EXHIBIT 10.11
DUPLICATE ORIGINAL
SINGLE TENANT INDUSTRIAL LEASE
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Effective Date: December 4, 1995
(The date set forth below Landlord's signature.)
BASIC LEASE INFORMATION
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Landlord: CATELLUS DEVELOPMENT CORPORATION, a
Delaware corporation
Xxxxxxxx's Address
For Notice: 0000 X, XxxxxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Asset Management
Telephone: (000) 000-0000
Fax: (000) 000-0000
Xxxxxxxx's Address
For Payment of Rent: File #53694
Los Angeles, CA 90074-3694
Tenant: MOHAWK INDUSTRIES, INC., a Georgia corporation
Tenant's Address P.O. Box 2208
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For Notice: Xxxxxx, CA, 30722
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Attn: XXXX XXXXXX
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Telephone: 000-000-0000
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Fax: 000-000-0000
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Project: 00000 Xxxxxx Xxx
Building: Approximately 220,000 rentable square feet as
shown in Exhibit A.
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Building Address:
Street: 00000 Xxxxxx Xxx
Xxxx xxx Xxxxx: Xx Xxxxxx, XX 00000
Lot: The tax parcel on which the Building is located.
Term: Sixty (60) months
Estimated Commencement
Date: September 1, 1996
Base Rent Per Month: Seventy Four Thousand Eight Hundred Dollars
($74,800.00)
Security Deposit: None
Broker: Xxx & Associates
Lease Year: Shall refer to each three hundred sixty-five
(365) day period during the Term commencing on
the Commencement Date and on each anniversary
thereof.
Permitted Uses: Warehousing and distribution of carpet and no
other uses shall be permitted without the prior
written consent of Landlord.
(i)
EXHIBITS
A - Building/Lot - Premises
B - Work Letter
B-I - Space Plan
C - Commencement Date Memorandum
D - Insurance Certificate
E - Prohibited Uses
F - Correction Items
G - Estoppel Certificate
The Basic Lease Information set forth above and the Exhibits attached
hereto are incorporated into and made a part of the following Lease. Each
reference in this Lease to any of the Basic Lease Information shall mean the
respective information above and shall be construed to incorporate all of the
terms provided under the particular Lease paragraph pertaining to such
information. In the event of any conflict between the Basic Lease Information
and the provisions of the Lease, the latter shall control.
LANDLORD (ILLEGIBLE) AND TENANT (JV) AGREE.
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initial initial
X
(ii)
Table of Contents
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Page
1. PREMISES...................................................... 1
1.1 Premises................................................ 1
1.2 Reserved Rights......................................... 1
2. TERM.......................................................... 1
2.1 Lease Term and Commencement Date........................ 1
2.2 Possession.............................................. 1
3. RENT.......................................................... 2
3.1 Rent.................................................... 2
3.2 Late Charge and Interest................................ 2
3.3 Intentionally Omitted................................... 2
4. UTILITIES..................................................... 2
5. TAXES......................................................... 2
5.1 Real Property Taxes..................................... 2
5.2 Personal Property Taxes................................. 3
6. TRIPLE NET LEASE.............................................. 3
7. INSURANCE..................................................... 3
7.1 Landlord................................................ 3
7.2 Tenant.................................................. 3
7.3 General................................................. 4
7.4 Indemnity............................................... 4
7.5 Exemption of Landlord from Liability.................... 5
8. REPAIRS AND MAINTENANCE....................................... 5
8.1 Landlord................................................ 5
8.2 Tenant.................................................. 5
8.3 Roof - Repair and Replacement........................... 6
8.4 Condition of the Premises............................... 6
9. ALTERATIONS................................................... 6
9.1 Trade Fixtures; Alterations............................. 6
9.2 Damage; Removal......................................... 6
9.3 Liens................................................... 6
10. USE........................................................... 7
11. ENVIRONMENTAL MATTERS......................................... 7
11.1 Hazardous Meterials..................................... 7
11.2 Indemnification......................................... 7
11.3 Landlord's Disclosure................................... 8
11.4 Storage Tank Removal.................................... 8
12. DAMAGE AND DESTRUCTION........................................ 8
12.1 Casualty................................................ 8
12.2 Tenant's Fault.......................................... 8
12.3 Uninsured Casualty...................................... 9
12.4 Waiver.................................................. 9
13. EMINENT DOMAIN................................................ 9
13.1 Total Condemnation...................................... 9
13.2 Partial Condemnation.................................... 9
13.3 Award................................................... 9
13.4 Temporary Condemnation.................................. 9
(iii)
14. DEFAULT....................................................... 9
14.1 Events of Defaults..................................... 9
14.2 Remedies............................................... 10
14.3 Cumulative............................................. 11
15. ASSIGNMENT AND SUBLETTING.................................... 11
16. ESTOPPEL, ATTORNMENT AND SUBORDINATION....................... 11
16.1 Estoppel............................................... 11
16.2 Subordination.......................................... 11
16.3 Attornment............................................. 12
17. MISCELLANEOUS................................................ 12
17.1 General................................................ 12
17.2 Signs.................................................. 12
17.3 Waiver................................................. 12
17.4 Financial Statements................................... 13
17.5 Limitation of Liability................................ 13
17.6 Notices................................................ 13
17.7 Brokerage Commission................................... 13
17.8 Authorization.......................................... 13
17.9 Holding Over; Surrender................................ 13
17.10 Joint and Several...................................... 13
17.11 Covenants and Conditions............................... 13
17.12 Addenda................................................ 13
(iv)
1. PREMISES.
1.1 Premises. Landlord hereby leases to Tenant the Building and that
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portion of the Lot (or all thereof if the Building constitutes the material
improvement thereon) upon which the same is situated (hereinafter collectively
referred to as the "Premises") as shown on Exhibit A attached hereto.
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1.2 Reserved Rights. Landlord reserves the right to enter the Premises
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upon reasonable notice to Tenant (except in case of an emergency) and/or to
undertake the following: inspect the Premises and/or the performance by Tenant
of the terms and conditions hereof; grant easements on the Project, dedicate for
public use portions thereof and record covenants, conditions and restrictions
("CC&R's") affecting the Project and/or amendments to existing CC&R's which do
not unreasonably interfere with Xxxxxx's use of the Premises; change the name of
the Project; and, during the last nine (9) months of the Term, show the Premises
to prospective tenants.
2. TERM.
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2.1 Lease Term and Commencement Date. The Term of the Lease shall be for a
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period of sixty (60) months, subject to extension in accordance with Section 20
below. The Term shall commence (the "Commencement Date") on the first day of the
first full calendar month following the Possession Date (as defined in Section
2.2.2), except that if the Possession Date occurs on the first day of a month,
that day shall also be the Commencement Date. Tenant shall execute and deliver
to Landlord, upon request by Xxxxxxxx, a Commencement Date Memorandum in the
form attached hereto as Exhibit C acknowledging (i) the Commencement Date (and,
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if requested, the Possession Date and Rent Commencement Date, as defined below),
(ii) the final square footage of the Premises, and (iii) Tenant's acceptance of
the Premises.
2.2 Possession.
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2.2.1 Landlord's Possession. Tenant acknowledges that the Premises
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are currently occupied by an existing tenant thereof and that Landlord's
delivery of possession of the Premises is contingent upon such tenant vacating
the Premises. Landlord presently anticipates that the current tenant will vacate
the Premises and restore possession thereof to Landlord on or about September 1
1996 and Landlord shall use its commercially reasonable efforts to recover
possession on such date or as soon as practicable thereafter. In the event that
Landlord does not recover possession of the Premises on or before such date, as
a result of the failure of the existing tenant to vacate the Premises on or
before such date, Landlord shall not be subject to any liability therefor and
such failure shall not affect the validity of this Lease or the obligations of
either party hereunder, provided, however, that if the existing tenant fails to
vacate the Premises on or before November 1, 1996 (subject to Force Majeure
events), either Landlord or Tenant may, at its option, by written notice to the
other party given within ten (10) days thereafter, terminate this Lease, in
which event Landlord shall return to Tenant all funds paid in advance and the
Parties shall be discharged from all further obligations hereunder.
Notwithstanding anything set forth in this Section 2.2, Tenant shall not be
obligated to pay Base Rent for its use and occupancy of the Premises until the
Rent Commencement Date, as defined in Section 3.1.
2.2.2 Tender of Possession to Tenant. Landlord shall tender
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possession of the Premises to Tenant as soon as practicable following the date
on which Xxxxxxxx receives possession thereof. Xxxxxx's possession and use of
the Premises from the date on which Landlord tenders possession thereof to
Tenant (the "Possession Date") to the Commencement Date (the "Early Possession
Period") shall be subject to all the provisions of this Lease. During the Early
Possession Period, Tenant shall (i) arrange for and pay for all utilities
delivered to the Premises (ii) arrange for, and maintain in effect, the
insurance coverages required to be obtained by Tenant pursuant to Section 7.2
of this Lease, (iii) pay to Landlord as and when due, all sums payable to
Landlord hereunder, including, without limitation. amounts payable for Real
Property Taxes (as defined in Section 5) and insurance premiums, and (iv)
perform all other obligations required by Tenant pursuant to this Lease.
2.2.3 Tenant Improvements. Landlord shall arrange for the
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construction of certain Tenant improvements (as defined in the Work Letter
attached hereto as Exhibit B) in accordance with and subject to the terms of the
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Work Letter. Landlord shall commence the construction of the Tenant improvements
and diligently pursue such construction to completion as soon as reasonably
practicable following the Possession Date. Tenant's use of the Premises shall
not unreasonably interfere with Xxxxxxxx's contractor(s) or otherwise impede the
completion of the Tenant Improvements. The construction of the Tenant
improvements shall not delay the occurrence of the Commencement Date. Tenant has
determined that the Premises are acceptable for Xxxxxx's use and Tenant
acknowledges that, except as set forth in the Work Letter, neither Landlord nor
any broker or agent has made any representations or warranties in connection
with the physical condition of the Premises or their fitness for Tenant's use
upon which Xxxxxx has relied directly or indirectly for any purpose.
2.2.4 Substantial Completion. The Tenant improvements shall be
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deemed to be "Substantially Complete" on the date on which Landlord files or
causes to be filed with the City in which the Premises are located (if required)
and
1.
delivers to Tenant an architect's notice of substantial completion, or similar
written notice that the Tenant Improvements are Substantially Complete. As used
herein, the term "Substantially Complete" means that the Tenant Improvements
have been constructed in substantial compliance with the applicable plans and
specifications, except only minor "punchlist" items. Landlord shall promptly
complete such punchlist items to the reasonable satisfaction of Tenant.
3. RENT.
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3.1 Rent.
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3.1.1 Tenant's obligation to pay Base Rent shall commence on the
first (1st) calendar day following the date on which the Tenant Improvements are
Substantially Complete and possession of the Premises has been tendered to
Tenant (the "Rent Commencement Date"). Tenant shall pay to Landlord, at
Landlord's Address for Payment of Rent designated in the Basic Lease
Information, or at such other address as Landlord may from time to time
designate in writing to Tenant for the payment of Rent, the Base Rent, without
notice, demand, offset or deduction, in advance, on the first day of each
calendar month. Upon the execution of this Lease, Tenant shall pay to Landlord
the first month's Base Rent. Base Rent for the period from the Rent Commencement
Date to the first day of the next calendar month shall be prorated on a per diem
basis. All sums other than Base Rent which Tenant is obligated to pay under this
Lease shall be deemed to be additional rent due hereunder, whether or not such
sums are designated "additional rent." The term "Rent" means the Base Rent and
all additional rent payable hereunder.
3.1.2 As set forth in the Basic Lease Information, the initial Base
Rent shall be the sum of $74,800.00 per month which is calculated on the basis
of $0.34 per square foot. Tenant acknowledges that the Premises contains
approximately 220,000 rentable square feet of space. The parties acknowledge
that such measurement is an estimate and that the Base Rent shall not be
adjusted on the basis of a difference in the actual number of rentable square
feet.
