OFFICE LEASE (MULTI-TENANT FACILITY)
(MULTI-TENANT
FACILITY)
ARTICLE
ONE: BASIC TERMS
This
Article One contains the Basic Terms of this Lease between the Landlord and
Tenant named below. Other Articles, Sections and Paragraphs of the Lease
referred to in this Article One explain and define the Basic Terms and are
to be
read in conjunction with the Basic Terms.
Section
1.01. Date
of Lease: April
12,
2006
Section
1.02. Landlord
(include legal entity): JRAssociates,
11, a Co-tenancy. Address
of Landlord: 000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxxx, XX 00000
Section
1.03. Tenant
(include legal entity): Open
Energy Corporation, a California Corporation
Address
of Tenant: 000 Xxx Xx Xx Xxxxx, Xxxxx 000, Xxxxxx Xxxxx, XX 00000
Section
1.04. Property:
The
Property is Part of Landlord's multi-tenant real property development
known as 0000 Xxxxxxxxxx Xxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxxxxx and described
or
depicted
in "Exhibit A" (the "Project"). The Project includes the land, the buildings
and
all other improvements
located on the land, and the common areas described in Paragraph 4.05(a). The
Property is 0000 Xxxxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx
consisting of approximately 7,962 rentable square feet.
Section
1.05. Lease
Term: Three
(3)
years beginning
on October
1, 2006 or
such
other date as is specified in this Lease, and ending
on September
30, 2009
Section
1.06. Permitted
Uses:
(See Article Five) Solar panel manufacturing, office and other
legally related uses.
Section
1.07. Tenant's
Guarantor: (If
none,
so state) None.
Section
1.08. Brokers:
(See
Article Fourteen) (If none, so state)
Landlord's
Broker: Sperry Xxx Xxxx Highland Commercial.
Tenant's
Broker: None.
Section
1.09. Commission
Payable to Landlord's Broker: (See
Article Fourteen) In accordance with listing agreement.
Section
1.10. Initial
Security Deposit: (See
Section 3.03) $8,957.25
Section
1.11. Vehicle
Parking Spaces Allocated to Tenant: (See
Section 4.05) 37.
Section
1.12. Rent and Other Charges Payable by Tenant:
(a)
BASE
RENT: Five Thousand nine hundred seventy-one dollars and 50 cents ($5,971.50)
for months 1-12, then Six thousand three hundred sixty-nine dollars and 60
cents
($6369.60) for
months 13-24, then Six thousand
seven
hundred sixty-seven dollars and
70
cents ($6,767.70) for months 25-36, as provided in Section 3.01. (See addendum
21)
(b)
OTHER
PERIODIC PAYMENTS: (i) Real Property Taxes (See Section 4.02);
(ii) Utilities (See Section 4.03); (iii) Insurance Premiums (See Section 4.04);
(iv) Tenant's
Initial Pro Rata Share of Common Area Expenses 50.00% (See Section 4.05);
(v)
Impounds for Insurance Premiums and Property Taxes (See Section 4.08); (vi)
Maintenance,
Repairs and Alterations (See Article Six).
Section
1.13. Landlord's
Share
of
Profit on
Assignment
or
Sublease:
(See
Section 9.05) one hundred percent (100%) of the Profit (the "Landlord's
Share").
Section
1.14. Riders:
The
following Riders are attached to and made part of this Lease: (If
none,
so state) Addenda 15-24 and Exhibits A&B.
ARTICLE
TWO: LEASE
TERM
Section
2.01. Lease
of Property For Lease Term. Landlord
leases the Property to Tenant
and Tenant leases the Property from Landlord for the Lease Term. The Lease
Term
is for the period stated in Section 1.05 above and shall begin and end on the
dates specified in Section 1.05
above, unless the beginning or end of the Lease Term is changed under any
provision of this Lease.
The
"Commencement Date" shall be the date specified in Section 1.05 above for the
beginning
of the Lease Term, unless advanced or delayed under any provision of this
Lease.
1
Section
2.02. Delay
in Commencement. Landlord
shall not be liable to Tenant if Landlord
does not deliver possession of the Property to Tenant on the Commencement Date.
Landlord's non-delivery of the Property to Tenant on that date shall not affect
this Lease or the obligations of Tenant under this Lease except that the
Commencement Date shall be delayed until Landlord
delivers possession of the Property to Tenant and the Lease Term shall be
extended for a
period
equal to the delay in delivery of possession of the Property to Tenant, plus
the
number of days
necessary to end the Lease Term on the last
day
of a month. If Landlord does not deliver possession
of the Property to Tenant within one hundred twenty (120) days after the
Commencement
Date, Tenant may elect to cancel this Lease by giving written notice to Landlord
within
ten (10) days after the one hundred twenty (120) -day period ends. If Tenant
gives such
notice,
the Lease shall be canceled and neither Landlord nor Tenant shall have any
further obligations
to the other. If Tenant does not give such notice, Xxxxxx's right to cancel
the
Lease shall
expire and the Lease Term shall commence upon the delivery of possession of
the
Property to
Tenant. If delivery of possession of the Property to Tenant is delayed, Landlord
and Tenant shall,
upon such delivery, execute an amendment to this Lease setting forth the actual
Commencement
Date and expiration date of the Lease. Failure to execute such amendment shall
not
affect the actual Commencement Date and expiration date of the
Lease.
Section
2.03. Early
Occupancy. If
Tenant
occupies the Property prior to the Commencement
Date, Xxxxxx's occupancy of the Property shall be subject to all
of
the
provisions of this Lease. Early occupancy of the Property shall not advance
the
expiration date of this Lease. Tenant
shall pay Base Rent and all other charges specified in this Lease for the early
occupancy period.
Section
2.04. Holding
Over. Tenant
shall vacate the Property upon the expiration or earlier
termination of this Lease. Tenant shall reimburse Landlord for and indemnify
Landlord against
all damages which Landlord incurs from Xxxxxx's delay in vacating the Property.
If
Tenant
does not vacate the Property upon the expiration or earlier termination of
the
Lease and Landlord
thereafter accepts rent from Tenant, Xxxxxx's occupancy of the Property shall
be
a "month-to-month" tenancy, subject to all of the terms of this Lease applicable
to a month-to-month
tenancy, except that the Base Rent then in effect shall be increased by
twenty-five percent (25%).
ARTICLE
THREE: BASE RENT
Section
3.01. Time
and Manner of Payment. Upon
execution of this Lease, Tenant shall pay Landlord the Base Rent in the amount
stated in Paragraph 1.12(a) above for the first month
of
the Lease Term. On the first day of the second month of the Lease Term and
each
month
thereafter, Tenant shall pay Landlord the Base Rent, in advance, without offset,
deduction or
prior
demand. The Base Rent shall be payable at Landlord's address or at such other
place as Landlord
may designate in writing.
Section
3.02. Cost
of Living Increases. Intentionally left blank.
Section
3.03. Security
Deposit; Increases.
(a)
Upon
the execution of this Lease, Tenant shall deposit with Landlord a cash
Security
Deposit in the amount set forth in Section 1.10 above. Landlord may apply all
or
part
of
the Security Deposit to any unpaid rent or other charges due from Tenant or
to
cure
any
other defaults of Tenant. If
Landlord uses any part of the Security Deposit. Tenant
shall restore the Security Deposit to its full amount within ten (10) days
after
Xxxxxxxx's written request. Tenant's failure to do so shall be a
material
default under this Lease.
No
interest shall be paid on the Security Deposit. Landlord shall not be required
to
keep
the Security Deposit separate from its other accounts and no trust relationship
is created
with respect to the Security Deposit.
(b)
Each
time the Base Rent is increased, Tenant shall deposit additional funds with
Landlord sufficient to increase the Security Deposit to an amount which bears
the same
relationship to the adjusted Base Rent as the initial Security Deposit bore
to
the initial
Base Rent.
Section
3.04. Termination;
Advance Payments. Upon
termination of this Lease under Article
Seven (Damage or Destruction), Article Eight (Condemnation) or any other
termination not
resulting from Xxxxxx's default, and after Tenant has vacated the Property
in
the manner required
by this Lease, Landlord shall refund or credit to Tenant (or Xxxxxx's successor)
the unused
portion of the Security Deposit, any advance rent or other advance payments
made
by Tenant
to
Landlord, and any amounts paid for real property taxes and other reserves which
apply to
any
time periods after termination of the Lease.
2
ARTICLE
FOUR: OTHER CHARGES PAYABLE BY TENANT
Section
4.01. Additional Rent. All charges payable by Tenant other than
Base Rent are called
"Additional Rent." Unless this Lease provides otherwise, Tenant shall pay
all
Additional Rent
then
due with the next monthly installment of Base Rent. The term "rent" shall
mean
Base Rent
and
Additional Rent.
Section
4.02. Property Taxes.
(a)
Real
Property Taxes. Tenant
shall pay all real property taxes on the Property (including any fees, taxes
or
assessments against, or as a result of, any tenant improvements
installed on the Property by or for the benefit of Tenant) during the Lease
Term. Subject to Paragraph 4.02(c) and Section 4.08 below, such payment shall
be
made at
least
ten (10) days prior to the delinquency date of the taxes. Within such ten
(10)
-day period,
Tenant shall furnish Landlord with satisfactory evidence that the real property
taxes have been paid. Landlord shall reimburse Tenant for any real property
taxes paid by Tenant
covering any period of time prior to or after the Lease Term. If Tenant fails
to
pay the real property taxes when due, Landlord may pay the taxes and Tenant
shall reimburse Landlord
for the amount of such tax payment as Additional Rent.
