EXHIBIT 10.1
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STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE-GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. BASIC PROVISIONS ("BASIC PROVISIONS").
1.1 PARTIES: THIS LEASE ("LEASE"), DATED FOR REFERENCE PURPOSES ONLY, DECEMBER
15, 1998, IS MADE BY AND BETWEEN XXXXXXX PROPERTIES, LTD. ("LESSOR") AND XXXXX
XXXX, DBA: HELPCITY("LESSEE"), (COLLECTIVELY THE "PARTIES," OR INDIVIDUALLY A
"PARTY").
1.2 (A) PREMISES: THAT CERTAIN PORTION OF THE BUILDING, INCLUDING ALL
IMPROVEMENTS THEREIN OR TO BE PROVIDED BY LESSOR UNDER THE TERMS OF THIS LEASE,
COMMONLY KNOWN BY THE STREET ADDRESS OF 237 W. XXXXXX AVE, SUITE E , LOCATED IN
CITY OF SAN DIMAS, COUNTY OF LOS ANGELES, STATE OF CA ,WITH ZIP CODE 91773, AS
OUTLINED ON EXHIBIT A ATTACHED HERETO ("PREMISES"). THE "BUILDING" IS THAT
CERTAIN BUILDING CONTAINING THE PREMISES AND GENERALLY DESCRIBED AS (DESCRIBE
BRIEFLY THE NATURE OF THE BUILDING): APPROX. 1388 SQ. FT. OF RENTABLE SPACE
LOCATED ON THE 2ND FLOOR AT 000 X. XXXXXX XXX.
IN ADDITION TO LESSEE'S RIGHTS TO USE AND OCCUPY THE PREMISES AS HEREINAFTER
SPECIFIED, LESSEE SHALL HAVE NON-EXCLUSIVE RIGHTS TO THE COMMON AREAS (AS
DEFINED IN PARAGRAPH 2.7 BELOW) AS HEREINAFTER SPECIFIED, BUT SHALL NOT HAVE ANY
RIGHTS TO THE ROOF, EXTERIOR WALLS OR UTILITY RACEWAYS, OF THE BUILDING OR TO
ANY OTHER BUILDINGS IN THE INDUSTRIAL CENTER. THE PREMISES, THE BUILDING, THE
COMMON AREAS, THE LAND UPON WHICH THEY ARE LOCATED, ALONG WITH ALL OTHER
BUILDINGS AND IMPROVEMENTS THEREON, ARE HEREIN COLLECTIVELY REFERRED TO AS THE
"INDUSTRIAL CENTER." (ALSO SEE PARAGRAPH 2.)
1.2 (B) PARKING: 5 (FIVE)UNRESERVED VEHICLE PARKING SPACES ("UNRESERVED PARKING
SPACES"); AND 0 RESERVED VEHICLE PARKING SPACES ("RESERVED PARKING SPACES').
(ALSO SEE PARAGRAPH 2.6.)
1.3 TERM: 1 YEARS AND 0 MONTHS ("ORIGINAL TERM") COMMENCING JANUARY 1, 1999
("COMMENCEMENT DATE") AND ENDING DECEMBER 31, 1999 ("EXPIRATION DATE"). (ALSO
SEE PARAGRAPH 3.)
1.4 EARLY POSSESSION: SEE EXHIBIT "B" ("EARLY POSSESSION DATE"). (ALSO SEE
PARAGRAPHS 3.2 AND 3.3.)
1.5 BASE RENT: $ 1,180.00 PER MONTH ("BASE RENT"), PAYABLE ON THE 1STDAY OF
EACH MONTH COMMENCING JANUARY 1, 1999 (ALSO SEE PARAGRAPH 4.)
[X ]IF THIS BOX IS CHECKED, THIS LEASE PROVIDES FOR THE BASE RENT TO BE ADJUSTED
PER ADDENDUM PARAGRAPH 49, ATTACHED HERETO.
16 (A) BASE RENT PAID UPON EXECUTION:$1, 180. AS BASE RENT FOR THE PERIOD
JANUARY 1, 1999.
1.6 (B) LESSEE'S SHARE OF COMMON AREA OPERATING EXPENSES: N/A PERCENT (______%)
("LESSEE'S SHARE") AS DETERMINED BY [ ] PRORATA SQUARE FOOTAGE OF THE PREMISES
AS COMPARED TO THE TOTAL SQUARE FOOTAGE OF THE BUILDING OR [ ] OTHER CRITERIA
AS DESCRIBED IN ADDENDUM _________.
1.7 SECURITY DEPOSIT: $ 3,300.00 ("SECURITY DEPOSIT"). (ALSO SEE PARAGRAPH 5.)
1.8 PERMITTED USE: SPACE IS LEASED. INTERNET ADDRESS "PHONE BOOK" SERVICE AND
RELATED ADMINISTRATIVE USES("PERMITTED USE") (ALSO SEE PARAGRAPH 6.)
1.9 INSURING PARTY. LESSOR IS THE "INSURING PARTY." (ALSO SEE PARAGRAPH 8.)
1.10 (A) REAL ESTATE BROKERS. THE FOLLOWING REAL ESTATE BROKER(S)
(COLLECTIVELY, THE "BROKERS") AND BROKERAGE RELATIONSHIPS EXIST IN THIS
TRANSACTION AND ARE CONSENTED TO BY THE PARTIES (CHECK APPLICABLE BOXES):
[X] XXXXXX ASSOCIATES REPRESENTS LESSOR EXCLUSIVELY ("LESSOR'S BROKER");
[X] ___________________ REPRESENTS LESSEE EXCLUSIVELY ("LESSEE'S BROKER");
OR
[ ] ____________________ REPRESENTS BOTH LESSOR AND LESSEE ("DUAL AGENCY").
(ALSO SEE PARAGRAPH 15.)
1.10 (B) PAYMENT TO BROKERS. UPON THE EXECUTION OF THIS LEASE BY BOTH PARTIES,
LESSOR SHALL PAY TO SAID BROKER(S) JOINTLY, OR IN SUCH SEPARATE SHARES AS THEY
MAY MUTUALLY DESIGNATE IN WRITING, A FEE AS SET FORTH IN A SEPARATE WRITTEN
AGREEMENT BETWEEN LESSOR AND SAID BROKER(S) (OR IN THE EVENT THERE IS NO
SEPARATE WRITTEN AGREEMENT BETWEEN LESSOR AND SAID BROKER(S), THE SUM OF $
_____________) FOR BROKERAGE SERVICES RENDERED BY SAID BROKER(S) IN CONNECTION
WITH THIS TRANSACTION.
1.11 GUARANTOR. THE OBLIGATIONS OF THE LESSEE UNDER THIS LEASE ARE TO BE
GUARANTEED BY ___________________________________________________________
("GUARANTOR"). (ALSO SEE PARAGRAPH 37.)
1.12 ADDENDA AND EXHIBITS. ATTACHED HERETO IS AN ADDENDUM OR ADDENDA CONSISTING
OF PARAGRAPHS 49 THROUGH 65, AND EXHIBITS ATHROUGH B, ALL OF WHICH CONSTITUTE A
PART OF THIS LEASE.
2. PREMISES, PARKING AND COMMON AREAS.
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 AND/OR COMMON AREA OPERATING EXPENSES, IS
AN APPROXIMATION WHICH LESSOR AND LESSEE AGREE IS REASONABLE AND THE RENTAL AND
LESSEE'S SHARE (AS DEFINED IN PARAGRAPH 1.6(B)) 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, ELECTRICAL SYSTEMS, FIRE SPRINKLER SYSTEM, LIGHTING, AIR CONDITIONING
AND HEATING SYSTEMS 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
THIRTY (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
THAT ANY IMPROVEMENTS (OTHER THAN THOSE CONSTRUCTED BY LESSEE OR AT LESSEE'S
DIRECTION) ON OR IN THE PREMISES WHICH HAVE BEEN CONSTRUCTED OR INSTALLED BY
LESSOR OR WITH LESSOR'S CONSENT OR AT LESSOR'S DIRECTION SHALL COMPLY WITH ALL
APPLICABLE COVENANTS OR RESTRICTIONS OF RECORD AND APPLICABLE BUILDING CODES,
REGULATIONS AND ORDINANCES IN EFFECT ON THE COMMENCEMENT DATE. LESSOR FURTHER
WARRANTS TO LESSEE THAT LESSOR HAS NO KNOWLEDGE OF ANY CLAIM HAVING BEEN MADE BY
ANY GOVERNMENTAL AGENCY THAT A VIOLATION OR VIOLATIONS OF APPLICABLE BUILDING
CODES, REGULATIONS, OR ORDINANCES EXIST WITH REGARD TO THE PREMISES AS OF THE
COMMENCEMENT DATE. SAID WARRANTIES SHALL NOT APPLY TO ANY ALTERATIONS OR UTILITY
INSTALLATIONS (DEFINED IN PARAGRAPH 7.3(A)) MADE OR TO BE MADE BY LESSEE. IF THE
PREMISES DO NOT COMPLY WITH SAID WARRANTIES, LESSOR SHALL, EXCEPT AS OTHERWISE
PROVIDED IN THIS LEASE, PROMPTLY AFTER RECEIPT OF WRITTEN NOTICE FROM LESSEE
GIVEN WITHIN SIX (6) MONTHS FOLLOWING THE COMMENCEMENT DATE AND SETTING FORTH
WITH SPECIFICITY THE NATURE AND EXTENT OF SUCH NONCOMPLIANCE, TAKE SUCH ACTION,
AT LESSOR'S EXPENSE, AS MAY BE REASONABLE OR APPROPRIATE TO RECTIFY THE
NON-COMPLIANCE. LESSOR MAKES NO WARRANTY THAT THE PERMITTED USE IN PARAGRAPH 1.8
IS PERMITTED FOR THE PREMISES UNDER APPLICABLE LAWS (AS DEFINED IN PARAGRAPH
2.4).
2.4 ACCEPTANCE OF PROMISES. LESSEE HEREBY ACKNOWLEDGES: (A) THAT IT HAS BEEN
ADVISED BY THE BROKER(S) 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, SEISMIC AND EARTHQUAKE REQUIREMENTS,
AND COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT AND APPLICABLE ZONING,
MUNICIPAL, COUNTY, STATE AND FEDERAL LAWS, ORDINANCES AND REGULATIONS AND ANY
COVENANTS OR RESTRICTIONS OF RECORD (COLLECTIVELY, "APPLICABLE LAWS") 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, IS SATISFIED WITH REFERENCE THERETO, AND ASSUMES ALL
RESPONSIBILITY THEREFORE AS THE SAME RELATE TO LESSEE'S OCCUPANCY OF THE
PREMISES AND/OR THE TERMS 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 SAID MATTERS OTHER THAN AS SET FORTH IN THIS LEASE.
2.5 LESSEE AS 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.
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2.6 VEHICLE PARKING. LESSEE SHALL BE ENTITLED TO USE THE NUMBER OF UNRESERVED
PARKING SPACES AND RESERVED PARKING SPACES SPECIFIED IN PARAGRAPH 1.2(B) ON
THOSE PORTIONS OF THE COMMON AREAS DESIGNATED FROM TIME TO TIME BY LESSOR FOR
PARKING. LESSEE SHALL NOT USE MORE PARKING SPACES THAN SAID NUMBER. SAID PARKING
SPACES SHALL BE USED FOR PARKING BY VEHICLES NO LARGER THAN FULL-SIZE PASSENGER
AUTOMOBILES OR PICK-UP TRUCKS, HEREIN CALLED "PERMITTED SIZE VEHICLES." VEHICLES
OTHER THAN PERMITTED SIZE VEHICLES SHALL BE PARKED AND LOADED OR UNLOADED AS
DIRECTED BY LESSOR IN THE RULES AND REGULATIONS (AS DEFINED IN PARAGRAPH 40)
ISSUED BY LESSOR. (ALSO SEE PARAGRAPH 2.9.)
(A) LESSEE SHALL NOT PERMIT OR ALLOW ANY VEHICLES THAT BELONG TO OR ARE
CONTROLLED BY LESSEE OR LESSEE'S EMPLOYEES, SUPPLIERS, SHIPPERS, CUSTOMERS,
CONTRACTORS OR INVITEES TO BE LOADED, UNLOADED, OR PARKED IN AREAS OTHER THAN
THOSE DESIGNATED BY LESSOR FOR SUCH ACTIVITIES.
(B) IF LESSEE PERMITS OR ALLOWS ANY OF THE PROHIBITED ACTIVITIES DESCRIBED IN
THIS PARAGRAPH 2.6 THEN LESSOR SHALL HAVE THE RIGHT, WITHOUT NOTICE, IN ADDITION
TO SUCH OTHER RIGHTS AND REMEDIES THAT IT MAY HAVE, TO REMOVE OR TOW AWAY THE
VEHICLE INVOLVED AND CHARGE THE COST TO LESSEE, WHICH COST SHALL BE IMMEDIATELY
PAYABLE UPON DEMAND BY LESSOR.
(C) LESSOR SHALL AT THE COMMENCEMENT DATE OF THIS LEASE, PROVIDE THE PARKING
FACILITIES REQUIRED BY APPLICABLE LAW.
2.7 COMMON AREAS-DEFINITION. THE TERM "COMMON AREAS" IS DEFINED AS ALL AREAS AND
FACILITIES OUTSIDE THE PREMISES AND WITHIN THE EXTERIOR BOUNDARY LINE OF THE
INDUSTRIAL CENTER AND INTERIOR UTILITY RACEWAYS WITHIN THE PREMISES THAT ARE
PROVIDED AND DESIGNATED BY THE LESSOR FROM TIME TO TIME FOR THE GENERAL
NON-EXCLUSIVE USE OF LESSOR, LESSEE AND OTHER LESSEES OF THE INDUSTRIAL CENTER
AND THEIR RESPECTIVE EMPLOYEES, SUPPLIERS, SHIPPERS, CUSTOMERS, CONTRACTORS AND
INVITEES, INCLUDING PARKING AREAS, LOADING AND UNLOADING AREAS, TRASH AREAS,
ROADWAYS, SIDEWALKS, WALKWAYS, PARKWAYS, DRIVEWAYS AND LANDSCAPED AREAS.
2.8 COMMON AREAS-LESSEE'S RIGHTS. LESSOR HEREBY GRANTS TO LESSEE, FOR THE
BENEFIT OF LESSEE AND ITS EMPLOYEES, SUPPLIERS, SHIPPERS, CONTRACTORS, CUSTOMERS
AND INVITEES, DURING THE TERM OF THIS LEASE, THE NON-EXCLUSIVE RIGHT TO USE, IN
COMMON WITH OTHERS ENTITLED TO SUCH USE, THE COMMON AREAS AS THEY EXIST FROM
TIME TO TIME, SUBJECT TO ANY RIGHTS, POWERS, AND PRIVILEGES RESERVED BY LESSOR
UNDER THE TERMS HEREOF OR UNDER THE TERMS OF ANY RULES AND REGULATIONS OR
RESTRICTIONS GOVERNING THE USE OF THE INDUSTRIAL CENTER. UNDER NO CIRCUMSTANCES
SHALL THE RIGHT HEREIN GRANTED TO USE THE COMMON AREAS BE DEEMED TO INCLUDE THE
RIGHT TO STORE ANY PROPERTY, TEMPORARILY OR PERMANENTLY, IN THE COMMON AREAS.