3.2 Late Charge and Interest. The late payment of any Rent will cause
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Landlord to incur additional costs, including administration and collection
costs and processing and accounting expenses and increased debt service
("Delinquency Costs"). If Landlord has not received any installment of Rent
within ten (l0) days after such amount is due, Tenant shall pay a late charge
of five percent (5%) of the delinquent amount, which is agreed to represent a
reasonable estimate of the Delinquency Costs incurred by Landlord. In addition,
all such delinquent amounts shall bear interest from the date such amount was
due until paid in full at a rate per annum ("Applicable Interest Rate") equal to
the lesser of (a) the maximum interest rate permitted by law or (b) five percent
(5%) above the rate publicly announced by Bank of America, N.A. (or if Bank of
America, N.A. ceases to exist, the largest bank then headquartered in the State
of California ("Bank") as its "Reference Rate." If the use of the announced
Reference Rate is discontinued by the Bank, then the term Reference Rate shall
mean the announced rate charged by the Bank which is, from time to time,
substituted for the Reference Rate. Landlord and Tenant recognize that the
damage which Landlord shall suffer as a result of Tenant's failure to pay such
amounts is difficult to ascertain and said late charge and interest are the best
estimate of the damage which Landlord shall suffer in the event of late payment
If a late charge becomes payable for any three (3) installments of Rent within
any twelve (l2) month period, then the Rent shall automatically become due and
payable quarterly in advance.
3.3 Intentionally Omitted.
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4. UTILITIES. Tenant shall make all arrangements for and shall pay all charges
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for heat, water, gas, electricity, telephone and any other utilities used on or
provided to the Premises including, without limitation, paying any deposits and
"hook up charges." Landlord shall not be liable to Tenant for interruption in or
curtailment of any utility service, nor shall any such interruption or
curtailment constitute constructive eviction or grounds for rental abatement.
The cost of maintaining and repairing the plumbing, electrical distribution, and
mechanical systems, and other utility installations shall be borne by the
parties as provided in Section 8.
5. TAXES.
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5.1 Real Property Taxes. Landlord shall pay to the proper taxing
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authorities as the same become due all Real Property Taxes applicable to the
Premises, subject to reimbursement by Xxxxxx as provided below. The term "Real
Property Taxes" shall be the sum of the following: all real property taxes,
possessory-interest taxes, business or license taxes or fees, service payments
in lieu of such taxes or fees, annual or periodic license or use fees, excises,
transit and traffic charges, housing fund assessments, open space charges, child
care fees, school, sewer and parking fees or any other assessments, levies,
fees, executions or charges, general and special, ordinary and extraordinary,
unforeseen as well as foreseen (including fees "in-lieu" of any such tax or
assessment) which are assessed, levied, charged, conferred or imposed by any
public authority upon the Premises (or any real property comprising any portion
thereof) or its operations, together with all taxes, assessments or other fees
imposed by any public authority upon or measured by any Rent or other charges
payable hereunder, including any gross receipts tax or excise tax levied by any
governmental authority with respect to receipt of rental income, or upon, with
respect to or by reason of the development, possession, leasing, operation,
management, maintenance alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof, or documentary transfer taxes upon this
transaction or
2.
any document to which Xxxxxx is a party creating or transferring an interest in
the Premises, together with any tax imposed in substitution, partially or
totally, of any tax previously included within the aforesaid definition or any
additional tax the nature of which was previously included within the aforesaid
definition, together with the costs and expenses (including attorneys and expert
witness fees and costs) of challenging any of the foregoing or seeking the
reduction in or abatement, redemption or return of any of the foregoing, but
only to the extent of any such reduction, abatement, redemption or return.
Nothing contained in this Lease shall require Tenant to pay any franchise,
corporate, estate or inheritance tax of Landlord, or any income, profits or
revenue tax or charge upon the net income of Landlord.
5.1.1 Reimbursement By Tenant. Tenant shall pay to Landlord an
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amount equal to the Real Property Taxes then due within fifteen (15) days after
delivery to Tenant by Landlord of an invoice for the same, together with a copy
of the corresponding tax bill. Landlord may, at Landlord's option, deliver
statements from different taxing authorities at different times or deliver all
such statements at one time; provided however, that Landlord shall not change
the method of invoicing Tenant for Real Property Taxes more than one (1) time
in each three (3) year period and, in each case, shall give Tenant thirty (30)
days notice prior to any change in such method of invoicing Tenant. In addition,
Landlord may elect to collect such Real Property Taxes from Tenant in advance,
on a monthly or quarterly basis, based upon Landlord's reasonable estimate of
such Real Property Taxes. If the amount of monthly or quarterly payments for
estimated Real Property Taxes received by Landlord from Tenant is more or less
than the actual Real Property Taxes due, an appropriate adjustment shall be made
by Landlord and Tenant.
5.1.2 Partial Years. Real Property Taxes for partial tax fiscal
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years, if any, falling within the Term, shall be prorated. Tenant's obligations
for Real Property Taxes for the last full or partial year of the Term shall
survive the expiration or earlier termination of this Lease.
5.2 Personal Property Taxes. Prior to delinquency, Tenant shall pay all
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taxes and assessments levied upon trade fixtures, alterations, additions,
improvements, inventories and other personal property located and/or installed
on the Premises by Xxxxxx; and Tenant shall provide Landlord copies of receipts
for payment of all such taxes and assessments. To the extent any such taxes are
not separately assessed or billed to Tenant, Tenant shall pay the amount thereof
as invoiced by Landlord.
6. TRIPLE NET LEASE. It is intended that this Lease be a "triple net lease."
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and that the Rent to be paid hereunder by Xxxxxx will be received by Landlord
without any deduction or offset whatsoever by Tenant, foreseeable or
unforeseeable. Except as expressly provided to the contrary in this Lease,
Landlord shall not be required to make any expenditure, incur any obligation, or
incur any liability of any kind whatsoever in connection with this Lease or the
ownership, construction, maintenance, operation or repair of the Premises.
Notwithstanding the foregoing. Tenant shall reimburse Landlord monthly, as
additional rent, for all costs and fees reasonably incurred by Landlord in
connection with the management of this Lease and the Premises including the cost
of those services which are customarily performed by a property management
services company.
7. INSURANCE.
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7.1 Landlord. Landlord shall maintain insurance insuring the Building
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against fire and extended coverage (including, if Landlord elects, "all risk"
coverage, earthquake/volcanic action, flood and/or surface water insurance) for
the full replacement cost of the Building, with deductibles and the form and
endorsements of such coverage as selected by Landlord, together with rental
abatement insurance against loss of Rent in an amount equal to the amount of
Rent for a period of at least twelve (12) months commencing on the date of loss.
Landlord may also carry such other insurance as Landlord may deem prudent or
advisable, including, without limitation, liability insurance in such amounts
and on such terms as Landlord shall determine. Tenant shall pay to Landlord an
amount equal to the premiums then due within fifteen (15) days after delivery to
Tenant by Landlord of an invoice for any such premiums. Landlord may, at
Xxxxxxxx's option, elect to collect such premiums from Tenant in advance, on a
monthly or quarterly basis, based upon Landlord's reasonable estimate of such
premiums. If the amount of monthly or quarterly payments for estimated premiums
received by Landlord from Tenant are more or less than the actual premiums due,
an appropriate adjustment shall be made by Landlord and Tenant.
7.2 Tenant. Tenant shall, at Tenant's expense, obtain and keep in force at
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all times the following insurance:
7.2.1 Commercial General Liability Insurance (Occurrence Form). A
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policy of commercial general liability insurance (occurrence form) having a
combined single limit of not less than Two Million Dollars ($2,000.000) per
occurrence and Two Million Dollars ($2,000,000) aggregate per location if Tenant
has multiple locations, providing coverage for, among other things, blanket
contractual liability, premises, products/completed operations and personal and
advertising injury coverage, with deletion of (a) the exclusion for operations
within fifty (50) feet of a railroad track (railroad protective liability), if
applicable, and (b) the exclusion for explosion, collapse or underground hazard,
if applicable, and, if necessary, Tenant shall provide for restoration of the
aggregate limit;
3.
7.2.2 Automobile Liability Insurance. Comprehensive automobile
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liability insurance having a combined single limit of not less than Two Million
Dollars ($2,000,000) per occurrence and insuring Tenant against liability for
claims arising out of ownership, maintenance, or use of any owned, hired or non-
owned automobiles;
7.2.3 Workers' Compensation and Employer's Liability Insurance.
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Workers' compensation insurance having limits not less than those required by
state statute and federal statute, if applicable, and covering all persons
employed by Tenant in the conduct of its operations on the Premises (including
the all states endorsement and, if applicable, the volunteers endorsement),
together with employer's liability insurance coverage in the amount of at least
One Million Dollars ($1,000,000); and
7.2.4 Property Insurance. "All risk" property insurance including
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boiler and machinery comprehensive form, if applicable, covering damage to or
loss of any of Tenant's personal property, fixtures, equipment and alterations,
including electronic data processing equipment (collectively "Tenant's
Property") (and coverage for the full replacement cost thereof including
business interruption of Tenant), together with, if the property of Tenant's
invitee's is to be kept in the Premises, warehouser's legal liability or bailee
customers insurance for the full replacement cost of the property belonging to
invitee's and located in the Premises.
7.3 General.
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7.3.1 Insurance Companies. Insurance required to be maintained by
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Tenant shall be written by companies licensed to do business in the state in
which the Premises are located and having a "General Policyholders Rating" of at
least A 8 (or such higher rating as may be required by a lender having a lien on
the Premises) as set forth in the most current issue of "Best's Insurance
Guide."
7.3.2 Certificates of Insurance. Tenant shall deliver to Landlord
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certificates of insurance for all insurance required to be maintained by Tenant
in the form of Exhibit D, attached hereto, no later than seven (7) days prior to
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the date of possession of the Premises. Tenant shall, at least ten (10) days
prior to expiration of the policy, furnish Landlord with certificates of renewal
or "binders" thereof. Each certificate shall expressly provide that such
policies shall not be cancelable or otherwise subject to modification except
after sixty (60) days prior written notice to the parties named as additional
insured in this Lease (except in the case of cancellation for nonpayment of
premium in which case cancellation shall not take effect until at least (10)
days' notice has been given to Landlord). If Tenant fails to maintain any
insurance required in this Lease, Tenant shall be liable for all losses and cost
resulting from said failure.
7.3.3 Additional Insured. Landlord and any property management
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company of Landlord for the Premises shall be named as additional insured under
all of the policies required by Section 7.2.1. The policies required under
Section 7.2.1 shall provide for severability of interest.
7.3.4 Primary Coverage. All insurance to be maintained by Tenant
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shall, except for workers' compensation and employer's liability insurance, be
primary, without right of contribution from insurance of Landlord. Any umbrella
liability policy or excess liability policy (which shall be in "following form")
shall provide that if the underlying aggregate is exhausted, the excess coverage
will drop down as primary insurance. The limits of insurance maintained by
Tenant shall not limit Tenant's liability under this Lease.
7.3.5 Mutual Waiver of Subrogation. Tenant waives any right to
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recover against Landlord for claims for damages to Tenant's Property to the
extent covered, or required by this Lease to be covered by insurance. Landlord
waives any right to recover against Tenant for damages to Landlord's property to
the extent covered, or required by this Lease to be covered by property
insurance. This provision is intended to waive fully, and for the benefit of
Landlord and Tenant, any rights and/or claims which might give rise to a right
of subrogation in favor of any insurance carrier. The coverage obtained by
Landlord and Tenant pursuant to this Lease shall include, without limitation, a
waiver of subrogation endorsement attached to the certificate of insurance.
7.3.6 Notification of Incidents. Tenant shall notify Landlord
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within seventy-two (72) hours after the occurrence of any accidents or incidents
in the Premises which could give rise to a claim under any of the insurance
policies required under this Section 7.
7.4 Indemnity.
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7.4.1 Tenant's Indemnity. Tenant shall indemnify, protect, defend
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(by counsel reasonably acceptable to both Landlord and Tenant) and hold harmless
Landlord and its partners, directors, officers, employees, shareholders,
lenders, agents, contractors and each of their successors and assigns from and
against any and all claims, judgments, causes of action, damages, penalties,
costs, liabilities, and expenses, including all costs, attorneys' fees, expenses
and liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon, arising at any time during or after the Term as a
result (directly or indirectly) of or in connection with (i) any default in the
performance of any obligation on Xxxxxx's part to be
4.
performed under the terms of this Lease, or (ii) Tenant's use of the Premises,
the conduct of Tenant's business or any activity, work or things done, permitted
or suffered by Tenant in or about the Premises or other portions of the Project,
except to the extent caused by Xxxxxxxx's gross negligence or wilful misconduct.