(b)
Definition
of "Real Property Tax." "Real
property tax" means: (i) any Fee, license fee, license tax, business license
fee, commercial rental tax, levy, charge, assessment, penalty or tax imposed
by
any taxing authority against the Property; (ii) any tax
on
the Landlord's right to receive, or the receipt of, rent or income from the
Property or
against Landlord's business of leasing the Property; (iii) any tax or charge
for
fire protection,
streets, sidewalks, road maintenance, refuse or other services provided to
the
Property
by any governmental agency; (iv) any tax imposed upon this transaction or
based
upon
a
re-assessment of the Property due to a change of ownership, as defined by
applicable
law, or other transfer of all or part of Landlord's interest in the Property;
and (v)
any
charge or fee replacing any tax previously included within the definition
of
real property
tax. "Real property tax" does not, however, include Landlord's federal or
state
income,
franchise, inheritance or estate taxes.
(c)
Joint Assessment. If the Property is not separately assessed,
Xxxxxx's share of
the
real property tax payable by Tenant under Paragraph 4.02(a) shall be the
percentage set
forth
in Section 1.12 (b) (iv).
Tenant shall pay such share to Landlord within thirty (30) days after receipt
of
Landlord's written statement.
(d)
Personal Property Taxes.
(i)
Tenant shall pay all taxes charged against trade fixtures, furnishings,
equipment
or any other personal property belonging to Xxxxxx. Tenant shall try to
have
personal property taxed separately from the Property.
(ii)
If
any of Xxxxxx's personal property is taxed with the Property, Tenant
shall
pay
Landlord the taxes for the personal property within thirty (30) days after
Xxxxxx
receives a written statement from Landlord for such personal property
taxes.
Section
4.03. Utilities. Tenant shall pay, directly to the appropriate
supplier, the cost of all
natural gas, heat, light, power, sewer service, telephone, water, refuse
disposal and other utilities
and services supplied to the Property. However, if any services or utilities
are
jointly metered
with other property proportionate share of the cost of such utilities and
services shall be in
accordance with Section 1.12 (b) (iv) and Tenant shall pay such share to
Landlord within thirty (30)
days
after receipt of Xxxxxxxx's written statement.
Section
4.04. Insurance
Policies.
(a)
Liability Insurance.
During
the Lease Term, Tenant shall maintain a policy of
commercial general liability insurance (sometimes known as broad form
comprehensive general
liability insurance) insuring Tenant against liability for bodily injury,
property damage
(including loss of use of property) and personal injury arising out of the
operation, use or occupancy of the Property. Tenant shall name Landlord as
an
additional insured under
such policy. The initial amount of such insurance shall be One Million Dollars
($1,000,000)
per occurrence and shall be subject to periodic increase based upon inflation,
increased liability awards, recommendation of Landlord's professional insurance
advisers and other relevant factors. The liability insurance obtained by
Tenant
under this Paragraph 4.04(a)
shall (i) be primary and; and (ii) insure Landlord against Tenant's performance
under
Section 5.05,, if the matters giving rise to the indemnity under Section
5.05
result from
the
negligence
of Tenant. The amount and coverage of such insurance shall not limit Tenant's
liability nor relieve Tenant of any other obligation under this Lease. Landlord
may
also
obtain comprehensive public liability insurance in an amount and with
coverage
determined
by Landlord insuring Landlord against liability arising out of ownership,
operation,
use or occupancy of the Property.
3
(b)
Property
and Rental Income Insurance. During
the Lease Term, Landlord shall
maintain policies of insurance covering loss of
or
damage
to the Property in the full amount
of
its replacement value. Such
policy shall contain an Inflation
Guard Endorsement and shall provide
protection against
all perils included
within the classification
of fire, extended coverage, vandalism, malicious mischief,
special extended perils
(all risk), sprinkler leakage and any other perils which Landlord deems
reasonably necessary.
Landlord
shall have the right to obtain flood and earthquake insurance if required
by any
lender holding a security interest in the Property. Landlord
shall not obtain
insurance for Tenant's fixtures or equipment or building improvements
installed
by Tenant
on
the Property. During
the Lease Term, Landlord shall also maintain a rental income
insurance policy, with loss payable to Landlord, in an amount equal to
one
year's Base
Rent, plus estimated real property taxes and insurance premiums.
Tenant
shall be liable
for the payment of its prorate share as described in
Section 1.12 (b) of any deductible amount under Landlord's or Tenant's insurance
policies maintained pursuant
to this
Section 4.04, in an amount not to exceed Ten Thousand Dollars ($10,000).
Tenant
shall
not
do or permit anything to be done which invalidates any such insurance
policies.
(c)
Payment
of
Premiums. Subject
to Section 4.08, Tenant shall pay all premiums for the insurance policies
described in Paragraphs 4.04(a)
and (b) (whether obtained
by Landlord or Tenant) within fifteen (15) days after Xxxxxx's receipt
of a copy of the premium statement or other evidence of the amount due.
For
insurance policies maintained by Landlord which cover improvements on the
entire
Project, Tenant
shall pay Tenant's
prorated share of the premiums, in accordance with the
formula in Paragraph 4.05(e) for determining Tenant's share of Common Area
costs. If
insurance policies maintained by Landlord cover improvements on real property
other
than the Project, Landlord
shall deliver to Tenant a statement of the premium applicable to
the
Property showing
in reasonable detail how Tenant's share of the premium was computed.
If
the
Lease
Term expires before the expiration of an insurance policy maintained
by
Landlord, Tenant shall be liable for Tenant's prorated share of the insurance
premiums.
Before the Commencement Date, Tenant shall deliver to Landlord a copy of
any
policy of insurance which
Tenant is required to maintain under this Section 4.04. At
least
thirty (30) days prior to the expiration of any such policy, Tenant shall
deliver to Landlord a renewal of such
policy. As an alternative to providing a policy of insurance, Tenant
shall have the right
to
provide Landlord a certificate of insurance, executed by an authorized
officer of the
insurance company, showing that the insurance which Tenant is required to
maintain under this Section 4.04 is in full force and effect and containing
such
other information which Landlord reasonably requires.
(d)
General Insurance Provisions.
(i)
Any
insurance which Tenant is required to maintain under this Lease
shall
include a provision which requires the insurance carrier to give Landlord
not
less
than
thirty (30) days' written notice prior to any cancellation or modification
of
such
coverage.
(ii)
If
Tenant fails to deliver any policy, certificate or renewal to Landlord
required
under this Lease within the prescribed time period or if any such policy
is
canceled or modified during the Lease Term without Landlord's consent,
Landlord
may
obtain such insurance, in which case Tenant shall reimburse Landlord
for
the
cost
of
such insurance within fifteen (15) days after receipt of
a
statement that indicates the cost of such insurance.
(iii)
Tenant
shall maintain all insurance required under this Lease
with companies
holding a "General Policy Rating" of A-12 or better, as set forth in the
most
current issue of "Best Key Rating
Guide". Landlord
and Tenant acknowledge
the insurance markets are rapidly changing and that insurance in
the
form
and
amounts described in this Section 4.04 may not be available in the future.
Tenant
acknowledges that the insurance described in this Section 4.04
is
for the primary
benefit of Landlord. If at
any
time during the Lease Term, Tenant
is
unable
to
maintain
title
insurance
required
under
the
Lease, Tenant shall nevertheless
maintain insurance coverage which is customary and commercially reasonable
in the insurance industry for Tenant's type of business, as that coverage
may
change from time to time. Xxxxxxxx
makes no representation as to the adequacy
of such insurance to protect Xxxxxxxx's or Xxxxxx's interests. Therefore,
Tenant
shall obtain any such additional property or liability insurance which Tenant
deems
necessary to protect Landlord and Tenant.
4
Section
4.05. Common
Areas; Use, Maintenance and Costs.
(a)
Common
Areas. As
used
in this Lease, "Common Areas" shall mean all areas within
the Project which are available for the common use of tenants of the Project
and
which are not leased or held for the exclusive use of Tenant or other tenants,
including, but
not
limited to, parking areas, driveways, sidewalks, loading areas, access roads,
corridors,
landscaping and planted areas. Landlord, from time to time, may change the
size,
location, nature and use of any of the Common Areas, convert Common Areas
into
leaseable areas, construct additional parking facilities (including parking
structures) in the Common
Areas, and increase or decrease Common Area land and/or facilities. Tenant
acknowledges
that such activities may result in inconvenience to Tenant. Such activities
and
changes are permitted if they do not materially affect Xxxxxx's use of the
Property.
(b)
Use of
Common Areas. Tenant
shall have the nonexclusive right (in common with
other tenants and all others to whom Landlord has granted or may grant such
rights) to use the Common Areas for the purposes intended, subject to such
reasonable rules and regulations
as Landlord may establish from time to time. Tenant shall abide by such rules
and
regulations and shall use its best effort to cause others who use the Common
Areas with
Xxxxxx's express or implied permission to abide by Landlord's rules and
regulations. At
any
time, Landlord may close any Common Areas to perform any acts in the Common
Areas
as,
in Landlord's judgment, are desirable to improve the Project. Tenant shall
not
interfere
with the rights of Landlord, other tenants or any other person entitled to
use
the Common
Areas.
(c)
Specific Provision
re: Vehicle Parking. Tenant
shall be entitled to use the number
of
vehicle parking spaces in the Project allocated to Tenant in Section 1.11
of the
Lease
without paying any additional rent. Tenant's parking shall not be reserved
and
shall be
limited to vehicles no larger than standard size automobiles or pickup utility
vehicles. Tenant
shall not cause large trucks or other large vehicles to be parked within
the
Project or
on the
adjacent public streets. Temporary parking of large delivery vehicles in
the
Project
may be permitted by the rules and regulations established by Landlord. Vehicles
shall
be
parked only in striped parking spaces and not in driveways, loading areas
or
other locations
not specifically designated for parking. Handicapped spaces shall only be
used
by
those
legally permitted to use them. If Tenant parks more vehicles in the parking
area
than
the
number set forth in Section 1.11 of this Lease, such conduct shall be a material
breach
of
this Lease. In addition to Landlord's other remedies under the Lease, Tenant
shall
pay
a daily charge determined by Landlord for each such additional
vehicle.