ANY SUCH STORAGE SHALL BE PERMITTED ONLY BY THE PRIOR WRITTEN CONSENT OF LESSOR
OR LESSOR'S DESIGNATED AGENT, WHICH CONSENT MAY BE REVOKED AT ANY TIME. IN THE
EVENT THAT ANY UNAUTHORIZED STORAGE SHALL OCCUR THEN LESSOR SHALL HAVE THE
RIGHT, WITHOUT NOTICE, IN ADDITION TO SUCH OTHER RIGHTS AND REMEDIES THAT IT MAY
HAVE, TO REMOVE THE PROPERTY AND CHARGE THE COST TO LESSEE, WHICH COST SHALL BE
IMMEDIATELY PAYABLE UPON DEMAND BY LESSOR.
2.9 COMMON AREAS-RULES AND REGULATIONS. LESSOR OR SUCH OTHER PERSON(S) AS LESSOR
MAY APPOINT SHALL HAVE THE EXCLUSIVE CONTROL AND MANAGEMENT OF THE COMMON AREAS
AND SHALL HAVE THE RIGHT, FROM TIME TO TIME, TO ESTABLISH, MODIFY, AMEND AND
ENFORCE REASONABLE RULES AND REGULATIONS WITH RESPECT THERETO IN ACCORDANCE WITH
PARAGRAPH 40. LESSEE AGREES TO ABIDE BY AND CONFORM TO ALL SUCH RULES AND
REGULATIONS, AND TO CAUSE ITS EMPLOYEES, SUPPLIERS, SHIPPERS, CUSTOMERS,
CONTRACTORS AND INVITEES TO SO ABIDE AND CONFORM. LESSOR SHALL NOT BE
RESPONSIBLE TO LESSEE FOR THE NON-COMPLIANCE WITH SAID RULES AND REGULATIONS BY
OTHER LESSEES OF THE INDUSTRIAL CENTER.
2.10 COMMON AREAS-CHANGES. LESSOR SHALL HAVE THE RIGHT, IN LESSOR'S SOLE
DISCRETION, FROM TIME TO TIME:
(A) TO MAKE CHANGES TO THE COMMON AREAS, INCLUDING, WITHOUT LIMITATION, CHANGES
IN THE LOCATION, SIZE, SHAPE AND NUMBER OF DRIVEWAYS, ENTRANCES, PARKING SPACES,
PARKING AREAS, LOADING AND UNLOADING AREAS, INGRESS, EGRESS, DIRECTION OF
TRAFFIC, LANDSCAPED AREAS, WALKWAYS AND UTILITY RACEWAYS;
(B) TO CLOSE TEMPORARILY ANY OF THE COMMON AREAS FOR MAINTENANCE PURPOSES SO
LONG AS REASONABLE ACCESS TO THE PREMISES REMAINS AVAILABLE;
(C) TO DESIGNATE OTHER LAND OUTSIDE THE BOUNDARIES OF THE INDUSTRIAL CENTER TO
BE A PART OF THE COMMON AREAS;
(D) TO ADD ADDITIONAL BUILDINGS AND IMPROVEMENTS TO THE COMMON AREAS;
(E) TO USE THE COMMON AREAS WHILE ENGAGED IN MAKING ADDITIONAL IMPROVEMENTS,
REPAIRS OR ALTERATIONS TO THE INDUSTRIAL CENTER, OR ANY PORTION THEREOF; AND
(F) TO DO AND PERFORM SUCH OTHER ACTS AND MAKE SUCH OTHER CHANGES IN, TO OR WITH
RESPECT TO THE COMMON AREAS AND INDUSTRIAL CENTER AS LESSOR MAY, IN THE EXERCISE
OF SOUND BUSINESS JUDGMENT, DEEM TO BE APPROPRIATE.
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 AN EARLY POSSESSION DATE IS SPECIFIED IN PARAGRAPH 1.4
AND IF LESSEE TOTALLY OR PARTIALLY OCCUPIES THE PREMISES AFTER THE EARLY
POSSESSION DATE BUT PRIOR TO THE COMMENCEMENT DATE, THE OBLIGATION TO PAY BASE
RENT SHALL BE ABATED FOR THE PERIOD OF SUCH EARLY OCCUPANCY. ALL OTHER TERMS OF
THIS LEASE, HOWEVER, (INCLUDING BUT NOT LIMITED TO THE OBLIGATIONS TO PAY
LESSEE'S SHARE OF COMMON AREA OPERATING EXPENSES AND TO CARRY THE INSURANCE
REQUIRED BY PARAGRAPH 8) 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 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 HIS PREMISES TO LESSEE. IF POSSESSION OF THE PREMISES IS NOT
DELIVERED TO LESSEE WITHIN SIXTY (60) DAYS AFTER THE COMMENCEMENT DATE, LESSEE
MAY, AT ITS OPTION, BY NOTICE IN WRITING TO LESSOR WITHIN TEN (10) DAYS AFTER
THE END OF SAID SIXTY (60) DAY PERIOD, CANCEL THIS LEASE, IN WHICH EVENT THE
PARTIES SHALL BE DISCHARGED FROM ALL OBLIGATIONS HEREUNDER; PROVIDED FURTHER,
HOWEVER, THAT IF SUCH WRITTEN NOTICE OF LESSEE IS NOT RECEIVED BY LESSOR WITHIN
SAID TEN (10) DAY PERIOD, LESSEE'S RIGHT TO CANCEL THIS LEASE HEREUNDER SHALL
TERMINATE AND BE OF NO FURTHER FORCE OR EFFECT. EXCEPT AS MAY BE OTHERWISE
PROVIDED, AND REGARDLESS OF WHEN THE ORIGINAL 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 THE PERIOD
DURING WHICH THE LESSEE WOULD HAVE OTHERWISE 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 PAY BASE RENT AND OTHER RENT OR CHARGES, AS THE SAME
MAY BE ADJUSTED FROM TIME TO TIME, TO 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 FULL MONTH SHALL BE
PRORATED BASED UPON THE ACTUAL NUMBER OF DAYS OF THE 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.
<4.2 COMMON AREA OPERATING EXPENSES OMITTED>
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5. SECURITY DEPOSIT. LESSEE SHALL DEPOSIT WITH LESSOR UPON LESSEE'S
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 THEREFORE DEPOSIT MONIES 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 MONIES WITH LESSOR AS AN ADDITION TO THE SECURITY
DEPOSIT SO THAT THE TOTAL AMOUNT OF THE SECURITY DEPOSIT SHALL AT ALL TIMES BEAR
THE SAME PROPORTION TO THE THEN CURRENT BASE RENT AS THE INITIAL SECURITY
DEPOSIT BEARS TO THE INITIAL BASE RENT SET FORTH IN PARAGRAPH 1.5. 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 MONIES TO BE PAID BY LESSEE UNDER THIS
LEASE.
6. USE.
6.1 PERMITTED USE.
(A) LESSEE SHALL USE AND OCCUPY THE PREMISES ONLY FOR THE PERMITTED USE SET
FORTH IN PARAGRAPH 1.8 OR ANY OTHER LEGAL USE WHICH IS REASONABLY COMPARABLE
THERETO, AND FOR NO OTHER PURPOSE. LESSEE SHALL NOT USE OR PERMIT THE USE OF THE
PREMISES IN A MANNER THAT IS UNLAWFUL, CREATES WASTE OR A NUISANCE, OR THAT
DISTURBS OWNERS AND/OR OCCUPANTS OF, OR CAUSES DAMAGE TO THE PREMISES OR
NEIGHBORING PREMISES OR PROPERTIES.
(B) LESSOR HEREBY AGREES TO NOT UNREASONABLY WITHHOLD OR DELAY ITS CONSENT TO
ANY WRITTEN REQUEST BY LESSEE, LESSEE'S ASSIGNEES OR SUBTENANTS, AND BY
PROSPECTIVE ASSIGNEES AND SUBTENANTS OF LESSEE, ITS ASSIGNEES AND SUBTENANTS,
FOR A MODIFICATION OF SAID PERMITTED USE, SO LONG AS THE SAME WILL NOT IMPAIR
THE STRUCTURAL INTEGRITY OF THE IMPROVEMENTS ON THE PREMISES OR IN THE BUILDING
OR THE MECHANICAL OR ELECTRICAL SYSTEMS THEREIN, DOES NOT CONFLICT WITH USES BY
OTHER LESSEES, IS NOT SIGNIFICANTLY MORE BURDENSOME TO THE PREMISES OR THE
BUILDING AND THE IMPROVEMENTS THEREON, AND IS OTHERWISE PERMISSIBLE PURSUANT TO
THIS PARAGRAPH 6. IF LESSOR ELECTS TO WITHHOLD SUCH CONSENT, LESSOR SHALL WITHIN
FIVE (5) BUSINESS DAYS AFTER SUCH REQUEST GIVE A WRITTEN NOTIFICATION OF SAME,
WHICH NOTICE SHALL INCLUDE AN EXPLANATION OF LESSOR'S REASONABLE OBJECTIONS TO
THE CHANGE IN USE.
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, EITHER 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 POTENTIAL 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 OR BY-PRODUCTS THEREOF. LESSEE SHALL NOT
ENGAGE IN ANY ACTIVITY IN 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 REQUIREMENTS (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, AND (III) THE PRESENCE
IN, ON OR ABOUT THE PREMISES OF A HAZARDOUS SUBSTANCE WITH RESPECT TO WHICH ANY
APPLICABLE LAWS REQUIRE 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 UPON NOTICE TO LESSOR AND IN COMPLIANCE
WITH ALL APPLICABLE REQUIREMENTS, USE ANY ORDINARY AND CUSTOMARY MATERIALS
REASONABLY REQUIRED TO BE USED BY LESSEE IN THE NORMAL COURSE OF THE PERMITTED
USE, 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 TO ANY REPORTABLE USE OF
ANY HAZARDOUS SUBSTANCE 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 THEREFOR, INCLUDING BUT NOT LIMITED TO
THE INSTALLATION (AND, AT LESSOR'S OPTION, 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.
(B) DUTY TO INFORM LESSOR. IF LESSEE KNOWS, OR HAS REASONABLE CAUSE TO BELIEVE,
THAT A HAZARDOUS SUBSTANCE HAS COME TO BE LOCATED IN, ON, UNDER OR ABOUT THE
PREMISES OR THE BUILDING, OTHER THAN AS PREVIOUSLY CONSENTED TO BY LESSOR,
LESSEE SHALL IMMEDIATELY GIVE LESSOR WRITTEN NOTICE THEREOF, TOGETHER WITH A
COPY OF 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 CONCERNING THE PRESENCE, SPILL,
RELEASE, DISCHARGE OF, OR EXPOSURE TO, SUCH HAZARDOUS SUBSTANCE INCLUDING BUT
NOT LIMITED TO ALL SUCH DOCUMENTS AS MAY BE INVOLVED IN ANY REPORTABLE USE
INVOLVING THE PREMISES. LESSEE SHALL NOT CAUSE OR PERMIT ANY HAZARDOUS SUBSTANCE
TO BE SPILLED OR RELEASED IN, ON, UNDER OR ABOUT THE PREMISES (INCLUDING,
WITHOUT LIMITATION, THROUGH THE PLUMBING OR SANITARY SEWER SYSTEM).
(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 DAMAGES, LIABILITIES, JUDGMENTS, COSTS,
CLAIMS, LIENS, EXPENSES, PENALTIES, LOSS OF PERMITS AND ATTORNEYS' AND
CONSULTANTS' FEES ARISING OUT OF OR INVOLVING ANY HAZARDOUS SUBSTANCE BROUGHT
ONTO THE PREMISES BY OR FOR LESSEE OR BY ANYONE UNDER LESSEE'S CONTROL. LESSEE'S
OBLIGATIONS UNDER THIS PARAGRAPH 6.2(C) 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 CONSULTANTS' AND ATTORNEYS 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, UNLESS SPECIFICALLY SO AGREED BY LESSOR IN WRITING AT THE
TIME OF SUCH AGREEMENT.
6.3 LESSEE'S COMPLIANCE WITH REQUIREMENTS. LESSEE SHALL, AT LESSEE'S SOLE COST
AND EXPENSE, FULLY, DILIGENTLY AND IN A TIMELY MANNER, COMPLY WITH ALL
"APPLICABLE REQUIREMENTS," WHICH TERM IS USED IN THIS LEASE TO MEAN 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 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), NOW IN EFFECT OR WHICH MAY HEREAFTER COME INTO
EFFECT. 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 REQUIREMENTS
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 REQUIREMENTS.
6.4 INSPECTION; COMPLIANCE WITH LAW. LESSOR, LESSOR'S AGENTS, EMPLOYEES,
CONTRACTORS AND DESIGNATED REPRESENTATIVES, AND THE HOLDERS OF ANY MORTGAGES,
DEEDS OF TRUST OR GROUND LEASES ON THE PREMISES ("LENDERS") 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
REQUIREMENTS (AS DEFINED IN PARAGRAPH 6.3), AND LESSOR SHALL BE ENTITLED TO
EMPLOY EXPERTS AND/OR CONSULTANTS IN CONNECTION THEREWITH TO ADVISE LESSOR WITH
RESPECT TO LESSEE'S ACTIVITIES, INCLUDING BUT NOT LIMITED TO LESSEE'S
INSTALLATION, OPERATION, USE, MONITORING, MAINTENANCE, OR REMOVAL OF ANY
HAZARDOUS SUBSTANCE 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 BY LESSEE OR A VIOLATION OF APPLICABLE REQUIREMENTS OR A
CONTAMINATION, CAUSED OR MATERIALLY CONTRIBUTED TO BY LESSEE, IS FOUND TO EXIST
OR TO 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 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.
7. MAINTENANCE, REPAIRS, UTILITY INSTALLATIONS, TRADE FIXTURES AND
ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS.
(A) SUBJECT TO THE PROVISIONS OF PARAGRAPHS 2.2 (CONDITION), 2.3 (COMPLIANCE
WITH COVENANTS, RESTRICTIONS AND BUILDING CODE), 7.2 (LESSORS OBLIGATIONS), 9
(DAMAGE OR 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 (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 SPECIFICALLY SERVING THE PREMISES, SUCH AS PLUMBING,
HEATING, AIR CONDITIONING, VENTILATING, ELECTRICAL, LIGHTING FACILITIES,
BOILERS, FIRED OR UNFIRED PRESSURE VESSELS, FIRE HOSE CONNECTIONS IF WITHIN THE
PREMISES, FIXTURES, INTERIOR WALLS, INTERIOR SURFACES OF EXTERIOR WALLS,
CEILINGS, FLOORS, WINDOWS, DOORS, PLATE GLASS, AND SKYLIGHTS, BUT EXCLUDING ANY
ITEMS WHICH ARE THE RESPONSIBILITY OF LESSOR PURSUANT TO PARAGRAPH 7.2 BELOW.