The obligations of Tenant under this Section 7.4 shall survive the termination
of this Lease with respect to any claims or liability arising out of any act,
omission, or event occurring on or before the date of such termination.
7.4.2 Landlord's Indemnity. Except as expressly provided in this
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Lease, and subject to the limitations of Section 17.5, Landlord shall indemnify,
protect, defend (by counsel reasonably acceptable to both Landlord and Tenant)
and hold harmless Tenant and its partners, directors, officers, employees,
shareholders, lenders, agents, contractors and each of their successors and
assigns from and against any and all claims, judgments, causes of action,
damages, penalties, costs, liabilities, and expenses, including all costs,
attorneys' fees, expenses and liabilities incurred in the defense of any such
claim or any action or proceeding brought thereon, arising at any time during or
after the Term as a result (directly or indirectly) of or in connection with (i)
any default in the performance of any obligation on Landlord's part to be
performed under the terms of this Lease, or (ii) Landlord's gross negligence or
intentional misconduct in connection with Xxxxxxxx's activities in or about the
Premises. The obligations of Landlord under this Section 7.4 shall survive the
termination of this Lease with respect to any claims or liability arising out of
any act, omission, or event occurring on or before the date of such termination.
7.5 Exemption of Landlord from Liability. Tenant, as a material part of
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the consideration to Landlord, hereby assumes all risk of damage to property
including, but not limited to, Xxxxxx's fixtures, equipment, furniture and
alterations or injury to persons in, upon or about the Premises or other
portions of the Project arising from any cause, and Tenant hereby waives all
claims in respect thereof against Landlord, except to the extent such claims are
caused by the gross negligence or wilful misconduct of Landlord, its employees,
agents, and contractors. Tenant hereby agrees that Landlord shall not be liable
for injury to Xxxxxx's business or any loss of income therefrom or for damage to
the property of Tenant, or injury to or death of Xxxxxx, Tenant's employees,
invitee's, customers, agents or contractors or any other person in or about the
Premises or the Project, whether such damage or injury is caused by fire, steam,
electricity, gas, water or rain, or from the breakage, leakage or other defects
of sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, or from any other cause, whether said damage or injury results from
conditions arising upon the Premises, or from other sources or places, and
regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Tenant, except to the extent caused by the
gross negligence or wilful misconduct of Landlord, its employees, agents, and
contractors.
8. REPAIRS AND MAINTENANCE.
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8.1 Landlord. Landlord shall, subject to the following sentence, maintain
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the structural portions of the roof, foundation, and load-bearing portions of
walls (excluding wall coverings, painting, glass and doors) of the Improvements.
Landlord shall not be required to make any repair resulting from (i) any
alteration or modification to the Improvements or to mechanical equipment within
the Improvements performed by, for or because of Tenant or to special equipment
or systems installed by, for or because of Tenant, (ii) the installation, use or
operation of Tenant's property, fixtures and equipment, (iii) the moving of
Tenant's property in or out of the Improvements or in and about the Premises,
(iv) Tenant's use or occupancy of the Premises in violation of Section l0 of
this Lease or in the manner not contemplated by the parties at the time of the
execution of this Lease, (v) the acts or omissions of Tenant and Xxxxxx's
employees, agents, invitees, subtenants, licensees or contractors, (vi) fire and
other casualty, except as provided by Section 12 of this Lease or (vii)
condemnation, except as provided in Section 13 of this Lease. Landlord shall
make repairs under this Section 8.1 as soon as reasonably practicable after
receipt of written notice from Tenant of the need for such repairs. Landlord
shall procure and maintain, at Tenant's expense, regularly scheduled preventive
maintenance/service contracts for (i) the maintenance and repair of the fire
detection and sprinkler system, and (ii) the regular and routine maintenance and
annual inspection of the roof membrane. Tenant shall reimburse Landlord upon
thirty (30) days written notice for the reasonable cost thereof. Tenant waives
any right to repair the Premises at the expense of Landlord under any applicable
governmental laws, ordinances, statutes, orders or regulations now or hereafter
in effect which might otherwise apply.
8.2 Tenant. Except for the portions of the Premises expressly required to
------
be maintained by Landlord under Section 8.1, Tenant, at Tenant's expense, shall
maintain the Premises in good order, condition and repair, including, without
limitation, subfloors and floor coverings, walls and wall coverings, mechanical,
electrical, and plumbing systems, doors, windows, parking lots, and truck
aprons, gutters and downspouts, landscaping and any signage. During the Term of
this Lease, or any extensions thereof, Tenant shall procure and maintain, at
Tenant's expense, regularly scheduled preventive maintenance/service contracts
with maintenance contractors reasonably acceptable to Landlord for (i) servicing
all hot water and heating and air conditioning systems and equipment ("HVAC") in
the Premises, and (ii) the landscape maintenance. Tenant shall provide Landlord
with a copy of the HVAC contract and shall furnish a copy of all reports and
correspondence involving the condition of the HVAC equipment to Landlord. Each
contract shall provide that the maintenance contractor will notify Landlord in
writing at least ten (10) days prior to any termination of the contract.
Notwithstanding the foregoing, Landlord reserves the right to procure and
maintain the foregoing maintenance/service contracts, and Tenant shall promptly
reimburse Landlord upon thirty (30) days written notice for the cost thereof. In
the event Tenant fails, in the reasonable judgment of Landlord, to maintain the
Premises in good order, condition and repair. Landlord shall have the right to
perform such maintenance, repairs or refurbishing at Tenant's expense.
5.
8.3 Roof - Repair and Replacement. As provided in Section 8.1, Landlord,
-----------------------------
at its cost, shall maintain the structural portions of the roof during the Term
of this Lease. In addition, Landlord shall arrange for regular and routine
maintenance and annual inspection of the roof surface and membrane, subject to
Xxxxxx's reimbursement to Landlord for the reasonable cost thereof within thirty
(30) days' written notice. In the event that the surface and membrane of the
roof needs to be replaced as a matter of prudent building management and
ownership, as reasonably determine by an independent and qualified roofing
consultant, during the initial Term of this Lease or, if the Term is extended
pursuant to Section 20, during the First Extension Term, Landlord shall arrange
and pay for the replacement thereof at Landlord's sole cost and expense. If the
Term of this Lease is further extended, either pursuant to Section 20 or by
other agreement of the parties, and the roof surface and membrane needs to be
replaced as a matter of prudent building management and ownership, as reasonably
determined by an independent and qualified roofing consultant, during such
additionally extended term. Tenant shall arrange and pay for the replacement
thereof at Tenant's sole cost and expense.
8.4 Condition of the Premises.
-------------------------
8.4.1 Landlord warrants to Tenant that the Premises comply with all
applicable covenants or restrictions of record and applicable building codes,
regulations and ordinances in effect on the Commencement Date. Said warranty
does not apply to the use to which Tenant will put the Premises or to any
alterations or utility installations made or to be made by Tenant. If the
Premises do not comply with said warranty, Landlord shall, except as otherwise
provided in this Lease, promptly after receipt of written notice from Tenant
setting forth with specificity the nature and extent of such condition of
non-compliance, rectify the same at Landlord's expense. If Tenant fails to give
Landlord written notice of a condition of non-compliance with this warranty
within six (6) months after the Possession Date, the correction of such
condition of non-compliance shall be the obligation of Tenant at Tenant's sole
cost and expense.
8.4.2 Landlord and Tenant have jointly conducted a walk-through of
the Premises and have agreed that those items which are set forth in Exhibit F
---------
hereto require correction and that such items shall be corrected by Landlord, at
its sole cost and expense. On or about the Possession Date, Landlord and Tenant
shall conduct a subsequent walk-through of the Premises and shall jointly and
reasonably determine if there are any new and additional items in the Premises
which require correction and, if so, such items shall be added to Exhibit F.
---------
Landlord shall cause the items set forth in Exhibit F, as the same may be
---------
revised following the Possession Date walk through, to be corrected promptly and
at Landlord's sole cost and expense.
9. ALTERATIONS.
-----------
9.1 Trade Fixtures: Alterations. Tenant may install necessary trade
---------------------------
fixtures, equipment and furniture in the Premises, provided that such items are
installed and are removable without structural or material damage to the
Premises or the Project. Tenant shall not construct, nor allow to be
constructed, any alterations or physical additions in, about or to the Premises
without obtaining the prior written consent of Landlord, which consent shall be
conditioned upon Tenant's compliance with Landlord's reasonable requirements
regarding construction of improvements and alterations but such consent
otherwise shall not be unreasonably withheld. Tenant shall submit plans and
specifications to Landlord with Xxxxxx's request for approval and shall
reimburse Landlord for all costs which Landlord may incur in connection with
granting approval to Tenant for any such alterations and additions, including
any costs or expenses which Landlord may incur in electing to have outside
architects and engineers review said matters. Tenant shall file a notice of
completion after completion of such work and provide Landlord with a copy
thereof. Tenant shall provide Landlord with a set of "as-built" drawings for any
such work.
9.2 Damage: Removal. Tenant shall repair all damage to the Premises caused
---------------
by the installation or removal of Tenant's fixtures, equipment, furniture and
alterations. Upon the termination of this Lease, Tenant shall remove any or all
alterations, additions, improvements and partitions made or installed by Tenant
and restore the Premises to its condition existing prior to the construction of
any such items; provided, however, Landlord may permit, upon written notice to
Tenant, any such items designated by Landlord to remain on the Premises, in
which event (and if Tenant elects to leave such items on the Premises) they
shall be and become the property of Landlord upon the termination of this Lease.
All such removals and restoration shall be accomplished in a good and
workmanlike manner and so as not to cause any damage to the Premises or the
Project whatsoever.
9.3 Liens. Tenant shall promptly pay and discharge all claims for labor
-----
performed, supplies furnished and services rendered at the request of Tenant and
shall keep the Premises free of all mechanics' and materialmen's liens in
connection therewith. Tenant shall provide at least ten (l0) days prior
written notice to Landlord before any labor is performed, supplies furnished or
services rendered on or at the Premises and Landlord shall have the right to
post on the Premises notices of non-responsibility. If any lien is filed, Tenant
shall cause such lien to be released and removed within ten (10) days after the
date of filing, and if Tenant fails to do so. Landlord may take such action as
may be necessary to remove such lien and Tenant shall pay Landlord such amounts
expended by Landlord together with interest thereon at the Applicable Interest
Rate from the date of expenditure.
6.
10. USE. The Premises shall be used only for the Permitted Uses set forth in
---
the Basic Lease Information and for no other uses. Tenant's use of the Premises
shall be in compliance with and subject to all applicable governmental laws,
ordinances, statutes, orders and regulations and any CC&R's or any supplement
thereto recorded in any official or public records with respect to the Project
or any portion thereof. In no event shall the Premises be used for any of the
Prohibited Uses set forth on Exhibit E attached hereto. Tenant shall comply with
---------
the reasonable rules and regulations as Landlord may from time to time
prescribe. Tenant shall not commit waste, overload the floors or structure of
the Premises, subject the Premises or the Project to any use which would damage
the same or increase the risk of loss or violate any insurance coverage, permit
any unreasonable odors, smoke, dust, gas, substances, noise or vibrations to
emanate from the Premises, take any action which would constitute a nuisance or
would disturb, obstruct or endanger any other tenants of the Project, take any
action which would abrogate any warranties, or use or allow the Premises to be
used for any unlawful purpose. Tenant shall have the right to use for its
employees and invitees, the parking areas on the Premises. Landlord shall not be
responsible for non-compliance by any other tenant or occupant of the Project
with, or Landlord's failure to enforce, any of the rules or regulations or any
other terms or provisions of such tenant's or occupant's lease. Tenant shall
promptly comply with the reasonable requirements of any board of fire insurance
underwriters or other similar body now or hereafter constituted. Tenant shall
not do any act which shall in any way encumber the title of Landlord in and to
the Premises or the Project.