(d)
Maintenance
of Common Areas. Landlord
shall maintain the Common Areas
in
good order, condition and repair and shall operate the Project, in Landlord's
sole discretion,
as a first-class industrial/commercial real property development. Tenant
shall
pay
Tenant's pro rata share (as determined below) of all costs incurred by Landlord
for the operation
and maintenance of the Common Areas. Common Area costs include, but are not
limited to, costs and expenses for the following: gardening and landscaping;
utilities, water
and
sewage charges; maintenance of signs (other than tenants' signs); premiums
for
liability,
property damage, fire and other types of casualty insurance on the Common
Areas
and
worker's compensation insurance; all property taxes and assessments levied
on
or
attributable to the Common Areas and all
Common Area improvements; all personal property
taxes levied on or attributable to personal property used in connection with
the
Common
Areas; straight-line depreciation on personal property owned by Landlord
which
is
consumed in the operation or maintenance of the Common Areas; rental or lease
payments
paid by Landlord for rented or leased personal property used in the operation
or
maintenance
of the Common Areas; fees for required licenses and permits; repairing,
resurfacing,
repaving, maintaining, painting, lighting, cleaning, refuse removal, security
and
similar items. Landlord may
cause any
or all
of such services
to be provided by third parties
and the cost of such services shall be included in Common Area costs. Common
Area
costs shall not include depreciation of real property
which forms part of the Common Areas.
5
(e)
Tenant's Share
and Payment. Tenant
shall pay Tenant's annual pro rata share
of
all Common Area costs (prorated for any fractional month) upon written notice
from
Landlord that such costs are due and payable, and in any event prior to
delinquency. Tenant's
pro rata share shall be calculated by dividing the square foot area of the
Property,
as set
forth
in Section 1.04 of the Lease, by the aggregate square foot area of the
Project which is leased or held for lease by tenants, as of the date on which
the computation
is made. Tenant's initial pro rata share is set out in Paragraph 1.12(b).
Any
changes
in the Common Area costs and/or the aggregate area of the Project leased
or held
for
lease
during the Lease Term shall be effective on the first day of the month after
such change
occurs. Landlord may, at Xxxxxxxx's election, estimate in advance and charge
to
Tenant as Common Area costs, all real property taxes for which Tenant is
liable
under Section 4.02 of the Lease, all insurance premiums for which Tenant
is
liable under Section 4.04
of
the Lease, all maintenance and repair costs for which Tenant is liable under
Sections
4.05 and 6.04 of the Lease, and all other Common Area costs payable by Tenant
hereunder.
At Landlord's election, such statements of estimated Common Area costs shall
be
delivered monthly, quarterly or at any other periodic intervals to be designated
by Landlord.
Landlord
may adjust such estimates at any time based upon Xxxxxxxx's experience
and reasonable anticipation of costs. Such adjustments shall be effective
as of
the
next
rent payment date after notice to Tenant. Within sixty (60) days after the
end
of each
calendar year of the Lease Term, Landlord shall deliver to Tenant a statement
prepared
in accordance with generally accepted accounting principles setting forth,
in
reasonable
detail, the Common Area costs paid or incurred by Landlord during the
preceding
calendar year and Xxxxxx's pro rata share. Upon receipt of such statement,
there
shall be an adjustment between Landlord and Tenant, with payment to or credit
given
by
Landlord (as the case may be) so that Landlord shall receive the entire amount
of Tenant's
share of such costs and expenses for such period.
Section
4.06. Late
Charges.
Xxxxxx's failure to pay rent promptly may cause Landlord to
incur
unanticipated costs.
The
exact
amount of such costs are impractical or extremely difficult
to ascertain. Such costs may include, but are not limited to, processing
and
accounting charges
and late charges which may be imposed on Landlord by any ground lease, mortgage
or trust
deed encumbering the Property. Therefore, if Landlord does not receive any
rent
payment within
ten (10) days after it becomes due, Tenant shall pay Landlord a late charge
equal to ten percent
(10%) of the overdue amount. The parties agree that such late charge represents
a fair and
reasonable estimate of the costs Landlord will incur by reason of such late
payment.
Section
4.07. Interest
on Past Due Obligations. Any
amount owed by Tenant to Landlord
which is not paid when due shall bear interest at the rate of eighteen percent
(18%) per annum
from the due date of such
amount.
However, interest shall not be payable on late charges to
be
paid by Tenant under this Lease. The payment of interest on
such
amounts
shall not excuse or
cure
any default by Tenant under this Lease. If the interest rate specified in
this
Lease is higher than
the
rate permitted by law, the interest rate is hereby decreased to the maximum
legal interest rate
permitted by law.
Section
4.08. Impounds
for Insurance Premiums and Real Property Taxes. If
requested by any ground lessor or lender to whom Landlord has granted a security
interest in the Property
Tenant shall pay Landlord a sum equal to one-twelfth (1/12) of the annual
real
property taxes
and
insurance premiums payable by Tenant under this Lease, together with each
payment of Base Rent. Landlord shall hold such payments in a non-interest
bearing impound account. If unknown, Landlord shall reasonably estimate the
amount of real property taxes and insurance premiums when due. Tenant
shall pay any deficiency of funds in the impound account to Landlord
upon written request. If Tenant defaults under this Lease, Landlord may apply
any funds in the impound account to any obligation then due under this
Lease.
ARTICLE
FIVE: USE OF PROPERTY
Section
5.01. Permitted
Uses. Tenant
may use the Property only for the Permitted Uses set
forth
in Section 1.06 above.
6
Section
5.02. Manner of Use. Tenant shall not cause or permit the
Property to be used in
any
way which constitutes a violation of any law, ordinance, or governmental
regulation or order,
which annoys or interferes with the rights of tenants of the Project, or
which
constitutes a nuisance
or waste. Tenant
shall obtain and pay for all permits, including a Certificate of Occupancy,
required for Tenant's occupancy of the Property and shall promptly take all
actions necessary
to comply with all applicable statutes, ordinances, rules, regulations, orders
and requirements
regulating the use by Tenant of the Property, including the Occupational
Safety
and Health
Act.
Section
5.03. Hazardous
Materials.
As
used
in this Lease, the term "Hazardous Material" means any flammable
items, explosives, radioactive materials, hazardous or toxic substances,
material or waste or related materials, including any substances defined
as or
included in
the
definition of "hazardous substances", "hazardous wastes", "hazardous materials"
or "toxic substances"
now or subsequently regulated under any applicable federal, state or local
laws
or regulations,
including without limitation petroleum-based products, paints, solvents,
lead,
cyanide,
DDT, printing inks, acids, pesticides, ammonia compounds and other chemical
products, asbestos,
PCBs and similar compounds, and including any different products and materials
which are
subsequently found to have adverse effects on the environment or the health
and
safety of persons. Tenant shall not cause or permit any Hazardous Material
to be
generated, produced, brought
upon, used, stored, treated or disposed of in or about the Property by Tenant,
its agents, employees,
contractors, sublessees or invitees without the prior written consent of
Landlord. Landlord shall be entitled to take into account such other factors
or
facts as Landlord may reasonably
determine to be relevant in determining whether to grant or withhold consent
to
Tenant's
proposed activity with respect to Hazardous Material. In no event, however,
shall Landlord
be required to consent to the installation or use of any storage tanks on
the
Property.
Section
5.04. Signs
and
Auctions. Tenant
shall not place any signs on the Property without Landlord's prior written
consent. Tenant shall not conduct or permit any auctions or sheriff's
sales at the Property.
Section
5.05. Indemnity.
Tenant
shall indemnify Landlord against and hold Landlord harmless
from any and all costs, claims or liability arising from: (a) Tenant's use
of
the Property; (b) the conduct of Tenant's business or anything else done
or
permitted by Tenant to be done in or about the Property, including any
contamination of the Property or any other property resulting from
the
presence or use of Hazardous Material caused or
permitted
by Tenant; (c) any breach or default
in the performance of Tenant's obligations under this Lease; (d) any
misrepresentation or breach
of
warranty by Tenant under this Lease; or (e) other acts or omissions of Tenant.
Tenant shall
defend Landlord against any such cost, claim or liability at Xxxxxx's expense
with counsel reasonably
acceptable to Landlord or, at Landlord's election, Tenant shall reimburse
Landlord for any
legal
fees or costs incurred by Landlord in connection with any such claim. As
a
material part of the consideration to Landlord, Xxxxxx assumes all risk
of
damage
to property or injury to persons
in or about the Property arising from any cause, and Tenant hereby waives
all
claims in respect
thereof against Landlord, except for any claim arising out of Landlord's
gross
negligence or
willful misconduct. As
used
in this Section, the term "Tenant" shall include Tenant's employees,
agents, contractors and invitees, if applicable.
Section
5.06. Landlord's
Access. Landlord
or its agents may enter the Property at all reasonable
times to show the Property to potential buyers, investors or tenants or other
parties; to do
any
other act or to inspect and conduct tests in order to monitor Tenant's
compliance with all applicable
environmental laws and all laws governing the presence and use of Hazardous
Material; or
for
any other purpose Landlord deems necessary. Landlord shall give Tenant prior
notice of such
entry, except in the case of an emergency. Landlord may place customary
xxxx
"For
Sale" or "For Lease" signs on the Property.
