy or policies shall insure against all risks
of direct physical loss or damage (except the perils of flood
and/or earthquake unless required by a Lender), including coverage
for any additional costs resulting from debris removal and
reasonable amounts of coverage for the enforcement of any ordinance
or law regulating the reconstruction or replacement of any
undamaged sections of the Premises required to be demolished or
removed by reason of the enforcement of any building, zoning,
safety or land use laws as the result of a covered cause of loss.
Said policy or policies shall also contain an agreed valuation
provision in lieu of any coinsurance clause, waiver of subrogation,
and inflation guard protection causing an increase in the annual
property insurance coverage amount by a factor of not less than the
adjusted U.S. Department of Labor Consumer Price Index for All
Urban Consumers for the city nearest to where the Premises are
located. If such insurance coverage has a deductible clause, the
deductible amount shall not exceed $1,000 per occurrence, and
Lessee shall be liable for such deductible amount in the event of
an Insured Loss, as defined in Paragraph 9.1(c).
(b) RENTAL VALUE. The Insuring Party shall, in addition, obtain and
keep in force during the term of this Lease a policy or policies in
the name of Lessor, with loss payable to Lessor and Lender(s),
insuring the loss of the full rental and other charges payable by
Lessee to Lessor under this Lease for one (1) year (including all
real estate taxes insurance costs, and any scheduled rental
increases). Said insurance shall provide that in the event the
Lease is terminated by reason of an insured loss, the period of
indemnity for such coverage shall be extended beyond the date of
the completion of repairs or replacement of the Premises, to
provide for one full year's loss of rental revenues from the date
of any such loss. Said insurance shall contain an agreed valuation
provision in lieu of any coinsurance clause, and the amount of
coverage shall be adjusted annually to reflect the projected rental
income, property taxes, insurance premium costs and other expenses,
if any, otherwise payable by Lessee, for the next twelve (12) month
period. Lessee shall be liable for any deductible amount in the
event of such loss.
(c) ADJACENT PREMISES. If the Premises are part of a larger building,
or if the Premises are part of a group of buildings owned by Lessor
which are adjacent to the Premises, the Lessee shall pay for any
increase in the premiums for the property insurance of such
building or buildings if said increase is caused by Lessee's acts,
omissions, use or occupancy of the Premises.
(d) TENANT'S IMPROVEMENTS. If the Lessor is the Insuring Party, the
Lessor shall not be required to insure Lessee Owned Alterations and
Utility Installations unless the item in question has become the
property of Lessor under the terms of this Lease. If Lessee is the
Insuring Party, the policy carried by Lessee under this Paragraph
8.3 shall insure Lessee Owned Alterations and Utility
Installations.
8.4 LESSEE'S PROPERTY INSURANCE. Subject to the requirements of Paragraph
8.5, Lessee at its cost shall either by separate policy or, at Lessor's
option, by endorsement to a policy already carried, maintain insurance
coverage on all of Lessee's personal property, Lessee Owned Alterations
and Utility Installations in, on, or about the Premises similar in
coverage to that carried by the Insuring Party under Paragraph 8.3.
Such insurance shall be for replacement cost coverage with a deductible
of not to exceed $1,000 per occurrence. The proceeds from any such
insurance shall be used by Lessee for the replacement of personal
property or the restoration of Lessee Owned Alterations and Utility
Installations. Lessee shall be the Insuring Party with respect to the
insurance required by this Paragraph 8.4 and shall provide Lessor with
written evidence that such insurance is in force.
8.5 INSURANCE POLICIES. Insurance required hereunder shall be in companies
duly licensed to transact business in the state where the Premises are
located, and maintaining during the policy term a "General
Policyholders Rating" of at least BI,V, or such other rating as may be
required by a Lender having a lien on the Premises, as set forth in the
most current issue of "Best's Insurance Guide." Lessee shall not do or
permit to be done anything which shall invalidate the insurance
policies referred to in this Paragraph 8. If Lessee is the Insuring
Party, Lessee shall cause to be delivered to Lessor certified copies of
policies of such insurance or certificates evidencing the existence and
amounts of such insurance with the insured and loss payable clauses as
required by this Lease. No such policy shall be cancelable or subject
to modification except after (30) days prior written notice to Lessor.
Lessee shall at least thirty (30) days prior to the expiration of such
policies, furnish Lessor with evidence of renewals or "insurance
binders" evidencing renewal thereof, or Lessor may order such insurance
and charge the cost thereof to Lessee, which amount shall be payable by
Lessee to Lessor upon demand. If the Insuring Party shall fail to
procure and maintain the insurance required to be carried by the
Insuring Party under this Paragraph 8, the other Party may, but shall
not be required to, procure and maintain the same, but at Lessee's
expense.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or remedies,
Lessee and Lessor ("WAIVING PARTY") each hereby release and relieve the
other, and waive their entire right to recover damages (whether in
contract or in tort) against the other, for loss of or damage to the
Waiving Party's property arising out of or incident to the perils
required to be insured against under Paragraph 8. The effect of such
releases and waivers of the right to recover damages shall not be
limited by the amount of insurance carried or required, or by any
deductibles applicable thereto.
8.7 INDEMNITY. Except for Lessor's negligence and/or breach of express
warranties, Lessee shall indemnify, protect, defend and hold harmless
the Premises, Lessor and its agents, Lessor's master or ground lessor,
partners and Lenders, from and against any and all claims, loss of
rents and/or damages, costs, liens, judgments, penalties, permits,
attorney's and consultant's fees, expenses and/or liabilities arising
out of, involving, or in dealing with, the occupancy of the Premises by
Lessee, the conduct of Lessee's business, any act, omission or neglect
of Lessee, its agents, contractors, employees or invitees, and out of
any Default or Breach by Lessee in the performance in a timely manner
of any obligation on Lessee's part to be performed under this lease.
The foregoing shall include, but not be limited to, the defense or
pursuit of any claim or any action or proceeding involved therein, and
whether or not (in the case of claims made against Lessor) litigated
and/or reduced to judgment, and whether well founded or not. In case
any action or proceeding be brought against Lessor by reason of any of
the foregoing matters, Lessee upon notice from Lessor shall defend the
same at Lessee's expense by counsel reasonably satisfactory to Lessor
and Lessor shall cooperate with Lessee in such defense. Lessor need not
have first paid any such claim in order to be so indemnified.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable for
injury or damage except for damage caused by Lessor's gross negligence
or willful misconduct and to the extent such loss is not covered by
insurance provided for in this lease * to the person or goods, wares,
merchandise or other property of Lessee, Lessee's employees,
contractors, invitees, customers, or any other person in or about the
Premises, 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, fire sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from
any other cause, whether the said injury or damage 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 accessible or not. Lessor shall not
be liable for any damages arising from any act or neglect of any other
tenant of Lessor. Notwithstanding Lessor's negligence or breach of this
Lease, Lessor shall under no circumstances be liable for injury to
Lessee's business or for any loss of income or profit therefrom.
9. Damage or Destruction.
9.1 Definitions.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or destruction to the
improvements on the Premises, other than Lessee Owned Alterations
and Utility Installations, the repair cost of which damage or
destruction is less than 50% of the then Replacement Cost of the
Premises immediately prior to such damage or destruction, excluding
from such calculation the value of the land and Lessee Owned
Alterations and Utility Installations.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or destruction to
the Premises, other than Lessee Owned Alterations and Utility
Installations the repair cost of which damage or destruction is 50%
or more of the then Replacement Cost of the Premises immediately
prior to such damage or destruction, excluding from such
calculation the value of the land and Lessee Owned Alterations and
Utility Installations.
(c) "INSURED LOSS" shall mean damage or destruction to improvements on
the Premises, other than Lessee Owned Alterations and Utility
Installations, which was caused by an event required to be covered
by the insurance described in Paragraph 8.3(a), irrespective of any
deductible amounts or coverage limits involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or rebuild the
improvements owned by Lessor at the time of the occurrence to their
condition existing immediately prior thereto, including demolition,
debris removal and upgrading required by the operation of
applicable building codes, ordinances or laws, and without
deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the occurrence or
discovery of a condition involving the presence of , or a
contamination by, a Hazardous Substance as defined in Paragraph
6.2(a), in, on, or under the Premises.
9.2 PARTIAL DAMAGE - INSURED LOSS. If a Premises Partial Damage that is an
Insured Loss occurs, then Lessor shall, at Lessor's expense, repair
such damage (but not Lessee's Trade Fixtures or Lessee Owned
Alterations and Utility Installations) as soon as reasonably possible
and this Lease shall continue in full force and effect; provided,
however, that Lessee shall, at Lessor's election, make the repair of
any damage or destruction the total cost to repair of which is $10,000
or less, and , in such event, Lessor shall make the insurance proceeds
available to Lessee on a reasonable basis for that purpose.
Notwithstanding the foregoing, if the required insurance was not in
force or the insurance proceeds are not sufficient to effect such
repair, the Insuring Party shall promptly contribute the shortage in
proceeds (except as to the deductible which is Lessee's responsibility)
as and when required to complete said repairs. In the event, however,
the shortage in proceeds was due to the fact that, by reason of the
unique nature of the improvements, full replacement cost insurance
coverage was not commercially reasonable and available, Lessor shall
have no obligation to pay for the shortage in insurance proceeds or to
fully restore the unique aspects of the Premises unless Lessee provides
Lessor with the funds to cover same, or adequate assurance thereof,
within ten (10) days following receipt of written notice of such
shortage and request therefor. If Lessor receives said funds or
adequate assurance thereof within said ten (10) day period, the party
responsible for making the repairs shall complete them as soon as
reasonably possible and this Lease shall remain in full force and
effect. If Lessor does not receive such funds or assurance within said
period, Lessor may nevertheless elect by written notice to Lessee
within ten (10) days thereafter to make such restoration and repair as
is commercially reasonable with Lessor paying any shortage in proceeds,
in which case this Lease
* and/or such loss has not been waived pursuant to Section 8.6 of this
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shall remain in full force and effect. If in such case Lessor does not
so elect, then this Lease shall terminate sixty(60) days following the
occurrence of the damage or destruction. Unless otherwise agreed,
Lessee shall in no event have any right to reimbursement from Lessor
for any funds contributed by Lessee to repair any such damage or
destruction. Premises Partial Damage due to flood or earthquake shall
be subject to Paragraph 9.3 rather than Paragraph 9.2, notwithstanding
that there may be some insurance coverage, but the net proceeds of any
such insurance shall be made available for the repairs if made by
either Party.