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 ORDER, CONDITION
AND STATE OF REPAIR. LESSOR TO RE-PAINT OUTSIDE FACE OF OUTSIDE WALLS FOR
GRAFITTI.
(B) LESSEE SHALL, AT LESSEE'S SOLE COST AND EXPENSE, PROCURE AND MAINTAIN A
CONTRACT, WITH COPIES TO LESSOR, IN CUSTOMARY, FORM AND SUBSTANCE FOR AND WITH A
CONTRACTOR SPECIALIZING AND EXPERIENCED IN THE INSPECTION, MAINTENANCE AND
SERVICE OF THE HEATING, AIR CONDITIONING AND VENTILATION SYSTEM FOR THE
PREMISES. HOWEVER, LESSOR RESERVES THE RIGHT, UPON NOTICE TO LESSEE, TO PROCURE
AND MAINTAIN THE CONTRACT FOR THE HEATING, AIR CONDITIONING AND VENTILATING
SYSTEMS, AND IF LESSOR SO ELECTS, LESSEE SHALL REIMBURSE LESSOR, UPON DEMAND,
FOR THE COST THEREOF.
(C) IF LESSEE FAILS TO PERFORM LESSEE'S OBLIGATIONS UNDER THIS PARAGRAPH 7.1
LESSOR MAY ENTER UPON THE PREMISES AFTER TEN (10) DAYS' PRIOR WRITTEN NOTICE TO
LESSEE (EXCEPT IN THE CASE OF AN EMERGENCY, IN WHICH CASE NO NOTICE SHALL BE
REQUIRED), PERFORM SUCH OBLIGATIONS ON LESSEE'S BEHALF, AND PUT THE PREMISES IN
GOOD ORDER, CONDITION AND REPAIR, IN ACCORDANCE WITH PARAGRAPH 13.2 BELOW.
7.2 LESSOR'S OBLIGATIONS. SUBJECT TO THE PROVISIONS OF PARAGRAPHS 2.2
(CONDITION), 2.3 (COMPLIANCE WITH COVENANTS, RESTRICTIONS AND BUILDING CODE),
4.2 (COMMON AREA OPERATING EXPENSES), 6 (USE), 7.1 (LESSEE'S OBLIGATIONS), 9
(DAMAGE OR DESTRUCTION) AND 14 (CONDEMNATION), LESSOR, SUBJECT TO REIMBURSEMENT
PURSUANT TO PARAGRAPH 4.2, SHALL KEEP IN GOOD ORDER, CONDITION AND REPAIR THE
FOUNDATIONS, EXTERIOR WALLS, STRUCTURAL CONDITION OF INTERIOR BEARING WALLS,
EXTERIOR ROOF, FIRE SPRINKLER AND/OR STANDPIPE AND HOSE (IF LOCATED IN THE
COMMON AREAS) OR OTHER AUTOMATIC FIRE EXTINGUISHING SYSTEM INCLUDING FIRE ALARM
AND/OR SMOKE DETECTION
-3-
SYSTEMS AND EQUIPMENT, FIRE HYDRANTS, PARKING LOTS, WALKWAYS, PARKWAYS,
DRIVEWAYS, LANDSCAPING FENCES, SIGNS AND UTILITY SYSTEMS SERVING THE COMMON
AREAS AND ALL PARTS THEREOF, AS WELL AS PROVIDING THE SERVICES FOR WHICH THERE
IS A COMMON AREA OPERATING EXPENSE PURSUANT TO PARAGRAPH 4.2. LESSOR SHALL NOT
BE OBLIGATED TO PAINT THE EXTERIOR OR INTERIOR SURFACES OF EXTERIOR WALLS NOR
SHALL LESSOR BE OBLIGATED TO MAINTAIN, REPAIR OR REPLACE WINDOWS, DOORS OR PLATE
GLASS OF THE PREMISES. LESSEE EXPRESSLY WAIVES THE BENEFIT OF ANY STATUTE NOW OR
HEREAFTER IN EFFECT WHICH WOULD OTHERWISE AFFORD LESSEE THE RIGHT TO MAKE
REPAIRS AT LESSOR'S EXPENSE OR TO TERMINATE THIS LEASE BECAUSE OF LESSOR'S
FAILURE TO KEEP THE BUILDING, INDUSTRIAL CENTER OR COMMON AREAS IN GOOD ORDER,
CONDITION AND REPAIR. LESSOR TO REPLACE GLASS WINDOWS ONLY IF WINDOWS ARE
ETCHED WITH GRAFFITI. LESSEE TO REPLACE/REPAIR ALL WINDOWS SERVING PREMISES IF
WINDOWS ARE BROKEN.
7.3 UTILITY INSTALLATIONS, TRADE FIXTURES, ALTERATIONS.
(A) DEFINITIONS; CONSENT REQUIRED. THE TERM "UTILITY INSTALLATIONS" IS USED IN
THIS LEASE TO REFER TO ALL AIR LINES, POWER PANELS, ELECTRICAL DISTRIBUTION,
SECURITY, FIRE PROTECTION SYSTEMS, COMMUNICATIONS 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 WHICH CAN BE REMOVED WITHOUT DOING MATERIAL DAMAGE TO
THE PREMISES. THE TERM "ALTERATIONS" SHALL MEAN ANY MODIFICATION OF THE
IMPROVEMENTS ON THE PREMISES WHICH ARE PROVIDED BY LESSOR UNDER THE TERMS OF
THIS LEASE, OTHER THAN UTILITY INSTALLATIONS OR TRADE FIXTURES. "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 PURSUANT
TO PARAGRAPH 7.4(A). LESSEE SHALL NOT MAKE NOR CAUSE TO BE MADE 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) WITHOUT
LESSOR'S CONSENT BUT UPON NOTICE TO LESSOR, SO LONG AS THEY ARE NOT VISIBLE FROM
THE OUTSIDE OF THE PREMISES, DO NOT INVOLVE PUNCTURING, RELOCATING OR REMOVING
THE ROOF OR ANY EXISTING WALLS, OR CHANGING OR INTERFERING WITH THE FIRE
SPRINKLER OR FIRE DETECTION SYSTEMS AND THE CUMULATIVE COST THEREOF DURING THE
TERM OF THIS LEASE AS EXTENDED DOES NOT EXCEED $2,500.00.
(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 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 BE IN COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS.
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
COSTS $2,500.00 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.
(C) LIEN PROTECTION. 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 MECHANIC'S OR
MATERIALMEN'S LIEN AGAINST THE PREMISES OR ANY INTEREST THEREIN. LESSEE SHALL
GIVE LESSOR NOT LESS THAN (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 SURETY BOND SATISFACTORY TO LESSOR IN AN AMOUNT EQUAL TO ONE
AND ONE-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 ATTORNEYS' FEES AND COSTS IN
PARTICIPATING IN SUCH ACTION IF LESSOR SHALL DECIDE IT IS TO ITS BEST INTEREST
TO DO SO.
7.4 OWNERSHIP, REMOVAL, SURRENDER, AND RESTORATION.
(A) OWNERSHIP. SUBJECT TO LESSOR'S RIGHT TO REQUIRE THEIR REMOVAL AND TO CAUSE
LESSEE TO BECOME THE OWNER THEREOF AS HEREINAFTER PROVIDED IN THIS PARAGRAPH
7.4, ALL ALTERATIONS AND UTILITY INSTALLATIONS 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 THE PREMISES AND BE SURRENDERED WITH THE PREMISES BY LESSEE.
(B) REMOVAL. UNLESS OTHERWISE AGREED IN WRITING, LESSOR MAY REQUIRE THAT ANY OR
ALL LESSEE-OWNED ALTERATIONS OR UTILITY INSTALLATIONS BE REMOVED BY THE
EXPIRATION OR EARLIER TERMINATION OF THIS LEASE, NOTWITHSTANDING THAT THEIR
INSTALLATION MAY HAVE BEEN CONSENTED TO BY LESSOR. LESSOR MAY REQUIRE THE
REMOVAL AT ANY TIME OF ALL OR ANY PART OF ANY 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, 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 HEREIN, THE PREMISES, AS SURRENDERED, SHALL INCLUDE THE
ALTERATIONS AND 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 LESSEE-OWNED ALTERATIONS
AND 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 REQUIREMENTS 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 OF PREMIUM INCREASES. OMITTED>
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,
LESSOR AND ANY LENDER(S) WHOSE NAMES HAVE BEEN PROVIDED TO LESSEE IN WRITING (AS
ADDITIONAL INSUREDS) 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 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" ENDORSEMENT 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. 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. LESSOR 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 ANY LENDER(S), INSURING AGAINST LOSS OR DAMAGE TO THE PREMISES.
SUCH INSURANCE SHALL BE FOR FULL REPLACEMENT COST, AS THE SAME SHALL EXIST FROM
TIME TO TIME, OR THE AMOUNT REQUIRED BY ANY LENDER(S), BUT IN NO EVENT MORE THAN
THE COMMERCIALLY REASONABLE AND AVAILABLE INSURABLE VALUE THEREOF IT, BY REASON
OF THE UNIQUE NATURE OR AGE OF THE IMPROVEMENTS INVOLVED, SUCH LATTER AMOUNT IS
LESS THAN FULL REPLACEMENT COST. LESSEE-OWNED ALTERATIONS AND UTILITY
INSTALLATIONS, TRADE FIXTURES AND LESSEE'S PERSONAL PROPERTY SHALL BE INSURED BY
LESSEE PURSUANT TO PARAGRAPH 8.4. IF THE COVERAGE IS AVAILABLE AND COMMERCIALLY
APPROPRIATE, LESSOR'S 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 OR INCLUDED IN THE BASE PREMIUM), 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 BUILDING 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 LOSS, BUT NOT
INCLUDING PLATE GLASS INSURANCE. SAID POLICY OR POLICIES SHALL ALSO CONTAIN AN
AGREED VALUATION PROVISION IN LIEU OF ANY CO-INSURANCE 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.
(B) RENTAL VALUE. LESSOR SHALL ALSO 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 ANY LENDER(S), INSURING THE LOSS OF THE FULL RENTAL AND OTHER
CHARGES PAYABLE BY ALL LESSEES OF THE BUILDING TO LESSOR FOR ONE YEAR (INCLUDING
ALL REAL PROPERTY TAXES, INSURANCE COSTS, ALL COMMON AREA OPERATING EXPENSES AND
ANY SCHEDULED RENTAL INCREASES). SAID INSURANCE MAY 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 YEARS LOSS OF RENTAL
REVENUES FROM THE DATE OF ANY SUCH LOSS. SAID INSURANCE SHALL CONTAIN AN AGREED
VALUATION PROVISION IN LIEU OF ANY CO-INSURANCE CLAUSE, AND THE AMOUNT OF
COVERAGE SHALL BE ADJUSTED ANNUALLY TO REFLECT THE PROJECTED RENTAL INCOME, REAL
PROPERTY TAXES, INSURANCE PREMIUM COSTS AND OTHER EXPENSES, IF ANY, OTHERWISE
PAYABLE, FOR THE NEXT 12-MONTH PERIOD. COMMON AREA OPERATING EXPENSES SHALL
INCLUDE ANY DEDUCTIBLE AMOUNT IN THE EVENT OF SUCH LOSS.
(C) ADJACENT PREMISES. LESSEE SHALL PAY FOR ANY INCREASE IN THE PREMIUMS
FOR THE PROPERTY INSURANCE OF THE BUILDING AND FOR THE COMMON AREAS OR OTHER
BUILDINGS IN THE INDUSTRIAL CENTER IF SAID INCREASE IS CAUSED BY LESSEE'S ACTS,
OMISSIONS, USE OR OCCUPANCY OF THE PREMISES.
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(D) LESSEE'S IMPROVEMENTS. SINCE LESSOR IS THE INSURING PARTY, 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.
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, TRADE FIXTURES AND LESSEE-OWNED ALTERATIONS AND
UTILITY INSTALLATIONS IN, ON, OR ABOUT THE PREMISES SIMILAR IN COVERAGE TO THAT
CARRIED BY LESSOR AS THE INSURING PARTY UNDER PARAGRAPH 8.3(A). SUCH INSURANCE
SHALL BE FULL REPLACEMENT COST COVERAGE WITH A DEDUCTIBLE NOT TO EXCEED $1,000
PER OCCURRENCE. THE PROCEEDS FROM ANY SUCH INSURANCE SHALL BE USED BY LESSEE FOR
THE REPLACEMENT OF PERSONAL PROPERTY AND THE RESTORATION OF TRADE FIXTURES AND
LESSEE-OWNED ALTERATIONS AND UTILITY INSTALLATIONS. UPON REQUEST FROM LESSOR,
LESSEE 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 B+, V, OR SUCH OTHER RATING AS MAY BE REQUIRED BY A LENDER, 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. LESSEE SHALL CAUSE TO BE DELIVERED TO LESSOR,
WITHIN SEVEN (7) DAYS AFTER THE EARLIER OF THE EARLY POSSESSION DATE OR THE
COMMENCEMENT DATE, CERTIFIED COPIES OF, OR CERTIFICATES EVIDENCING THE EXISTENCE
AND AMOUNTS OF, THE INSURANCE REQUIRED UNDER PARAGRAPH 8.2(A) AND 8.4. NO SUCH
POLICY SHALL BE CANCELABLE OR SUBJECT TO MODIFICATION EXCEPT AFTER THIRTY (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.
8.6 WAIVER OF SUBROGATION. WITHOUT AFFECTING ANY OTHER RIGHTS OR REMEDIES,
LESSEE AND LESSOR 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 OR DAMAGE TO THEIR 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. LESSOR AND LESSEE AGREE TO HAVE THEIR RESPECTIVE INSURANCE COMPANIES
ISSUING PROPERTY DAMAGE INSURANCE WAIVE ANY RIGHT TO SUBROGATION THAT SUCH
COMPANIES MAY HAVE AGAINST LESSOR OR LESSEE, AS THE CASE MAY BE, SO LONG AS THE
INSURANCE IS NOT INVALIDATED THEREBY.
8.7 INDEMNITY. EXCEPT FOR LESSOR'S NEGLIGENCE AND/OR BREACH OF EXPRESS
WARRANTIES, LESSEE SHALL INDEMNITY, 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, LOSS OF PERMITS, ATTORNEYS' AND CONSULTANTS'
FEES, EXPENSES AND/OR LIABILITIES ARISING OUT OF, INVOLVING, OR IN CONNECTION
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. 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 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 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, 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
LESSEE OF LESSOR NOR FROM THE FAILURE BY LESSOR TO ENFORCE THE PROVISIONS OF ANY
OTHER LEASE IN THE INDUSTRIAL CENTER. 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 PREMISES,
OTHER THAN LESSEE-OWNED ALTERATIONS AND UTILITY INSTALLATIONS, THE REPAIR COST
OF WHICH DAMAGE OR DESTRUCTION IS LESS THAN FIFTY PERCENT (50%) OF THE THEN
REPLACEMENT COST (AS DEFINED IN PARAGRAPH 9.1(D)) OF THE PREMISES (EXCLUDING
LESSEE-OWNED ALTERATIONS AND UTILITY INSTALLATIONS AND TRADE FIXTURES)
IMMEDIATELY PRIOR TO SUCH DAMAGE OR DESTRUCTION.