Section
5.07. Quiet
Possession. If
Tenant
pays the rent and complies with all other terms
of
this Lease, Tenant may occupy and enjoy the Property for the full Lease Term,
subject to the
provisions of this Lease.
ARTICLE
SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS
Section
6.01. Existing
Conditions. Tenant
accepts the Property in its condition as of the execution
of the Lease, subject to all recorded matters, laws, ordinances, and
governmental regulations and orders. Except as provided herein, Xxxxxx
acknowledges
that
neither Xxxxxxxx nor
any
agent of Landlord has made any representation as to the condition of the
Property or the suitability
of the Property for Xxxxxx's intended use. Tenant represents and
warrants
that
Tenant
has made its own inspection of and inquiry regarding the condition of the
Property and is not relying
on
any
representations of Landlord or any Broker with respect thereto. If Landlord
or
Landlord's
Broker has provided a Property Information Sheet or other Disclosure Statement
regarding
the Property, a copy is attached as an exhibit to the Lease.
7
Section
6.02. Exemption
of Landlord from
Liability. Landlord shall not be liable for any
damage or injury to the person, business (or any loss of income therefrom),
goods, wares, merchandise or other property of Tenant, Tenant's employees,
invitees, customers or any other person
in
or about the Property, whether such damage or injury is caused by or results
from: (a) fire, steam, electricity, water, gas or rain; (b) the breakage,
leakage, obstruction or other defects of
pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures
or any other cause;
(c) conditions arising in or about the Property or upon other portions of
the
Project, or from other sources or places; or (d) any act or omission of any
other tenant of the Project. Landlord
shall not be liable for any such damage or injury even though the cause of
or
the means of
repairing such damage or injury are not accessible to Tenant. The provisions
of
this Section 6.02 shall not, however, exempt Landlord from liability for
Landlord's gross negligence or willful misconduct.
Section
6.03. Landlord's Obligations.
(a)
Except
as
provided in Article Seven (Damage or Destruction) and Article Eight
(Condemnation), Landlord shall keep the following in good order, condition
and
repair: the foundations, exterior walls and roof of the Property (including
painting the exterior
surface of the exterior walls of the Property not more often than once every
five (5)
years, if necessary) and all components of electrical, mechanical, plumbing,
heating and air
conditioning systems and facilities located in the Property which are concealed
or used in common by tenants of the Project. However, Landlord shall not
be
obligated to maintain
or repair windows, doors, plate glass or the interior surfaces of exterior
walls. Landlord
shall make repairs under this Section 6.03 within a reasonable time after
receipt of
written notice from Tenant of the need for such repairs.
(b)
Tenant shall pay
or
reimburse Landlord for all costs Landlord incurs under Paragraph
6.03(a) above except for the foundations, exterior walls (including paint),
and
roof
as
Common Area costs as provided for in Section 4.05 of the Lease. Tenant waives
the
benefit of any statute in effect now or in the future which might give Tenant
the right to make repairs at Landlord's expense or to terminate this Lease
due
to Landlord's failure to
keep
the Property in good order, condition and repair.
Section
6.04. Tenant's
Obligations.
(a)
Except as provided in Section 6.03, Article Seven (Damage or Destruction)
and
Article Eight (Condemnation), Tenant shall keep all portions of the Property
(including structural, nonstructural, interior, systems and equipment)
in good order, condition
and repair (including interior repainting and refinishing, as needed).
If
any
portion
of the Property or any system or equipment in the Property which Tenant is
obligated
to repair cannot be fully repaired or restored, Tenant shall promptly replace
such portion
of the Property or system or equipment in the Property, regardless of whether
the benefit
of such replacement extends beyond the Lease Term; but if the benefit or
useful
life of
such
replacement extends beyond the Lease Term (as such term may be extended by
exercise
of any options), the useful life of such replacement shall be prorated over
the
remaining portion of the Lease Term (as extended), and Tenant shall be liable
only for that portion
of the cost which is applicable to the Lease Term (as extended). If any part
of
the Property
or the Project is damaged by any act or omission of tenant, Tenant shall
pay
Landlord
the cost of repairing or replacing such damaged property, whether or not
Landlord
would otherwise be obligated to pay the cost of maintaining or repairing
such
property.
It is the intention of Landlord and Tenant that at all times Tenant shall
maintain the
portions of the Property which Tenant is obligated to maintain in an attractive,
first-class
and
fully operative condition.
(b)
Tenant
shall fulfill all of Tenant's obligations under this Section 6.04 at
Tenant's
sole expense. If Tenant fails to maintain, repair or replace the Property
as
required by this Section 6.04, Landlord may, upon ten (10) days prior notice
to
Tenant (except that no notice shall
be
required in the
case
of an emergency), enter the Property and
perform such maintenance or repair (including replacement, as needed) on
behalf
of Tenant.
In such case, Tenant shall reimburse Landlord for all costs incurred in
performing such
maintenance or repair immediately upon demand.
8
Section
6.05. Alterations,
Additions,
and Improvements.
(a)
Tenant
shall not make any alterations, additions, or improvements to the Property
without Landlord's prior written consent, except for non-structural alterations
which
do
not exceed One Thousand Dollars ($1,000) in cost cumulatively over the Lease
Term
and
which are not visible from the outside of any building of which the Property
is
part.
Landlord
may require Tenant to provide demolition and/or lien and completion bonds
in
form and amount satisfactory to Landlord. Tenant shall promptly remove any
alterations,
additions, or improvements constructed in violation of this Paragraph 6.05(a)
upon Landlord's written request. All
alterations, additions, and improvements shall be done in a good and workmanlike
manner, in conformity with all applicable laws and regulations,
and by a contractor approved by Landlord. Upon completion of any such
work,
Tenant shall provide Landlord with "as built" plans, copies of all construction
contracts,
and proof of payment for all labor and materials.
(b)
Tenant shall pay when due all claims for labor and material furnished to
the
Property.
Tenant shall give Landlord at least twenty (20) days' prior written notice
of
the commencement of any work on the Property, regardless of whether Xxxxxxxx's
consent to such work is required. Landlord
may elect to record and post notices of non-responsibility on the Property.
Section
6.06. Condition upon Termination. Upon the termination of the
Lease, Xxxxxx shall
surrender the Property to Landlord, broom clean and in the same condition
as
received except
for ordinary wear and tear which Tenant was not otherwise obligated to remedy
under any provision
of this Lease. However, Tenant shall not be obligated to repair any damage
which
Landlord is required to repair under Article Seven (Damage or Destruction).
In
addition, Landlord
may require Tenant to remove any alterations, additions or improvements (whether
or not
made
with Xxxxxxxx's consent) prior to the expiration of the Lease and to restore
the
Property to
its
condition at the time of occupancy, all at Tenant's expense. All alterations,
additions and improvements
which Landlord has not required Tenant to remove shall become Landlord's
property
and shall be surrendered to Landlord upon the expiration or earlier termination
of the Lease,
except that Tenant may remove any of Tenant's machinery or equipment which
can
be removed
without material damage to the Property. Tenant shall repair, at Tenant's
expense, any
damage
to
the Property caused by the removal of any such machinery or equipment. In
no
event, however,
shall Tenant remove any of the following materials or equipment (which shall
be
deemed
Landlord's property) without Landlord's prior written consent: any power
wiring
or power
panels; lighting or lighting fixtures; wall coverings; drapes, blinds or
other
window coverings;
carpets or other floor coverings; heaters, air conditioners or any other
heating
or air conditioning
equipment; fencing or security gates; or other similar building operating
equipment and
decorations.
ARTICLE
SEVEN: DAMAGE OR DESTRUCTION
Section
7.01. Partial Damage to Property.
(a)
Tenant shall notify Landlord in writing immediately upon
the
occurrence of any damage to the Property. If the Property is only partially
damaged (i.e.,
less than fifty percent
(50%) of the Property is unrenantable as a result of such damage or less
than
fifty percent
(50%) of Tenant's operations are materially impaired) and if the proceeds
received by
Landlord from the insurance policies described in Paragraph 4.04(b) are
sufficient to pay for the necessary repairs, this Lease shall remain in effect
and Landlord
shall repair the damage
as
soon as reasonably possible. Landlord may elect (but is not required) to
repair
ahy
damage to Tenant's fixtures, equipment, or improvements.
(b)
If
the insurance proceeds received by Landlord are not sufficient to pay the
entire
cost of repair, or if the cause of the damage is not covered by the insurance
policies which
Landlord maintains under Paragraph 4.04(b), Landlord may elect either to
(i)
repair the
damage as soon as reasonably possible, in which case this Lease shall remain
in
full force
and
effect, or (ii) terminate this Lease as of the date the damage occurred.
Landlord shall
notify Tenant within thirty (30) days after receipt of notice of the occurrence
of the damage
whether Landlord elects to repair the damage or
terminate the Lease. If Landlord elects
to
repair the damage, Tenant shall pay Landlord the "deductible amount" (if
any)
under Landlord's insurance policies
and,
if
the damage was
due
to an act or omission of Tenant,
or Tenant's employees, agents, contractors or invitees, the difference between
the actual
cost of repair and any insurance proceeds received by Landlord. If Landlord
elects to
terminate this Lease, Tenant may elect to continue this Lease in full force
and
effect, in which
case Tenant shall repair any damage to the Property and any building in which
the Property
is located. Tenant
shall pay the cost of such repairs, except that upon satisfactory completion
of
such repairs, Landlord shall deliver to Tenant any insurance proceeds received
by Landlord for the damage repaired by Tenant. Tenant shall give Landlord
written notice of such election within ten (10) days after receiving Landlord's
termination notice.