9.3 PARTIAL DAMAGE - UNINSURED LOSS. If a Premises Partial Damage that is
not an Insured Loss occurs, unless caused by a negligent or willful act
of Lessee (in which event Lessee shall make the repairs at Lessee's
expense and this Lease shall continue in full force and effect, but
subject to Lessor's rights under Paragraph
4
13). Lessor may at Lessor's option, either: (i) repair such damage as
soon as reasonably possible at Lessor's expense, in which event this
Lease shall continue in full force and effect, or (ii) give written
notice to Lessee within thirty (30) days after receipt by Lessor of
knowledge of the occurrence of such damage of Lessor's desire to
terminate this Lease as of the date sixty (60) days following the
giving of such notice. In the event Lessor elects to give such notice
of Lessor's intention to terminate this Lease, Lessee shall have the
right within ten (10) days after the receipt of such notice to give
written notice to Lessor of Lessee's commitment to pay for the repair
of such damage totally at lessee's expense and without reimbursement
from Lessor. Lessee shall provide Lessor with the required funds or
satisfactory assurance thereof within thirty (30) days following
Lessee's said commitment. In such event this Lease shall continue in
full force and effect, and Lessor shall proceed to make such repairs as
soon as reasonably possible and the required funds are available. If
Lessee does not give such notice and provide the funds or assurance
thereof within the times specified above, this Lease shall terminate as
of the date specified in Lessor's notice of termination.
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof, if a
Premises Total Destruction occurs (including any destruction required
by any authorized public authority), this Lease shall terminate sixty
(60) days following the date of such Premises Total Destruction,
whether or not the damage or destruction is an Insured Loss or was
caused by a negligent or willful act of Lessee. In the event, however,
that the damage or destruction was caused by Lessee, Lessor shall have
the right to recover Lessor's damages from Lessee except as released
and waived in Paragraph 8.6.
9.5 DAMAGE NEAR END OF TERM. If at any time during the last six (6) months
of the term of this Lease there is damage for which the cost for repair
exceeds one (1) month's Base Rent, whether or not an Insured Loss,
Lessor may, at Lessor's option, terminate this Lease effective sixty
(60) days following the date of occurrence of such damage by giving
written notice to Lessee of Lessor's election do so within thirty (30)
days after the date of occurrence of such damage. Provided, however, if
Lessee at that time has an exercisable option to extend this Lease or
to purchase the Premises, then Lessee may preserve this Lease by,
within twenty (20) days following the occurrence of the damage, or
before the expiration of the time provided in such option for its
exercise whichever is earlier ("EXERCISE PERIOD"), (i) exercising such
option and (ii) providing Lessor with any shortage in insurance
proceeds (or adequate assurance thereof) needed to make the repairs. If
Lessee duly exercises such option during said Exercise Period and
provides Lessor with funds (or adequate assurance thereof) to cover any
shortage in insurance proceeds, Lessor shall, at Lessor's expense
repair such damage as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise such
option and provide such funds or assurance during said Exercise Period,
then Lessor may at Lessor's option terminate this Lease as of the
expiration of said sixty (60) day period following the occurrence of
such damage by giving written notice to Lessee of Lessor's election to
do so within ten (10) days after the expiration of the Exercise Period,
notwithstanding any term or provision in the grant of option to the
contrary.
9.6 Abatement of Rent; Lessee's Remedies.
(a) In the event of damage described in Paragraph 9.2 (Partial Damage -
Insured), whether or not Lessor or Lessee repairs or restores the
Premises, the Base Rent, Real Property Taxes, Insurance premiums,
and other charges, if any, payable by Lessee hereunder for the
period during which such damage, its repair or the restoration
continues (not to exceed the period for which rental value
insurance is required under Paragraph 8.3(b)), shall be abated in
proportion to the degree to which Lessee's use of the Premises is
impaired. Except for abatement of Base Rent, Real Property Taxes,
insurance premiums, and other charges, if any, as aforesaid, all
other obligations of Lessee hereunder shall be performed by Lessee,
and Lessee shall have no claim against Lessor for any damage
suffered by reason of any such repair or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this Paragraph 9 and shall not commence, in
a substantial and meaningful way, the repair or restoration of the
Premises within ninety (90) days after such obligation shall
accrue, Lessee may, at any time prior to the commencement of such
repair or restoration, give written notice to Lessor and to any
Lenders of which Lessee has actual notice of Lessee's election to
terminate this Lease on a date not less than sixty (60) days
following the giving of such notice. If Lessee gives such notice to
Lessor and such Lenders and such repair or restoration is not
commenced within thirty (30) days after receipt of such notice,
this Lease shall terminate as of the date specified in said notice.
If Lessor or a Lender commences the repair or restoration of the
Premises within thirty (30) days after receipt of such notice, this
Lease shall continue in full force and effect. "COMMENCE" as used
in this paragraph shall mean either the unconditional authorization
of the preparation of the required plans, or the beginning of the
actual work on the Premises, whichever first occurs.
9.7 HAZARDOUS SUBSTANCE CONDITIONS. If a Hazardous Substance Condition
occurs, unless Lessee is legally responsible therefor (in which case
Lessee shall make the investigation and remediation thereof required by
Applicable Law and this Lease shall continue in full force and effect,
but subject to Lessor's rights under Paragraph 13), Lessor may at
Lessor's option either (i) investigate and remediate such Hazardous
Substance Condition, if required, as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full
force and effect, or (ii) if the estimated cost to investigate and
remediate such condition exceeds twelve (12) times the then monthly
Base Rent or $100,000, whichever is greater, give written notice to
Lessee within thirty (30) days after receipt by Lessor of knowledge of
the occurrence of such Hazardous Substance Condition of Lessor's desire
to terminate this Lease as of the date sixty (60) days following the
giving of such notice. In the event Lessor elects to give such notice
of Lessor's intention to terminate this Lease, Lessee shall have the
right within ten (10) days after the receipt of such notice to give
written notice to Lessor of Lessee's commitment to pay for the
investigation and remediation of such Hazardous Substance Condition
totally at Lessee's expense and without reimbursement from Lessor
except to the extent of an amount equal to twelve (12) times the then
monthly Base Rent or $100,000, whichever is greater. Lessee shall
provide Lessor with the funds required of Lessee or satisfactory
assurance thereof within thirty (30) days following Lessee's said
commitment. In such event this Lease shall continue in full force and
effect, and Lessor shall proceed to make such investigation and
remediation as soon as reasonably possible and the required funds are
available. If Lessee does not give such notice and provide the required
funds or assurance thereof within the times specified above, this Lease
shall terminate as of the date specified in Lessor's notice of
termination. If a Hazardous Substance Condition occurs for which Lessee
is not legally responsible, there shall be abatement of Lessee's
obligations under this Lease to the same extent as provided in
Paragraph 9.6(a) for a period of not to exceed twelve months.
9.8 TERMINATION - ADVANCE PAYMENTS. Upon termination of this Lease pursuant
to this Paragraph 9, an equitable adjustment shall be made concerning
advance Base Rent and any other advance payments made by Lessee to
Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's
Security Deposit as has not been, or is not then required to be, used
by Lessor under the terms of this Lease.
9.9 WAIVE STATUTES. Lessor and Lessee agree that the terms of this Lease
shall govern the effect of any damage to or destruction of the Premises
with respect to the termination of this Lease and hereby waive the
provisions of any present or future statute to the extent inconsistent
herewith.
10. Real Property Taxes.
10.1 (a) PAYMENT OF TAXES. Lessee shall pay the Real Property Taxes, as
defined in Paragraph 10.2, applicable to the Premises during the term
of this Lease. Subject to Paragraph 10.1(b), all such payments shall be
made at least ten (10) days prior to the delinquency date of the
applicable installment. Lessee shall promptly furnish Lessor with
satisfactory evidence that such taxes have been paid. If any such taxes
to be paid by Lessee shall cover any period of time prior to or after
the expiration or earlier termination of the term hereof, Lessee's
share of such taxes shall be equitably prorated to cover only the
period of time within the tax fiscal year this Lease is in effect, and
Lessor shall reimburse Lessee for any overpayment after such proration.
If Lessee shall fail to pay any Real Property Taxes required by this
Lease to be paid by Lessee, Lessor shall have the right to pay the
same, and Lessee shall reimburse Lessor therefor upon demand.
(b) ADVANCE PAYMENT. In order to insure payment when due and before
delinquency of any or all Real Property Taxes, Lessor reserves the
right, at Lessor's option and only if required by Lessor's lender
to estimate the current Real Property Taxes applicable to the
Premises, and to require such current year's Real Property Taxes to
be paid in advance to Lessor by Lessee, either: (i) in a lump sum
amount equal to the installment due, at least twenty (20) days
prior to the applicable delinquency date, or (ii) monthly in
advance with the payment of the Base Rent. If Lessor elects to
require payment monthly in advance, the monthly payment shall be
that equal monthly amount which, over the number of months
remaining before the month in which the applicable tax installment
would become delinquent (and without interest thereon), would
provide a fund large enough to fully discharge before delinquency
the estimated installment of taxes to be paid. When the actual
amount of the applicable tax xxxx is known, the amount of such
equal monthly advance payment shall be adjusted as required to
provide the fund needed to pay the applicable taxes before
delinquency. If the amounts paid to Lessor by Lessee under the
provisions of this Paragraph are insufficient to discharge the
obligations of Lessee to pay such Real Property Taxes as the same
become due, Lessee shall pay to Lessor, upon Lessor's demand, such
additional sums as are necessary to pay such obligations. All
moneys paid to Lessor under this Paragraph may be inter-mingled
with other moneys of Lessor and shall not bear interest. In the
event of a Breach by Lessee in the performance of the obligations
of Lessee under this lease, then any balance of funds paid to
Lessor under the provisions of this Paragraph may, subject to
proration as provided in Paragraph 10.1(a), at the option of
Lessor, be treated as an additional Security Deposit under
Paragraph 5.
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10.2 DEFINITION OF "REAL PROPERTY TAXES". As used herein, the term "REAL
PROPERTY TAXES" shall include any form of real estate tax assessment,
general, special, ordinary or extraordinary, and any license fee,
commercial rental tax, improvement bond or bonds, levy or tax (other
than inheritance, personal income or estate taxes) imposed upon the
Premises by any authority having the direct or indirect power to tax,
including any city, state or federal government, or any school,
agricultural, sanitary, fire, street, drainage or other improvement
district thereof, levied against any legal or equitable interest of
Lessor in the Premises or in the real property of which the Premises
are a part, Lessor's right to rent or other income therefrom, and/or
Lessor's business of leasing the Premises. The term "REAL PROPERTY
TAXES" shall also include any tax, fee, levy, assessment or charge, or
any increase therein, imposed by reason of events occurring, or changes
in applicable law taking effect, during the term of this Lease,
including but not limited to a change in the ownership of the Premises
or in the improvements thereon, the execution of this lease, or any
modification, amendment or transfer thereof, and whether or not
contemplated by the Parties.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed, Lessee's
liability shall be an equitable proportion of the Real Property Taxes
for all of the land and improvement included within the tax parcel
assessed, such proportion to be determined by Lessor from the
respective valuations assigned in the assessor's work sheets or such
other information as may be reasonably available. Lessor's reasonable
determination thereof, in good faith, shall be conclusive.