11. ENVIRONMENTAL MATTERS.
---------------------
11.1 Hazardous Materials. Tenant shall not cause nor permit, nor allow any
-------------------
of Tenant's employees, agents, customers, visitors, invitee's, licensees,
contractors, assignees or subtenants (collectively, "Tenant's Parties") to cause
or permit, any Hazardous Materials to be brought upon, stored, manufactured,
generated, blended, handled, recycled, treated, disposed or used on, under or
about the Premises or the Project, except for routine office and janitorial
supplies in usual and customary quantities stored, used and disposed of in
accordance with all applicable Environmental Laws. As used herein, "Hazardous
Materials" means any chemical, substance, material, controlled substance,
object, condition, waste, living organism or combination thereof which is or may
be hazardous to human health or safety or to the environment due to its
radioactivity, ignitability, corrosivity, reactivity, explosivity, toxicity,
carcinogenicity, mutagenicity, phytotoxicity, infectiousness or other harmful or
potentially harmful properties or effects, including, without limitation,
petroleum and petroleum products, asbestos, radon, polychlorinated biphenyls
(PCBs) and all of those chemicals, substances, materials, controlled substances,
objects, conditions, wastes, living organisms or combinations thereof which are
now or become in the future listed, defined or regulated in any manner by any
Environmental Law based upon, directly or indirectly, such properties or
effects. As used herein, "Environmental Laws" means any and all federal, state
or local environmental, health and/or safety-related laws, regulations,
standards, decisions of courts, ordinances, rules, codes, orders, decrees,
directives, guidelines, permits or permit conditions, currently existing and as
amended, enacted, issued or adopted in the future which are or become applicable
to Tenant, the Premises, the Building or the Project. Tenant and Xxxxxx's
Parties shall comply with all Environmental Laws and promptly notify Landlord of
the violation of any Environmental Law or presence of any Hazardous Materials,
other than office and janitorial supplies as permitted above, on the Premises.
Landlord shall have the right to enter upon and inspect the Premises and to
conduct tests, monitoring and investigations. If such tests indicate the
presence of any environmental condition which occurred during the Term of this
Lease, Tenant shall reimburse Landlord for the cost of conducting such tests.
The phrase "environmental condition" shall mean any adverse condition relating
to any Hazardous Materials or the environment, including surface water,
groundwater. drinking water supply, land, surface or subsurface strata or the
ambient air and includes air, land and water pollutants, noise, vibration, light
and odors. In the event of any such environmental condition. Tenant shall
promptly take any and all steps necessary to rectify the same to Landlord's
reasonable satisfaction or shall, at Landlord's election, reimburse Landlord,
upon demand, for the cost to Landlord of performing rectifying work. The
reimbursement shall be paid to Landlord in advance of Landlord's performing such
work, based upon Xxxxxxxx's reasonable estimate of the cost thereof, and upon
completion of such work by Landlord, Tenant shall pay to Landlord any shortfall
within thirty (30) days after Landlord bills Tenant therefore or Landlord shall
within thirty (30) days refund to Tenant any excess deposit, as the case may be.
11.2 Indemnification. Tenant shall indemnify, protect, defend (by
---------------
counsel acceptable to Landlord) and hold harmless Landlord and its partners,
directors, officers, employees, shareholders, lenders, agents, contractors and
each of their respective successors and assigns (individually and collectively,
"Indemnitees") from and against any and all claims, judgments, causes of action,
damages, penalties, fines, taxes, costs, liabilities, losses and expenses
arising at any time during or after the Term as a result (directly or
indirectly) of or in connection with (a) Tenant and/or Tenant's Parties' breach
of any prohibition or provision of the preceding section, or (b) the presence of
Hazardous Materials on, under or about the Premises or other property as a
result (directly or indirectly) of Tenant's and/or Tenant's Parties' activities,
or failure to act, in connection with the Premises. This indemnity shall include
the cost of any required or necessary repair, cleanup or detoxification, and the
preparation and implementation of any closure, monitoring or other required
plans, whether such action is required or necessary prior to or following the
termination of this Lease. Neither the written consent by Xxxxxxxx to the
presence of Hazardous Materials on, under or about the Premises, nor the strict
compliance by Tenant with all Environmental Laws, shall excuse Tenant from
Tenant's obligation of indemnification pursuant hereto. Tenant's obligations
pursuant to the foregoing indemnity shall survive the termination of this Lease.
7.
11.3 Landlord's Disclosure. Landlord has no actual knowledge and has
---------------------
received no written notice that (i) any Hazardous Materials are located on,
under, or in the Premises, or (ii) there is a pending proceeding, inquiry,
investigation, or order by any governmental authority with respect to any
Hazardous Materials on, under, or in the Premises. As use herein, the term
"actual knowledge" means that the specific matter has come to the actual
attention of the person or persons employed by Landlord who are responsible and
authorized to act with respect to such matter.
11.4 Storage Tank Removal. The parties acknowledge that the previous
--------------------
tenant of the Premises had installed a 10,000 gallon underground diesel storage
tank (the "Tank"). Landlord shall remove or cause the Tank to be removed in
accordance with all applicable laws and regulations and within sixty (60) days
following the Commencement Date. Landlord further acknowledges and agrees that
Tenant shall have no liability for any cost or expense arising out of the
installation, use, or removal of the Tank.
12. DAMAGE AND DESTRUCTION.
----------------------
12.1 Casualty. If the Premises should be damaged or destroyed by fire or
--------
other casualty, Tenant shall give immediate written notice to Landlord. Within
thirty (30) days after receipt thereof. Landlord shall notify Tenant whether the
necessary repairs can reasonably be made: (a) within ninety (90) days; (b) in
more than ninety (90) days but in less than one hundred eighty (180) days; or
(c) in more than one hundred eighty (180) days from the date of such notice.
12.1.1 Less Than 90 Days. If the Premises should be damaged only to
-----------------
such extent that rebuilding or repairs can reasonably be completed within ninety
(90) days, this Lease shall not terminate and, provided that insurance proceeds
are available to fully repair the damage. Landlord shall repair the Premises
utilizing such insurance proceeds and shall not recover any of such repair costs
from Tenant pursuant to Section 6. Landlord shall not be required to rebuild,
repair or replace any alterations, partitions, fixtures, additions and other
improvements (collectively, "Improvements") which may have been placed in, on or
about the Premises by or for the benefit of Tenant, it being the intent of the
parties that Tenant shall replace such Improvements utilizing insurance proceeds
available to Tenant pursuant to Section 7.2.4. If Tenant is required to vacate
all or a portion of the Premises during Landlord's repair thereof, the Base Rent
payable hereunder shall be abated proportionately from the date Tenant vacates
all or a portion of the Premises only to the extent rental abatement insurance
proceeds are received by Landlord and only during the period the Premises are
unfit for occupancy.
12.1.2 Greater Than 90 Days. If the Premises should be damaged only
--------------------
to such extent that rebuilding or repairs can reasonably be completed in more
than ninety (90) days but in less than one hundred eighty (180) days, then
Landlord shall have the option of: (a) terminating the Lease effective upon the
occurrence of such damage, in which event the Rent shall be abated from the date
Tenant vacates the Premises; or (b) electing to repair the Premises, provided
insurance proceeds are available to fully repair the damage (except that
Landlord shall not be required to rebuild, repair or replace any part of the
Improvements which may have been placed In, on or about the Premises by or for
the benefit of Tenant). If Tenant is required to vacate all or a portion of the
Premises during Landlord's repair thereof, the Base Rent payable hereunder shall
be abated proportionately from the date Tenant vacates all or a portion of the
Premises only to the extent rental abatement insurance proceeds are received by
Landlord and only during the period the Premises are unfit for occupancy. In the
event that Landlord should fail to substantially complete such repairs within
one hundred eighty (180) days after the date upon which Landlord is notified by
Tenant of the casualty (such period to be extended for delays caused by Tenant
or because of any items of Force Majeure, as hereinafter defined) and Tenant has
not re-occupied the Premises, Tenant shall have the right, as Tenant's exclusive
remedy, within ten (10) days after the expiration of such one hundred eighty
(180) day period, to terminate this Lease by delivering written notice to
Landlord as Xxxxxx's exclusive remedy, whereupon all rights hereunder shall
cease and terminate thirty (30) days after Xxxxxxxx's receipt of such notice.
12.1.3 Greater Than 180 Days. If the Premises should be so damaged
---------------------
that rebuilding or repairs cannot be completed within one hundred eighty (180)
days, either Landlord or Tenant may terminate this Lease by giving written
notice within ten (10) days after notice from Landlord specifying such time
period of repair; and this Lease shall terminate and the Rent shall be abated
from the date Tenant vacates the Premises. In the event that neither party
elects to terminate this Lease, Landlord shall promptly commence and diligently
prosecute to completion the repairs to the Premises, provided insurance proceeds
are available to repair the damage (except that Landlord shall not be required
to rebuild, repair or replace any Improvements which may have been placed in, on
or about the Premises by or for the benefit of Tenant). If Tenant is required to
vacate all or a portion of the Premises during Landlord's repair thereof, the
Base Rent payable hereunder shall be abated proportionately from the date Tenant
vacates all or a portion of the Premises only to the extent rental abatement
insurance proceeds are received by Landlord and only during the period that the
Premises are unfit for occupancy.
12.2 Tenant's Fault. If the Premises or any portion of the Premises is
--------------
damaged resulting from the negligence or breach of this Lease by Tenant or any
of Tenant's Parties, Rent shall not be reduced during the repair of such damage
and Tenant shall be liable to Landlord for the cost of the repair caused thereby
to the extent such cost is not covered by insurance proceeds.
8.
12.3 Uninsured Casualty. In the event that the Premises or any portion of
------------------
the Premises is damaged to the extent Tenant is unable to use the Premises and
such damage is not covered by insurance proceeds received by Landlord or in the
event that the holder of any indebtedness secured by the Premises requires that
the insurance proceeds be applied to such indebtedness, then Landlord shall have
the right at Landlord's option either (i) to repair such damage as soon as
reasonably possible at Landlord's expense, or (ii) to give written notice to
Tenant within thirty (30) days after the date of the occurrence of such damage
of Landlord's intention to terminate this Lease as of the date of the occurrence
of such damage. In the event Landlord elects to terminate this Lease, Tenant
shall have the right (but not the obligation) within ten (10) days after receipt
of such notice to give written notice to Landlord of Tenant's intention to pay
the cost of repair of such damage, in which event this Lease shall continue in
full force and effect, Landlord shall make such repairs as soon as reasonably
possible and Tenant shall reimburse Landlord for such repairs within fifteen
(15) days after receipt of an invoice from Landlord. If Tenant is required to
vacate all or a portion of the Premises during Landlord's repair thereof, the
Base Rent payable hereunder shall be abated proportionately from the date Tenant
vacates all or a portion of the Premises only to the extent rental abatement
insurance proceeds are received by Landlord and only during the period that the
Premises are unfit for occupancy. If Tenant does not give such notice within the
ten (l0) day period, this Lease shall terminate automatically as of the date
of the occurrence of the damage.
12.4 Waiver. With respect to any damage or destruction which Landlord is
------
obligated to repair or may elect to repair, Tenant waives all rights to
terminate this Lease pursuant to rights otherwise presently or hereafter
accorded by law and not specifically set forth herein.
13. EMINENT DOMAIN.
--------------
13.1 Total Condemnation. If all of the Premises is condemned by eminent
------------------
domain, inversely condemned or sold under threat of condemnation for any public
or quasi-public use or purpose ("Condemned"), this Lease shall terminate as of
the earlier of the date the condemning authority takes title to or possession of
the Premises, and Rent shall be adjusted to the date of termination.
13.2 Partial Condemnation. If any portion of the Premises is Condemned and
--------------------
such partial condemnation materially impairs Tenant's ability to use the
Premises for Tenant's business as reasonably determined by Landlord, Landlord
shall have the option of either (i) relocating Tenant to comparable space within
the Project or (ii) terminating this Lease as of the earlier of the date title
vests in the condemning authority or as of the date an order of immediate
possession is issued and Rent shall be adjusted to the date of termination. If
such partial condemnation does not materially impair Xxxxxx's ability to use the
Premises for the business of Tenant, Landlord shall promptly restore the
Premises to the extent of any condemnation proceeds recovered by Xxxxxxxx,
excluding the portion thereof lost in such condemnation, and this Lease shall
continue in full force and effect except that after the date of such title
vesting Rent shall be adjusted as reasonably determined by Landlord.
13.3 Award. If the Premises are wholly or partially Condemned, Landlord
-----
shall be entitled to the entire award paid for such condemnation, and Tenant
waives any claim to any part of the award from Landlord or the condemning
authority; provided, however, Tenant shall have the right to recover from
Landlord such compensation, if any, as may be specifically awarded to Landlord
in connection with costs in removing Tenant's merchandise, furniture, fixtures,
leasehold improvements and equipment to a new location. No condemnation of any
kind shall be construed to constitute an actual or constructive eviction of
Tenant or a breach of any express or implied covenant of quiet enjoyment.