9
(c)
If
the damage to the Property occurs during the last six (6) months of the
Lease
Term and such damage will require more than thirty (30) days to repair, either
Landlord
or Tenant may elect to terminate this Lease as of the date the damage occurred,
regardless
of the sufficiency of any insurance proceeds. The party electing to terminate
this
Lease shall give written notification to the other party of such election
within
thirty (30)
days
after Xxxxxx's notice to Landlord of the occurrence of the damage.
Section
7.02. Substantialor
Total Destruction.
If the Property is substantially or totally
destroyed by any cause whatsoever (i.e.,
the
damage to the Property is greater than partial damage
as
described in Section 7.01), and regardless of whether Landlord receives any
insurance proceeds,
this Lease shall terminate as of the date the destruction occurred.
Notwithstanding the preceding
sentence, if the Property can be rebuilt within six (6) months after the
date of
destruction,
Landlord may elect to rebuild the Property at Landlord's own expense, in
which
case this
Lease shall remain in full force and effect. Landlord shall notify Tenant
of
such election within
thirty (30) days after Xxxxxx's notice of the occurrence of total or substantial
destruction. If
Landlord so elects, Landlord shall rebuild the Property at Landlord's sole
expense, except that if the
destruction was caused by an act or omission of Tenant, Tenant shall pay
Landlord the difference
between the actual cost of rebuilding and any insurance proceeds received
by
Landlord.
Section
7.03. Temporary
Reduction of Rent. If
the
Property is destroyed or damaged and
Landlord or Tenant repairs or restores the Property pursuant to the provisions
of this Article Seven,
any rent payable during the period of such damage, repair and/or restoration
shall be reduced
according to the degree, if any, to which Xxxxxx's use of the Property is
impaired. However,
the reduction shall not exceed the sum of one year's payment of Base Rent,
insurance premiums
and real property taxes. Except for such possible reduction in Base Rent,
insurance premiums and real property taxes, Tenant shall not be entitled
to any
compensation, reduction, or reimbursement
from Landlord as a result of any damage, destruction, repair, or restoration
of
or to
the
Property.
Section
7.04. Waiver.
Tenant
waives the protection of any statute, code or judicial decision which grants
a
tenant the right to terminate a lease in the event of the substantial or
total
destruction
of the leased property. Tenant agrees that the provisions of Section 7.02
above
shall govern the rights and obligations of Landlord and Tenant in the event
of
any substantial or total destruction
to the Property.
ARTICLE
EIGHT: CONDEMNATION
If
all or
any portion of the Property is taken under the power of eminent domain or
sold
under
the
threat of that power (all of which are called "Condemnation"), this Lease
shall
terminate as
to the
part taken or sold on the date the condemning authority takes title or
possession, whichever
occurs first. If more than twenty percent (20%) of the floor area of the
building in which
the
Property is located, or which is located on the Property, is taken, either
Landlord or Tenant
may terminate this Lease as of the date the condemning authority takes title
or
possession, by delivering written notice to the other within ten (10) days
after
receipt of written notice of such taking
(or in the absence of such notice, within ten (10) days after the condemning
authority takes title or possession). If neither Landlord nor Tenant terminates
this Lease, this Lease shall remain in
effect
as
to the
portion of the Property not taken, except that the Base Rent and Additional
Rent
shall be reduced in proportion to the reduction in the floor area of the
Property. Any
Condemnation
award or payment shall be distributed in the following order: (a) first,
to any
ground
lessor, mortgagee or beneficiary under a deed of trust encumbering the Property,
the amount
of
its interest in the Property; (b) second, to Tenant, only the amount
of
any
award specifically
designated for loss of or damage to Tenant's trade fixtures or removable
personal property; and (c) third, to Landlord,
to
an
orb,
the remainder of such award, whether as compensation for reduction
in the value of the leasehold, the taking of the fee, or otherwise. If this
Lease is not terminated, Landlord shall repair any damage to the Property
caused
by the Condemnation, except
that Landlord shall not be obligated to repair any damage for which Tenant
has
been reimbursed
by the condemning authority. If the severance damages received by Landlord
are
not sufficient
to pay for such repair, Landlord shall have the right to either terminate
this
Lease or make such repair at Landlord's expense.
10
ARTICLE
NINE: ASSIGNMENT AND SUBLETTING
Section
9.01. Xxxxxxxx's
Consent Required. No
portion of the Property or of Tenant's interest
in this Lease may be acquired by any other person or entity, whether by sale,
assignment, mortgage,
sublease, transfer, operation of law, or act of Tenant, without Xxxxxxxx's
prior
written consent,
except as provided in Section 9.02 below. Landlord has the right to grant
or
withhold its consent as provided in Section 9.05 below. Any attempted transfer
without consent shall be void and shall constitute a non-curable breach of
this
Lease. If Tenant is a partnership, any cumulative transfer
of more than twenty percent (20%) of the partnership interests shall require
Landlord's consent. If Tenant is a corporation, any change in the ownership
of a
controlling interest of the voting
stock of the corporation shall require Landlord's consent.
Section
9.02. Tenant
Affiliate. Tenant
may assign this Lease or sublease the Property, without
Landlord's consent, to any corporation which controls, is controlled by or
is
under common
control with Tenant, or to any corporation resulting from the merger of or
consolidation with
Tenant ("Tenant's Affiliate"). In such case, any Tenant's Affiliate shall
assume
in writing all of Tenant's obligations under this Lease.
Section
9.03. No
Release of Tenant. No
transfer permitted by this Article Nine, whether with
or
without Landlord's consent, shall release.
Tenant
or change Xxxxxx's primary liability to pay
the
rent and to perform all other obligations of Tenant under this Lease, Landlord's
acceptance
of rent from any other person is not
a
waiver
of
any, provision of this Article Nine. Consent
to one transfer is not a consent to any subsequent transfer. If Xxxxxx's
transferee defaults under
this Lease, Landlord may proceed directly against Tenant without pursuing
remedies against
the transferee. Landlord may consent to subsequent assignments or modifications
of this Lease
by
Xxxxxx's transferee, without notifying Tenant or obtaining its consent. Such
action shall not
relieve Xxxxxx's liability under this Lease.
Section
9.04. Offer
to Terminate. If
Tenant
desires to assign the Lease or sublease the. Property,
Xxxxxx shall have the right to offer, in writing, to terminate the Lease
as of a
date specified
in the offer. If Landlord elects in writing to accept the offer to terminate
within twenty (20)
days
after notice of the offer, the Lease shall terminate as of the date specified
and all the terms
and
provisions of the Lease governing termination shall apply. If Landlord does
not
so elect,
the Lease shall continue in effect until otherwise terminated and the provisions
of Section 9.05
with
respect to any proposed transfer shall continue to apply.
Section
9.05. Landlord's
Consent.
(a)
Xxxxxx's request for consent to any transfer described in Section 9.01 shall
set
forth
in
writing the details of the proposed transfer, including the name, business
and
financial
condition of the prospective transferee, financial details of the proposed
transfer (e.g.,
the term of and the rent and security deposit payable under any proposed
assignment or
sublease), and any other information Landlord deems relevant. Landlord shall
have the right
to
withhold consent, if reasonable, or to grant consent, based on the following
factors:
(i) the business of the proposed assignee or subtenant and the proposed use
of
the Property;
(ii) the net worth and financial reputation of the proposed assignee or
subtenant; (iii)
Tenant's compliance with all
of
its
obligations under the Lease; and (iv) such other factors
as Landlord may reasonably deem relevant. If Landlord objects to a proposed
assignment
solely because of the net worth and/or financial reputation of the proposed
assignee,
Tenant may nonetheless sublease (but not assign), all or a portion of the
Property
to the proposed transferee, but only on the other terms of the proposed
transfer.
(b)
If
Tenant assigns or subleases, the following shall apply: Tenant shall provide
Landlord
a written statement certifying all amounts to be paid from any assignment
or
sublease
of the Property within thirty (30) days after the transaction documentation
is
signed,
and Landlord may inspect Tenant's books and records
to verify the accuracy of such
statement. On written request, Tenant shall promptly furnish to Landlord
copies
of all
the
transaction documentation, all
of
which shall be certified by Tenant to be complete, true
and
correct. The breach of Tenant's obligation under this Paragraph 9.05(b) shall
be
a
material
default of the Lease.
11
Section
9.06 No Merger. No merger shall result from Xxxxxx's sublease
of the Property under this Article Nine, Xxxxxx's surrender of this Lease
or the
termination of this Lease in
anyother
manner. In any such event, Landlord may terminate any or all subtenancies
or
succeed to the
interest of Xxxxxx as sublandlord under any or all subtenancies.
ARTICLE
TEN: DEFAULTS; REMEDIES
Section
10.01. Covenants
and Conditions.
Xxxxxx's performance of each of Tenant's obligations
under this Lease is a condition as well as a covenant. Xxxxxx's right to
continue in possession
of the Property is conditioned upon such performance. Time is of the essence
in
the performance
of all covenants and conditions.
Section
10.02. Defaults.
Tenant
shall be in material default under this Lease:
(a)
If
Xxxxxx abandons the Property or if Xxxxxx's vacation of the Property results
in
the
cancellation of any insurance described in Section 4.04;
(b)
If
Tenant fails to pay rent or any other charge when due;
(c)
If
Tenant fails to perform any of Xxxxxx's non-monetary obligations under this
Lease
for
a period of thirty (30) days after written notice from Landlord; provided
that
if more
than
thirty (30) days are required to complete such performance, Tenant shall
not be
in default if Tenant commences such performance within the thirty (30) -day
period and thereafter diligently pursues its completion. However, Landlord
shall
not be required to give
such
notice if Xxxxxx's failure to perform constitutes a non-curable breach of
this
Lease.
The
notice required by this Paragraph is intended to satisfy any and all notice
requirements imposed by law on Landlord and is not in addition to any such
requirement.