10.4 PERSONAL PROPERTY TAXES. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon Lessee Owned Alternatives,
Utility Installations, Trade Fixtures, furnishings, equipment and all
personal property of Lessee contained in the Premises or elsewhere.
When possible, Lessee shall cause its Trade Fixtures, furnishings,
equipment and all other personal property to be assessed and billed
separately from the real property of Lessor. 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 or, at Lessor's option, as provided in Paragraph
10.l(b).
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to the
Premises, together with any taxes thereon. If any such services are not
separately metered to Lessee, Lessee shall pay a reasonable proportion, to
be determined by Lessor, of all charges jointly metered with other premises.
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED.
(a) Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage or otherwise transfer or encumber (collectively,
"ASSIGNMENT") or sublet all or any part of Lessee's interest in
this Lease or in the Premises without Lessor's prior written
consent given under and subject to the terms of Paragraph 36.
(b) A change in the control of Lessee shall constitute an assignment
requiring Lessor's consent. The transfer, on a cumulative basis, of
twenty-five percent (25%) or more of the voting control of Lessee
shall constitute a change in control for this purpose.
(c) The involvement of Lessee or its assets in any transaction, or
series of transactions (by way of merger, sale, acquisition,
financing, refinancing, transfer, leveraged buy-out or otherwise),
whether or not a formal assignment or hypothecation of this Lease
or Lessee's assets occurs, which results or will result in a
reduction of the Net Worth of Lessee, as hereinafter defined, by an
amount equal to or greater than twenty-five percent (25%) of such
Net Worth of Lessee as it was represented to Lessor at the time of
the execution by Lessor of this Lease or at the time of the most
recent assignment to which Lessor has consented, or as it exists
immediately prior to said transaction or transactions constituting
such reduction, at whichever time said Net Worth of Lessee was or
is greater, shall be considered an assignment of this Lease by
Lessee to which Lessor may reasonably withhold its consent. "NET
WORTH OF LESSEE" for purposes of this Lease shall be the net worth
of Lessee (excluding any guarantors) established under generally
accepted accounting principles consistently applied.
(d) An assignment or subletting of Lessee's interest in this Lease
without Lessor's specific prior written consent shall, at Lessor's
option, be a Default curable after notice per Paragraph 13.1(c), or
a noncurable Breach without the necessity of any notice and grace
period. If Lessor elects to treat such unconsented to assignment or
subletting as a noncurable Breach, Lessor shall have the right to
either: (i) terminate this Lease, or (ii) upon thirty (30) days
written notice ("Lessor's Notice"), increase the monthly Base Rent
to a fair market rental value or one hundred ten percent (110%) of
the Base Rent then in effect, whichever is greater. Pending
determination of the new fair market rental value, if disputed by
Lessee, Lessee shall pay the amount set forth in Lessor's Notice,
with any overpayment credited against the next installment(s) of
Base Rent coming due, and any underpayment for the period
retroactively to the effective date of the adjustment being due and
payable immediately upon the determination thereof. Further, in the
event of such Breach and market value adjustment, (1) the purchase
price of any option to purchase the Premises held by Lessee shall
be subject to similar adjustment to the then fair market value
(without the Lease being considered an encumbrance or any deduction
for depreciation or obsolescence, and considering the Premises at
its highest and best use and in good condition), or one hundred ten
percent (110%) of the price previously in effect, whichever is
greater, (ii) any index-oriented rental or price adjustment
formulas contained in this Lease shall be adjusted to require that
the base index be determined with reference to the index applicable
to the time of such adjustment, (iii) any fixed rental adjustments
scheduled during the remainder of the Lease term shall be increased
in the same ratio as the new market rental bears to the Base Rent
in effect immediately prior to the market value adjustment.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING
(a) Regardless of Lessor's consent, any assignment or subletting shall
not: (i) be effective without the express written assumption by
such assignee or sublessee of the obligations of Lessee under this
Lease, (ii) release Lessee of any obligations hereunder, or (iii)
alter the primary liability of Lessee for the payment of Base Rent
and other sums due Lessor hereunder or for the performance of any
other obligations to be performed by Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's obligations
from any person other than Lessee pending approval or disapproval
of an assignment. Neither a delay in the approval or disapproval of
such assignment nor the acceptance of any rent or performance shall
constitute a waiver or estoppel of Lessor's right to exercise its
remedies for the Default or Breach by Lessee of any of the terms,
covenants or conditions of this Lease.
(c) The consent of Lessor to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting by
Lessee or to any subsequent or successive assignment or subletting
by the sublessee. However, Lessor may consent to subsequent
sublettings and assignments of the sublease or any amendments or
modifications thereto after reasonable attempts to notify Lessee or
anyone else liable on the lease or sublease and without obtaining
their consent, and such action shall not relieve such persons from
liability under this Lease or sublease.
(d) In the event of any Default or Breach of Lessee's obligations under
this Lease, Lessor may proceed directly against Lessee, any
Guarantors or any one else responsible for the performance of the
Lessee's obligations under this Lease, including the sublessee,
without first exhausting Lessor's remedies against any other person
or entity responsible therefor to Lessor, or any security held by
Lessor or Lessee.
(e) Each request for consent to an assignment or subletting shall be in
writing, accompanied by information relevant to Lessor's
determination as to the financial and operational responsibility
and appropriateness of the proposed assignee or sublessee,
including but not limited to the intended use and/or required
modification of the Premises, if any, together with a
non-refundable deposit of $1,000 or ten percent (10%) of the
current monthly Base Rent, whichever is greater, as reasonable
consideration for Lessor's considering and processing the request
for consent. Lessee agrees to provide Lessor with such other or
additional information and/or documentation as may be reasonably
requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by reason of
accepting such assignment or entering into such sublease, be
deemed, for the benefit of Lessor, to have assumed and agreed to
conform and comply with each and every term, covenant, condition
and obligation herein to be observed or performed by Lessee during
the term of said assignment or sublease, other than such
obligations as are contrary to or inconsistent with provisions of
an assignment or sublease to which Lessor has specifically
consented in writing.
(g) The occurrence of a transaction described in Paragraph 12.1(c)
shall give Lessor the right (but not the obligation) to require
that the Security Deposit be increased to an amount equal to six
(6) times the then monthly Base Rent, and Lessor may make the
actual receipt by Lessor of the amount required to establish such
Security Deposit a condition to Lessor's consent to such
transaction.
(h) Lessor, as a condition to giving its consent to any assignment or
subletting, may require that the amount and adjustment structure of
the rent payable under this Lease be adjusted to what is then the
market value and/.or adjustment structure for property similar to
the Premises as then constituted.
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The following
terms and conditions shall apply to any subletting by Lessee of all or
any part of the Premises and shall be deemed included in all subleases
under this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease of all
or a portion of the Premises heretofore or hereafter made by
Lessee, and Lessor may collect such rent and income and apply same
toward Lessee's Obligations under this Lease; provided, however,
that until a Breach (as defined in Paragraph 13.1) shall occur in
the performance of Lessee's obligations under this Lease, Lessee
may, except as otherwise provided in this Lease, receive, collect
and enjoy the rents accruing under such sublease. Lessor shall not,
be reason of this or any other assignment of such sublease to
Lessor, nor by reason of the collection of the rents from a
sublessee, be deemed liable to the sublessee for any failure of
Lessee to perform and comply with any of Lessee's obligations to
such sublessee under such sublease. Lessee hereby irrevocably
authorizes and directs any such sublessee, upon written notice from
Lessor stating that a Breach exists in the performance of Lessee's
obligations under this Lease, to pay to Lessor the rents and other
charges due and to become due under the sublease. Sublessee shall
rely upon any such statement and request from Lessor and shall pay
such rents and other charges to Lessor without any obligation or
right to inquire as to whether such Breach exists and
notwithstanding any notice from or claim from Lessee to the
contrary. Lessee shall have no right to inquire as to whether such
Breach exists and notwithstanding any notice from or claim from
Lessee to the contrary. Lessee shall have no right or claim against
said sublessee, or, until the Breach has been cured, against
Lessor, for any such rents and other charges so paid by said
sublessee to Lessor.
NET Initials_________
6
(b) In the event of a Breach by Lessee in the performance of its
obligations under this Lease, Lessor, at its option and without any
obligation to do so, may require any sublessee to attorn to Lessor,
in which event Lessor shall undertake the obligations of the
sublessor under such sublease from the time of the exercise of said
option to the expiration of such sublease; provided, however,
Lessor shall not be liable for any prepaid rents or security
deposit paid by such sublessee to such sublessor or for any other
prior Defaults or Breaches of such sublessor under such sublease.
(c) Any matter or thing requiring the consent of the sublessor under a
sublease shall also require the consent of Lessor herein.
(d) No sublessee shall further assign or sublet all or any part of the
Premises without Lessor's prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or Breach by
Lessee to the sublessee, who shall have the right to cure the
Default of Lessee within the grace period, if any, specified in
such notice. The sublessee shall have a right of reimbursement and
offset from and against Lessee for any such Defaults cured by the
sublessee.
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. Lessor and Lessee agree that if an attorney is
consulted by Lessor in connection with a Lessee Default or Breach (as
hereinafter defined), $350.00 is a reasonable minimum sum per such
occurrence for legal services and costs in the preparation and service
of a notice of Default, and the Lessor may include the cost of such
services and costs in said notice as rent due and payable to cure said
Default. A "DEFAULT" is defined as a failure by the Lessee to observe,
comply with or perform any of the terms, covenants, conditions or rules
applicable to Lessee under this Lease. A "BREACH" is defined as the
occurrence of any one or more of the following Defaults, and, where a
grace period for cure after notice is specified herein, the failure by
Lessee to cure such Default prior to the expiration of the applicable
grace period, and shall entitle Lessor to pursue the remedies set forth
in Paragraphs 13.2 and/or 13.3:
(a) The vacating of the Premises without the intention to reoccupy
same, or the abandonment of the Premises.
(b) Except as expressly otherwise provided in this Lease, the failure
by Lessee to make any payment of Base Rent or any other monetary
payment required to be made by Lessee hereunder, whether to Lessor
or to a third party, as and when due, the failure by Lessee to
provide Lessor with reasonable evidence of insurance or surety bond
required under this Lease, or failure of Lessee to fulfill any
obligation under this Lease which endangers or threatens life or
property, where such failure continues for a period of three (3)
days following written notice thereof by or on behalf of Lessor to
Lessee.