(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 FIFTY PERCENT (50%) OR MORE OF THE
THEN REPLACEMENT COST OF THE PREMISES (EXCLUDING LESSEE-OWNED ALTERATIONS AND
UTILITY INSTALLATIONS AND TRADE FIXTURES) IMMEDIATELY PRIOR TO SUCH DAMAGE OR
DESTRUCTION. IN ADDITION, DAMAGE OR DESTRUCTION TO THE BUILDING, OTHER THAN
LESSEE OWNED ALTERATIONS AND UTILITY INSTALLATIONS AND TRADE FIXTURES OF ANY
LESSEES OF THE BUILDING, THE COST OF WHICH DAMAGE OR DESTRUCTION IS FIFTY
PERCENT (50 %) OR MORE OF THE THEN REPLACEMENT COST (EXCLUDING LESSEE-OWNED
ALTERATIONS AND UTILITY INSTALLATIONS AND TRADE FIXTURES OF ANY LESSEES OF THE
BUILDING) OF THE BUILDING SHALL, AT THE OPTION OF LESSOR, BE DEEMED TO BE
PREMISES TOTAL DESTRUCTION.
(C) "INSURED LOSS" SHALL MEAN DAMAGE OR DESTRUCTION TO THE PREMISES, OTHER THAN
LESSEE-OWNED ALTERATIONS AND UTILITY INSTALLATIONS AND TRADE FIXTURES, 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 PREMISES PARTIAL DAMAGE-INSURED LOSS. IF 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. IN THE EVENT, HOWEVER, THAT THERE IS A SHORTAGE OF
INSURANCE PROCEEDS AND SUCH SHORTAGE IS DUE TO THE FACT THAT, BY REASON OF THE
UNIQUE NATURE OF THE IMPROVEMENTS IN THE PREMISES, 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, LESSOR 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 SHALL REMAIN IN FULL FORCE AND EFFECT. IF
LESSOR DOES NOT RECEIVE SUCH FUNDS OR ASSURANCE WITHIN SUCH TEN (10) DAY PERIOD,
AND IF LESSOR DOES NOT SO ELECT TO RESTORE AND REPAIR, 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 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), 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 DATE 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 SUCH COMMITMENT FROM LESSEE.
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 AFTER 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 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 9.7.
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 TO REPAIR EXCEEDS ONE
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 TO 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 (A) EXERCISING SUCH OPTION, AND (B) PROVIDING LESSOR WITH ANY SHORTAGE
IN INSURANCE PROCEEDS (OR ADEQUATE ASSURANCE THEREOF) NEEDED TO MAKE THE REPAIRS
ON OR BEFORE THE EARLIER OF (I) THE DATE WHICH IS TEN (10) DAYS AFTER LESSEE'S
RECEIPT OF LESSOR'S WRITTEN NOTICE PURPORTING TO TERMINATE THIS LEASE, OR (II)
THE DAY PRIOR TO THE DATE UPON WHICH SUCH OPTION EXPIRES. IF LESSEE DULY
EXERCISES SUCH OPTION DURING SUCH 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 SUCH PERIOD, THEN THIS
LEASE SHALL TERMINATE AS OF THE DATE SET FORTH IN THE FIRST SENTENCE OF THIS
PARAGRAPH 9.5.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(A) IN THE EVENT OF (I) PREMISES PARTIAL DAMAGE OR (II) HAZARDOUS SUBSTANCE
CONDITION FOR WHICH LESSEE IS NOT LEGALLY RESPONSIBLE, THE BASE RENT, COMMON
AREA OPERATING EXPENSES AND OTHER CHARGES, IF ANY, PAYABLE BY LESSEE HEREUNDER
FOR THE PERIOD DURING WHICH SUCH DAMAGE OR CONDITION, ITS REPAIR, REMEDIATION OR
RESTORATION CONTINUES, SHALL BE ABATED IN PROPORTION TO THE DEGREE TO WHICH
LESSEE'S USE OF THE PREMISES IS IMPAIRED, BUT NOT IN EXCESS OF PROCEEDS FROM
INSURANCE REQUIRED TO BE CARRIED UNDER PARAGRAPH 8.3(B). EXCEPT FOR ABATEMENT OF
BASE RENT, COMMON AREA OPERATING EXPENSES 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 DAMAGE, DESTRUCTION, REPAIR, REMEDIATION OR RESTORATION.
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(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. IT 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 THE RECEIPT OF SUCH NOTICE, THIS LEASE SHALL CONTINUE IN
FULL FORCE AND EFFECT. "COMMENCE" AS USED IN THIS PARAGRAPH 9.6 SHALL MEAN
EITHER THE UNCONDITIONAL AUTHORIZATION OF THE PREPARATION OF THE REQUIRED PLANS,
OR THE BEGINNING OF THE ACTUAL WORK ON THE PREMISES, WHICHEVER OCCURS FIRST.
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 REQUIREMENTS
AND THIS LEASE SHALL CONTINUE IN FULL FORCE AND EFFECT, BUT SUBJECT TO LESSOR'S
RIGHTS UNDER PARAGRAPH 6.2 (C) AND 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 DATE 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 EXCESS COSTS OF (A) INVESTIGATION AND REMEDIATION OF SUCH HAZARDOUS
SUBSTANCE CONDITION TO THE EXTENT REQUIRED BY APPLICABLE REQUIREMENTS, OVER (B)
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 SAID
COMMITMENT BY LESSEE. 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 AFTER THE REQUIRED FUNDS ARE AVAILABLE. IF LESSEE
DOES NOT GIVE SUCH NOTICE AND PROVIDE THE REQUIRED FUNDS OR ASSURANCE THEREOF
WITHIN THE TIME PERIOD SPECIFIED ABOVE, THIS LEASE SHALL TERMINATE AS OF THE
DATE SPECIFIED IN LESSOR'S NOTICE OF TERMINATION.
9.8 TERMINATION-ADVANCE PAYMENTS. UPON TERMINATION OF THIS LEASE PURSUANT TO
THIS PARAGRAPH 9, LESSOR SHALL RETURN TO LESSEE ANY ADVANCE PAYMENT MADE BY
LESSEE TO LESSOR AND 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 WAIVER OF STATUTES. LESSOR AND LESSEE AGREE THAT THE TERMS OF THIS LEASE
SHALL GOVERN THE EFFECT OF ANY DAMAGE TO OR DESTRUCTION OF THE PREMISES AND THE
BUILDING WITH RESPECT TO THE TERMINATION OF THIS LEASE AND HEREBY WAIVE THE
PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT IT IS INCONSISTENT
HEREWITH.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. LESSOR SHALL PAY THE REAL PROPERTY TAXES, AS DEFINED IN
PARAGRAPH 10.2(A), APPLICABLE TO THE INDUSTRIAL CENTER, AND EXCEPT AS OTHERWISE
PROVIDED IN PARAGRAPH 10.3,
10.2 REAL PROPERTY TAX DEFINITIONS.
(A) AS USED HEREIN, THE TERM "REAL PROPERTY TAXES" SHALL INCLUDE ANY FORM OF
REAL ESTATE TAX OR 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
INDUSTRIAL CENTER 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 INDUSTRIAL CENTER OR
ANY PORTION THEREOF, 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 INDUSTRIAL CENTER 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.
(B) AS USED HEREIN, THE TERM "BASE REAL PROPERTY TAXES" SHALL BE THE AMOUNT OF
REAL PROPERTY TAXES, WHICH ARE ASSESSED AGAINST THE PREMISES, BUILDING OR COMMON
AREAS IN THE CALENDAR YEAR DURING WHICH THE LEASE IS EXECUTED. IN CALCULATING
REAL PROPERTY TAXES FOR ANY CALENDAR YEAR, THE REAL PROPERTY TAXES FOR ANY REAL
ESTATE TAX YEAR SHALL BE INCLUDED IN THE CALCULATION, OF REAL PROPERTY TAXES FOR
SUCH CALENDAR YEAR BASED UPON THE NUMBER OF DAYS WHICH SUCH CALENDAR YEAR AND
TAX YEAR HAVE IN COMMON.
10.3 ADDITIONAL IMPROVEMENTS. COMMON AREA OPERATING EXPENSES SHALL NOT INCLUDE
REAL PROPERTY TAXES SPECIFIED IN THE TAX ASSESSOR'S RECORDS AND WORK SHEETS AS
BEING CAUSED BY ADDITIONAL IMPROVEMENTS PLACED UPON THE INDUSTRIAL CENTER BY
OTHER LESSEES OR BY LESSOR FOR THE EXCLUSIVE ENJOYMENT OF SUCH OTHER LESSEES.
NOTWITHSTANDING PARAGRAPH 10.1 HEREOF, LESSEE SHALL, HOWEVER, PAY TO LESSOR AT
THE TIME COMMON AREA OPERATING EXPENSES ARE PAYABLE UNDER PARAGRAPH 4.2, THE
ENTIRETY OF ANY INCREASE IN REAL PROPERLY TAXES IF ASSESSED SOLELY BY REASON OF
ALTERATIONS, TRADE FIXTURES OR UTILITY INSTALLATIONS PLACED UPON THE PREMISES BY
LESSEE OR AT LESSEE'S REQUEST.
10.4 JOINT ASSESSMENT. IF THE BUILDING IS NOT SEPARATELY ASSESSED, REAL PROPERTY
TAXES ALLOCATED TO THE BUILDING SHALL BE AN EQUITABLE PROPORTION OF THE REAL
PROPERTY TAXES FOR ALL OF THE LAND AND IMPROVEMENTS 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, IF, GOOD
FAITH, SHALL BE CONCLUSIVE.
10.5 LESSEE'S PROPERTY TAXES. LESSEE SHALL PAY PRIOR TO DELINQUENCY ALL TAXES
ASSESSED AGAINST AND LEVIED UPON LESSEE-OWNED ALTERATIONS AND UTILITY
INSTALLATIONS, TRADE FIXTURES, FURNISHINGS, EQUIPMENT AND ALL PERSONAL PROPERTY
OF LESSEE CONTAINED IN THE PREMISES OR STORED WITHIN THE INDUSTRIAL CENTER. WHEN
POSSIBLE, LESSEE SHALL CAUSE ITS LESSEE-OWNED ALTERATIONS AND UTILITY
INSTALLATIONS, 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 PROPERTY SHALL BE ASSESSED WITH LESSOR'S REAL PROPERTY,
LESSEE SHALL PAY LESSOR THE TAXES ATTRIBUTABLE TO LESSEE'S PROPERTY WITHIN TEN
(10) DAYS AFTER RECEIPT OF A WRITTEN STATEMENT SETTING FORTH THE TAXES
APPLICABLE TO LESSEE'S PROPERTY.
11. UTILITIES. LESSEE SHALL PAY DIRECTLY FOR ALL UTILITIES AND SERVICES SUPPLIED
TO THE PREMISES, INCLUDING BUT NOT LIMITED TO ELECTRICITY, TELEPHONE, SECURITY,
GAS AND CLEANING OF THE PREMISES, TOGETHER WITH ANY TAXES THEREON. IF ANY SUCH
UTILITIES OR SERVICES ARE NOT SEPARATELY METERED TO THE PREMISES OR SEPARATELY
BILLED TO THE PREMISES, LESSEE SHALL PAY TO LESSOR A REASONABLE PROPORTION TO BE
DETERMINED BY LESSOR OF ALL SUCH CHARGES JOINTLY METERED OR BILLED WITH OTHER
PREMISES IN THE BUILDING, IN THE MANNER AND WITHIN THE TIME PERIODS SET FORTH IN
PARAGRAPH 4.2(D).
12. ASSIGNMENTS 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, "ASSIGN") 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 FULL EXECUTION AND
DELIVERY 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, OR A NON-CURABLE BREACH WITHOUT THE
NECESSITY OF ANY NOTICE AND GRACE PERIOD. IF LESSOR ELECTS TO TREAT SUCH
UNCONSENTED TO ASSIGNMENT OR SUBLETTING AS A NON-CURABLE 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 FOR THE
PREMISES TO THE GREATER OF THE THEN FAIR MARKET RENTAL VALUE OF THE PREMISES, AS
REASONABLY DETERMINED BY LESSOR, OR ONE HUNDRED TEN PERCENT (110%) OF THE BASE
RENT THEN IN EFFECT. 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 RENTAL ADJUSTMENT, (I) 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 AS REASONABLY
DETERMINED BY LESSOR (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, (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, AND (III) ANY FIXED RENTAL ADJUSTMENTS SCHEDULED DURING THE
REMAINDER OF THE LEASE TERM SHALL BE INCREASED IN THE SAME RATIO AS THE NEW
RENTAL BEARS TO THE BASE RENT IN EFFECT IMMEDIATELY PRIOR TO THE ADJUSTMENT
SPECIFIED IN LESSOR'S NOTICE.
(E) LESSEE'S REMEDY FOR ANY BREACH OF THIS PARAGRAPH 12.1 BY LESSOR SHALL BE
LIMITED TO COMPENSATORY DAMAGES AND/OR INJUNCTIVE RELIEF.
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, NOR (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 FOR 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 ASSIGNEE OR SUBLESSEE.
HOWEVER, LESSOR MAY CONSENT TO SUBSEQUENT SUBLETTINGS AND ASSIGNMENTS OF THE
SUBLEASE OR ANY AMENDMENTS OR MODIFICATIONS THERETO WITHOUT NOTIFYING LESSEE OR
ANYONE ELSE LIABLE UNDER THIS LEASE OR THE SUBLEASE AND WITHOUT OBTAINING THEIR
CONSENT, AND SUCH ACTION SHALL NOT RELIEVE SUCH PERSONS FROM LIABILITY UNDER
THIS LEASE OR THE SUBLEASE.
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(D) IN THE EVENT OF ANY DEFAULT OR BREACH OF LESSEE'S OBLIGATION UNDER THIS
LEASE, LESSOR MAY PROCEED DIRECTLY AGAINST LESSEE, ANY GUARANTORS OR ANYONE ELSE
RESPONSIBLE FOR THE PERFORMANCE OF THE LESSEE'S OBLIGATIONS UNDER THIS LEASE,
INCLUDING ANY SUBLESSEE, WITHOUT FIRST EXHAUSTING LESSOR'S REMEDIES AGAINST ANY
OTHER PERSON OR ENTITY RESPONSIBLE THEREFORE TO LESSOR, OR ANY SECURITY HELD BY
LESSOR.