(d)
(i)
If
Tenant makes a general assignment or general arrangement for the benefit
of creditors; (ii) if a petition for adjudication of bankruptcy or for
reorganization or rearrangement
is filed by or against Tenant and is not dismissed within thirty (30) days;
(iii)
if
a trustee or receiver is appointed to take possession of substantially all
of
Tenant's assets
located at the Property or of Tenant's interest in this Lease and possession
is
not restored
to Tenant within thirty (30) days; or (iv) if substantially all of Tenant's
assets located
at the Property or of Tenant's interest in this Lease is subjected to
attachment, execution
or other judicial seizure which is not discharged within thirty (30) days.
If a
court
of
competent jurisdiction determines that any of the acts described in this
subparagraph
(d) is not a default under this Lease, and a trustee is appointed to take
possession
(or if Tenant remains a debtor in possession) and such trustee or Tenant
transfers
Tenant's interest hereunder, then Landlord shall receive, as Additional Rent,
the excess,
if any, of the rent (or any other consideration) paid in connection with
such
assignment
or sublease over the rent payable by Tenant under this Lease.
(e)
If
any guarantor of the Lease revokes or otherwise terminates, or purports to
revoke or otherwise terminate, any guaranty of all or any portion of Tenant's
obligations under
the
Lease. Unless
otherwise expressly provided, no guaranty of the Lease is revocable.
Section
10.03. Remedies.
On
the
occurrence of any material default by Tenant, Landlord may,
at
any time thereafter, with or without notice or demand and without limiting
Landlord in the
exercise of any right or remedy which Landlord may have:
12
(a)
Terminate Xxxxxx's right to possession of the Property by any lawful means,
in
which
case this Lease shall terminate and Tenant shall immediately surrender
possession of the
Property to Landlord. In
such
event, Landlord shall be entitled to recover from Tenant
all damages incurred by Landlord by reason of Tenant's default, including
(i)
the worth
at
the time of the award of the unpaid Base Rent, Additional Rent and other
charges
which
Landlord had earned at the time of the termination; (ii) the worth at the
time
of the award
of
the amount by which the unpaid Base Rent, Additional Rent and other charges
which Xxxxxxxx would have earned after termination until the time of the
award
exceeds the
amount of such rental loss that Tenant proves Landlord could have reasonably
avoided;
(iii) the worth at the time of the award of the amount by which the unpaid
Base
Rent,
Additional Rent and other charges which Xxxxxx would have paid for the
balance
of
the
Lease
term after the time of award exceeds the amount of such rental loss that
Tenant
proves
Landlord could have reasonably avoided; and (iv) any other amount necessary
to
compensate
Landlord for all the detriment proximately caused by Xxxxxx's failure to
perform
its obligations under the Lease or which in the ordinary course of things
would
be likely to result therefrom, including, but not limited to, any costs or
expenses Landlord incurs
in
maintaining or preserving the Property after such default, the cost of
recovering possession of
the
Property, expenses of reletting, including necessary renovation or alteration
of
the Property, Landlord's reasonable attorneys' fees incurred in
connection therewith,
and any real estate commission paid or payable. As used in subparts (i) and
(ii)
above,
the "worth at the time of the award" is computed by allowing interest on
unpaid
amounts
at the rate of fifteen percent (15%) per annum, or such lesser amount as
may
then be
the
maximum lawful rate. As used in subpart (iii) above, the "worth at the time
of
the award"
is
computed by discounting such amount at the discount rate of the Federal
Reserve
Bank of San Francisco at the time of the award, plus one percent (1 %). If
Tenant has abandoned the Property, Landlord shall have the option of (i)
retaking possession
of the
Property and recovering from Tenant the amount specified in this Paragraph
10.03(a), or (ii) proceeding under Paragraph 10.03(b);
(b)
Maintain Tenant's right to possession, in which case this Lease shall continue
in
effect
whether or not Tenant has abandoned the Property. In such event, Landlord
shall
be
entitled to enforce all of Landlord's rights and remedies under this Lease,
including the right
to
recover the rent as it becomes due;
(c)
Pursue any other remedy now or hereafter available to Landlord under the
laws
or
judicial decisions of the state in which the Property is located.
Section
10.04. Repayment
of "Free" Rent. If
this
Lease provides for a postponement of
any
monthly rental payments, a period of "free" rent or other rent concession,
such
postponed rent
or
"free" rent is called the "Abated Rent". Tenant shall be credited with having
paid all of the Abated Rent on the expiration of the Lease Term only if Xxxxxx
has fully, faithfully, and punctually
performed all of Tenant's obligations hereunder, including the payment of
all
rent (other
than the Abated Rent) and all other monetary obligations and the surrender
of
the Property in
the
physical condition required by this Lease. Tenant acknowledges that its right
to
receive credit for the Abated Rent is absolutely conditioned upon Tenant's
full,
faithful and punctual performance
of its obligations under this Lease. If Tenant defaults and does not cure
within
any applicable
grace period, the Abated Rent shall immediately become due and payable in
full
and this
Lease shall be enforced as if there were no such rent abatement or other
rent
concession. In such
case
Abated Rent shall be calculated based on the full initial rent payable under
this Lease.
Section
10.05. Automatic Termination.
Notwithstanding
any other term or provision hereof
to
the contrary, the Lease shall terminate on the occurrence of any act which
affirms the Landlord's
intention to terminate the Lease as provided in Section 10.03 hereof, including
the filing
of
an unlawful detainer action against Tenant. On such termination, Xxxxxxxx's
damages for default
shall include all costs and fees, including reasonable attorneys' fees that
Landlord incurs in connection
with the filing, commencement, pursuing and/or defending of any action in
any
bankruptcy
court or other court with respect to the Lease; the obtaining of relief from
any
stay in bankruptcy
restraining any action to evict Tenant; or the pursuing of any action with
respect to Landlord's
right to possession of the Property. All such damages suffered (apart from
Base
Rent and other rent payable hereunder) shall constitute pecuniary damages
which
must be reimbursed to
Landlord prior to assumption of the Lease by Tenant or any successor to Xxxxxx
in any bankruptcy
or other proceeding.
Section
10.06. Cumulative
Remedies. Xxxxxxxx's
exercise of any right or remedy shall not
prevent it from exercising any other right or remedy.
ARTICLE
ELEVEN: PROTECTION OF LENDERS
Section
11.01. Subordination.
Landlord
shall have the right to subordinate this Lease to any ground lease, deed
of
trust or mortgage encumbering the Property, any advances made on the
security
thereof and any renewals, modifications, consolidations, replacements or
extensions thereof,
whenever made or recorded. Tenant shall cooperate with Landlord and any lender
which is
acquiring a security interest in the Property or the Lease. Tenant shall
execute
such further documents
and assurances as such lender may require, provided that Tenant's obligations
under this Lease shall not be increased in any material way (the performance
of
ministerial acts shall not be
deemed
material), and Tenant shall not be deprived of its rights under this Lease.
Xxxxxx's right
to
quiet possession of the Property during the Lease Term shall not be disturbed
if
Tenant pays
the
rent and performs all of Tenant's obligations under this Lease and is not
otherwise in default.
If any ground lessor, beneficiary or mortgagee elects to have this Lease
prior
to the lien of
its
ground lease, deed of trust or mortgage and gives written notice thereof
to
Tenant, this Lease
shall be deemed prior to such ground lease, deed of trust or mortgage whether
this Lease is dated
prior or subsequent to the date of said ground lease, deed of trust or mortgage
or the date of
recording thereof.
13
Section
11.02. Attornment.
If
Xxxxxxxx's interest in the Property is acquired by any ground lessor,
beneficiary under a deed of trust, mortgagee, or purchaser at a foreclosure
sale, Tenant
shall attorn to the transferee of or successor to Xxxxxxxx's interest in
the
Property and recognize such transferee or successor as Landlord under this
Lease. Tenant waives the protection
of any statute or rule of law which gives or purports to give Tenant any
right
to terminate
this Lease or surrender possession of the Property upon the transfer of
Landlord's interest.
Section
11.03. Signing of Documents.
Tenant
shall sign and deliver any instrument or documents
necessary or appropriate to evidence any such attornment or subordination
or
agreement to do so. If Tenant fails to do so within ten (10) days after written
request, Tenant hereby
makes, constitutes and irrevocably appoints Landlord, or any transferee or
successor of Landlord, the attorney-in-fact of Tenant to execute and deliver
any
such instrument or document.
Section
11.04. Estoppel Certificates.
(a)
Upon
Landlord's written request, Tenant shall execute, acknowledge and deliver
to Landlord a written statement certifying: (i) that none of the terms or
provisions of
this
Lease have been changed (or if they have been changed, stating how they have
been
changed); (ii) that this Lease has not been canceled or terminated; (iii)
the
last date of
payment of the Base Rent and other charges and the time period covered by
such
payment;
(iv) that Landlord is not in default under this Lease (or, if Landlord is
claimed to be
in
default, stating why); and (v) such other representations or information
with
respect to Tenant or the Lease as Landlord may reasonably request or which
any
prospective purchaser or encumbrancer of the Property may require. Tenant
shall deliver such statement
to Landlord within ten (10) days after Xxxxxxxx's request. Landlord may give
any
such
statement by Tenant to any prospective purchaser or encumbrancer of the
Property.
Such purchaser or encumbrancer may rely conclusively upon such statement
as true
and correct.
(b)
If
Tenant does not deliver such statement to Landlord within such ten (10)
-
day
period, Landlord, and any prospective purchaser or encumbrancer, may
conclusively presume
and rely upon the following facts: (i) that the terms and provisions of this
Lease have
not
been changed except as otherwise represented by Landlord; (ii) that this
Lease
has
not
been canceled or terminated except as otherwise represented by Landlord;
(iii)
that not
more
than one month's Base Rent or other charges have been paid in advance; and
(iv)
that
Landlord is not in default under the Lease. In such event, Tenant shall be
estopped from denying the truth of such facts.