13.4 Temporary Condemnation. In the event of a temporary condemnation not
----------------------
extending beyond the Term, this Lease shall remain in effect, Tenant shall
continue to pay Rent and Tenant shall receive any award made for such
condemnation except damages to any of Landlord's property. If a temporary
condemnation is for a period which extends beyond the Term, this Lease shall
terminate as of the date of initial occupancy by the condemning authority and
any such award shall be distributed in accordance with the preceding section. If
a temporary condemnation remains in effect at the expiration or earlier
termination of this Lease, Tenant shall pay Landlord the reasonable cost of
performing any obligations required of Tenant with respect to the surrender of
the Premises, unless Xxxxxxxx receives such costs from the condemning authority.
14. DEFAULT
-------
14.1 Events of Defaults. The occurrence of any of the following events
------------------
shall, at Landlord's option, constitute an "Event of Default":
14.1.1 Vacation or abandonment of the Premises for a period of
thirty (30) consecutive days;
14.1.2 Failure to pay Rent on the date when due and the failure
continuing for a period of five (5) days after such payment is due;
14.1.3 Failure to perform Tenant's covenants and obligations
hereunder (except default in the payment of Rent) where such failure continues
for a period of thirty (30) days after written notice from Landlord: provided,
however, if the
9.
nature of the default is such that more than thirty (30) days are reasonably
required for its cure. Tenant shall not be deemed to be in default if Tenant
commences the cure within the thirty (30) day period and diligently prosecutes
such cure to completion;
14.l.4 The making of a general assignment by Xxxxxx for the
benefit of creditors: the filing of a voluntary petition by Xxxxxx or the filing
of an involuntary petition by any of Tenant's creditors seeking the
rehabilitation, liquidation or reorganization of Tenant under any law relating
to bankruptcy, insolvency or other relief of debtors and, in the case of an
involuntary action, the failure to remove or discharge the same within sixty
(60) days of such filing; the appointment of a receiver or other custodian to
take possession of substantially all of Tenant's assets or this leasehold:
Tenant's insolvency or inability to pay Tenant's debts or failure generally to
pay Xxxxxx's debts when due; any court entering a decree or order directing the
winding up or liquidation of Tenant or of substantially all of Tenants assets;
Tenant taking any action toward the dissolution or winding up of Tenant's
affairs: the cessation or suspension of Xxxxxx's use of the Premises; or the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets or this leasehold;
14.1.5 The making of any material misrepresentation or omission by
Tenant or any successor in interest of Tenant in any materials delivered by or
on behalf of Tenant to Landlord or Xxxxxxxx's lender pursuant to this Lease; or
14.l.6 The occurrence of an Event of Default set forth in Section
14.l.4 or l5.l.5 with respect to any guarantor of this Lease, if applicable.
14.2 Remedies.
--------
14.2.1 Termination. In the event of the occurrence of any Event of
-----------
Default, Landlord shall have the right to give a written termination notice to
Tenant and, on the date specified in such notice, this Lease shall terminate
unless on or before such date all arrears of Rent and all other sums payable by
Tenant under this Lease and all costs and expenses incurred by or on behalf of
Landlord hereunder shall have been paid by Tenant and all other Events of
Default at the time existing shall have been fully remedied to the satisfaction
of Landlord.
14.2.l.l Repossession. Following termination, without
------------
prejudice to other remedies Landlord may have, Landlord may (i) peaceably re-
enter the Premises upon voluntary surrender by Tenant or remove Tenant therefrom
and any other persons occupying the Premises, using such legal proceedings as
may be available; (ii) repossess the Premises or relet the Premises or any part
thereof for such term (which may be for a term extending beyond the Term), at
such rental and upon such other terms and conditions as Landlord in Landlord's
sole discretion shall determine, with the right to make reasonable alterations
and repairs to the Premises; and (iii) remove all personal property therefrom.
14.2.l.2 Unpaid Rent. Landlord shall have all the rights
-----------
and remedies of a landlord provided by applicable law, including the right to
recover from Tenant: (a) the worth, at the time of award, of the unpaid Rent
that bad been earned at the time of termination, (b) the worth, at the time of
award, of the amount by which the unpaid Rent that would have been earned after
the date of termination until the time of award exceeds the amount of loss of
rent that Xxxxxx proves could have been reasonably avoided, (c) 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 the loss of rent that Xxxxxx
proves could have been reasonably avoided, and (d) any other amount, and court
costs, necessary to compensate Landlord for all detriment proximately caused by
Xxxxxx's default. The phrase "worth, at the time of award," as used in (a) and
(b) above, shall be computed at the Applicable Interest Rate, and as used in (c)
above, shall be computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one percent
(1%).
14.2.2 Continuation. Even though an Event of Default may
------------
have occurred, this Lease shall continue in effect for so long as Landlord does
not terminate Tenant's right to possession; and Landlord may enforce all of
Landlord's rights and remedies under this Lease, including the right to recover
Rent as it becomes due. Landlord, without terminating this Lease, may, during
the period Tenant is in default, enter the Premises and relet the same, or any
portion thereof, to third parties for Tenant's account and Tenant shall be
liable to Landlord for all costs Landlord incurs in reletting the Premises,
including, without limitation, brokers' commissions, expenses of remodeling the
Premises and like costs. Reletting may be for a period shorter or longer than
the remaining Term. Tenant shall continue to pay the Rent on the date the same
is due. No act by Landlord hereunder, including acts of maintenance,
preservation or efforts to lease the Premises or the appointment of a receiver
upon application of Landlord to protect Xxxxxxxx's interest under this Lease,
shall terminate this Lease unless Landlord notifies Tenant that Landlord elects
to terminate this Lease. In the event that Landlord elects to relet the
Premises, the rent that Landlord receives from reletting shall be applied to the
payment of, first, any indebtedness from Tenant to Landlord other than Base Rent
and Real Property Taxes: second, all costs, including maintenance, incurred by
Landlord in reletting; and, third, Base Rent and Real Property Taxes under this
Lease. After deducting the payments referred to above, any sum remaining from
the rental Landlord receives from reletting shall be held by Landlord and
applied in payment of future Rent as Rent becomes due under this Lease. In no
event, and notwithstanding anything in Section 15 to the contrary, shall Tenant
be entitled to any excess rent received by Landlord. If, on the date Rent is due
under this Lease, the rent received from the reletting is less than the Rent due
on that date. Tenant shall pay to Landlord, in addition to the remaining
10.
Rent due, all costs, including maintenance, which Landlord incurred in reletting
the Premises that remain after applying the rent received from reletting as
provided hereinabove. So long as this Lease is not terminated, Landlord shall
have the right to remedy any default of Tenant, to maintain or improve the
Premises, to cause a receiver to be appointed to administer the Premises and new
or existing subleases and to add to the Rent payable hereunder all of Landlord's
reasonable costs in so doing, with interest at the Applicable Interest Rate from
the date of such expenditure.
14.3 Cumulative. Each right and remedy of Landlord provided for herein or
----------
now or hereafter existing at law, in equity, by statute or otherwise shall be
cumulative and shall not preclude Landlord from exercising any other rights or
remedies provided for in this Lease or now or hereafter existing at law or in
equity, by statute or otherwise. No payment by Tenant of a lesser amount than
the Rent nor any endorsement on any check or letter accompanying any check or
payment as Rent shall be deemed an accord and satisfaction of full payment of
Rent; and Landlord may accept such payment without prejudice to Landlord's right
to recover the balance of such Rent or to pursue other remedies.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, sublet or otherwise
-------------------------
transfer, whether voluntarily or involuntarily or by operation of law, the
Premises or any part thereof without Xxxxxxxx's prior written approval, which
shall not be unreasonably withheld. The merger of Tenant with any other entity
or the transfer of any controlling or managing ownership or beneficial interest
in Tenant, or the assignment of a substantial portion of the assets of Tenant,
whether or not located at the Premises, shall constitute an assignment
hereunder. If Tenant desires to assign this Lease or sublet any or all of the
Premises, Tenant shall give Landlord written notice thereof with copies of all
related documents and agreements associated with the assignment or sublease,
including without limitation, the financial statements of any proposed assignee
or subtenant, forty-five (45) days prior to the anticipated effective date of
the assignment or sublease. Tenant shall pay Landlord's reasonable attorneys'
fees incurred in the review of such documentation plus an administrative fee of
Three Hundred Fifty Dollars ($350.00) for each proposed transfer. Landlord shall
have a period of thirty (30) days following receipt of such notice and all
related documents and agreements to notify Tenant in writing of Landlord's
approval or disapproval of the proposed assignment or sublease. If Landlord
fails to notify Tenant in writing of such election, Landlord shall be deemed to
have approved such assignment or subletting. This Lease may not be assigned by
operation of law. Any purported assignment or subletting contrary to the
provisions hereof shall be void and shall constitute an Event of Default
hereunder. If Xxxxxx receives rent or other consideration for any such transfer
in excess of the Rent, or in case of the sublease of a portion of the Premises,
in excess of such Rent that is fairly allocable to such portion, after
appropriate adjustments to assure that all other payments required hereunder are
appropriately taken into account, Tenant shall pay landlord fifty percent (50%)
of the difference between each such payment of rent or other consideration and
the Rent required hereunder. During any period in which an Event of Default (as
defined in Section 14.1) remains uncured, Landlord may, without waiving any
other rights or remedies, collect rent from the assignee, subtenant or occupant
and apply the net amount collected to the Rent herein reserved and apportion any
excess rent so collected in accordance with the terms of the preceding sentence.
Tenant shall continue to be liable as a principal and not as a guarantor or
surety to the same extent as though no assignment or subletting had been made.
Landlord may consent to subsequent assignments or subletting of this Lease or
amendments or modifications to the Lease by assignees of Tenant without
notifying Tenant or any successor of Tenant and without obtaining their consent.
No permitted transfer shall be effective until there has been delivered to
Landlord a counterpart of the transfer instrument in which the transferee agrees
to be and remain jointly and severally liable with Tenant for the payment of
Rent pertaining to the Premises and for the performance of all the terms and
provisions of this Lease relating thereto arising on or after the date of the
transfer. Subject to the provisions hereof and provided Xxxxxxxx receives thirty
(30) days prior written notice and a true and correct copy of the assignment
instrument. Landlord hereby consents to the assignment of Xxxxxx's interest in
and to this Lease to any wholly owned subsidiary of Tenant.
16. ESTOPPEL ATTORNMENT AND SUBORDINATION.
-------------------------------------
l6.l Estoppel. Within ten (l0) days after request by Landlord, Tenant
--------
shall deliver an Estoppel certificate duly executed (and acknowledged if
required by any lender), in the form attached hereto as Exhibit G, or in such
---------
other form as may be acceptable to the lender, which form may include some or
all of the provisions contained in Exhibit G, to any proposed mortgagee,
---------
purchaser or Landlord. Tenant's failure to deliver said statement in such time
period shall be an Event of Default hereunder and shall be conclusive upon
Tenant that (a) this Lease is in full force and effect, without modification
except as may be represented by Landlord; (b) there are no uncured defaults in
Landlord's performance and Tenant has no right of offset, counterclaim or
deduction against Rent hereunder, and (c) no more than one month's Base Rent has
been paid in advance. If any financier should require that this Lease be amended
(other than in the description of the Premises, the Term, the Permitted Use, the
Rent or as will substantially, materially and adversely affect the rights of
Tenant), Landlord shall give written notice thereof to Tenant, which notice
shall be accompanied by a Lease supplement embodying such amendments. Tenant
shall, within ten (10) days after the receipt of Landlord's notice, meet and
confer with Landlord in good faith with respect to such proposed amendments.
l6.2 Subordination. This Lease shall be subject and subordinate to all
-------------
ground leases and the lien of all mortgages and deeds of trust which now or
hereafter affect the Premises or the Project or Landlord's interest therein, and
all amendments thereto, all without the necessity of Tenant's executing further
instruments to effect such subordination. If requested, Xxxxxx shall execute and
deliver to Landlord within ten (10) days after Xxxxxxxx's request whatever
documentation that may
11.
reasonably be required to further effect the provisions of this paragraph. With
respect to any new mortgage or deed of trust encumbering the Premises after the
date of this Lease, Landlord shall use its best efforts to obtain from such
mortgagee or beneficiary under the deed of trust a non-disturbance agreement in
such party's usual and customary form protecting the interest of Tenant
hereunder.
l6.3 Attornment. In the event of a foreclosure proceeding, the exercise
----------
of the power of sale under any mortgage or deed of trust or the termination of a
ground lease, Tenant shall, if requested, attorn to the purchaser thereupon and
recognize such purchaser as Landlord under this Lease; provided, however,
Xxxxxx's obligation to attorn to such purchaser shall be conditioned upon
Xxxxxx's receipt of a non-disturbance agreement protecting the interest of
Tenant hereunder.