(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 MONTHLY BASE RENT APPLICABLE TO
THE PORTION OF THE PREMISES WHICH IS THE SUBJECT OF THE PROPOSED ASSIGNMENT OR
SUBLEASE, 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 12.2(C) SHALL GIVE
LESSOR THE RIGHT (BUT NOT THE OBLIGATION) TO REQUIRE THAT THE SECURITY DEPOSIT
BE INCREASED BY AN AMOUNT EQUAL TO SIX (6) TIMES THE THEN MONTHLY BASE RENT, AND
LESSOR MAY MAKE THE ACTUAL RECEIPT BY LESSOR OF THE SECURITY DEPOSIT INCREASE 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 SCHEDULE OF THE RENT
PAYABLE UNDER THIS LEASE BE ADJUSTED TO WHAT IS THEN THE MARKET VALUE AND/OR
ADJUSTMENT SCHEDULE FOR PROPERTY SIMILAR TO THE PREMISES AS THEN CONSTITUTED, AS
DETERMINED BY LESSOR.
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, BY REASON OF THE FOREGOING
PROVISION 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 RECEIPT OF A 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 OR CLAIM AGAINST SUCH SUBLESSEE, OR, UNTIL THE BREACH HAS
BEEN CURED, AGAINST LESSOR, FOR ANY SUCH RENTS AND OTHER CHARGES SO PAID BY SAID
SUBLESSEE TO LESSOR.
(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 UNDER A SUBLEASE APPROVED BY LESSOR 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
THAT LESSOR MAY INCLUDE THE COST OF SUCH SERVICES AND COSTS IN SAID NOTICE AS
RENT DUE AND PAYABLE TO CURE SAID DEFAULT. A "DEFAULT" BY LESSEE IS DEFINED AS A
FAILURE BY LESSEE TO OBSERVE, COMPLY WITH OR PERFORM ANY OF THE TERMS,
COVENANTS, CONDITIONS OR RULES APPLICABLE TO LESSEE UNDER THIS LEASE. A "BREACH"
BY LESSEE 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, LESSEE'S SHARE OF COMMON AREA OPERATING
EXPENSES, OR ANY OTHER MONETARY PAYMENT REQUIRED TO BE MADE BY LESSEE HEREUNDER
AS AND WHEN DUE, THE FAILURE BY LESSEE TO PROVIDE LESSOR WITH REASONABLE
EVIDENCE OF INSURANCE OR SURETY BOND REQUIRED UNDER THIS LEASE OR THE 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 REQUIREMENTS PER
PARAGRAPH 6.3, (II) THE INSPECTION, MAINTENANCE AND SERVICE CONTRACTS REQUIRED
UNDER PARAGRAPH 7.1(B), (III) THE RESCISSION OF AN UNAUTHORIZED ASSIGNMENT OR
SUBLETTING PER PARAGRAPH 12.1, (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 3.1(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. CODE SECTION 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 13.1 (E) IS CONTRARY TO ANY
APPLICABLE LAW, SUCH PROVISION SHALL BE OF NO FORCE OR EFFECT, AND SHALL NOT
AFFECT THE VALIDITY OF THE REMAINING PROVISIONS.
(F) THE DISCOVERY BY LESSOR THAT ANY FINANCIAL STATEMENT OF LESSEE OR OF ANY
GUARANTOR, GIVEN TO LESSOR BY LESSEE OR ANY GUARANTOR, 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 AN 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
ASSURANCES OF 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 AN 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 OWN
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 ANY LEASING COMMISSION
PAID BY LESSOR IN CONNECTION WITH THIS LEASE 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 IMMEDIATELY PRECEDING SENTENCE SHALL BE COMPUTED BY
DISCOUNTING SUCH AMOUNT AT THE DISCOUNT RATE OF THE FEDERAL RESERVE BANK OF SAN
FRANCISCO OR THE FEDERAL RESERVE BANK DISTRICT IN WHICH THE PREMISES ARE LOCATED
AT THE TIME OF AWARD PLUS ONE PERCENT (1 %). 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 13.2. IF TERMINATION OF
THIS LEASE IS OBTAINED THROUGH THE PROVISIONAL REMEDY OF UNLAWFUL DETAINER,
LESSOR SHALL HAVE THE RIGHT TO RECOVER IN SUCH PRO-
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CEEDING THE UNPAID RENT AND DAMAGES AS ARE RECOVERABLE THEREIN, OR LESSOR MAY
RESERVE 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 SUBPARAGRAPH
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 SUBPARAGRAPH
13.1(B),(C) OR (D). IN SUCH CASE, THE APPLICABLE GRACE PERIOD UNDER THE UNLAWFUL
DETAINER STATUE SHALL RUN CONCURRENTLY AFTER THE ONE SUCH STATUTORY NOTICE, AND
THE FAILURE OF LESSEE TO CURE THE DEFAULT WITHIN THE GREATER OF THE TWO (2) 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 RECOVER
THE RENT AS IT BECOMES DUE, PROVIDED LESSEE HAS THE RIGHT TO SUBLET OR ASSIGN,
SUBJECT ONLY TO REASONABLE LIMITATIONS. LESSOR AND LESSEE AGREE THAT THE
LIMITATIONS ON ASSIGNMENT AND SUBLETTING IN THIS LEASE 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 THIS 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.
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 (AS DEFINED IN PARAGRAPH 13.1) OF THIS LEASE BY LESSEE, 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 INITIATED THE OPERATION OF THIS
PARAGRAPH 13.3 SHALL NOT ON DEEMED A WAIVER BY LESSOR OF THE PROVISIONS OF THIS
PARAGRAPH 13.3 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 DEED OF TRUST COVERING THE PREMISES.
ACCORDINGLY, IF ANY INSTALLMENT OF RENT OR OTHER SUM DUE FROM LESSEE SHALL NOT
BE RECEIVED BY LESSOR OR LESSOR'S DESIGNEE WITHIN TEN (10) DAYS AFTER SUCH
AMOUNT SHALL BE DUE, THEN, WITHOUT ANY REQUIREMENT FOR NOTICE TO LESSEE, LESSEE
SHALL PAY TO LESSOR A LATE CHARGE 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 THREE (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
ANY LENDER(S) WHOSE NAME AND ADDRESS SHALL HAVE BEEN FURNISHED TO 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 TEN PERCENT (10%) OF THE FLOOR
AREA OF THE PREMISES, OR MORE THAN TWENTY-FIVE PERCENT (25%) OF THE PORTION OF
THE COMMON AREAS DESIGNATED FOR LESSEE'S PARKING, 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 PREMISES. NO REDUCTION OF BASE
RENT SHALL OCCUR IF THE CONDEMNATION DOES NOT APPLY TO ANY PORTION OF THE
PREMISES. 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 OF 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 LESSEE'S SHARE OF THE LEGAL
AND OTHER EXPENSES INCURRED BY LESSOR IN THE CONDEMNATION MATTER, REPAIR ANY
DAMAGE TO THE PREMISES CAUSED BY SUCH CONDEMNATION AUTHORITY. LESSEE SHALL BE
RESPONSIBLE FOR THE PAYMENT OF ANY AMOUNT IN EXCESS OF SUCH NET SEVERANCE
DAMAGES REQUIRED TO COMPLETE SUCH REPAIR.
15. BROKERS' FEES.
15.1 PROCURING CAUSE. THE BROKER(S) NAMED IN PARAGRAPH 1.10 IS/ARE THE PROCURING
CAUSE OF THIS LEASE.
15.2 ADDITIONAL TERMS. UNLESS LESSOR AND BROKER(S) HAVE OTHERWISE AGREED IN
WRITING, LESSOR AGREES THAT: (A) IF LESSEE EXERCISES ANY OPTION (AS DEFINED IN
PARAGRAPH 39.1) GRANTED UNDER THIS LEASE OR ANY OPTION SUBSEQUENTLY GRANTED, OR
(B) IF LESSEE ACQUIRES ANY RIGHTS TO THE PREMISES OR OTHER PREMISES IN WHICH
LESSOR HAS AN INTEREST, OR (C) IF LESSEE REMAINS IN POSSESSION OF THE PREMISES
WITH THE CONSENT OF LESSOR AFTER THE EXPIRATION OF THE TERM OF THIS LEASE AFTER
HAVING FAILED TO EXERCISE AN OPTION, OR (D) IF SAID BROKERS ARE THE PROCURING
CAUSE OF ANY OTHER LEASE OR SALE ENTERED INTO BETWEEN THE PARTIES PERTAINING TO
THE PREMISES AND/OR ANY ADJACENT PROPERTY IN WHICH LESSOR HAS AN INTEREST, OR
(E) IF BASE RENT IS INCREASED, WHETHER BY AGREEMENT OR OPERATION OF AN
ESCALATION CLAUSE HEREIN, THEN AS TO ANY OF SAID TRANSACTIONS, LESSOR SHALL PAY
SAID BROKER(S) A FEE IN ACCORDANCE WITH THE SCHEDULE OF SAID BROKER(S) IN EFFECT
AT THE TIME OF THE EXECUTION OF THIS LEASE.
15.3 ASSUMPTION OF OBLIGATIONS. ANY BUYER OR TRANSFEREE OF LESSOR'S INTEREST IN
THIS LEASE, WHETHER SUCH TRANSFER IS BY AGREEMENT OR BY OPERATION OF LAW, SHALL
BE DEEMED TO HAVE ASSUMED LESSOR'S OBLIGATION UNDER THIS PARAGRAPH 15. EACH
BROKER SHALL BE AN INTENDED THIRD PARTY BENEFICIARY OF THE PROVISIONS OF
PARAGRAPH 1.10 AND OF THIS PARAGRAPH 15 TO THE EXTENT OF ITS INTEREST IN ANY
COMMISSION ARISING FROM THIS LEASE AND MAY ENFORCE THAT RIGHT DIRECTLY AGAINST
LESSOR AND ITS SUCCESSORS.
15.4 REPRESENTATIONS AND WARRANTIES. 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 AS NAMED IN PARAGRAPH 1.10(A) 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 BROKER(S) 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 OR CHARGES WHICH MAY BE CLAIMED BY ANY SUCH UNNAMED
BROKER, FINDER OR OTHER SIMILAR PARTY BY REASON OF ANY DEALINGS OR ACTIONS OF
THE INDEMNIFYING PARTY, INCLUDING ANY COSTS, EXPENSES, AND/OR ATTORNEYS' FEES
REASONABLY INCURRED WITH RESPECT THERETO.
16. TENANCY AND FINANCIAL STATEMENTS.
16.1 TENANCY STATEMENT. 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 A FORM
SIMILAR TO THE THEN 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 FINANCIAL STATEMENT. IF LESSOR DESIRES TO FINANCE, REFINANCE, OR SELL THE
PREMISES OR THE BUILDING, OR ANY PART THEREOF, LESSEE AND ALL GUARANTORS 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 THREE (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. 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 15.3, 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 OBLIGATIONS 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 HEREINABOVE 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 TEN (10) DAYS
FOLLOWING THE DATE ON WHICH IT WAS DUE, SHALL BEAR INTEREST FROM THE DATE DUE AT
THE PRIME RATE CHARGED BY THE LARGEST STATE CHARTERED BANK IN THE STATE IN WHICH
THE PREMISES ARE LOCATED PLUS FOUR PERCENT (4%) PER ANNUM, BUT NOT EXCEEDING THE
MAXIMUM RATE ALLOWED BY LAW, IN ADDITION TO THE POTENTIAL 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 LESSEE TO 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, QUALIFY AND CHARACTER OF THE PREMISES. BROKERS HAVE NO
RESPONSIBILITY WITH RESPECT THERETO OR WITH RESPECT TO ANY DEFAULT OR BREACH
HEREOF BY EITHER PARTY. EACH BROKER SHALL BE AN INTENDED THIRD PARTY BENEFICIARY
OF THE PROVISIONS OF THIS PARAGRAPH 22.
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23. NOTICES.
23.1 NOTICE REQUIREMENTS. 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 PREPAID, OR BY FACSIMILE TRANSMISSION DURING
NORMAL BUSINESS HOURS, 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 DATE OF NOTICE. 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 OR FACSIMILE CONFIRMATION OF RECEIPT OF THE
TRANSMISSION THEREOF, PROVIDED A COPY IS ALSO DELIVERED VIA DELIVERY OR MAIL. IF
NOTICE IS RECEIVED ON A SATURDAY OR A SUNDAY OR A 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 ANY OTHER TERM, COVENANT OR CONDITION HEREOF. LESSOR'S
CONSENT TO, OR APPROVAL OF, ANY SUCH 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 DEFAULT OR BREACH BY
LESSEE OF ANY PROVISION HEREOF. ANY PAYMENT GIVEN LESSOR BY LESSEE 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. IN THE EVENT THAT LESSEE HOLDS OVER IN VIOLATION OF THIS PARAGRAPH
26 THEN THE BASE RENT PAYABLE FROM AND AFTER THE TIME OF THE EXPIRATION OR
EARLIER TERMINATION OF THIS LEASE SHALL BE INCREASED TO TWO HUNDRED PERCENT
(200%) OF THE BASE RENT APPLICABLE DURING THE MONTH IMMEDIATELY PRECEDING SUCH
EXPIRATION OR EARLIER TERMINATION. NOTHING CONTAINED HEREIN SHALL BE CONSTRUED
AS A CONSENT BY LESSOR TO ANY HOLDING OVER BY LESSEE.
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 PURSUANT
TO PARAGRAPH 13.5. 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 TO 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 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. ATTORNEYS' FEES. 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) IN ANY SUCH PROCEEDING, ACTION, OR APPEAL THEREON, SHALL
BE ENTITLED TO REASONABLE ATTORNEYS' 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
ATTORNEYS' FEE AWARD SHALL NOT BE COMPUTED IN ACCORDANCE WITH ANY COURT FEE
SCHEDULE, BUT SHALL BE SUCH AS TO FULLY REIMBURSE ALL ATTORNEYS' FEES REASONABLY
INCURRED. LESSOR SHALL BE ENTITLED TO ATTORNEYS' FEES, COSTS AND EXPENSES
INCURRED IN 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. BROKER(S) SHALL BE INTENDED
THIRD PARTY BENEFICIARIES OF THIS PARAGRAPH 31.
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, 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 EIGHTY (180) 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, NOR 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 EXTERIOR OF THE PREMISES
OR THE BUILDING, 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 SO LONG AS SUCH SIGNS ARE IN A LOCATION DESIGNATED BY
LESSOR AND COMPLY WITH APPLICABLE REQUIREMENTS AND THE SIGNAGE CRITERIA
ESTABLISHED FOR THE INDUSTRIAL CENTER BY LESSOR. 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).
UNLESS OTHERWISE EXPRESSLY AGREED HEREIN, LESSOR RESERVES ALL RIGHTS TO THE USE
OF THE ROOF OF THE BUILDING, AND THE RIGHT TO INSTALL ADVERTISING SIGNS ON THE
BUILDING, INCLUDING THE ROOF, WHICH DO NOT UNREASONABLY INTERFERE WITH THE
CONDUCT OF LESSEE'S BUSINESS; LESSOR SHALL BE ENTITLED TO ALL REVENUES FROM SUCH
ADVERTISING SIGNS.
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' AND 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,
SHALL BE PAID BY LESSEE TO LESSOR UPON RECEIPT OF AN INVOICE AND SUPPORTING
DOCUMENTATION THEREFOR. IN ADDITION TO THE DEPOSIT DESCRIBED IN PARAGRAPH
12.2(E), 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. 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.