(c) Except as expressly otherwise provided in this Lease, the failure
by Lessee to provide Lessor with reasonable written evidence (in
duly executed original form, if applicable) of (i) compliance with
applicable law per Paragraph 6.3(ii) the inspection, maintenance
and service contracts required under Paragraph 7.1(b), (iii) the
recission of an unauthorized assignment or subletting per Paragraph
12.1(b), (iv) a Tenancy Statement per Paragraphs 16 or 37, (v) the
subordination or non-subordination of this Lease per Paragraph 30,
(vi) the guaranty of the performance of Lessee's obligations under
this Lease if required under Paragraphs 1.11 and 37, (vii) the
execution of any document requested under Paragraph 42 (easements),
or (viii) any other documentation or information which Lessor may
reasonably require of Lessee under the terms of this Lease, where
any such failure continues for a period of ten (10) days following
written notice by or on behalf of Lessor to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph
40 hereof, that are to be observed, complied with or performed by
Lessee, other than those described in subparagraphs (a), (b) or
(c), above, where such Default continues for a period of thirty
(30) days after written notice thereof by or on behalf of Lessor to
Lessee; provided, however, that if the nature of Lessee's Default
is such that more than thirty (30) days are reasonably required for
its cure, then it shall not be deemed to be a Breach of this Lease
by Lessee if Lessee commences such cure within said thirty (30) day
period and thereafter diligently prosecutes such cure to
completion.
(e) The occurrence of any of the following events: (i) The making by
Lessee of any general arrangement or assignment for the benefit of
creditors; (ii) Lessee's becoming a "debtor" as defined in 11
U.S.C. 'SS' 101 or any successor statute thereto (unless, in the
case of a petition filed against Lessee, the same is dismissed
within sixty (60) days; (iii) the appointment of a trustee or
receiver to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease,
where possession is not restored to Lessee within thirty (30) days;
or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of
Lessee's interest in this Lease, where such seizure is not
discharged within thirty (30) days; provided, however, in the event
that any provision of this subparagraph (e) is contrary to any
applicable law, such provision shall be of no force or effect, and
not affect the validity of the remaining provisions.
(f) The discovery by Lessor that any financial statement given to
Lessor by Lessee or any Guarantor of Lessee's obligations hereunder
was materially false.
(g) If the performance of Lessee's obligations under this Lease is
guaranteed: (i) the death of a guarantor, (ii) the termination of a
guarantor's liability with respect to this Lease other than in
accordance with the terms of such guaranty, (iii) a guarantor's
becoming insolvent or the subject of a bankruptcy filing, (iv) a
guarantor's refusal to honor the guaranty, or (v) a guarantor's
breach of its guaranty obligation on a n anticipatory breach basis,
and Lessee's failure, within sixty (60) days following written
notice by or on behalf of Lessor to Lessee of any such event, to
provide Lessor with written alternative assurance or security,
which, when coupled with the then existing resources of Lessee,
equals or exceeds the combined financial resources of Lessee and
the guarantors that existed at the time of execution of this Lease.
13.2 REMEDIES. If Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after
written notice to Lessee (or in case of emergency, without
notice),Lessor may at its option (but without obligation to do so),
perform such duty or obligation on Lessee's behalf, including but not
limited to the obtaining of reasonably required bonds, insurance
policies, or governmental licenses, permits or approvals. The costs and
expenses of any such performance by Lessor shall be due and payable by
Lessee to Lessor upon invoice therefor. If any check given to Lessor by
Lessee shall not be honored by the bank upon which it is drawn, Lessor,
at its option, may require all future payments to be made under this
Lease by Lessee to be made only by cashier's check. In the event of a
Breach of this Lease by Lessee, as defined in Paragraph 13.1, with or
without further notice or demand, and without limiting Lessor in the
exercise of any right or remedy which Lessor may have by reason of such
Breach, Lessor may:
(a) Terminate Lessee's right to Possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall
terminate and Lessee shall immediately surrender possession of the
Premises to Lessor. In such event Lessor shall be entitled to
recover from Lessee: (i) the worth at the time of the award of the
unpaid rent which had been earned at the time of termination; (ii)
the worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time
of award exceeds the amount of such rental loss that the Lessee
proves could have been reasonably avoided; (iii) 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 rental loss that the Lessee proves could be reasonably
avoided; and (iv) any other amount necessary to compensate Lessor
for all the detriment proximately caused by the Lessee's failure to
perform its obligations under this Lease or which in the ordinary
course of things would be likely to result therefrom, including but
not limited to the cost of recovering possession of the Premises,
expenses of reletting, including necessary renovation and
alteration of the Premises, reasonable attorneys' fees, and that
portion of the leasing commission paid by Lessor applicable to the
unexpired term of this Lease. The worth at the time of award of the
amount referred to in provision (iii) of the prior sentence shall
be computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award. Efforts
by Lessor to mitigate damages caused by Lessee's Default or Breach
of this Lease shall not waive Lessor's right to recover damages
under this Paragraph. If termination of this Lease is obtained
through the provisional remedy of unlawful detainer, Lessor shall
have the right to recover in such proceeding the unpaid rent and
damages as are recoverable therein, or Lessor may reserve therein
the right to recover all or any part thereof in a separate suit for
such rent and/or damages. If a notice and grace period required
under subparagraphs 13.1(b), (c) or (d) was not previously given, a
notice to pay rent or quit, or to perform or quit, as the case may
be, given to Lessee under any statute authorizing the forfeiture of
leases for unlawful detainer shall also constitute the applicable
notice for grace period purposes required by subparagraphs 13.1(b),
(c) or (d). In such case, the applicable grace period under
subparagraphs 13.1(b), (c) or (d) and under the unlawful detainer
statute shall run concurrently after the one such statutory notice,
and the failure of Lessee to cure the Default within the greater of
the two such grace periods shall constitute both an unlawful
detainer and a Breach of this Lease entitling Lessor to the
remedies provided for in this Lease and/or by said statute.
(b) Continue the Lease and Lessee's right to possession in effect (in
California under California Civil Code Section 1951.4) after
Lessee's Breach and abandonment and recover the rent as it becomes
due, provided Lessee has the right to sublet or assign, subject
only to reasonable limitations. See Paragraphs 12 and 36 for the
limitations on assignment and subletting which limitations Lessee
and Lessor agree are reasonable. Acts of maintenance or
preservation, efforts to relet the Premises, or the appointment of
a receiver to protect the Lessor's interest under the Lease shall
not constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available to Lessor under
the laws or judicial decisions of the state wherein the Premises
are located.
(d) The expiration or termination of this Lease and/or the termination
of Lessee's right to possession shall not relieve Lessee from
liability under any indemnity provisions of this lease as to
matters occurring or accruing during the term hereof or by reason
of Lessee's occupancy of the Premises.
NET Initials____________
7
13.3 INDUCEMENT RECAPTURE IN EVENT OF BREACH. Any agreement by Lessor for
free or abated rent or other charges applicable to the Premises, or for
the giving or paying by Lessor to or for Lessee of any cash or other
bonus, inducement or consideration for Lessee's entering into this
Lease, all of which concessions are hereinafter referred to as
"INDUCEMENT PROVISIONS", shall be deemed conditioned upon Lessee's full
and faithful performance of all of the terms, covenants and conditions
of this Lease to be performed or observed by Lessee during the term
hereof as the same may be extended. Upon the occurrence of a Breach of
this Lease by Lessee, as defined in Paragraph 13.1, any such Inducement
Provision shall automatically be deemed deleted from this Lease and of
no further force or effect, and any rent, other charge, bonus,
inducement or consideration theretofore abated, given or paid by Lessor
under such an Inducement Provision shall be immediately due and payable
by Lessee to Lessor, and recoverable by Lessor as additional rent due
under this Lease, notwithstanding any subsequent cure of said Breach by
Lessee. The acceptance by Lessor of rent or the cure of the Breach
which initiate the operation of this Paragraph shall not be deemed a
waiver by Lessor of rent or the cure of the Breach which initiated the
operation of this Paragraph shall not be deemed a waiver by Lessor of
the provisions of this Paragraph unless specifically so stated in
writing by Lessor at the time of such acceptance.
13.4 LATE CHARGES. 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 upon Lessor by the terms of any ground lease 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 five (5) days after such amount shall be
due, then, without any requirement for notice to Lessee, Lessee shall
pay to Lessor a late charge equal to six percent (6%) of such overdue
amount. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Lessor will incur by reason
of late payment by Lessee. Acceptance of such late charge by Lessor
shall in no event constitute a waiver of Lessee's Default or Breach
with respect to such overdue amount, nor prevent Lessor from exercising
any of the other rights and remedies granted hereunder. In the event
that a late charge is payable hereunder, whether or not collected, for
there (3) consecutive installments of Base Rent, then notwithstanding
Paragraph 4.1 or any other provision of this Lease to the contrary,
Base Rent shall, at Lessor's option, become due and payable quarterly
in advance.
13.5 BREACH BY LESSOR. Lessor shall not be deemed in breach of this Lease
unless Lessor fails within a reasonable time to perform an obligation
required to be performed by Lessor. For purposes of this Paragraph
13.5, a reasonable time shall in no event be less than thirty (30) days
after receipt by Lessor, and by the holders of any ground lease,
mortgage or deed of trust covering the Premises whose name and address
shall have been furnished Lessee in writing for such purpose, of
written notice specifying wherein such obligation of Lessor has not
been performed; provided, however, that if the nature of Lessor's
obligation is such that more than thirty (30) days after such notice
are reasonably required for its performance, then Lessor shall not be
in breach of this Lease if performance is commenced within such thirty
(30) day period and thereafter diligently pursued to completion.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said
power (all of which are herein called "CONDEMNATION"), this Lease shall
terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever first occurs. If more than 10 percent
(10%) of the floor area of the Premises, or more than twenty-five (25%) of
the land area not occupied by any building, is taken by condemnation, Lessee
may, at Lessee's option, to be exercised in writing within ten (10) days
after Lessor shall have given Lessee written notice of such taking (or in
the absence of such notice, within ten (10) days after the condemning
authority shall have taken possession) terminate this Lease as of the date
the condemning authority takes such possession. If Lessee does not terminate
this Lease in accordance with the foregoing, this Lease shall remain in full
force and effect as to the portion of the Premises remaining, except that
the Base Rent shall be reduced in the same proportion as the rentable floor
area of the Premises taken bears to the total rentable floor area of the
building located on the Premises. No reduction of Base Rent shall occur if
the only portion of the Premises taken is land on which there is no
building. Any award for the taking of all or any part of the Premises under
the power of eminent domain or any payment made under threat of the exercise
of such power shall be the property of Lessor, whether such award shall be
made as compensation for diminution in value of the leasehold or for the
taking of the fee, or as severance damages; provided, however, that Lessee
shall be entitled to any compensation, separately awarded to Lessee for
Lessee's relocation expenses and/or loss of Lessee's Trade Fixtures. In the
event that this Lease is not terminated by reason of such condemnation,
Lessor shall to the extent of its net severance damages received, over and
above the legal and other expenses incurred by Lessor in the condemnation
matter, repair any damage to the Premises caused by such condemnation,
except to the extent that Lessee has been reimbursed therefor by the
condemning authority. Lessee shall be responsible for the payment of any
amount in excess of such net severance damages required to complete such
repair.