Section
11.05. Tenant's
Financial
Condition. Within
ten (10) days after written request
from Landlord, Tenant shall deliver to Landlord such financial statements
as
Landlord reasonably
requires to verify the net worth of Tenant or any assignee, subtenant, or
guarantor of Tenant.
In
addition, Tenant shall deliver to any lender designated by Landlord any
financial statements
required by such lender to facilitate the financing or refinancing of the
Property. Tenant
represents and warrants to Landlord that each such financial statement is
a true
and accurate statement as of the date of such statement. All financial
statements shall be confidential and
shall
be used only for the purposes set forth in this Lease.
ARTICLE
TWELVE: LEGAL COSTS
Section
12.01 Legal Proceedings.
If
Tenant
or Landlord shall be in breach or default under
this Lease, such party (the "Defaulting Party") shall reimburse the other
party
(the "Nondefaulting Party") upon demand for any costs or expenses that the
Nondefaulting Party incurs in connection with any breach or default of the
Defaulting Party under this Lease, whether or not suit is commenced or judgment
entered. Such
costs shall include legal fees and costs incurred
for the negotiation of a settlement, enforcement
of rights
or
otherwise. Furthermore, if any
action for breach of or to enforce the provisions of this Lease is commenced,
the court in such action
shall award to the party in whose favor a judgment is entered, a reasonable
sum
as attorneys'
fees and costs. The losing party in such action shall pay such attorneys'
fees
and costs. Tenant
shall also indemnify Landlord against and hold Landlord harmless from all
costs,
expenses, demands
and liability Landlord may incur if Landlord becomes or is made a party to
any
claim or action (a) instituted by Tenant against any third party, or by any
third party against Tenant, or by or against any person holding any interest
under or using the Property by license of or agreement with
Tenant; (b) for foreclosure of any lien for labor or material furnished to
or
for Tenant or such other person; (c) otherwise arising out of or resulting
from
any act or transaction of Tenant or such
other person; or (d) necessary to protect Landlord's interest under this
Lease
in a bankruptcy proceeding,
or other proceeding under Title 11 of the United States Code, as amended.
Tenant
shall
defend Landlord against any such claim or action at Tenant's expense with
counsel reasonably
acceptable to Landlord or, at Landlord's election, Tenant shall reimburse
Landlord for any
legal
fees or costs Landlord incurs in any such claim or action.
14
Section
12.02. Landlord's Consent. Tenant shall pay Landlord's
reasonable attorneys' fees
incurred in connection with Xxxxxx's request for Xxxxxxxx's consent under
Article Nine (Assignment and Subletting), or in connection with any other
act
which Xxxxxx proposes to do and
which
requires Xxxxxxxx's consent.
ARTICLE
THIRTEEN: MISCELLANEOUS PROVISIONS
Section
13.01. Non-Discrimination.
Tenant
promises, and it is a condition to the continuance of this Lease, that
there will be no discrimination against, or segregation of,
any
person
or
group of persons on the basis of race, color, sex, creed, national origin
or
ancestry in the
leasing, subleasing, transferring, occupancy, tenure or use of the Property
or
any portion thereof.
Section
13.02. Landlord's
Liability; Certain Duties.
(a)
As
used in this Lease, the term "Landlord" means only the current owner or
owners
of
the fee title to the Property or Project or the leasehold estate under a
ground
lease
of
the Property or Project at the time in question. Each Landlord is obligated
to
perform
the obligations of Landlord under this Lease only during the time such Landlord
owns
such
interest or title. Any Landlord who transfers its title or interest is relieved
of all liability
with respect to the obligations of Landlord under this Lease to be performed
on
or after the date of transfer. However, each Landlord shall deliver to its
transferee all funds that
Tenant previously paid if such funds have not yet been applied under the
terms
of this Lease.
(b)
Tenant shall give written notice of any failure by Landlord to perform any
of
its
obligations under this Lease to Landlord and to any ground lessor, mortgagee
or
beneficiary
under any deed of trust encumbering the Property whose name and address
have
been
furnished to Tenant in writing. Landlord shall not be in default under this
Lease unless
Landlord (or such ground lessor, mortgagee or beneficiary) fails to cure
such
non-performance
within thirty (30) days after receipt of Tenant's notice. However, if such
non-performance reasonably requires more than thirty (30) days to cure, Landlord
shall not
be in
default if such cure is commenced within such thirty (30) -day period and
thereafter
diligently pursued to completion.
(c)
Notwithstanding any term or provision herein to the contrary, the liability
of
Landlord for the performance of its duties and obligations under this Lease
is
limited to Landlord's
interest in the Property and the Project, and neither the Landlord nor its
partners,
shareholders, officers or other principals shall have any personal liability
under this
Lease.
Section
13.03. Severability.
A
determination by a court of competent jurisdiction that any provision of
this
Lease or any part thereof is illegal or unenforceable shall not cancel or
invalidate
the remainder of such provision or this Lease, which shall remain in full
force
and effect.
Section
13.04. Interpretation.
The
captions of the Articles or Sections of this Lease are to
assist
the parties in reading this Lease and are not a part of the terms or provisions
of this Lease.
Whenever required by the context of this Lease, the singular shall include
the
plural and the
plural shall include the singular. The masculine, feminine and neuter genders
shall each include
the other. In any provision relating to the conduct, acts or omissions of
Tenant, the term "Tenant"
shall include Tenant's agents, employees, contractors, invitees, successors
or
others using
the
Property with
Xxxxxx's
expressed or
implied permission.
15
Section
13.05. Incorporation
of Prior Agreements; Modifications. This
Lease is the only
agreement between the parties pertaining to the lease of the Property and
no
other agreements
are effective. All
amendments to this Lease shall be in writing and signed by all parties.
Any other attempted amendment shall be void.
Section
13.06. Notices.
AR
notices required or permitted under this Lease shall be in writing
and shall be personally delivered or sent by certified mail, return receipt
requested, postage
prepaid. Notices to Tenant shall be
delivered
to the address specified in Section 1.03 above,
except that upon Xxxxxx's taking possession of the Property, the Property
shall
be Tenant's address for notice purposes. Notices to Landlord shall be delivered
to the address specified in Section
1.02 above. All notices shall be effective upon delivery. Either party may
change its notice
address upon written notice to the other party.
Section
13.07. Waivers.
All
waivers must be in writing and signed by the waiving party. Landlord's
failure to enforce any provision of this Lease or its acceptance of rent
shall
not be a waiver
and shall not prevent Landlord from enforcing that provision or any other
provision of this
Lease in the future. No
statement on
a
payment
check from Tenant or in a letter accompanying
a payment check shall be binding on Landlord. Landlord may, with or without
notice
to
Tenant, negotiate such check without being bound to the conditions of such
statement.
Section
13.08. No Recordation. Tenant shall not record this Lease
without prior written consent
from Landlord. However, either Landlord or Tenant may require that a "Short
Form" memorandum of this Lease executed by both parties be recorded.
The
party
requiring such recording
shall pay all transfer taxes and recording fees.
Section
13.09. Binding
Effect; Choice of Law.
This Lease binds any party who legally acquires
any rights or interest in this Lease from Landlord or Tenant. However, Landlord
shall have
no
obligation to Xxxxxx's successor unless the rights or interests of Xxxxxx's
successor are acquired in accordance with the terms of this Lease. The laws
of
the state in which the Property is
located shall govern this Lease.
Section
13.10.
Corporate
Authority;
Partnership Authority. If
Tenant
is a corporation,
each person signing this Lease on behalf of Tenant represents and warrants
that
he has
full
authority to do so and that this Lease binds the corporation. Within thirty
(30)
days after this Lease is signed, Tenant shall deliver to Landlord a certified
copy of a resolution of Tenant's Board
of
Directors authorizing the execution of this Lease or other evidence of such
authority reasonably
acceptable to Landlord. If Tenant is a partnership, each person or entity
signing this Lease
for
Tenant represents and warrants that he or it is a general partner of the
partnership, that he or it has full authority to sign for the partnership
and
that this Lease binds the partnership and all
general partners of the partnership. Tenant shall give written notice to
Landlord of any general partner's
withdrawal or addition. Within thirty (30)
days
after this Lease is signed, Xxxxxx shall deliver to Landlord a copy of Xxxxxx's
recorded statement of partnership or certificate of limited partnership.
Section
13.11. Joint
and Several Liability. All
parties signing this Lease as Tenant shall be jointly and severally liable
for
all obligations of Tenant.
Section
13.12. Force
Majeure. If
Landlord cannot perform any of its obligations due to events beyond Landlord's
control, the time provided for performing such obligations shall be extended
by
a period of time equal to the duration of such events. Events beyond Xxxxxxxx's
control
include, but are not limited to, acts of God, war, civil commotion, labor
disputes, strikes, fire, flood or other casualty, shortages of labor or
material, government regulation or restriction and
weather conditions.
Section
13.13. Execution
of Lease. This
Lease may be executed in counterparts and, when
all
counterpart documents are executed, the counterparts shall constitute a single
binding instrument. Xxxxxxxx's delivery of this Lease to Tenant shall not
be
deemed to be an offer to lease and
shall
not be binding upon either party until executed and delivered by both
parties.
Section
13.14. Survival.
All
representations and warranties of Landlord and Tenant shall survive the
termination of this Lease.
ARTICLE
FOURTEEN: BROKERS
Section
14.01. Broker's
Fee. Intentionally
left blank.
Section
14.02. Protection
of Brokers. Intentionally
left
blank.