(B) 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 IMPOSITIONS 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.
37.1 FORM OF GUARANTY. IF THERE ARE TO BE ANY GUARANTORS OF THIS LEASE PER
PARAGRAPH 1.11, THE FORM OF THE GUARANTY TO BE EXECUTED BY EACH SUCH GUARANTOR
SHALL BE IN THE FORM MOST RECENTLY PUBLISHED BY THE AMERICAN INDUSTRIAL REAL
ESTATE ASSOCIATION, AND EACH SUCH GUARANTOR SHALL HAVE THE SAME OBLIGATIONS AS
LESSEE UNDER THIS LEASE, INCLUDING BUT NOT LIMITED TO THE OBLIGATION TO PROVIDE
THE TENANCY STATEMENT AND INFORMATION REQUIRED IN PARAGRAPH 16.
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37.2 ADDITIONAL OBLIGATIONS OF GUARANTOR. IT SHALL CONSTITUTE A DEFAULT OF THE
LESSEE UNDER THIS LEASE IF ANY SUCH GUARANTOR FAILS OR REFUSES, UPON REASONABLE
REQUEST BY LESSOR TO GIVE: (A) EVIDENCE OF THE DUE EXECUTION OF THE GUARANTY
CALLED FOR BY THIS LEASE, INCLUDING THE AUTHORITY OF THE GUARANTOR (AND OF THE
PARTY SIGNING ON GUARANTOR'S BEHALF) TO OBLIGATE SUCH GUARANTOR ON SAID
GUARANTY, AND RESOLUTION OF ITS BOARD OF DIRECTORS AUTHORIZING THE MAKING OF
SUCH GUARANTY, TOGETHER WITH A CERTIFICATE OF INCUMBENCY SHOWING THE SIGNATURES
OF THE PERSONS AUTHORIZED TO SIGN ON ITS BEHALF, (B) CURRENT FINANCIAL
STATEMENTS OF GUARANTOR AS MAY FROM TIME TO TIME BE REQUESTED BY LESSOR, (C) A
TENANCY STATEMENT, OR (D) WRITTEN CONFIRMATION THAT THE GUARANTY IS STILL IN
EFFECT.
38. QUIET POSSESSION. UPON PAYMENT BY LESSEE OF THE RENT FOR THE PREMISES
AND THE 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 LEASE, 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, OR THE RIGHT OF FIRST OFFER 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 SEPARATE DEFAULTS UNDER PARAGRAPH 13.1 DURING THE TWELVE
(12) MONTH PERIOD IMMEDIATELY PRECEDING THE EXERCISE OF THE OPTION, WHETHER OR
NOT THE DEFAULTS ARE CURED.
(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 (3) OR MORE NOTICES OF SEPARATE DEFAULTS UNDER PARAGRAPH 13.1
DURING ANY TWELVE (12) MONTH PERIOD, WHETHER OR NOT THE DEFAULTS ARE CURED, OR
(III) IF LESSEE COMMITS A BREACH OF THIS LEASE.
40. RULES AND REGULATIONS. LESSEE AGREES THAT IT WILL ABIDE BY, AND KEEP AND
OBSERVE ALL REASONABLE RULES AND REGULATIONS ("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 THE BUILDING AND THE INDUSTRIAL CENTER AND THEIR INVITEES.
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 THE RIGHT, FROM TIME TO TIME, TO GRANT,
WITHOUT THE CONSENT OR JOINDER OF LESSEE, SUCH EASEMENTS, RIGHTS OF WAY, UTILITY
RACEWAYS, AND DEDICATIONS THAT LESSOR DEEMS NECESSARY, AND TO CAUSE THE
RECORDATION OF PARCEL MAPS AND RESTRICTIONS, SO LONG AS SUCH EASEMENTS, RIGHTS
OF WAY, UTILITY RACEWAYS, DEDICATIONS, MAPS AND RESTRICTIONS DO NOT REASONABLY
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 OR HANDWRITTEN PROVISIONS SHALL BE CONTROLLED BY THE TYPEWRITTEN
OR HANDWRITTEN PROVISIONS.
46. OFFER. PREPARATION OF THIS LEASE BY EITHER LESSOR OR LESSEE OR LESSOR'S
AGENT OR LESSEE'S AGENT AND SUBMISSION OF SAME TO LESSEE OR LESSOR SHALL NOT BE
DEEMED AN OFFER TO LEASE. THIS LEASE IS NOT INTENDED TO BE BINDING UNTIL
EXECUTED AND DELIVERED 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.
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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 REASONABLE
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 YOUR ATTORNEY'S
REVIEW AND APPROVAL, FURTHER, EXPERTS SHOULD BE CONSULTED TO EVALUATE THE
CONDITION OF THE PROPERTY FOR THE POSSIBLE PRESENCE OF ASBESTOS, UNDERGROUND
STORAGE TANKS OR HAZARDOUS SUBSTANCES. NO REPRESENTATION OR RECOMMENDATION IS
MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE
BROKERS OR THEIR CONTRACTORS, AGENTS, OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY,
LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT
RELATES; 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 PROPERTY IS 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 AND ON THE DATES
SPECIFIED ABOVE THEIR RESPECTIVE SIGNATURES.
Executed at: /s/ San Marino Executed at:_________
on: 12-21-98 On: 12-21-98
By LESSOR: By LESSEE:
/s/ Xxxxxxx Properties, Ltd /s/Xxxxx Xxxx
/s/ Xxxxxxx Management Corp. /s/Helpcity
By: /s/ General Partner By: /s/ General Partner
Name printed: /s/ Xxxx X. Xxxxxxx Name printed: /s/ Xxxxx X. Xxxx
Title: /s/ V.P. Title: /s/Partner
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ADDENDUM TO STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT
LEASE/GROSS BY AND BETWEEN
XXXXXXX PROPERTIES, L.P., AS LESSOR
AND XXXXX XXXX DBA: HELPCITY AS LESSEE FOR 000 X. XXXXXX XXX.
(SECOND FLOOR SUITE F) SAN DIMAS, CA
DATED DECEMBER 15, 1998
49. BASE RENT SCHEDULE for 000 X. Xxxxxx Xxx. (second floor suite E)
Lessee agrees to pay Base Rent in the amounts shown below in compliance
with paragraphs 1.5 and 4 of the Lease Agreement.
Jan. 1, 1999 through Dec. 31, 1999: $1,180.00 per month gross
50. MONIES REQUIRED
Lessee shall pay Lessor these amounts when Lessee executes the Lease
Agreement.
First Month's Rent -
(Jan., 1999 Base Rent) $1,180.00.
Security Deposit - $3,300.00 (Due Feb 1, 1999)
Total: $4,480.00
51. AIR CONDITIONING REPAIRS
The Lessor agrees to repair the heating and air conditioning system during the
initial term of this Lease. For any future Lease term extensions, the Lessor and
Lessee agree that the Lessee is responsible for the cost to repair or replace
part or all of Lessee's air conditioning system serving the Premises. Lessor
agrees to pay for any cost to repair or replace the air conditioning system for
any cost over $500 per occurrence. The Lessor reserves the right to use own
vendor to repair or replace system if the cost to the Lessor exceeds $500.
During the initial lease term the Lessee agrees to pay for regularly scheduled
air conditioning service. The air conditioning service shall be performed on a
quarterly basis with the following included in each service (Lessor to approve
of contractor used.):
A. Verify electrical voltage to equipment.
B. Lubrication where required.
C. Inspect condensers as required.
D. Check refrigerant pressures.
E. Verify operation of safety controls.
F. Change all air filters.
G. Inspect drive belts and drive sheaves.
H. Check condensate drain lines on equipment.
I. Inspect heat exchanger and burners.
J. Check pilot light.
K. Check thermostat
L. Check electrical contractors and relays
52. The representing real estate broker for Lessor, Xxxxxx Associates in
this lease transaction, is a principal in the subject property and a licensed
real estate broker with the state of California.
53. UTILITIES FEE CHARGE FOR PREMISES (SUITE "E" only)
Lessee agrees to pay $2496 non-refundable as a utilities fee charge,
natural gas use for the second floor portion of the Premises (237 W. Xxxxxx
Ave. Suite "E"). Lessee shall provide electricity and air conditioning during
normal business hours 7 a.m. to 7 p.m. Monday through Friday until Dec 31,
1999.
ADDENDUM-PAGE {PAGE}
54. RULES AND REGULATIONS
(1) No Exterior Storage. Nothing shall be stored outside the Premises unless
exterior storage is required by law and approved in writing by Lessor. (See
Supplemental Rider to Industrial/Warehouse Lease Paragraph 4.) Lessee reserves
the right to place material for loading and unloading purposes within Lessee's
designated parking spaces. Said material shall not remain in Lessee's designated
parking spaces for more than four (4) hours.
(2) Dust and Fume Control. No wood-shaping or spraying material processes or
any activity creating dust or fumes that may be hazardous shall be performed in
the Premises, except in an environment controlled by air-handling equipment
properly and lawfully designed and utilized, which shall be maintained and
operated at all times to prevent hazardous accumulations of wood, chemical or
other pollutants in the atmosphere within the Premises or Project. Lessee
reserves the right to spray paint with aerosol spray paint cans within Lessee's
Premises.
(3) Parking. Parking of cars shall be available in areas designated generally
for Lessee parking, if any, on a "first come", "first served" unassigned basis
in common with Lessor, other tenants and other parties to whom parking
privileges have been or are hereafter granted. *Parking is prohibited in
areas:(1) not striped or designated for parking, (2) aisles, (3) where "no
parking" signs are posted, (4) on ramps, and (5) loading areas and other
specially designated areas. Delivery trucks and vehicles shall use only those
areas designated therefor. Lessor reserves the right to: (I) assign specific
spaces, and reserve spaces for small cars, disabled individuals, and other
tenants, customers, of tenants or to other parties (and Lessee shall not park in
any such assigned or reserved spaces) and (ii) restrict or prohibit full size
vans and other large vehicles. In case of any violation of these provisions or
any applicable laws, Lessor may: (iii) refuse to permit the violator to park,
and remove the vehicle owned or driven by the violator from the Project without
liability whatsoever, at such violator's risk and expense and/or (b) charge
Lessee such reasonable rates as Lessor may from time to time establish for such
violations, which shall be at least One Hundred Dollars and No Cents ($100.00)
per day for each vehicle that is parked in violation of these Rules. These
provisions shall be in additions to any other remedies available to Lessor under
this lease or otherwise. Lessee shall not be allowed to park in front of any
other Lessees truck loading doors. In addition, the following shall be
incorporated:
a) Lessee shall have four (5) (for 237 Xxxxxx second floor space suite "E")
unreserved parking spaces in the OFFICE BUILDING for it's employees, vendors,
shippers and customers and no reserved parking spaces.
b) Lessee shall instruct and direct all other employees, shippers, vendors and
customers to park offsite of the Office Building.
c) Lessee shall be responsible for supervising, monitoring and otherwise
enforcing the parking restrictions and covenants included herein, and upon its
failure to properly do so, Lessor shall have the right to hire parking monitors
with the costs thereof to be paid or reimbursed by Lessee.
d) Lessee agrees and understands that the use of more than the above allotted
number of parking spaces will significantly adversely affect the parking rights
and businesses of other tenants of the OFFICE BUILDING and will severely impede
the Lessor's ability to lease space at the OFFICE BUILDING, renew leases with
existing tenants and that Lessee's failure to comply with and strictly enforce
the parking provisions and restriction of the Addendum shall be a material
default under this Addendum and Lease, and the Lessee shall be liable for all
losses and damages sustained by the Lessor related thereto.
(4) Trash. All garbage, refuse, trash and other waste shall be kept in
the kind of container, placed in the areas, and prepared for collection in the
manner and at the times and places specified by Lessor, subject to the
provisions of this lease respecting Hazardous Materials. If Lessor designates a
service to pick up such items, Lessee shall use the same (and the cost shall be
included in Common Area Expenses). Lessor reserves the right to require that
Lessee participate in any recycling program designated by Lessor.
(5) Signs. Lessee shall not place any signs outside the Premises (including
without limitation, exterior walls and roof), or on the interior or exterior
surfaces of glass panes or doors or that are otherwise visible from outside the
Premises, without Lessor's prior
ADDENDUM - PAGE {PAGE}
written approval. All Lessee's signs shall: (i) be professionally designated,
prepared and installed, (ii) in good taste so as not to detract from the general
appearance of the Premises or the Project, (iii) not advertise any product, and
(iv) and comply with any sign criteria developed by Lessor from time to time.
All signs hereunder shall be subject to all laws any covenants, conditions and
restrictions applicable to the Project or Building. Lessee shall maintain all
signs hereunder in good repair and slightly first class condition. The term
"sign" in this Rule shall mean any sign, placard, picture, name, direction,
lettering, insignia or trademark, advertising material, advertising display,
awning or other such item, except that any storefront sign shall be an actual
sign. Blinds, shades, drapes or other such items shall not be placed in or about
the windows in the Premises except to the extent, if any, that the character,
shape, design, color, material and make thereof is first approved by Lessor in
writing.
(6) Plumbing Equipment. Toilet rooms, urinals, wash bowls, drains, sewers
and other plumbing fixtures, equipment and lines shall not be misused or used
for any purpose other than that for which they were constructed and no foreign
substance of any kind whatsoever shall be disposed of therein.
(7) Roof; Awnings and Projections. Lessee shall not install any sign,
antennae, satellite dish or any other device on the roof, or Common Areas of the
Project. Lessee may install and have access to rooftop HVAC equipment only to
the extent approved or required by Lessor from time to time in connection with
Lessee's maintenance, repair or HVAC obligations under this lease. No awning or
other projection shall be attached by or Lessee to the exterior walls
of the Premises or the Building.
(8) Overloading Floors. Lessee shall not overload any floor or part thereof
in the Premises or Project.
(9) Going-Out-Of-Business Sales and Auctions. Lessee shall not use, or
permit any other party to use, the Premises for any distress, fire, bankruptcy,
close-out, "lost our lease", or going-out-of -business sale or auction. Lessee
shall not display any signs advertising the foregoing anywhere in or about the
Premises. This prohibition shall also apply to Lessee's creditors.
(10) Labor Relations. Lessee shall conduct its labor relations and relations
with employees so as to avoid strikes, picketing, and boycotts of, on or about
the Premises or Project. If any employees strike, or if picket lines or boycotts
or other visible activities objectionable to Lessor are established, conducted
or carried out against Lessee, other occupants of the Premises or their
employees, agents, Transferees or contractors in or about the Premises or
Project, Lessee shall immediately close the Premises and remove cause to be
removed all such occupants, employees, agents, Transferees and contractors until
the dispute has been settled.