15. BROKER'S FEE.
15.1
15.2
15.3
15.4
15.5 Lessee and Lessor each represent and warrant to the other that it has
had no dealings with any person, firm, broker or finder (other than the
Brokers, if any named in Paragraph 1.10) in connection with the
negotiation of this Lease and/or the consummation of the transaction
contemplated hereby, and that no broker or other person, firm or entity
other than said named Brokers is entitled to any commission or finder's
fee in connection with said transaction. Lessee and Lessor do each
hereby agree to indemnify, protect, defend and hold the other harmless
from and against liability for compensation of charges which may be
claimed by any such unnamed broker, finder or other similar party by
reason of any dealing or actions of the indemnifying Party, including
any costs, expenses, attorneys' fees reasonably incurred with respect
thereto.
15.6 Lessor and Lessee hereby consent to and approve all agency
relationships, including any dual agencies, indicated in Paragraph
1.10.
16. TENANCY STATEMENT.
16.1 Each Party (as "RESPONDING PARTY") shall within ten (10) days after
written notice from the other Party ( the "REQUESTING PARTY") execute,
acknowledge and deliver to the Requesting Party a statement in writing
in form similar to the most current "TENANCY STATEMENT" form published
by the American Industrial Real Estate Association, plus such
additional information, confirmation and/or statements as may be
reasonably requested by the Requesting Party.
16.2 If Lessor desires to finance, refinance, or sell the Premises, any part
thereof, or the building of which the Premises are a part, Lessee and
all Guarantors of Lessee's performance hereunder shall deliver to any
potential lender or purchaser designated by Lessor such financial
statements of Lessee and such Guarantors as may be reasonably required
by such lender or purchaser, including but not limited to Lessee's
financial statements for the past there (3) years. All such financial
statements shall be received by Lessor and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
17. LESSOR'S LIABILITY. The term "LESSOR" as used herein shall mean the owner or
owners at the time in question of the fee title to the Premises, or, if this
is a sublease, of the Lessee's interest in the prior lease. In the event of
a transfer of Lessor's title or interest in the Premises or in this Lease,
Lessor shall deliver to the transferee or assignee (in cash or by credit)
any unused Security Deposit held by Lessor at the time of such transfer or
assignment. Except as provided in Paragraph 15, upon such transfer or
assignment and delivery of the Security Deposit, as aforesaid, the prior
Lessor shall be relieved of all liability with respect to the obligation
and/or covenants under this Lease thereafter to be performed by the Lessor.
Subject to the foregoing, the obligations and/or covenants in this Lease to
be performed by the Lessor shall be binding only upon the Lessor as herein
above defined.
18. SEVERABILITY. The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction, shall in no way affect the validity of
any other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Any monetary payment due Lessor hereunder,
other than late charges, not received by Lessor within thirty (30) days
following the date on which it was due, shall bear interest from the
thirty-first (31st) day after it was due at the rate of 12% per annum, but
not exceeding the maximum rate allowed by law, in addition to the late
charge provided for in Paragraph 13.4.
20. TIME OF ESSENCE. Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under this Lease.
21. RENT DEFINED. All monetary obligations of Lessor under the terms of this
Lease are deemed to be rent.
22. NO PRIOR OR OTHER AGREEMENTS; BROKER DISCLAIMER. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein,
and no other prior or contemporaneous agreement or understanding shall be
effective. Lessor and Lessee each represents and warrants to the Brokers
that it has made, and is relying solely upon, its own investigation as to
the nature, quality, character and financial responsibility of the other
Party to this Lease and as to the nature, quality and character of the
Premises. Brokers have no responsibility with respect thereto or with
respect to any default or breach hereof by either Party.
NET Initials_________
8
23. NOTICES.
23.1 All notices required or permitted by this Lease shall be in writing and
may be delivered in person (by hand or by messenger or courier service)
or may be sent by regular, certified or registered mail or U.S. Postal
Service Express Mail, with postage paid, or by facsimile transmission,
and shall be deemed sufficiently given if served in a manner specified
in this Paragraph 23. The addresses noted adjacent to a Party's
signature on this Lease shall be that Party's address for delivery or
mailing of notice purposes. Either Party may by written notice to the
other specify a different address for notice purposes, except that upon
Lessee's taking possession of the Premises, the Premises shall
constitute Lessee's address for the purpose of mailing or delivering
notices to Lessee. A copy of all notices required or permitted to be
given to Lessor hereunder shall be concurrently transmitted to such
party or parties at such addresses as Lessor may from time to time
hereafter designate by written notice to Lessee.
23.2 Any notice sent by registered or certified mail, return receipt
requested, shall be deemed given on the date of delivery shown on the
receipt card, or if no delivery date is shown, the postmark thereon. If
sent by regular mail the notice shall be deemed given forty-eight (48)
hours after the same is addressed as required herein and mailed with
postage prepaid. Notices delivered by United States Express Mail or
overnight courier that guarantees next day delivery shall be deemed
given twenty-four (24) hours after delivery of the same to the United
States Postal Service or courier. If any notice is transmitted by
facsimile transmission or similar means, the same shall be deemed
served or delivered upon telephone confirmation of receipt of the
transmission thereof, provided a copy is also delivered via delivery or
mail. If notice is received on a Sunday or legal holiday, it shall be
deemed received on the next business day.
24. WAIVERS. No waiver by Lessor of the Default or Breach of any term, covenant
or condition hereof by Lessee, shall be deemed a waiver of any other term,
covenant or condition hereof, or of any subsequent Default or Breach by
Lessee of the same or of any other term, covenant or condition hereof.
Lessor's consent to, or approval of, any act shall not be deemed to render
unnecessary the obtaining of Lessor's consent to, or approval of, any
subsequent or similar act by Lessee, or be construed as the basis of an
estoppel to enforce the provision or provisions of this Lease requiring such
consent. Regardless of Lessor's knowledge of a Default or Breach at the time
of accepting rent, the acceptance of rent by Lessor shall not be a waiver of
any preceding Default or Breach by Lessee of any provision hereof, other
than the failure of Lessee to pay the particular rent so accepted. Any
payment given Lessor by Lessee in may be accepted by Lessor on account of
moneys or damages due Lessor, notwithstanding any qualifying statements or
conditions made by Lessee in connection therewith, which such statements
and/or conditions shall be of no force or effect whatsoever unless
specifically agreed to in writing by Lessor at or before the time of deposit
of such payment.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of
this Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
28. COVENANTS AND CONDITIONS. All provisions of this Lease to be observed or
performed by Lessee are both covenants and conditions.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the parties,
their personal representatives, successors and assigns and be governed by
the laws of the State in which the Premises are located. Any litigation
between the Parties hereto concerning this Lease shall be initiated in the
county in which the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust,
or other hypothecation or security device (collectively, "SECURITY
DEVICE"), now or hereafter placed by Lessor upon the real property of
which the Premises are a part, to any and all advances made on the
security thereof, and to all renewals, modifications, consolidations,
replacements and extensions thereof. Lessee agrees that the Lenders
holding any such Security Device shall have no duty, liability or
obligation to perform any of the obligations of Lessor under this
Lease, but that in the event of Lessor's default with respect to any
such obligation, Lessee will give any Lender whose name and address
have been furnished Lessee in writing for such purpose notice of
Lessor's default and allow such Lender thirty (30) days following
receipt of such notice for the cure of said default before invoking any
remedies Lessee may have by reason thereof. If any Lender shall elect
to have this Lease and/or any Option granted hereby superior to the
lien of its Security Device and shall give written notice thereof of
Lessee, this Lease and such Options shall be deemed prior to such
Security Device, notwithstanding the relative dates of the
documentation or recordation thereof.
30.2 ATTORNMENT. Subject to the non-disturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who
acquires ownership of the Premises by reason of a foreclosure of a
Security Device, and that in the event of such foreclosure, such new
owner shall not: (i) be liable for any act or omission of any prior
lessor or with respect to events occurring prior to acquisition of
ownership, (ii) be subject to any offsets or defenses which Lessee
might have against any prior lessor or (iii) be bound by prepayment of
more than one month's rent.
30.3 NON-DISTURBANCE. With respect to Security Devices entered into by
Lessor after the execution of this Lease, Lessee's subordination of
this Lease shall be subject to receiving assurance (a "NON-DISTURBANCE
AGREEMENT") from the Lender that Lessee's possession and this Lease,
including any options to extend the term hereof, will not be disturbed
so long as Lessee is not in Breach hereof and attorns to the record
owner of the Premises.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30 shall be
effective without the execution of any further documents; provided,
however, that, upon written request from Lessor or a Lender in
connection with a sale, financing or refinancing of the Premises,
Lessee and Lessor shall execute such further writings as may be
reasonably required to separately document any such subordination or
non-subordination, attornment and/or non-disturbance agreement as is
provided for herein.
31. ATTORNEY'S FEES. Notwithstanding any other terms or provisions of this
Lease, if any Party or Broker brings an action or proceeding to enforce the
terms hereof or declare rights hereunder, the Prevailing Party (as hereafter
defined) or Broker in any such proceeding, action, or appeal thereon, shall
be entitled to reasonable attorney's fees. Such fees may be awarded in the
same suit or recovered in a separate suit, whether or not such action or
proceeding is pursued to decision or judgment. The term, "PREVAILING PARTY"
shall include, without limitation, a Party or Broker who substantially
obtains or defeats the relief sought, as the case may be, whether by
compromise, settlement, judgment, or the abandonment by the other Party or
Broker of its claim or defense. The attorney's fee award shall not be
computed in accordance with any court fee schedule, but shall be such as to
fully reimburse all attorney's fees reasonably incurred. Lessor shall be
entitled to attorney's fees, costs and expenses incurred in the preparation
and service of notices of Default and consultations in connection therewith,
whether or not a legal action is subsequently commenced in connection with
such Default or resulting Breach.
32. LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS. Lessor and Lessor's agents shall
have the right to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times for the purpose of showing the
same to prospective purchasers, lenders, or lessees, and making such
alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part, as Lessor may reasonably deem necessary.
Lessor may at any time place on or about the Premises or building any
ordinary "For Sale" signs and Lessor may at any time during the last one
hundred twenty (120) days of the term hereof place on or about the Premises
any ordinary "For Lease" signs. All such activities of Lessor shall be
without abatement of rent or liability to Lessee.
33. AUCTIONS. Lessee shall not conduct, not permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first
having obtained Lessor's prior written consent. Notwithstanding anything to
the contrary in this Lease, Lessor shall not be obligated to exercise any
standard of reasonableness in determining whether to grant such consent.
34. SIGNS. Lessee shall not place any sign upon the Premises, except that Lessee
may, with Lessor's prior written consent, install (but not on the roof) such
signs as are reasonably required to advertise Lessee's own business. The
installation of any sign on the Premises by or for Lessee shall be subject
to the provisions of Paragraph 7 (Maintenance, Repairs, Utility
Installations, Trade Fixtures and Alterations). Lessor consents to Lessee's
existing sign.
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for
Breach by Lessee, shall automatically terminate any sublease or lesser
estate in the Premises; provided, however, Lessor shall, in the event of any
such surrender, termination or cancellation, have the option to continue any
one or all of any existing subtenancies. Lessor's failure within ten (10)
days following any such event to make a written election to the contrary by
written notice to the holder of any such lesser interest, shall constitute
Lessor's election to have such event constitute the termination of such
interest.
36. CONSENTS.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise provided
herein, wherever in this Lease the consent of a Party is required
to an act by or for the other Party, such consent shall not be
unreasonably withheld or delayed. Lessor's actual reasonable costs
and expenses (including but not limited to architects', attorneys',
engineers' or other consultants' fees) incurred in the
consideration of, or response to, a request by Lessee for any
Lessor consent pertaining to this Lease or the Premises, including
but not limited to consents to an assignment, a subletting or the
presence or use of a Hazardous Substance, practice or storage tank,
shall be paid by Lessee to Lessor upon receipt of an invoice and
supporting documentation therefor.
NET Initials_________
9
(b) Subject to Paragraph 12.1(e) (applicable to assignment or
subletting), Lessor may, as a condition to considering any such
request by Lessee, require that Lessee deposit with Lessor an
amount of money (in addition to the Security Deposit held under
Paragraph 5) reasonably calculated by Lessor to represent the cost
Lessor will incur in considering and responding to Lessee's
request. Except as otherwise provided, any unused portion of said
deposit shall be refunded to Lessee without interest. Lessor's
consent to any act, assignment of this Lease or subletting of the
Premises by Lessee shall not constitute an acknowledgment that no
Default or Breach by Lessee of this Lease exists, nor shall such
consent be deemed a waiver of any then existing Default or Breach,
except as may be otherwise specifically stated in writing by Lessor
at the time of such consent.
(c) All conditions to Lessor's consent authorized by this Lease are
acknowledged by Lessee as being reasonable. The failure to specify
herein any particular condition to Lessor's consent shall not
preclude the imposition by Lessor at the time of consent of such
further or other conditions as are then reasonable with reference
to the particular matter for which consent is being given.
37. GUARANTOR.
38. QUIET POSSESSION. Upon payment by Lessee of the rent for the Premises and
the observance and performance of all of the covenants, conditions and
provisions on Lessee's part to be observed and performed under this Lease,
Lessee shall have quiet possession of the Premises for the entire term
hereof subject to all of the provisions of this Lease.
39. OPTIONS.
39.1 DEFINITION. As used in this Paragraph 39 the word "OPTION" has the
following meaning: (a) the right to extend the term of this Lease or to
renew this Lease or to extend or renew any lease that Lessee has on
other property of Lessor; (b) the right of first refusal to lease the
Premises or the right of first offer to lease the Premises or the right
of first refusal to lease other property of Lessor or the right of
first offer to lease other property of Lessor; (c) the right to
purchase the Premises, or the right of first refusal to purchase the
Premises, or the right of first offer to purchase the Premises, or the
right to purchase other property of Lessor, or the right of first
refusal to purchase other property of Lessor.
39.2 OPTIONS PERSONAL TO ORIGINAL LESSEE. Each Option granted to Lessee in
this Lease is personal to the original Lessee named in Paragraph 1.1
hereof, and cannot be voluntarily or involuntarily assigned or
exercised by any person or entity other than said original Lessee while
the original Lessee is in full and actual possession of the Premises
and without the intention of thereafter assigning or subletting. The
Options, if any herein granted to Lessee are not assignable, either as
a part of an assignment of this Lease or separately or apart therefrom,
and no Option may be separated from this Lease in any manner, by
reservation or otherwise.
39.3 MULTIPLE OPTIONS. In the event that Lessee has any multiple Options to
extend or renew this Lease, a later option cannot be exercised unless
the prior Options to extend or renew this Lease have been validly
exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option, notwithstanding
any provision in the grant of Option to the contrary: (i) during
the period commencing with the giving of any notice of Default
under Paragraph 13.1 and continuing until the noticed Default is
cured, or (ii) during the period of time any monetary obligation
due Lessor from Lessee is unpaid (without regard to whether notice
thereof is given Lessee), or (iii) during the time Lessee is in
Breach of this Lease, or (iv) in the event that Lessor has given to
Lessee three (3) or more notices of Default under Paragraph 13.1,
whether or not the Defaults are cured, during the twelve (12) month
period immediately preceding the exercise of the Option.
(b) The period of time within which an Option may be exercised shall
not be extended or enlarged by reason of Lessee's inability to
exercise an Option because of the provisions of Paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding
Lessee's due and timely exercise of the Option, if, after such
exercise and during the term of this Lease, (i) Lessee fails to pay
to Lessor a monetary obligation of Lessee for a period of thirty
(30) days after such obligation becomes due (without any necessity
of Lessor to give notice thereof to Lessee), or (ii) Lessor gives
to Lessee three or more notices of Default under Paragraph 13.1
during any twelve month period, whether or not the Defaults are
cured, or (iii) if Lessee commits a Breach of this Lease.
40. MULTIPLE BUILDINGS. If the Premises are part of a group of building
controlled by Lessor, Lessee agrees that it will abide by, keep and observe
all reasonable rules and regulations which Lessor may make from time to time
for the management, safety, care and cleanliness of the grounds, the parking
and unloading of vehicles and the preservation of good order, as well as for
the convenience of other occupants or tenants of such other buildings and
their invitees, and that Lessee will pay its fair share of common expenses
incurred in connection therewith.
41. 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 the
Premises, Lessee, its agents and invitees and their property from the acts
of third parties.
42. RESERVATIONS. Lessor reserves to itself the right, from time to time, to
grant, without the consent or joinder of Lessee, such easements, rights,
dedications, maps and restrictions do not unreasonably interfere with the
use of the Premises by Lessee. Lessee agrees to sign any documents
reasonably requested by Lessor to effectuate any such easement rights,
dedication, map or restrictions.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such
payment shall not be regarded as a voluntary payment and there shall survive
the right on the part of said Party to institute suit for recovery of such
sum. If it shall be adjudged that there was no legal obligation on the part
of said Party to pay such sum or any part thereof, said Party shall be
entitled to recover such sum or so much thereof as it was not legally
required to pay under the provisions of this Lease.
44. AUTHORITY. If either Party hereto is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute
and deliver this Lease on its behalf. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after request by Lessor,
deliver to Lessor evidence satisfactory to Lessor of such authority.
45. CONFLICT. Any conflict between the printed provisions of this Lease and the
typewritten provisions shall be controlled by the typewritten or handwritten
provisions.
46. OFFER. Preparation of this Lease by Lessor or Lessor's agent and submission
of same to Lessee shall not be deemed an offer to lease to Lessee. This
Lease is not intended to be binding until executed by all Parties hereto.
47. AMENDMENTS. This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification. The parties shall amend
this Lease from time to time to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by an institutional, insurance company, or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the
property of which the Premises are a part.
48. MULTIPLE PARTIES. Except as otherwise expressly provided herein, if more
than one person or entity is named herein as either Lessor or Lessee, the
obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or
Lessee.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT
THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONALE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH
RESPECT TO THE PREMISES.
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR SUBMISSION TO YOUR
ATTORNEY FOR HIS APPROVAL. FURTHER, EXPERTS SHOULD BE CONSULTED TO EVALUATE
THE CONDITION OF THE PROPERTY AS TO THE POSSIBLE PRESENCE OF ASBESTOS,
STORAGE TANKS OR HAZARDOUS SUBSTANCES. NO REPRESENTATION OR RECOMMENDATION
IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIALTION OR BY THE REAL
ESTATE BROKER(S) OR THEIR AGENTS OR EMPLOYEES ASA TO THE LEGAL SUFFICIENCY,
LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH
IT RELEATS; THE PARTIES SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN
COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE. IF THE SUBJECT
10
PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA, AN ATTORNEY FROM THE
STATE WHERE THE PROPERTY IS LOCATED SHOULD BE CONSULTED.
The parties hereto have executed this Lease at the place on the dates specified
above to their respective signatures.
Executed at __________________________ Executed at ___________________________
on ___________________________________ on ____________________________________
by LESSOR: By LESSEE:
3811 Partners, LLLP, a Colorado CRYENCO SCIENCES, INC.
limited liability, limited
partnership, Xxxxxx X. Xxxxx and
Xxxxxx Dell Xxxxx, and Pacifica
Joliet Industrial, LLC, a Colorado
limited liability company, as
Tenants-in-Common, dba PRL Joliet
By ___________________________________ By ____________________________________
Name Printed: Name Printed:
Title: Title:
By By
Name Printed: Name Printed:
Title: Title:
Address: Address:
Tel. No. ( ) Fax No. ( ) Tel. No. ( ) Fax No. ( )
NET
NOTICE: These forms are often modified to meet changing requirements of law and
industry needs. Always write or call to make sure you are utilizing the
most current form: American Industrial Real Estate Association, 000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx X-0, Xxx Xxxxxxx, XX 00000. (000) 000-0000.
Fax No. (000) 000-0000.
11
ADDENDUM "A" TO LEASE AGREEMENT
ADDITIONAL PROVISIONS
To that certain Lease dated June 19, 1996, between 3811 Partners, LLLP,
a Colorado limited liability limited partnership, Xxxxxx X. Xxxxx and
Xxxxxx Dell Xxxxx; and Pacifica Joliet Industrial, LLC, a Colorado limited
liability company, as Tenants In Common, dba PRL Joliet, as Lessor, and
Cryenco Sciences, Inc., as Lessee, covering the property located at 0000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx.