17. MISCELLANEOUS
-------------
17.1 General.
-------
17.1.1 Entire Agreement. This Lease sets forth all the agreements
----------------
between Landlord and Tenant concerning the Premises; and there are no
agreements either oral or written other than as set forth herein.
17.1.2 Time of Essence. Time is of the essence of this Lease.
---------------
17.13 Attorneys' Fees. In any action or proceeding which either
---------------
party brings against the other to enforce its rights hereunder, the unsuccessful
party shall pay all costs incurred by the prevailing party, including reasonable
attorneys' fees, which amounts shall be a part of the judgment in said action or
proceeding.
17.1.4 Severability. If any provision of this Lease or the
------------
application of any such provision shall be held by a court of competent
jurisdiction to be invalid, void or unenforceable to any extent, the remaining
provisions of this Lease and the application thereof shall remain in full force
and effect and shall not be affected, impaired or invalidated.
17.1.5 Law. This Lease shall be construed and enforced in
---
accordance with the laws of the state in which the Premises are located.
17.1.6 No Option. Submission of this Lease to Tenant for
---------
examination or negotiation does not constitute an option to lease, offer to
lease or a reservation of, or option for, the Premises; and this document shall
become effective and binding only upon the execution and delivery hereof by
Landlord and Tenant.
17.1.7 Successors and Assigns. This Lease shall be binding upon and
----------------------
inure to the benefit of the successors and assigns of Landlord and, subject to
compliance with the terms of Section 15, Tenant.
17.1.8 Third Party Beneficiaries. Nothing herein is intended to
-------------------------
create any third party benefit.
17.1.9 Memorandum of Lease. Tenant shall not record this Lease or a
-------------------
short form memorandum hereof without Landlord's prior written consent.
17.1.10 Agency. Partnership or Joint Venture. Nothing contained
------
herein nor any acts of the parties hereto shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture by the parties hereto
or any relationship other than the relationship of landlord and tenant.
17.1.11 Merger. The voluntary or other surrender of this Lease by
------
Tenant or a mutual cancellation thereof or a termination by Landlord shall not
work a merger and shall, at the option of Landlord, terminate all or any
existing subtenancies or may, at the option of Landlord, operate as an
assignment to Landlord of any or all of such subtenancies.
17.1.12 Headings. Section headings have been inserted solely as a
--------
matter of convenience and are not intended to define or limit the scope of any
of the provisions contained therein.
17.2 Signs. All signs and graphics of every kind visible in or from
-----
public view or the exterior of the Premises shall be subject to Landlord's prior
written approval and shall be subject to any applicable governmental laws,
ordinances, and regulations and in compliance with Landlord's signage program.
Tenant shall remove all such signs and graphics prior to the termination of this
Lease. Such installations and removals shall be made in such manner as to avoid
injury or defacement of the Premises; and Tenant shall repair any injury or
defacement, including without limitation, discoloration caused by such
installation or removal.
17.3 Waiver. No waiver of any default or breach hereunder shall be
------
implied from any omission to take action on account thereof, notwithstanding any
custom and practice or course of dealing. No waiver by either party of any
provision under this Lease shall be effective unless in writing and signed by
such party. No waiver shall affect any default other than
12.
the default specified in the waiver and then such waiver shall be operative only
for the time and to the extent therein stated. Waivers of any covenant shall not
be construed as a waiver of any subsequent breach of the same.
17.4 Financial Statements. Tenant shall provide to any lender, purchaser
--------------------
or Landlord, within ten (10) days after request, a current, accurate, certified
financial statement for Tenant and Xxxxxx's business prepared under generally
accepted accounting principles consistently applied and such other certified
financial information as may be reasonably required by Landlord, purchaser or
any lender of either.
17.5 Limitation of Liability. The obligations of Landlord under this Lease
-----------------------
are not personal obligations of the individual partners, directors, officers,
shareholders, agents or employees of Landlord; and Tenant shall look solely to
the Premises for satisfaction of any liability of Landlord and shall not look to
other assets of Landlord nor seek recourse against the assets of the individual
partners, directors, officers, shareholders, agents or employees of Landlord.
Whenever Landlord transfers its interest, Landlord shall be automatically
released from further performance under this Lease and from all further
liabilities and expenses hereunder and the transferee of Landlord's interest
shall assume all liabilities and obligations of Landlord hereunder from the date
of such transfer.
17.6 Notices. All notices to be given hereunder shall be in writing and
-------
mailed postage prepaid by certified or registered mail, return receipt
requested, or delivered by personal or courier delivery, or sent by facsimile
(immediately followed by one of the preceding methods), to Landlord's Address
and Xxxxxx's Address, or to such other place as Landlord or Tenant may designate
in a written notice given to the other party. Notices shall be deemed served
upon the earlier of receipt or three (3) days after the date of mailing.
17.7 Brokerage Commission. Landlord shall pay a brokerage commission to
--------------------
Broker in accordance with a separate agreement between Landlord and Broker.
Tenant warrants to Landlord that Xxxxxx's sole contact with Landlord or with the
Premises in connection with this transaction has been directly with Landlord and
Broker, and that no other broker or finder can properly claim a right to a
commission or a finder's fee based upon contacts between the claimant and
Tenant. Xxxxxx agrees to indemnify and hold Landlord harmless from any claims or
liability, including reasonable attorneys' fees, in connection with a claim by
any person for a real estate broker's commission, finder's fee or other
compensation based upon any statement, representation or agreement of Tenant,
and Xxxxxxxx agrees to indemnify and hold Tenant harmless from any such claims
or liability, including reasonable attorneys' fees, based upon any statement,
representation or agreement of Landlord.
17.8 Authorization. Each individual executing this Lease on behalf of
-------------
Tenant represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of Tenant and that such execution is binding upon
Xxxxxx.
17.9 Holding Over Surrender.
----------------------
17.9.1 Holding Over. If Tenant holds over the Premises or any part
------------
thereof after expiration of the Term, such holding over shall constitute a
month-to-month tenancy, at a rent equal to one hundred twenty-five percent
(125%) of the Base Rent in effect immediately prior to such holding over and
shall otherwise be on all the other terms and conditions of this Lease. This
paragraph shall not be construed as Landlord's permission for Tenant to hold
over. Acceptance of Rent by Landlord following expiration or termination shall
not constitute a renewal of this Lease or extension of the Term except as
specifically set forth above. If Xxxxxx fails to surrender the Premises upon
expiration or earlier termination of this Lease. Tenant shall indemnify and hold
Landlord harmless from and against all loss or liability resulting from or
arising out of Tenant's failure to surrender the Premises, including, but not
limited to, any amounts required to be paid to any tenant or prospective tenant
who was to have occupied the Premises after the expiration or earlier
termination of this Lease and any related attorneys' fees and brokerage
commissions.
l7.9.2 Surrender. Upon the termination of this Lease or Tenant's
---------
right to possession of the Premises, Xxxxxx will surrender the Premises,
together with all keys, in good condition and repair, reasonable wear and tear
excepted. Conditions existing because of Tenant's failure to perform
maintenance, repairs or replacements shall not be deemed "reasonable wear and
tear."
17.l0 Joint and Several. If Tenant consists of more than one person, the
-----------------
obligation of all such persons shall be joint and several.
17.1l Covenants and Conditions. Each provision to be performed by Tenant
------------------------
hereunder shall be deemed to be both a covenant and a condition.
l7.l2 Addenda. The Addenda attached hereto, if any, and identified with
-------
this Lease are incorporated herein by this reference as if fully set forth
herein.
13.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
set forth above.
"Landlord" "Tenant"
CATELLUS DEVELOPMENT CORPORATION, MOHAWK INDUSTRIES. INC.,
a Delaware corporation a Georgia corporation
By: /s/ [SIGNATURE ILLEGIBLE] By: /s/ [SIGNATURE ILLEGIBLE]
---------------------------- ----------------------------
Its: VP Its: PRESIDENT
--------------------------- ------------------------
Date: 12-4-95 Date: 11-28-95
--------------------------- ------------------------
ADDENDUM TO LEASE
-----------------
THIS ADDENDUM TO LEASE ("Addendum") is attached to and constitutes an
integral part of the Lease between CATELLUS DEVELOPMENT CORPORATION, as
Landlord, and MOHAWK INDUSTRIES, INC., as Tenant. The terms of this Addendum
shall be incorporated in the Lease for all purposes. In the event of a conflict
between the provisions of the Lease and the provisions of this Addendum, this
Addendum shall control.
THE FOLLOWING NEW SECTIONS ARE HEREBY ADDED TO THE LEASE WHICH STATE IN THEIR
ENTIRETY AS FOLLOWS:
18. Force Majeure Event. For purposes of this Lease, the term "Force Majeure
-------------------
Event" shall mean and include the following: any delay caused by any action,
inaction, order, ruling, moratorium, regulation, statute, condition or other
decision of any governmental agency having jurisdiction over any portion of the
Project, over the construction anticipated to occur thereon or over any uses
thereof, or by fire, flood, inclement weather, strikes, lockouts or other labor
or industrial disturbance (whether or not on the part of agents or employees of
either party hereto engaged in the construction of the Premises), civil
disturbance, order of any government, court or regulatory body claiming
jurisdiction or otherwise, act of public enemy, war, riot, sabotage, blockade,
embargo, failure or inability to secure materials, supplies or labor through
ordinary sources by reason of shortages or priority, discovery of hazardous or
toxic materials, earthquake, or other natural disaster, or any cause whatsoever
beyond the reasonable control (excluding financial inability) of the party whose
performance is required, or any of its contractors or other representatives,
whether or not similar to any of the causes hereinabove stated.
19. CPI Adjustment. Effective as of the first day of the thirty-first (31st)
--------------
month of the Term (the "CPI Adjustment Date"), the Base Rent in effect
immediately before the CPI Adjustment Date shall be increased, in accordance
with the percentage increase, if any, in the Consumer Price Index, to an amount
which is equal to the product of (i) the Index (as hereinafter defined) for the
third month preceding the CPI Adjustment Date, multiplied by (ii) the initial
Base Rent set forth in the Basic Lease Information, divided by (iii) the Basic
Index (as hereinafter defined); provided, however, in no event shall the Base
Rent (as adjusted) in effect immediately prior to the CPI Adjustment Date be
decreased, nor shall it be increased as a result of a CPI adjustment by more
than six percent (6%) per Lease Year, compounded annually. The "Index" shall
mean the Consumer Price Index, All Items, 1982-1984 = 100, All Urban Consumers,
for the Los Angeles/Riverside/Anaheim Area, as published by the United States
Department of Labor, Bureau of Labor Statistics, or its successor index, and the
"Basic Index" shall mean the Index published for the third month preceding the
Commencement Date. The adjusted Base Rent shall be rounded to the nearest $1.00.
If the Index required for the calculation specified in this subsection is not
available on the CPI Adjustment Date in question, Tenant shall continue to pay
the same amount of Base Rent payable during the period immediately preceding the
CPI Adjustment Date until the Index is available and the necessary calculation
is made. As soon as such calculation is made, Tenant shall immediately pay to
Landlord the amount of any underpayment of Base Rent for the month(s) that may
have elapsed. In the event the compilation or publication of the Index shall be
transferred to any other governmental department, bureau or agency or shall be
discontinued, the index most nearly the same as the Index shall be used to make
such calculation.
15.
20. Options to Extend.
-----------------
20.1 Terms of Options. Provided (i) Tenant is not in default under the
----------------
terms of this Lease at the time each renewal option is exercised or at the
commencement of the applicable Extension Term (as hereinafter defined), (ii)
Tenant is occupying at least ninety percent (90%) of the Premises, including any
expansion space, and (iii) Landlord has not given more than two (2) notices of
default in any twelve (12) month period for nonpayment of monetary obligations,
Tenant shall have two (2) options to renew this Lease for an additional period
of sixty (60) months each (the "First and Second Extension Terms"). The
Extension Terms shall be on all the terms and conditions of this Lease, except
that Landlord shall have no additional obligation for free rent, leasehold
improvements or for any other tenant inducements for the Extension Terms. Base
Rent shall be increased (but not decreased) as set forth below. There shall be
no additional extension terms beyond the Extension Terms set forth herein.