(11) Prohibited Activities. Lessee shall not: (I) use strobe or flashing
lights in or on the Premises or in any signs therefor, (ii) use, sell or
distribute any leaflets, handbills, bumper stickers, other stickers, or decals,
balloons or other such articles in the Premises (or other areas of the Project),
(iii) operate any loudspeaker, television set, phonograph, radio, or other
musical or sound producing instrument or device so as to be heard outside the
Premises, (iv) operate any electrical or other device which interferes with or
impairs radio, television, microwave, or other broadcasting or reception from or
in the Project or elsewhere, (v) make or permit objectionable noise, vibration
or odor to emanate from the Premises that is unlawful, immoral, obscene,
pornographic activities, or which tends to create or maintain a nuisance, or do
any act tending to injure the reputation of the Project, (vii) or violate any
requirements of the American Insurance Association and any board of fire
underwriters.
(12) Responsibility for Compliance. Lessee shall be responsible for ensuring
compliance with these Rules, as they may be amended, by Lessee's employees and
as applicable, by Lessee, any other occupant of the Premises, and their
respective agents, employees, invitees, Transferees and contractors.
ADDENDUM - PAGE {PAGE}
(13) Condition at Expiration or Termination. Upon expiration or earlier
termination of this lease, in addition to the requirements under Article 13 of
this lease, Lessee shall ensure that:
1. All interior and exterior lights and bulbs are operational.
2. All exhaust, ceiling and overhead fans are operational.
3. Warehouse floor areas are broom swept and clean of all trash and
materials.
4. Warehouse floor areas are cleaned of oils, fluids and other foreign
materials.
5. All electrical, plumbing and other utilities which are terminated are
disconnected, capped and/or terminated according to applicable building codes
and all other governmental requirements.
6. All electrical and telecommunications conduit and wiring installed by or
for Lessee specifically for Lessee's equipment is removed to the originating
panel if Lessor so requires.
7. Overhead interior and exterior doors are operational and in good
condition.
8. Any bolts secured to the floor are cut off flush and sealed with epoxy.
9. Warehouse fencing or partitions are removed if Lessor so requires.
10. All furniture, trash and debris are removed.
11. All signs and pictures, posters, signage, stickers and all similar items
of Lessee and any other occupant of the Premises are removed from all walls,
windows, doors and all other interior and exterior surfaces of the Premises and
other locations of the Project where Lessor permitted installation.
12. All un-carpeted office floors are swept, and any excess wax build-up on
tile and vinyl floors is properly removed.
13. All computer cable and conduit installed by or for Lessee is removed to
point of origin.
14. All windows and miscellaneous hardware are operational and in good
condition.
15. All heating, air conditioning and mechanical systems and equipment are
operational and in good condition.
16. Ceiling tiles, grid, light lenses, air grills and diffusers are in place
with no holes or stains.
17. There are no broken windows or other glass items.
18. Bathroom walls, floors, and fixtures are clean and in good condition.
19. All plumbing fixtures are intact, operational, free of leaks and in good
condition.
20. All gutters and down spouts are undamaged and operational.
21. Walls (internal and external) are clean and any holes are properly and
permanently patched.
22. All keys to all locks or to within the Premises, any key cards and
parking stickers, the combination to any vaults that Lessor permits or requires
Lessee to leave on the Premises, all plans and specifications for all leasehold
improvements made to the Premises, and all reports, studies and other materials
relating to Hazardous Materials that were even on the Premises, shall be turned
over to Lessor.
ADDENDUM - PAGE {PAGE}
(14) The sidewalks, exits, entrances and common area shall not be obstructed
by any of the Lessees or used by them for any purpose other than for ingress to
and egress from their respective Premises. The Lessor shall in all cases retain
the right to control and prevent access to the entrances, exits and common area
by all persons whose presence in the judgment of Lessor shall be prejudicial to
the safety, character, reputation and interests of the Business Center and its
Lessees, provided that nothing herein contained shall be construed to prevent
such access to persons with whom Lessee normally deals in the ordinary course of
Lessee's business, unless such persons are engaged in illegal activities. Lessee
and its employees and invitees shall in no event go upon the roof of the
Business Center with out Lessor's permission.
(15) Lessee hereby agrees to provide power to the outside lighting
twenty-four (24) hours a day, seven (7) days a week.
(16) Lessee shall not alter any lock or install any new or additional locks
or any bolts on any door of the Premises without the written consent of Lessor.
(17) The toilet rooms, urinals, wash bowls and other toilet room facilities,
shall not b4 used for any purpose other than that for which they were
constructed and no foreign substances if any kind whatsoever shall be thrown
therein and the expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by Lessee.
(18) Lessee shall not in any deface the Premises or any part thereof.
(19) Lessee shall not utilize the open areas on top of the ceiling over the
office space of the Premises for storage or otherwise, without the written
consent of Lessor.
Lessee shall not permit or suffer the Premises to be occupied or used in a
manner offensive to objectionable to Lessor, other occupants of the Business
Center or occupants of neighboring buildings by reason of noise, odors and/or
vibrations, or interfere in any way with such occupants or those having business
therein. No animals or birds shall be brought in or kept in or about the
Premises or the Business Center. Lessee shall not throw anything out of doors or
otherwise litter or dispose of trash except as provided in the Lease or these
Rules and Regulations as they may be amended.
(20) The term "Hazardous Material" means any hazardous or toxic substance,
material or waste which is or becomes regulated by any governmental authority.
Lessee agrees not to permit any Hazardous Material to be brought upon, kept, or
used on the Premises and agrees not to permit the storage of any containers
which have previously held Hazardous Materials. If Lessee breaches these
obligations and as a result, any portion of the Leased Premises or of the Entire
Business Center is contaminated, then Lessee shall indemnify, defend, and hold
Lessor harmless from any liability or loss, including all clean-up costs and
other costs and expenses necessary to achieve compliance with al applicable
governmental Rules and Regulations, which costs and expenses, if paid by Lessor
for any diminution in value of the Business Center which arises during or after
the lease term as a result of such contamination. Any violation of these
provisions by Lessee shall be material violation of this Lease and shall cause
Lessee to be subject to a Three-Day Notice to quit.
(21) Lessee shall not use or keep in the Premises or the Business Center,
any kerosene, gasoline or inflammable or combustible fluid or material, or use
any method of heating or air conditioning other than that supplied by Lessor
without prior written consent of Lessor.
(22) Lessor will direct electricians as to where and how telephone wires, TV
cable, and/or other wiring are to be installed in the Premises. No boring or
cutting of wires will be allowed without the consent of Lessor. The location of
telephones and other office equipment affixed to the Premises shall be subject
to the approval of the Lessor.
ADDENDUM - PAGE {PAGE}
(23) All keys to offices and rooms shall be obtained from Lessor, and
Lessee shall not otherwise obtain keys or have keys made. Lessee, upon
termination of the tenancy, shall deliver to Lessor the keys of the offices and
rooms which shall have been furnished by Lessor or shall pay Lessor the cost of
replacing same or of changing the locks or locks operated by such lost key if
Lessor deems necessary to make such change.
(24) Lessee shall not lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by Lessor. The expense of repairing any damage
resulting from a violation of this rule or removal of any floor covering shall
be borne by Lessee.
(25) Lessee shall see that the doors of the Premises are closed and
securely locked before leaving the Business Center each day and must observe
strict care and caution that all water faucets or water apparatus are entirely
shut off before Lessee or Lessee's employees leave the Premises, and that all
electricity shall likewise be carefully shut off so as to prevent damage. If any
Lessee sustains damage as a result of Lessee's failure to observe this
Regulation, Lessee shall be responsible for such damage.
(26) Lessor reserves the right to exclude or expel from the Business
Center any person who, in the judgment of Lessor, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner, do any act in
violation of any of the Rules and Regulations of the Business Center.
(27) Lessee's requests or complaints with respect to its occupancy of
the Premises must be directed to Lessor in writing. Employees of Lessor at the
Business Center are not authorized to perform any work or do anything outside of
their regular duties unless under specific instructions from Lessor. No employee
of Lessor will admit any person (Lessee or otherwise) to Lessee's Premises
without specific instructions from Lessor.
(28) No vending, public phone, courier service box, or other dispensing
machine shall be installed, maintained or operated upon the Premises without the
written consent of Lessor.
(29) Lessor shall have the right, exercisable without notice and
without liability to Lessee, to change the name and street address of the
Business Center of which the Premises are a part.
(30) Lessee agrees that it shall comply with all fire and security
regulations that may be issued from time to time by Lessor, and Lessee also
shall provide Lessor with the name of a designated responsible employee to
represent Lessee in all matters pertaining to such fire or security regulations.
(31) Lessor reserves the right by written notice to Lessee, to rescind,
alter or waive any Rule or Regulation at any time prescribed for the Business
Center when, in Lessor's judgment, it is necessary, desirable or proper for the
best interest of the Business Center and its Lessees.
(32) Lessee shall not disturb, solicit, or canvass any occupant of the
Business Center and shall cooperate to prevent same.
(33) Without the written consent of Lessor, Lessee shall not use the
name of the Business Center in connection with or in promoting or advertising
the business of Lessee except as Lessee's address.
(34) All shipping and receiving from and to Lessee's Premises shall be
conducted in front of Lessee's Premises only and in such a manner as not to
obstruct the flow of traffic or interfere with the business activities of other
Lessees.
(35) Lessee understands that non-working video cameras may be installed
by Lessor on the outside walls of the Premises and around the Business Center.
Lessee agrees to inform all employees that these non-working exterior video
cameras are not manned by any security officer and that these non-working
exterior video cameras do not provide any
ADDENDUM - PAGE {PAGE}
security to any employee or customer in any way. The exterior non-working
video cameras are only used to try to reduce potential vandalism in the Business
Center.
(36) Any breach of these Regulations by Lessee or its agents, employees
or invitees shall, at Lessor's election, be deemed a breach of the Lease for the
Premises.
Lessor reserves the right to make such other and further Rules and
Regulations as in its judgment may be for the safety, care and cleanliness of
the Business Center and for the preservation of good order therein. Lessee
agrees to abide by all such rules and regulations hereinabove stated and any
additional Rules and Regulations which are adopted of which Lessee is given
written notice.
55. ARBITRATION OF DISPUTES
ARBITRATION OF DISPUTES. Except for (A) any unlawful detainer action
brought by Lessor against Lessee, (B) any matter other than enforcement of
rights under this Lease, or (C) any matter primarily founded upon matters of
fraud, willful misconduct, bad faith or any other allegations of tortuous
action, and seek the award of punitive or exemplary damages, which disputes
shall be resolved by suit filed in the Superior Court of Los Angeles County,
California, the decision of which court shall be subject to appeal pursuant to
applicable law, any dispute or claim in law or equity between Lessor and Lessee
arising out of this Lease shall be determined by arbitration by the American
Arbitration Association at Los Angeles, California.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU
ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A
COURT OR JURY TRIAL. BY INITIALIZING IN THE SPACE BELOW YOU ARE GIVING UP YOUR
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES OUT
OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL
ARBITRATION.
Initials on behalf of Lessor Initials of behalf of Lessee
__/s/____AEW___________ ________________________
56. Lessee's Assignment to an L.L.C. or Corporation:
Lessor shall consent to a one time assignment of this lease to an
L.L.C. or corporation as long as the new L.L.C. or corporation is at least 50%
owned by Xxxxx Xxxx and/or Xxxxx Xxxx. Lessee must provide Lessor at least
30 days prior written notice of Lessee's intention to assign this Lease. The
written notice must contain the federal tax I.D. number of the L.L.C. or
corporation within the letter sent to the Lessor.
57. Lessee's Option to remove Xxxxxxxxx Xxxxxx as the guarantor of this Lease:
The Lessee has the option on or after June 1, 1999 to remove Xxxxxxxxx
Xxxxxx from the personal guarantee (Exhibit "C") on this Lease if Lessee
provides at least 30 days prior written notice of Lessee's intention to remove
Xxxxxxxxx Xxxxxx from the personal guarantee along with a payment of $3,700 to
Lessor as additional Security Deposit.
58. Clarification of paragraph 7.1 of the Lease:
The Lessee is responsible for the interior of the Premises as follows:
a. Lessee is to replace all interior light bulbs and ballast's when needed.
b. Lessee is to replace all broken interior ceiling tiles and repair
the drop ceiling grid when needed.
ADDENDUM - PAGE {PAGE}
c. Lessee is to replace broken/non-functional windows, doors, built-in
cabinets/desks, door hardware, window hardware including window blinds.
d. Lessee is to clean the interior of own Premises.
e. If the restroom becomes part of the Premises, then the Lessee shall
repair all plumbing fixtures serving the Premises and clean the restroom.
d. Lessee is to repair the air conditioner and ducts after the end of
the initial term of the Lease.
x. Xxxxxx shall replace the water heater at own cost if needed.
f. Lessee shall repair any electrical plug within the Premises.
g. Lessee shall repair and patch any interior walls and repair the
flooring that is damaged.
All other repairs are to be paid for by the Lessor.
59. Telephone/computer lines.
The Lessee shall install and maintain at own cost the telephone and
computer lines serving the Premises.
60. Clarification of paragraph 7.3 Utility Installations: Lessee is to
repair any electrical lines that are dedicated to the Premises. Any shared
electrical circuits (shared with other Lessee's in the Building) shall be
repaired by Lessor. Lessee agrees not to overload an electrical circuit and
agrees to add new electrical lines at own cost if a circuit continues to be
overloaded.
61. Paragraph 11 clarified.
Lessee shall pay for own telephone lines at all times. Lessee shall pay for
own natural gas line only if Lessee leases the entire 2nd floor of the Building
(237 W. Xxxxxx 2nd floor). Lessor shall pay for the electrical service to the
Premises and is reimbursed by Lessee as per this addendum.
62. Paragraph 12.1 B.
As long as Xxxxx Xxxx and/or Xxxxx Xxxx operate the Lessee as owners,
corporate/L.L.C. officers, or as majority shareholders, then paragraph 12.1B is
stricken and shall not be enforced by Lessor.
63. Paragraph 12.2 G is stricken from this lease and is not
enforceable.
64. Paragraph 16.2
Lessee shall only be required to supply the past 2 years of financial
statements on the Lessee only.
65. Lessor and Lessee agree that the Lessor may retain Lessee's
security deposit for the purpose of repainting and recarpeting the
Premises upon Lessee's moveout.
CONSULT YOUR ATTORNEY/ADVISORS - This document has been prepared for
approval by your attorney. No representation or recommendation is made by Xxxxxx
Associates or the American Industrial Real Estate Association (A.I.R.) or the
agents or employees of associated with the preparation of this document or the
transaction to which it relates. These are questions for your attorney.
On 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 Premises and property,
including the possible presence of asbestos, hazardous materials and underground
storage tanks.
In addition, please be advised that an Owner or Lessee or real property may
be subject to the Americans With Disabilities Act (the ADA), a Federal Law
codified at 42 USE Section 12101 et seq. Among other requirements of the ADA
that could apply to your property, Title III of the ADA requires Owner and
Lessees of "public accommodations" to remove barriers to access by disabled
persons and provide auxiliary aid and services for hearing, vision or speech
impaired persons by January 26, 1992. The regulations under Title III of the ADA
are codified at 28 CFR Part 36.