To the extent that this Addendum conflicts with, modifies or
supplements other portions of the Lease, the provisions contained in this
Addendum shall govern and control the rights and obligations of the
parties.
I. RENT ADJUSTMENTS.
(1) The Base Rent shall be adjusted every two (2) years on the anniversary
date of the lease commencement (an "Adjustment Date"). The Base Rent
shall be adjusted by the increase, if any, in the Consumer Price Index
of the Bureau of Labor Statistics of the Department of Labor for All
Urban Consumers, "All Items", for the City and County of Denver, herein
referred to as "CPI". The CPI increase on each Adjustment Date shall
not be, on a cumulative basis, less than 3% compounded annually nor
more than 5% compounded annually.
(2) The adjusted Monthly Base Rent shall be calculated as follows: the Base
Rent set forth in paragraph 1.5 of the attached Lease, shall be
multiplied by a fraction the numerator of which shall be the CPI of the
calendar month 2 (two) months prior to the month(s) specified in
paragraph I(1) above during which the adjustment is to take effect, and
the denominator of which shall be the CPI of the calendar month which
is two (2) months prior to the first month of the term of this Lease as
set forth in paragraph 1.3 ("Base Month"). The sum so calculated shall
constitute the new monthly rent hereunder, but in no event, shall any
such new monthly rent be less than the rent payable for the month
immediately preceding the date for rent adjustment.
(3) In the event the compilation and/or publication of the CPI shall be
discontinued, then the index most similar to the CPI shall be used to
make such calculations. In the even that Lessor and Lessee cannot agree
on such alternate index, then the matter shall be submitted for
decision to the American Arbitration association in the County in which
the Premises are located, in accordance with the then rules of said
Association, and the decision of the Arbitrators shall be binding upon
the parties, notwithstanding any party failing to appear after the
notice of proceeding. The cost of said Arbitrators shall be paid
equally by Lessor and Lessee.
(4) In the event of a dispute as to the selected substitute CPI in
accordance with Section I(3) above, Lessee shall continue to pay Base
Rent at the rate in effect for the month immediately preceding the
Adjustment Date, until the increased Base Rent, if any, is determined.
Within five (5) days following the date on which the increase is
determined, Lessee shall make a payment to Lessor equal to the
increased Base Rent plus an amount equal to the difference between the
Base Rent in effect for the month immediately preceding the Adjustment
Date and the increased Base Rent for each month that has passed without
payment of the increase since the Adjustment Date. Thereafter, the rent
shall be paid at the increase rate.
II. ROOF REPAIRS.
(1) Lessee shall be responsible for any and all repair, maintenance and
replacement of both the upper and lower roofs pursuant to Paragraph 7.1
of this Lease. Lessee and Lessor acknowledge that a portion of the roof
is currently in a state of disrepair. Lessee agrees, within sixty (60)
days after execution of this Lease, to perform necessary maintenance
and repairs that will bring the roof into a good operating condition.
Those repairs shall exclude a re-roofing of the asphalt built-up roof
(lower roof). However, Lessor agrees, one time only, to replace the
asphalt built-up roof (lower roof) only, consisting of approximately
120,000 square feet, when needed, as determined by Lessor in its sole
discretion, after consideration to normal maintenance and repair
performed by Lessee as provided above. The cost to Lessor for such roof
replacement shall not exceed $220,000. If the cost to replace the same
shall exceed $220,000, any such excess will be paid by Lessee.
(2) Lessee agrees that on the date of completion of the lower roof
replacement (the "Roof Completion Date"), the Lease shall automatically
be extended by ten (10) years to the date that is ten (10) years after
the Roof Completion Date, however, the term of this Lease in the
aggregate shall not exceed a total of fifteen (15) years, (i.e. if the
roof is replaced in the second year of this Lease, then the Lease term
will be twelve (12) years, however, if the roof is replaced in the
sixth year of the Lease or any time thereafter, then the total lease
term will be fifteen (15) years.
III. ASPHALT AND CONCRETE REPAIRS.
LESSEE AND LESSOR ACKNOWLEDGE THAT THE ASPHALT IS CURRENTLY IN NEED OF
CERTAIN REPAIRS AND MAINTENANCE. LESSEE AGREES TO PERFORM REASONABLY
REQUIRED REPAIRS IN A GOOD XXXXXXX-LIKE MANNER IN ACCORDANCE WITH PARAGRAPH
7.3 OF THIS LEASE WITHIN 100 DAYS AFTER THE DATE OF THIS LEASE.
IV. LNG.
Landlord gives its approval for Tenant to install an LNG fueling station on
the south portion of the land, subject to all appropriate governmental and
environmental regulations. The installation and maintenance of the LNG
fueling station shall be the sole responsibility of the Tenant. In
addition, Lessor hereby consents to Lessee's handling and storage of LNG on
the Premises, subject to applicable governmental and environmental
regulations with no additional security deposit.
V. SECURITY DEPOSIT.
The following language shall be added to the end of paragraph 1.7 of the
Lease, "Security Deposit shall be held as follows: one-third ($38,840.63)
in cash with Landlord and two-thirds ($77,681.26) in the form of a Letter
of Credit. The Letter of Credit must be from an institution and in a form
approved by the Lessor. Such approval shall not be unreasonably withheld.
If after thirty-six (36) months after the commencement of this Lease,
Lessee is not nor has not been in default under the terms of this Lease,
then the Security Deposit will be reduced by one month's initial rent
($38,840.63), and if after sixty (60) months after the commencement of this
Lease, Lessee is not nor has not been in default under the terms of this
lease, then the Security Deposit shall be reduced by an additional one
month's initial rent ($38,840.63), leaving ($38,840.63) held as a security
deposit in the form of cash."
VI. INSURING PARTY.
The following language shall be added to the end of paragraph 1.9 of the
Lease, "If Lessee can provide Lessor with a written estimate which shows
that Lessee can obtain the insurance coverage required under paragraph 8 of
this Lease at a cost which is less than the cost incurred by Lessor for
such insurance coverage, Lessee shall be the Insuring Party and will remain
the Insuring Party for so long as the cost of such required insurance
coverage remains less than the cost to Lessor to provide such insurance
coverage, and for such time as Lessee is the Insuring Party, Lessee will be
obligated to promptly notify Lessor of the annual renewal cost of such
insurance within thirty (30) days of such renewal date."
VII. HAZARDOUS SUBSTANCES
1. Consent to Use of LNG and other Hazardous Substances by Lessee on the
Premises.
The following language shall be added to the end of paragraph 6.2(a) of
the Lease, "Lessor hereby acknowledges that Lessee uses the following
Hazardous Substances, as detailed in Exhibit B, in connection with its
normal business operation on, in and about the Premises and Lessor consents
to the permitted Use of the Premises, including the use by Lessee, of such
Hazardous Substances in the conduct of Lessee's Normal business operations
in accordance with this Section 6.2(a), subject to the terms and conditions
imposed by this Article 6. Lessee shall, on the anniversary date of this
Lease, provide Lessor with a list of all Hazardous Substances listed above,
and Lessor shall have the right to reasonably request further information
from Lessee regarding the same. The use by Lessee in the Premises of
Hazardous Substances other than those Hazardous Substances specifically
mentioned above shall require Lessee to obtain the consent of Lessor in
accordance with Section 6.2(a)."
2. Duty to Inform Lessor
Paragraph 6.2(b) of the Lease shall be replaced with the following
language, "If Lessee knows, or has reasonable cause to believe, that a
Hazardous Substances other than minimum quantities of the same used by
Tenant in the ordinary course of the conduct of its business as permitted
hereunder or other than as previously consented to by Lessor in accordance
with the terms of Section 6.2, or a condition involving or resulting from
such Hazardous Substances has come to be located in, on, under or about the
premises, Lessee shall immediately give written notice of such fact to
Lessor. Lessee shall also immediately give Lessor a copy of any initial
statement, report, notice or documentation sent by any governmental
authority or private party or persons entering or occupying the Premises,
with regards to the same,
12
and shall provide Lessor and its lender with access, during regular
business hours and upon reasonable notice to Lessee, to Lessee's files
containing any statement, report, notice, registration, application,
permit, business plan, license, claim, action or proceeding given to or
received from any governmental authority or private party, or person
entering or occupying the Premises, concerning the presence, spill,
release, discharge of, or exposure to, any Hazardous Substance or
contamination in on, or about the Premises, including but not limited to
all such documents as may be involved in any Reportable Uses involving the
Premises for review by Lessor or its lender or mortgagee during regular
business hours and upon reasonable notice to Lessee."
3. Inspections; Compliance
The following language shall be added to the end of paragraph 6.4 of
the Lease, "In the event that Lessor, and/or Lessor's Lender reasonably
determine that an environmental inspection is necessary due to the nature
of Lessee's business and the use of the property, then a Phase I
Environmental Study shall be ordered at Lessee's cost at a cost not to
exceed the competitive market cost. If the results of the Phase I study
require that a Phase II Environmental Study is necessary, then this study
shall be ordered at Lessee's cost, again at a cost not to exceed the
competitive market cost. Lessor must approve any environmental testing
company to be used for this purpose."
VIII. MECHANIC'S LIENS
The following language shall be added to the end of paragraph 7.3(c) of the
Lease, "Notwithstanding the foregoing if, within a reasonable time after
any mechanic's lien is filed against the Premises, Lessee: (1) procures a
substitution bond pursuant to C.R.S. Section 00-00-000 approved by a judge
of the District Court with which such bond or undertaking is filed in an
amount equal to one and one-half times the amount of the lien plus costs
allowed to date, and (2) in accordance with C.R.S. Section 00-00-000, the
lien against the Premises is discharged and released in full and the
subject bond is substituted therefor by the Court, then Lessor shall not
(under such circumstances) require Lessee to pay Lessor's attorneys' fees
and costs in participating in such action if Lessor shall decide to do so.
Copies of the above-referenced Colorado statues are attached hereto as
Exhibit A."
13
EXHIBIT "A"
00-00-000. SUBSTITUTION OF BOND ALLOWED. (1) Whenever a mechanic's lien has been
filed in accordance with this article, the owner, whether legal or
beneficial, of any interest in the property subject to the lien may, at any
time, file with the clerk of the district court of the county wherein the
property is situated a corporate surety bond or any other undertaking which
has been approved by a judge of said district court.
(2) Such bond or undertaking plus costs allowed to date shall be in an
amount equal to one and one-half times the amount of the lien plus costs
allowed to date and shall be approved by a judge of the district court
with which such bond or undertaking is filed.