Tenant must exercise its options to extend this Lease by giving Landlord written
notice of its election to do so not less than one hundred eighty (180) days
prior to the end of the initial Term, or the First Extension Term, as
applicable. Any notice not given in a timely manner shall be void, and Tenant
shall be deemed to have waived its extension rights. The extension options set
forth herein are personal to Tenant and shall not be included in any assignment
of this Lease.
20.2 Base Rent During First Extension Term. Effective as of the first day
-------------------------------------
of the First Extension Term, and on the first day of the thirty-first (31st)
month thereafter (the "First Extension CPI Adjustment Date(s)"), the monthly
Base Rent shall be increased in accordance with the percentage increase, if any,
in the Consumer Price Index, calculated in the manner set forth in Section 19;
provided, however, in no event shall the Base Rent (as adjusted) in effect
immediately prior to the applicable First Extension CPI Adjustment Date be
decreased, nor shall it be increased as a result of a CPI adjustment by more
than six percent (6%) per Lease Year, compounded annually.
20.3 Base Rent During Second Extension Term. The monthly Base Rent payable
--------------------------------------
for the first thirty (30) months of the Second Extension Term shall be increased
(but not decreased) to 98% of the fair market rental rate ("Market Rent") to be
determined as follows:
20.3.1 Agreement on Base Rent. Landlord and Tenant shall have thirty
----------------------
(30) days after Xxxxxxxx receives the exercise notice in which to agree on the
Base Rent during the Second Extension Term. Notwithstanding anything in this
Section 20.3 to the contrary, in no event shall the Base Rent for the Second
Extension Term be less than the Base Rent in effect immediately prior to the
Second Extension Term.
20.3.2 Appraisal. If Landlord and Tenant are unable to agree upon the
---------
Base Rent for the Second Extension Term within such thirty (30) day period, then
within fifteen (15) days after the expiration of the thirty (30) day period,
each party, by giving notice to the other party, shall appoint a real estate
appraiser who is a current member of the American Institute of Real Estate
Appraisers, with at least five (5) years of experience appraising building space
comparable to the Premises in the city and county where the Premises is located
to determine the Market Rent. Market Rent shall mean the monthly amount per
rentable square foot in the Premises that a willing, non-equity new tenant would
pay and a willing landlord would accept at arm's length for space in a
comparable building or buildings, with comparable tenant improvements, in a
comparable location, giving appropriate consideration to monthly rental rates
per rentable square foot, the presence or absence of rent escalation clauses
such as operating expense and tax pass-throughs, length of lease term, size and
location of premises being leased and other
16.
generally applicable terms and conditions of tenancy for a similar building or
buildings. If the two (2) appraisers are unable to agree on the Market Rent for
the Second Extension Term within twenty (20) days, they shall select a third
appraiser meeting the qualifications stated in this Section within five (5) days
after the last day the two (2) appraisers are given to set the Market Rent for
the Second Extension Term. The third appraiser, however selected, shall be a
person who has not previously acted in any capacity for either party. Within
twenty (20) days after the selection of the third appraiser, a majority of the
appraisers shall set the Market Rent for the Second Extension Term. If a
majority of the appraisers is unable to set the Market Rent within the twenty
(20) day period, the two (2) closest appraisals shall be added together and
their total divided by two (2). The resulting quotient shall be the Market Rent
for the first thirty (30) months of the Second Extension Term. Each party shall
be responsible for the costs, charges and fees of the appraiser appointed by
that party plus one-half of the cost of the third appraiser.
20.3.3 Amendment of Lease. Immediately after the Base Rent is
------------------
determined pursuant to this Section 20.3, Landlord and Tenant shall execute an
amendment to this Lease stating the new Base Rent in effect.
20.3.4 Base Rent Increase During Second Extension Term. Effective
-----------------------------------------------
as of the first day of the thirty-first (31st) month of the Second Extension
Term (the "Second Extension CPI Adjustment Date"), the monthly Base Rent shall
be increased in accordance with the percentage increase, if any, in the Consumer
Price Index, calculated in the manner set forth in Section 19; except that the
Index shall be multiplied by the monthly Base Rent payable during the first
thirty (30) months of the Second Extension Term, and the Basic Index shall mean
the Index published for the third month preceding the commencement of the Second
Extension Term; provided, however, in no event shall the Base Rent in effect
after the Second Extension CPI Adjustment Date be less than the Base Rent in
effect immediately preceding the Second Extension CPI Adjustment Date.
LANDLORD'S INITIALS ILLEGIBLE TENANT'S INITIALS JL
----------- --------
17.
EXHIBIT A
[PLAN APPEARS HERE]
EXHIBIT B
---------
WORK LETTER
-----------
Tenant Improvements.
-------------------
1.1 Landlord shall construct or cause to be constructed in and to the Premises,
at Landlord's cost and expense, not to exceed One Hundred Eighty Thousand
Dollars ($180,000.00), certain tenant improvements, including space planning,
permits and related costs (the "Tenant Improvements"), substantially in
accordance with the space plan or other appropriate exhibit (the "Space Plan")
attached hereto, marked Exhibit B-1 and made a part hereof and in accordance
-----------
with Landlord's current building standards. If said Exhibit is not attached, the
Space Plan shall be prepared by Landlord and submitted to Tenant for approval,
which approval shall be given within five (5) days following receipt thereof,
and evidenced by Xxxxxx's signature thereon. A failure by Xxxxxx to respond
within said five (5) day period shall be deemed approval. Upon approval by both
parties, the Space Plan shall be deemed incorporated herein by reference,
although not attached hereto.
1.2 The Tenant Improvements shall include costs approved by Landlord and
associated with the design, permit process and construction (including, a fee
equal to five percent (5%) of the total cost thereof as reimbursement for the
expense of Landlord's administration and coordination) of the Tenant
Improvements, including but not limited to, architect's fees, plan check and
permit fees, and fees for utility and telephone service hook-ups. The Tenant
Improvements shall not include any improvements which Landlord, in its sole
discretion, considers specialized, or any equipment or trade fixtures of Tenant,
nor any improvements not shown on the Space Plan which Tenant may desire or
governing agencies may require.
1.3 In the event that Tenant desires any change in the Tenant Improvements
which is reasonable and practical (which shall be conclusively determined by the
Architect), such change may only be requested by the delivery to Landlord by
Tenant of a proposed written "Change Order" specifically setting forth the
requested change. Landlord shall have five (5) business days from the receipt of
the proposed Change Order to provide Tenant with the Architect's disapproval of
the proposed change stating the reason(s) for such disapproval, or if the
Architect approves the proposed change, the following items: (i) a summary of
any increase in the cost caused by such change (the "Change Order Cost"), (ii) a
statement of the number of days of any delay caused by such proposed change (the
"Change Order Delay"), and (iii) a statement of the cost of the Change Order
Delay (the "Change Order Delay Expense"), which Change Order Delay Expense shall
be the product of the number of days of delay multiplied by $2,500.00. Tenant
shall then have three (3) business days to approve the Change Order Cost, the
Change Order Delay and the Change Order Delay Expense. If Xxxxxx gives timely
written notice of approval of the Change Order Cost, the Change Order Delay and
the Change Order Delay Expense, Landlord shall promptly execute the Change Order
and cause the appropriate changes to the Plans and Specifications to be made.
Tenant's approval shall include full payment of the Change Order Cost and
Change Order Delay Expense. If Xxxxxx fails to respond to Landlord within said
three (3) business day period, the Change Order Cost, the Change Order Delay and
the Change Order Delay Expense shall be deemed disapproved by Xxxxxx and
Landlord shall have no further obligation to perform any work set forth in the
proposed Change Order. The Change Order Cost shall include all costs associated
with the Change Order, including, without limitation, architectural fees and
construction costs, as conclusively determined by the Architect and the General
Contractor, respectively, together with a five percent (5%) fee of these costs
as reimbursement for the expense of administration and coordination of such
Change Order by Landlord. The Change Order Delay shall include all delays caused
by the Change Order, including, without limitation, all architectural and
construction delays, as conclusively determined by the Architect and the General
Contractor, respectively.
1.4 Landlord hereby to assign to Tenant, upon request, the benefit of any and
all contractor's and manufacturer's warranties received by Landlord in
connection with the construction of the Tenant Improvements.
LANDLORD'S INITIALS ILLEGIBLE TENANT'S INITIALS ______
----------
EXHIBIT B-1
-----------
SPACE PLAN
----------
EXHIBIT C
---------
COMMENCEMENT DATE MEMORANDUM
----------------------------
With respect to that certain lease ("Lease") dated ___________, 19
__, between __________________, a_________________("Tenant"), and Catellus
Development Corporation, a Delaware corporation ("Landlord"), whereby Landlord
leased to Tenant and Tenant leased from Landlord approximately _______ rentable
square feet of the building located at ________________________("Premises"),
Tenant hereby acknowledges and certifies to Landlord as follows:
(1) Landlord delivered possession of the Premises to Tenant in a
Substantially completed condition on _____________________
("Possession Date");
(2) The Commencement Date is _________________________
(3) The Premises contain ________ square feet of space; and
(4) Tenant has accepted and is currently in possession of the Premises
and the Premises are acceptable for Tenant's use.
IN WITNESS WHEREOF, this Commencement Date Memorandum is executed this _____
day of _____________, 199_.
"Tenant"
_______________________________
a _____________________________
By: ___________________________
Its: ________________________
By: ___________________________
Its: ________________________
[LOGO] CERTIFICATE OF INSURANCE ISSUE DATE (MM/DD/YY)
--------------------------------------------------------------------------------
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS
NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND,
EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
--------------------------------------------------------------------------------
COMPANIES AFFORDING COVERAGE
(Must have "Best" Rating of "A, B" or better)
--------------------------------------------------------------------------------
COMPANY
LETTER A
--------------------------------------------------------------------------------
----------------------------------
COMPANY
INSURED LETTER B
--------------------------------------------------------------------------------
COMPANY
LETTER C
--------------------------------------------------------------------------------
COMPANY D
LETTER
--------------------------------------------------------------------------------
COMPANY E
LETTER
--------------------------------------------------------------------------------------------------------------------------------
COVERAGES
THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE SEEN ISSUED
TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH
RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE
AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS, AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN
REDUCED BY PAID CLAIMS.
--------------------------------------------------------------------------------------------------------------------------------
CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION
LTR DATE (MM/DD/YY) DATE (MM/DD/YY) DATE (MM/DD/YY)
--------------------------------------------------------------------------------------------------------------------------------
GENERAL LIABILITY
[X] COMMERICAL GENERAL LIABILITY
[_] [_] CLAIMS MADE [X] OCCURRENCE
[X] OWNER'S & CONTRACTORS PROTECTIVE
[X] Railroad Prot. Liab.