ADDENDUM - PAGE {PAGE}
Xxxxxx Associates recommends that you and your attorney, engineer and/or
architect review the ADA requirements, and, if appropriate, your proposed lease
or purchase agreement, to determine if this law would apply to you, and the
nature of the equipment.
LESSOR: LESSEE:
By: /s/ Xxxx X. Xxxxxxx By:
Date:12-21-98 Date:
Lessor and Lessee agree that if a conflict between the original lease and
this addendum exists, then the provisions of this addendum shall prevail.
ADDENDUM - PAGE {PAGE}
EXHIBIT "A"
Plan of SITE
[Diagram of site]
ADDENDUM-PAGE 9
EXHIBIT "A"
Plan Of Premises
"AS IS PLAN"
Lessor to prepare Premises as per Exhibit "B." Lessee to lease Suite "E" with
plan configuration as in Exhibit "B."
[Floorplan: 237 XXXXXX SAN DIMAS CA. EXIST. 2ND FLOOR]
ADDENDUM-PAGE 10
EXHIBIT "B"
[Floorplan: 237 XXXXXX SAN DIMAS CA. NEW 2ND FLOOR]
EXHIBIT "B"
LESSOR'S WORK AND LESSEE'S WORK
FOR 000 X. XXXXXX XXX. XXXXX X (SECOND FLOOR SPACE)
1) Lessor to repaint and re-carpet the entire interior of the second floor
of 000 X.Xxxxxx Xxx. Lessor to use a standard white Xxxx Xxxxxx interior paint
for all inside walls. (Preferably Swiss Coffee) Lessor to install a commercial
grade "Philadelphia" brand loop carpet (or equivalent) in all rooms currently
with carpeting. All other floors to remain the same.
2) The Lessor shall not pay for upgrades to the current air
conditioning system, plumbing, doors, ceilings, windows, water heaters, walls or
any other existing improvement on the Premises.
3) Lessee agrees to take the space "as is".
4) Lessee agrees to:
A) Install own curtains or window blinds.
B) Install own telephone lines and telephone system.
C) Install own computer lines and computer system.
5) Lessor shall not be required to re-route the air conditioning ducts
during the term of this lease or for any extensions of this lease.
6) Lessor to have the right to build an interior wall to separate suite
"E" from suite "F" at any time.
ADDENDUM - PAGE {PAGE}
AMENDMENT #2
TO STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT
LEASE/GROSS BY AND BETWEEN
XXXXXXX PROPERTIES, L.P., AS LESSOR AND
Xxxxx Xxxx, dba: HELPCITY, AS LESSEE
000 X. Xxxxxx Xxx. Xxxxx X
XXX XXXXX, XX
DATED December 15,1998
66. PREMISES: Lessee and Lessor agree to add suite 000 X. Xxxxxx Xxx. Xxxxx X
(Xxxxxx Xxxxx) to the Premises described in the attached lease (Lease
Agreement)for 000 X. Xxxxxx Xxx. Xxxxx X.
67. Condition of 000 X. Xxxxxx Xxx. Xxxxx X: Lessee agrees to take the space "as
is" except that the Lessor agrees to install a new refrigerator in the kitchen
area and separate air conditioning ductwork as per Exhibit "D."
68. BASE RENT SCHEDULE for 000 X. Xxxxxx Xxx. (Suite A, second floor) Lessee
agrees to pay Base Rent in the amounts shown below in compliance with paragraphs
1.5 and 4 of the Lease Agreement. The Base Rent below is in addition to the Base
Rent payments described in the original "Lease Agreement."
Lease for 000 X. Xxxxxx Xxx. Xxxxx X XXXXXXXXX XX May 1, 1999 and ends on
December 31,1999:
Base Rent Schedule for 000 X. Xxxxxx Xxxxx X second floor only.
May 1,1999 through July 31,1999: $813.40 per month
August 1, 1999 through December 31, 1999 $929.60 per month
Rent due as per the Lease.
69. UTILITIES FOR PREMISES (SUITE "A" only)
Lessee agrees to pay $174.00 per month for electrical and gas use for the
Premises (237 W. Xxxxxx Ave. Suite "G"). The total billing of $174.00 per month
for utilities shall be considered part of the Base Rent as defined in the lease
and shall have the same due dates and late payment rules as in the lease
document.
Lessee shall have use of the utilities for normal business hours; 6 a.m. to
8 p.m. weekdays.
70. ADDITIONAL DEPOSIT REQUIRED: $250.00
71. AIR CONDITIONING REPAIRS
ADDENDUM - PAGE 1
EXHIBIT "C"
Plan of Premises (245 w. Xxxxxx Suite A)
[REMAINDER OF PAGE LEFT BLANK]
ADDENDUM - PAGE 4
By: /s/ Xxxxx Xxxx, CEO By: /s/ Xxxx X. Xxxxxxx V.P.
XxxxXxxx.xxx LLC Xxxxxxx Mgmt Corp
Date: 4/21/99 Date: 4-29-99
Lessor and Lessee agree that if a conflict between the original lease and this
addendum exists, then the provisions of this addendum shall prevail.
Change lease Lessee to XxxxXxxx.xxx LLC a california Limited Liability company.
/s/ AEW
Lessor to change all bulbs as required at start of lease.
/s/ DW
/s/ AEW
ADDENDUM - PAGE 3
EXHIBIT "D"
LESSOR'S WORK AND LESSEE'S WORK
FOR 000 X. XXXXXX XXX. suite A (SECOND FLOOR SPACE)
Lessee to lease the Premises "as is."
1) The Lessor shall not pay for upgrades to the current air conditioning
system, plumbing, doors, ceilings, windows, water heaters, walls or any
other existing improvement on the Premises except as mentioned herein.
2) The Lessor shall also not pay for any building permits or fees associates
with the construction of the Tenant Improvements described in Exhibit "B."
3) Lessee agrees to take the space "as is".
4) Lessee agrees to:
A) Install own curtains or window blinds.
B) Install own telephone lines and telephone system.
C) Install own computer lines and computer system.
D) Use timely doors and frames for any new doors installed in the
Premises.
E) Use a standard white Xxxx Xxxxxx semi-gloss interior paint for all
inside walls. (Swiss Coffee)
F) Install all walls as per City building codes.
5) Lessor shall not be required to re-route the air conditioning ducts
during the term of this lease or for any extensions of this lease.
6) Lessee agrees to re-paint the interior walls with the same paint
specified above upon move-out, if the Lessee moves out any time prior
to June 1, 2001.
7) Lessor to move ductwork for the air-conditioning system to separate the
air-conditioning between 245 W. Xxxxxx Suite A and Suite B. Separate
controls for A/C
ADDENDUM - PAGE 5
The Lessor agrees to repair the heating and air conditioning system until
December 31, 1999.
During the initial lease term the Lessor agrees to perform and pay for regularly
scheduled air conditioning service. The air conditioning service shall be
performed on a quarterly or semi-annual basis with the following included in
each service:
A. Verify electrical voltage to equipment.
B. Lubrication where required.
C. Inspect condensers as required.
D. Check refrigerant pressures.
E. Verify operation of safety controls.
F. Change all air filters.
G. Inspect drive belts and drive sheaves.
H. Check condensate drain lines on equipment.
I. Inspect heat exchanger and burners.
J. Check pilot light.
K. Check thermostat
L. Check electrical contactors and relays
72. The representing real estate broker for Lessor, Xxxxxx Associates in
this lease transaction, is a principal in the subject property and a licensed
real estate broker with the state of California.
CONSULT YOUR ATTORNEY/ADVISORS - This document has been prepared for approval by
your attorney. No representation or recommendation is made by Xxxxxx Associates
or the American Industrial Real Estate Association (A.I.R.) or the agents or
employees of associated with the preparation of this document or the transaction
to which it relates. These are questions for your attorney.
On 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 Premises and property,
including the possible presence of asbestos, hazardous materials and underground
storage tanks.
In addition, please be advised that an Owner or Lessee or real property may be
subject to the Americans With Disabilities Act (the ADA), a Federal Law codified
at 42 USE Section 12101 et seq. Among other requirements of the ADA that could
apply to your property, Title III of the ADA requires Owner and Lessees of
"public accommodations" to remove barriers to access by disabled persons and
provide auxiliary aid and services for hearing, vision or speech impaired
persons by January 26, 1992. The regulations under Title III of the ADA are
codified at 28 CFR Part 36.
Xxxxxx Associates recommends that you and your attorney, engineer and/or
architect review the ADA requirements, and, if appropriate, your proposed lease
or purchase agreement, to determine if this law would apply to you, and the
nature of the equipment.
LESSOR: LESSEE:
AMENDMENT #3
TO STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT
LEASE/GROSS BY AND BETWEEN
XXXXXXX PROPERTIES, L.P., AS LESSOR AND
XxxxXxxx.xxx LLC, AS LESSEE
000 X. Xxxxxx Xxx. Xxxxx X
XXX XXXXX, XX
DATED December 15,1998
73. EXTENSION OF LEASE TERM and ADDITION OF 245-B TO PREMISES: The lease
term for the Premises (Exhibit C: 237-E & 245-A & 245-B) is hereby extended
until 12/31/01.
74. BASE RENT:
The Base Rent for the period from 01/01/00 through 12/01/01 shall be as
follows:
Suite 237E 1388 approx. sq. ft.
Suite 245A 1162 approx. sq. ft.
Suite 245B 588 approx. sq. ft.
3138 Base Rent per month Base Rent/sqft/mo.
Month of December 1, 1999 $0 $0.00
January 1, 2000 through Dec. 31, 2000 $2,856 $0.91
January 1, 2001 through Dec. 31, 2001 $3,044 $0.97
1/2 Month Free January 1, 2001 on base amount on all space
75. LESSOR'S WORK:
Lessor to touch-up paint the interior of suite 245B.
Lessor to spot clean the carpet in 245B.
Lessor to clean the restroom in 245B.
Lessor to unlock and open the two doors currently separating suites 245A&B.
76. UTILITES: This paragraph 76 shall supercede any previous paragraph
dealing with utilities in this Lease. Lessee agrees to pay $564.84
per month from January 1, 2000 through Dec. 31, 2001. The Lessee agrees
that this amount shall be defined as "rent" and shall have the same due
dates and late payment rules as in the Lease document.
Approx. sq.ft. 3138
Cost/sq.ft./month $0.18
Cost per month $564.84
77. The representing real estate broker for Lessor, Xxxxxx Associates in this
lease transaction, is a principal in the subject property and a licensed
real estate broker with the state of California.
ADDENDUM - PAGE 1
CONSULT YOUR ATTORNEY/ADVISORS - This document has been prepared for approval by
your attorney.
No representation or recommendation is made by Xxxxxx Associates or the American
Industrial Real Estate Association (A.I.R.) or the agents or employees of
associated with the preparation of this document or the transaction to which it
relates. These are questions for your attorney.
On 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 Premises and property,
including the possible presence of asbestos, hazardous materials and underground
storage tanks.
In addition, please be advised that an Owner or Lessee or real property may be
subject to the Americans With Disabilities Act (the ADA), a Federal Law codified
at 42 USE Section 12101 et seq. Among other requirements of the ADA that could
apply to your property, Title III of the ADA requires Owner and Lessees of
"public accommodations" to remove barriers to access by disabled persons and
provide auxiliary aid and services for hearing, vision or speech impaired
persons by January 26, 1992. The regulations under Title III of the ADA are
codified at 28 CFR Part 36.
Xxxxxx Associates recommends that you and your attorney, engineer and/or
architect review the ADA requirements, and, if appropriate, your proposed lease
or purchase agreement, to determine if this law would apply to you, and the
nature of the equipment.
LESSOR: LESSEE:
By: /S/ Xxxx X. Xxxxxxx By: /S/ Xxxxx Xxxx, CEO
X.X. Xxxxxxx Mgmt Corp. Gen. Ptr.
Date: 1/19/00 Date: 11/24/99
Lessor and Lessee agree that if a conflict between the original lease and this
addendum exists, then the provisions of this addendum shall prevail.
ADDENDUM - PAGE 2
EXIBIT "C"
Plan of Premises (000 X. Xxxxxx Xxxxx X)
[FLOORPLAN OF 237 XXXXXX SAN DIMAS CA. NEW 2ND FLOOR]
EXIBIT "C"
Plan of Premises (237 W. Xxxxxx Suite A & B)
[FLOORPLAN OF 237 XXXXXX SAN DIMAS CA. NEW 2ND FLOOR]
LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT
WHEREAS, XXXXXX XXXX AND XXXX XXXXXX ("Assignor") is a Lessee under a lease
dated December 4, 1998 with XXXXXXX PROPERTIES LIMITED, ("Lessor"). The lease
covers that certain real property known as 000 X. XXXXXX XXXXXX, xxxxx X, XXX
XXXXX, Xxxxxxxxxx. (2nd FLOOR SPACE OF APPROXIMATELY 1,844 SQUARE FEET)
WHEREAS, Assignor now desires to transfer to XXXXX XXXX OF HELP CITY
("Assignee") all of its rights, title and interest in the Lease and all the
Amendments and Addenda thereto EXCEPT THAT ALL PARTIES AGREE THAT PARAGRAPHS 54
AND 55 OF THE ORIGINAL LEASE SHALL NO LONGER APPLY.
NOW, THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, Assignor transfers to Assignee all of its rights, title, and
interest in and to the Lease and the property covered thereby. Assignee
acknowledges receipt of the property and the Lease Agreement. Assignee hereby
assumes the obligations of the Lease and agrees to perform all covenants and
conditions thereunder.
Assignor acknowledges and agrees that he remains bound to Lessor for
performance of all obligations, covenants and conditions of the Lease despite
this Assignment and Assumption Agreement. Assignor and Assignee agree that the
execution of this Agreement in no way affects the rights or remedies available
to Lessor or the right of Lessor to object to any and all future assignments or
subleases. Furthermore, this Assignment does not in any way affect the rights,
previously mentioned as they relate to Lessor's successors and assigns.
Assignee agrees to indemnify and hold Assignor harmless against all claims,
damages, liabilities and expenses arising out of any and all acts, omissions and
occurrences arising under the Lease and the occupation of the leased premises on
and before the effective date of the Assignment of Lease. The same
indemnification shall apply with respect to Assignor and Assignee holding Lessor
harmless for any acts, omissions or occurrences which arise on or before the
effective date of this Assignment.
All parties to this Agreement agree that the effective date of this
Agreement shall be' the day of execution by Lessor of this Agreement.
Dated: 11/2/2000 Assignor:
XXXXX XXXX
By: /s/ Xxxxx Xxxx
Dated: 11/2/00 XXXX XXXXXX
By: /s/ Xxxx Xxxxxx
Dated: 11/2/00 ASSIGNEE:
XXXXX XXXX
By: /s/ Xxxxx Xxxx
The undersigned Lessor hereby consents to the above mentioned Assignment
provided all of the terms of this Assignment and Assumption Agreement are
followed:
Dated: ______________ Lessor:
XXXXXXX PROPERTIES LIMITED
By: ______________________
Xxxxxxx Xxxxxxx