(3) The bond or undertaking shall be conditioned that, if the lien claimant
shall be finally adjudged to be entitled to recover upon the claim upon
which his lien is based, the principal or his sureties shall pay to such
claimant the amount of his judgment, together with any interest, costs,
and other sums which such claimant would be entitled to recover upon the
foreclosure of the lien.
Source: L. 75, p.1425, 'SS' 5.
00-00-000. LIEN TO BE DISCHARGED. Notwithstanding the provisions of section
00-00-000, upon the filing of a bond or undertaking as provided in section
00-00-000, the lien against the property shall be forthwith discharged and
released in full, and the real property described in such bond or
undertaking shall be released from the lien and from any action brought to
foreclose such lien, and the bond or undertaking shall be substituted. The
clerk of the district court with which such bond or undertaking has been
filed shall issue a certificate of release which shall be recorded in the
office of the clerk and recorder of the county wherein the original
mechanic's lien was filed, and the certificate of release shall show that
the property has been released from the lien and from any action brought to
foreclose such lien.
14
OPTION(S) TO EXTEND
ADDENDUM TO
STANDARD LEASE
DATED June 19, 1996
BY AND BETWEEN (LESSOR) 3811 Partners, LLLP, a Colorado limited liability
limited partnership, Xxxxxx X. Xxxxx
and
Xxxxxx Dell Xxxxx, and Pacifica Joliet Industrial,
LLC, a Colorado limited liability company, as
Tenants-in-Common, dba PRL Joliet
(LESSEE) Cryenco Sciences, Inc.
PROPERTY ADDRESS: 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx
Paragraph ________
A. OPTION(S) TO EXTEND:
Lessor hereby grants lessee the option to extend the term of this Lease
for 2 additional 60 month period(s) commencing when the prior term expires
upon each and all of the following terms and conditions:
(i) Lessee gives to Lessor, and Lessor actually receives on a date which is
prior to the date that the option period would commence (if exercised) by
at least 6 and not more than 9 months, a written notice of the exercise of
the option(s) to extend this Lease for said additional term(s), time being
of essence. If said notification of the exercise of said option(s) is
(are) not so given and received, the option(s) shall automatically expire;
said option(s) may (if more than one) only be exercised consecutively;
(ii) The provisions of paragraph 39, including the provision relating to
default of Lessee set forth in paragraph 39.4 of this Lease and conditions
of this Option;
(iii) All of the terms and conditions of this Lease except where specifically
modified by this option shall apply;
(iv) The monthly rent for each month of the option period shall be calculated
as follows, using the method(s) indicated below:
(Check Method(s) to be Used and Fill in Appropriately)
[X] 1. COST OF LIVING ADJUSTMENT(S) (COL)
(a) On (Fill in COL Adjustment Date(s): the commencement date of the first
option period and every two (2) years thereafter, monthly rent payable
under paragraph 1.5 ("Base Rent") of the attached Lease shall be
adjusted by the change, if any, from the Base Month specified below, in
the Consumer Price Index of the Bureau of Labor Statistics of the U.S.
Department of Labor for (select one): CPI W (Urban Wage Earners and
Clerical Workers) or |X| CPI U (All Urban , Consumers), for (Fill in
Urban Area): the City and County of Denver, Colorado, All Items
(1982-1984 = 100), herein referred to as "C.P.I." The same minimum and
maximum parameters for calculation of the CPI increases provided for in
the original term, Addendum A, Paragraph I(1) shall be applicable for
all option periods.
(b) The monthly rent payable in accordance with paragraph A1(a) above of
this Addendum shall be calculated as follows: the Base Rent set forth in
paragraph 1.5 of the attached Lease, shall be multiplied by a fraction
the numerator of which shall be the C.P.I. of the calendar month 2 (two)
months prior to the month(s) specified in paragraph A1(a) above during
which the adjustment is to take effect, and the denominator of which
shall be the C.P.I. of the calendar month which is two (2) months prior
to (select one): [X] the first month of the term of this Lease as set
forth in paragraph 1.3 ("Base Month") or (Fill in other "Base Month"):
______________________. The sum so calculated shall constitute the new
monthly rent hereunder, but in no event, shall any such new monthly rent
be less than the rent payable for the month immediately preceding the
date for rent adjustment.
(c) In the event the compilation and/or publication of the C.P.I. shall be
transferred to any other governmental department or bureau or agency or
shall be discontinued, then the index most nearly the same as the C.P.I.
shall be used to make such calculation. In the event that Lessor and
Lessee cannot agree on such alternative index, then the matter shall be
submitted for decision to the American Arbitration Association in
accordance with the then rules of said association and the decision of
the arbitrators shall be binding upon the parties. The cost of said
Arbitrators shall be paid equally by Lessor and Lessee.
B. NOTICE: Unless specified otherwise herein, notice of any escalation's other
than Fixed Rental Adjustments shall be made as specified in paragraph 23 of
the attached Lease.
C. BROKER'S FEE:
15
The Real Estate Brokers specified in paragraph 1.10 of the attached Lease
shall be paid a Brokerage Fee for each adjustment specified above in
accordance with paragraph 15 of the attached Lease.
Initials: ________________ Initials: _________________
________________ _________________
OPTION(S) TO EXTEND
PAGE 2 OF 2
NOTICE: These forms are often modified to meet changing requirements of law and
Industry needs. Always write or call to make sure you are utilizing the
most current form: American Industrial Real Estate Association, 000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx X-0 Xxx Xxxxxxx, XX 00000. (000) 000-0000.
Fax No. (000) 000-0000.
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EXHIBIT "B"
---------------------------------------------------------------------------------------------------------------
NFPA RATINGS
--------------------------------------------------------------
PRODUCT CAS # TYPE HEALTH FLAMMABILITY REACTIVITY OTHER
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Nitric Acid 7697-37-2 ACID 3 0 0 CORR
---------------------------------------------------------------------------------------------------------------
Ethylene Glycol 107-21-1 COOLENT 2 0 0
---------------------------------------------------------------------------------------------------------------
LNG 8006-14-2 CRYOGENIC 1 4 0
---------------------------------------------------------------------------------------------------------------
Nitrogen, Liquid 7727-37-9 CRYOGENIC 3 0 0
---------------------------------------------------------------------------------------------------------------
SKC-NF Xxxxxxx XXX 0 0 0
---------------------------------------------------------------------------------------------------------------
XXX-XX Developer DYE 0 0 0
---------------------------------------------------------------------------------------------------------------
SKL-HF/S Penetrant DYE 0 0 0
---------------------------------------------------------------------------------------------------------------
Steel Blue, DX-100 DYE 0 0 0
---------------------------------------------------------------------------------------------------------------
Steel Blue, SP-100 DYE 0 0 0
---------------------------------------------------------------------------------------------------------------
Fuel Oil 000126-00-0 FUEL 2 2 0
---------------------------------------------------------------------------------------------------------------
Fuel Oil, #2-D 000169-00-0 FUEL 2 2 0
---------------------------------------------------------------------------------------------------------------
Gas/Oil Blend 00000-00-0 FUEL 2 2 0
---------------------------------------------------------------------------------------------------------------
Gasoline 8006-61-9 FUEL 1 3 0
---------------------------------------------------------------------------------------------------------------
Kerosene 8008-20-6 FUEL 1 2 0
---------------------------------------------------------------------------------------------------------------
Acetylene GAS 0 0 0
---------------------------------------------------------------------------------------------------------------
Air, Compressed 000016-00-0 GAS 0 0 0
---------------------------------------------------------------------------------------------------------------
Ar+1 Gas Mix GAS 0 0 0
---------------------------------------------------------------------------------------------------------------
Ar+2 Gas Mix GAS 0 0 0
---------------------------------------------------------------------------------------------------------------
Argon 7440-37-1 GAS 0 0 0
---------------------------------------------------------------------------------------------------------------
Blueshield #1 GAS 0 0 0
#3, (Ari in HE)
---------------------------------------------------------------------------------------------------------------
Blueshield #4, GAS 0 0 0
#5 (02 in AR)
---------------------------------------------------------------------------------------------------------------
Carbon Dioxed 124-38-9 GAS 1 0 0
---------------------------------------------------------------------------------------------------------------
Carbon Monoxide 630-08-0 GAS 3 3 0
---------------------------------------------------------------------------------------------------------------
Helium GAS 0 0 0
---------------------------------------------------------------------------------------------------------------
Nitrogen 7727-37-9 GAS 0 0 0
---------------------------------------------------------------------------------------------------------------
O2 +1 Gas Mix GAS 0 0 0
---------------------------------------------------------------------------------------------------------------
Oxygen 7782-44-7 GAS 0 0 0 OXY
---------------------------------------------------------------------------------------------------------------
Propane 115-07-1 GAS 0 4 1
---------------------------------------------------------------------------------------------------------------
Dicaperl INSULATION 0 0 0
---------------------------------------------------------------------------------------------------------------
Persolite INSULATION 0 0 0
---------------------------------------------------------------------------------------------------------------
ATF LUBRICANT 0 0 0
---------------------------------------------------------------------------------------------------------------
Bel-Ray FC-1245 LUBRICANT 0 0 0
Grease
---------------------------------------------------------------------------------------------------------------
Cutting Fluid LUBRICANT 0 0 0
---------------------------------------------------------------------------------------------------------------
High Vacuum LUBRICANT 0 0 0
Grease
---------------------------------------------------------------------------------------------------------------
Hydraulic Oil LUBRICANT 0 0 0
---------------------------------------------------------------------------------------------------------------
Kyrotox, 240 LUBRICANT 1 0 0
series Grease
---------------------------------------------------------------------------------------------------------------
Lubriplate 1200-2 LUBRICANT 0 0 0
Grease
---------------------------------------------------------------------------------------------------------------
Lubriplate 630-2 LUBRICANT 0 0 0
Grease
---------------------------------------------------------------------------------------------------------------
Motor Oil 000034-00-0 LUBRICANT 2 1 0
---------------------------------------------------------------------------------------------------------------
Trim Sol LUBRICANT 0 0 0
---------------------------------------------------------------------------------------------------------------
WD-40 LUBRICANT 2 2 0
---------------------------------------------------------------------------------------------------------------
Paint PAINT 0 0 0
---------------------------------------------------------------------------------------------------------------
Paint Related PAINT 0 0 0
Products
---------------------------------------------------------------------------------------------------------------
Epoxy Thinner SOLVENT 0 0 0
---------------------------------------------------------------------------------------------------------------
Isopropyl 67-63-0 SOLVENT 2 3 0
Alcohol 99%
---------------------------------------------------------------------------------------------------------------
MEK 78-93-3 SOLVENT 2 3 0
---------------------------------------------------------------------------------------------------------------
Trichloroethylene79-01-6 SOLVENT 3 3 0
---------------------------------------------------------------------------------------------------------------
17