16
Section
14.03. Broker's
Disclosure of Agency. Intentionally
left blank.
Section
14.04. No Other
Brokers. Tenant
represents and warrants to Landlord that there
are
no brokers, finders or other parties with whom Xxxxxx has dealt who are or
may
be entitled
to any commission or fee with respect to this Lease or the
Property.
ADDITIONAL
PROVISIONS MAY BE SET FORTH IN A RIDER OR RIDERS ATTACHED
HERETO OR IN THE BLANK SPACE BELOW. IF
NO
ADDITIONAL PROVISIONS
ARE INSERTED, PLEASE DRAW A LINE THROUGH THE SPACE BELOW.
Landlord
and Xxxxxx have signed this Lease at the place and on the dates specified
adjacent
to their signatures below and have initialed all Riders which are attached
to or
incorporated
by reference in this Lease.
"LANDLORD"
|
|||
Signed
on April
20, 2006
at
Grass Valley, California.
|
|||
![]() |
|||
"TENANT"
|
|||
Signed
on 4-18
2006
at
Solana Beach, CA.
|
|||
/s/ Xxxxx Xxxxxxx | |||
By: | /s/ Xxxxx X. Xxxxxxx | ||
Its: | President & CEO | ||
By: | |||
Its: |
IN
ANY
REAL ESTATE TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT
WITH A PROFESSIONAL, SUCH AS A CIVIL ENGINEER, INDUSTRIAL HYGIENIST
OR OTHER PERSON WITH EXPERIENCE IN EVALUATING THE CONDITION
OF THE PROPERTY, INCLUDING THE POSSIBLE PRESENCE OF ASBESTOS,
HAZARDOUS MATERIALS AND UNDERGROUND STORAGE TANKS.
17
ADDENDUM
TO LEASE
Further
terms and conditions to that certain Xxxxx, dated April 12, 2006 by and between
JR Associates,
II, Landlord and Open Energy Corporation, Tenant.
THE
PARTIES FURTHER AGREE AS FOLLOWS:
15.
ALTERATIONS. Landlord or its contractor shall have the right to inspect any
alterations made
by
Tenant to verify that Tenant has complied with all applicable building codes
and
other legal
requirements. Tenant shall promptly perform all necessary work requested
by
Landlord for the
purpose of such compliance. If
Xxxxxx
fails to perform such work Landlord may perform such
work
and charge Tenant the cost thereof.
16.
SECURITY MEASURES. Tenant assumes full responsibility for protecting the
Premises from
theft, robbery and pilferage, at all times. Tenant shall keep the doors and
other means of entry to the Premises closed, locked and secured during
non-business hours. Tenant shall not alter
any
lock or install any new or additional locks or any bolts on any door of the
Premises without
the prior written consent of Landlord.
17.
STORAGE. Tenant agrees that there shall be no goods or materials assembled
at
any time outside
of the unit at the front, rear or side of the building, nor shall Tenant
use
driveways, parking
spaces, trash enclosure areas, or paved or landscaped areas for temporary
or
permanent storage.
18.
ENVIRONMENTAL COMPLIANCE. Tenant
represents, warrants and covenants that it shall
at
no time use, or permit the Premises to be used, in violation of any federal,
state or local law,
ordinance or regulation relating to the environmental conditions on, under
or
about the Premises,
including, but not limited to, soil and ground water conditions, and Tenant
agrees to assume
sole and full responsibility and cost to remedy any such violations caused
by
Tenant that may affect the Premises. Tenant further represents, warrants
and
covenants that it shall at no time,
allow or permit any third party to use, generate, store or dispose of on,
under,
or about the Premises, or transport to or from the Premises any hazardous
wastes, toxic substances or related materials
("Hazardous Materials"). For the purposes of this Required Compliance, Hazardous
Materials
shall include, but not be limited to, substance defined as "hazardous
substances" or "toxic
substances" in Liability Act of 1980, as amended, 42 U.S.C. Section 9601,
et
seq.,; Hazardous
Materials Transportation Act, 49 U.S.C. Section 1802; and Resource Conservation
Recovery
Act, 42 U.S.C. Section 6901, et seq.; and those substances defined as "hazardous
wastes"
in the Health and Safety Codes of the State in which the Premises are located,
and in the regulations
adopted and publications promulgated pursuant to said laws. Tenant
represents, warrants
and covenants that it shall provide Landlord with written notification
immediately upon the
discovery or notice by Xxxxxx, its successors, assigns, licensees, invitees,
employees, agents, partners
or any other third party, that any representation, warranty, or covenant
of
Lessee under this
section is inaccurate, incomplete, or untrue in any way.
19.
EMERGENCY ACCESS: In the event Landlord or its authorized representative,
agent,
or employee,
including without limitation any fire protection or public safety official,
requires emergency
access to the Premises, Tenant shall indemnify and hold Landlord harmless
from
any costs
and
expenses incurred in gaining such access and repairing any damage caused
in
gaining such
access to the Premises if Tenant's set of keys is not immediately
available.
Addendum
to Lease (Continued)
Page
2
20.
SIGNAGE. Tenant shall comply with Xxxxxxxx's sign program for the project.
Tenant, at Tenant's
expense, shall be allowed to place an identification sign, approved by
landlord,
on the western
monument sign. Tenant
shall have exclusive use of this sign. Tenant
shall also be allowed
to place a sign approved by landlord at its entry. No other signage visible
from
the outside
of the building is allowed.
21.
INTERIOR TENANT IMPROVEMENTS. Landlord, at Landlord's sole cost and expense,
shall
insulate the roof and exterior walls of the approximately 5,300 square
foot
warehouse bays, otherwise,
Tenant leases the property in its as-is shell condition. Landlord
shall construct additional
interior improvements in accordance with mutually agreed to floor plans
and
specifications
identified as Exhibit "B" to be attached hereto and made a part hereof.
Landlord
shall
pay
to cover the costs of the additional interior improvements including, but
not
limited to, construction,
design, fees and permits. The base monthly rent as described in section
1.12(a)
shall be
increased by 1.0% of the costs that Landlord incurs for the additional
interior
improvements.
22.
PRODUCT EXHIBIT. Tenant shall be allowed to display/install Tenant's solar
products on the
exterior of the property, subject to Landlord's approval and City
regulations.
23.
OTHER
PERIODIC PAYMENTS. Tenant's share of Other Periodic Payments, described
in
Section
1.12 (b) of the Lease, shall not exceed an average of $0.25 per rentable
square
foot per month
during the first twelve months of the Lease term. Tenant's
share of Other Periodic Payments
shall not increase more than 3% annually for years two and three of the
Lease.
These limits
will not apply to any extensions of the original Lease term.
24.
OPTION TO EXTEND LEASE. Provided that Tenant is not in default under any
terms
or conditions
of this Lease, Landlord grants to Tenant two options to extend the term
of this
Lease for
a
period of three years each. Tenant
shall provide Landlord with not less than 180 days advanced
written notice of its intent to exercise each option. The Lease extensions
shall
be under the
exact
same terms, covenants and conditions of the original Lease except the Base
Rent,
as described
in Section 1.12 (a) of the Lease, shall be increased by three percent at
the
beginning of the
option period and annually thereafter.
![](https://www.sec.gov/Archives/edgar/data/1176193/000114420406034575/sig18.jpg)
![](https://www.sec.gov/Archives/edgar/data/1176193/000114420406034575/logo5.jpg)
JR
ASSOCIATES,
II
A
Co-Tenancy
April
12,
2006
Xx.
Xxx
Xxxxxx
Open
Energy Corporation
000
Xxx
Xx Xx Xxxxx, Xxxxx 000
Solana,
CA 92075
Lease
dated April 12, 2006 by and between JR Associates, II, Landlord, and
Open Energy
Corporation,
Tenant.
Dear
Bob:
Provided
that Tenant is not in default under any terms of the above referenced
Lease,
Landlord
grants to Tenant an option to purchase the Property as part of the commercial
condominium
project
for $1,242,000. The purchase price shall increase by the costs incurred
by
Landlord
for additional
interior improvements described in addendum 21 of the Lease.
Tenant
must exercise its option to purchase within the first two years of the
lease.
Tenant
shall give
Landlord not less than 180 days advanced written notice of Xxxxxx's intent
to
exercise
its option.
If Tenant does not exercise its option to purchase within the first two
years of
the lease, the
option to purchase shall expire and be of no further force or
effect.
All
other
terms and conditions of the herein mentioned lease are incorporated by
reference.
![](https://www.sec.gov/Archives/edgar/data/1176193/000114420406034575/sig19.jpg)
000
Xxxx Xxxx Xxxxxx ▪ Grass
Valley ▪ California ▪ 95945
000-000-0000 ▪ Fax
000-000-0000 ▪ E-mail
Xxxx@XxxxxxxXxxxXxxxxxxxxxx.xxx
JR
ASSOCIATES,
II
A
Co-Tenancy
April
12,
2006
Xx.
Xxx
Xxxxxx
Open
Energy Corporation
000
Xxx
Xx Xx Xxxxx, Xxxxx 000
Solana,
CA 92075
Lease
dated April 12, 2006 by and between JR Associates, II, Landlord,
and Open Energy
Corporation,
Tenant.
Dear
Bob:
Notwithstanding
Section 2.03 of the above referenced Lease, Landlord grants Tenant
the right to
occupy the Property two months prior to the beginning of the Lease
according to
the same terms and conditions of the Lease except for the payment
of rent
described in Section 1.12 of the Lease.
Upon
Xxxxxx's occupancy Landlord shall pay Tenant an amount of $5,000.00
which Tenant
may apply towards its moving expenses.
Please
acknowledge your acceptance of these terms by signing below.
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