[X] X C 11 Included
--------------------------------------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY
[X] ANY AUTO
[_] ALL DAMAGED AUTOS
[_] SCHEDULED AUTOS
[X] HIRED AUTOS
[X] NON-OWNED AUTOS
[X] GARAGE LIABILITY
[_] ___________________
--------------------------------------------------------------------------------------------------------------------------------
EXCESS LIABILITY
[X] Following Form
[_] OTHER THAN UMBRELLA FORM
--------------------------------------------------------------------------------------------------------------------------------
WORKERS COMPENSATION
AND
EMPLOYERS' LIABILITY
--------------------------------------------------------------------------------------------------------------------------------
OTHER
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
CO TYPE OF INSURANCE ALL LIMITS IN THOUSANDS
LTR
--------------------------------------------------------------------------------------------------------------------
GENERAL LIABILITY GENERAL AGGREGATE $ 2,000
--------------------------------------------------
[X] COMMERICAL GENERAL LIABILITY PRODUCTS -COMP/OPS AGGREGATE $ 2,000
--------------------------------------------------
[_] [_] CLAIMS MADE [X] OCCURRENCE PERSONAL & ADVERTISING [ILLEGIBLE] $ 2,000
--------------------------------------------------
[X] OWNER'S & CONTRACTORS PROTECTIVE EACH OCCURRENCE $ 2,000
--------------------------------------------------
[X] Railroad Prot. Liab. FIRE DAMAGE (ANY ONE FIRE) $ 50
--------------------------------------------------
[X] X C 11 Included MEDICAL EXPENSE (ANY ONE PERSON) $ 5
--------------------------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY
[X] ANY AUTO CK $ 2,000
--------------------------------------------------
[_] ALL DAMAGED AUTOS BODILY
INJURY
[_] SCHEDULED AUTOS PER PERSON $
--------------------------------------------------
[X] HIRED AUTOS BODILY
INJURY
[X] NON-OWNED AUTOS PER
ACCIDENT
--------------------------------------------------
[X] GARAGE LIABILITY PROPERTY
DAMAGE $
[_] ___________________
--------------------------------------------------------------------------------------------------------------------
EXCESS LIABILITY EACH AGGREGATE
OCCURRENCE
[X] Following Form $ $
[_] OTHER THAN UMBRELLA FORM
--------------------------------------------------------------------------------------------------------------------
STATUTORY
---------------------------------------------------
WORKERS COMPENSATION $ 1,000 (EACH ACCIDENT)
AND $ 1,000 ([ILLEGIBLE] POLICY
EMPLOYERS' LIABILITY $ 1,000 ([ILLEGIBLE]- EACH EMPLOYEE
--------------------------------------------------------------------------------------------------------------------
OTHER
--------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/RESTRICTIONS/SPECIAL ITEMS
Certificate holder is named as additional insured as respects:
___________________________________________________________________ (Location)
Refer to Additional Insured endorsement attached. Aggregate limits apply per
location.
CERTIFICATE HOLDER CANCELLATION
CATELLUS DEVELOPMENT CORPORATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
0000 X. XXXXXXXXXXXX XXXXX, XXXXX 000 XXXXXXXXXX XXXX THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO
ANAHEIM, CA 92806 MAIL 60 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
ATTN: ASSET MANAGEMENT LEFT
FAX (000) 000-0000 ____________________________________________________________________
AUTHORIZED REPRESENTATIVE
XXXXX EVIDENCE OF PROPERTY INSURANCE DATE (MM/DD/YY)
THIS IS EVIDENCE THAT INSURANCE AS IDENTIFIED BELOW HAS BEEN ISSUED, IS IN
FORCE, AND CONVEYS ALL THE RIGHTS AND PRIVILEGES AFFORDED UNDER THE POLICY.
(Must have "Best" Rating of "A 8" OR Better
[ILLEGIBLE] Company
CODE SUB-CODE
[ILLEGIBLE] LOAN NUMBER POLICY NUMBER
EFFECTIVE DATE (MM/DD/YY) OPERATION DATE (MM/DD/YY) CONT. UNTIL
TERMINATED
[ILLEGIBLE]
[ILLEGIBLE] REPLACES FROM EVIDENCE DATED:
------------------------------------------------------------------------------------------------------------------------
PROPERTY INFORMATION
LOCATION/DESCRIPTION
(provide address of leased premises)
--------------------------------------------------------------------------------------------------------------------------
COVERAGE INFORMATION
COVERAGE INFORMATION AMOUNT OF INSURANCE DEDUCTABLE
Business Personal Property (including Tenants Improvements
and Betterments, if applicable) $ ______________ $ _____________
Business Income (100% contribution) $ ______________ $ _____________
Boiler & Machinery (if applicable) $ ______________ $ _____________
Warehousers legal liability (if applicable) $ ______________ $ _____________
Replacement Cost Coverage, special form
--------------------------------------------------------------------------------------------------------------------------
REMARKS (Including Special Conclusions)
Waiver of Subrogation provision included (per lease)
--------------------------------------------------------------------------------------------------------------------------
CANCELLATION
THE POLICY IS SUBJECT TO THE PREMIUMS, FORMS, AND RULES IN EFFECT FOR EACH
POLICY PERIOD. SHOULD THE POLICY BE TERMINATED, THE COMPANY WILL GIVE THE
ADDITIONAL INTEREST IDENTIFIED BELOW 60 DAYS WRITTEN NOTICE, AND WILL SEND
NOTIFICATION OF ANY CHANGES TO THE POLICY THAT WOULD AFFECT THAT INTEREST.
IN ACCORDANCE WITH THE POLICY PROVISIONS OR AS REQUIRED BY LAW.
--------------------------------------------------------------------------------------------------------------------------
ADDITIONAL INTEREST
NAME AND ADDRESS NATURE OF INTEREST
CATELLUS DEVELOPMENT CORPORATION [ILLEGIBLE] ADDITIONAL [ILLEGIBLE]
0000 X. XXXXXXXXXXXX XXXXX, XXXXX 000
XXXXXXX, XX 00000 LOSS XXXXX (OTHERS) Landlord
-----------------------------------------------------------------------------
ATTN: ASSET MANAGEMENT SIGNATURE OF AUTHORIZED AGENT OF COMPANY
FAX 714) 000-0000
XXXXX 27 (2/88) X XXXXX CORPORATION 19[ILLEGIBLE]
--------------------------------------------------------------------------------------------------------------------------
EXHIBIT E
----------
PROHIBITED USES
---------------
The following types of operations and activities are expressly prohibited on the
Premises:
1. automobile/truck maintenance, repair or fueling;
2. battery manufacturing or reclamation;
3. ceramics and jewelry manufacturing or finishing;
4. chemical (organic or inorganic) storage, use or manufacturing;
5. drum recycling;
6. dry cleaning;
7. electronic components manufacturing;
8. electroplating and metal finishing;
9. explosives manufacturing, use or storage;
10. hazardous waste treatment, storage, or disposal;
11. leather production, tanning or finishing;
12. machinery and tool manufacturing;
13. medical equipment manufacturing and hospitals;
14. metal shredding, recycling or reclamation;
15. metal smelting and refining;
16. mining;
17. paint, pigment and coating operations;
18. petroleum refining;
19. plastic and synthetic materials manufacturing;
20. solvent reclamation;
21. tire and rubber manufacturing;
22. above- and/or underground storage tanks; and
23. residential use or occupancy.
EXHIBIT F
---------
CORRECTION ITEMS
----------------
EXHIBIT G
---------
TENANT ESTOPPEL CERTIFICATE
---------------------------
To: Bank of America National Trust
and Savings Association ("Bank")
Real Estate Industries Division No. _______
____________________________________
____________________________________
Attn: ______________________________
Re: Lease Dated: __________________
Current Landlord: __________________
Current Tenant: __________________
Square Feet: Approximately ____
Floor(s): __________________
Located at: __________________
____________ ("Tenant") hereby certifies that as of ________________, 199_.
1. Tenant is the present owner and holder of the tenant's interest under
the lease described above, as it may be amended to date (the "Lease") with
________________ as Landlord (who is called "Borrower" for the purposes of this
Certificate). (USE THE NEXT SENTENCE IF THE LANDLORD OR TENANT NAMED IN THE
------------------------------------------------------------
LEASE IS A PREDECESSOR TO THE CURRENT LANDLORD OR TENANT.) [The original
--------------------------------------------------------
landlord under the Lease was _____________________, and the original tenant
under the Lease was ________________.] The Lease covers the premises commonly
known as ________________ (the "Premises") in the building (the "Building") at
the address set forth above.
(CHOOSE ONE OF THE FOLLOWING SECTION 2(a)s BELOW)
-------------------------------------------------
[2. (a) A true, correct and complete copy of the Lease (including all
modifications, amendments, supplements, side letters, addenda and riders of and
to it) is attached to this Certificate as Exhibit A.]
[2 (a) The attached Exhibit A accurately identifies the Lease and all
---------
modifications, amendments, supplements, side letters, addenda and riders of and
to it.]
(b) (IF APPLICABLE) [The Lease provides that in addition to the
-------------
Premises, Tenant has the right to use or rent ______ [assigned/unassigned]
parking spaces near the Building or in the garage portion of the building during
the term of the Lease.]
(c) The term of the Lease commenced on _________ 199__ and will
expire on ______________, ___, including any presently exercised option or
renewal term. (CHOOSE ONE OF THE FOLLOWING TWO SENTENCES.) [Tenant has no option
-----------------------------------------
or right to renew, extend or cancel the Lease, or to lease additional space in
the Premises or Building, or to use any parking (IF APPLICABLE) [other than that
-------------
specified in Section 2(b) above].] [Except as specified in Paragraph(s) _______
of the Lease (copy attached), Tenant has no option or right to renew, extend or
cancel the Lease, or to lease additional space in the Premises or Building, or
to use any parking (IF APPLICABLE) [other than that specified in Section 2(b)
-------------
above].]
(CHOOSE ONE OF THE FOLLOWING SECTION 2(d)s)
-----------------------------------------
[(d) Tenant has no option or preferential right to purchase all or
any part of the Premises (or the land of which the Premises are a part). Tenant
has no right or interest with respect to the Premises or the Building other than
as Tenant under the Lease.]
[(d) Except as specified in Paragraph(s) ___________ of the Lease
(copy attached), Tenant has no option or preferential right to purchase all or
any part of the Premises (or the land of which the Premises are a part). Except
for the foregoing, Xxxxxx has no right or interest with respect to the Premises
or the Building other than as Tenant under the Lease.]
(e) The annual minimum rent currently payable under the Lease is
$___________ and such rent has been paid through _____________, 199__. (IF
--
APPLICABLE) [The annual percentage rent currently payable under the Lease is at
----------
the rate of _______ and such rent has been paid through ______________, 199_.]
(f) (IF APPLICABLE) [Additional rent is payable under the Lease
-------------
for (i) operating, maintenance or repair expenses, (ii) property taxes, (iii)
consumer price index cost of living adjustments, or (iv) percentage of gross
sales adjustments (i.e., adjustments made based on underpayments of percentage
----
rent). Such additional rent has been paid in accordance with Xxxxxxxx's rendered
bills through ___________, 199_. The base year amounts for additional rental
items are as follows: (1) operating, maintenance or repair expenses
$________________ (2) property taxes $___________, and (3) consumer price index
______________ (please indicate base year CPI level).]
(g) Tenant has made no agreement with Borrower or any agent,
representative or employee of Borrower CONCERNING FREE RENT, PARTIAL rent,
rebate of rental payments or any other similar rent concession (IF APPLICABLE)
-------------
[except as expressly set forth in Paragraph(s) ___ of the Lease (copy
attached)].
(h) Borrower currently holds a security deposit in the amount of
$_____________ which is to be applied by Borrower or returned to Tenant in
accordance with Paragraph(s) __ of the Lease. Tenant acknowledges and agrees
that Bank shall have no responsibility or liability for any security deposit,
except to the extent that any security deposit shall have been actually received
by Bank.
3. (a) The Lease constitutes the entire agreement between Tenant and
Borrower with respect to the Premises, has not been modified changed, altered or
amended and is in full force and effect in the form (CHOOSE ONE) [attached
----------
as/described in] Exhibit A. There are no other agreements, written or oral,
which affect Tenant's occupancy of the Premises.
(b) All insurance required of Tenant under the Lease has been
provided by Tenant and all premiums have been paid.
(c) To the best knowledge of Tenant, no party is in default under
the Lease. To the best knowledge of Tenant, no event has occurred which, with
the giving of notice or passage of time, or both, would constitute such a
default.
(d) The interest of Tenant in the Lease has not been assigned or
encumbered. Tenant is not entitled to any credit against any rent or other
charge or rent concession under the Lease except as set forth in the Lease. No
rental payments have been made more than one month in advance.
4. All contributions required to be paid by Borrower to date for
improvements to the Premises have been paid in full and all of Borrower's
obligations with respect to tenant improvements have been fully performed.
Tenant has accepted the Premises, subject to no conditions other than those set
forth in the Lease.
5. Neither Tenant nor any guarantor of Tenant's obligations under the
Lease is the subject of any bankruptcy or other voluntary or involuntary
proceeding, in or out of court, for the adjustment of debtor-creditor
relationships.
6. (a) As used here, "Hazardous Substance" means any substance, material
or waste (including petroleum and petroleum products) which is designated,
classified or regulated as being "toxic" or "hazardous" or a "pollutant" or
which is similarly designated, classified or regulated, under any federal, state
or local law, regulation or ordinance.
(b) Tenant represents and warrants that it has not used, generated,
released, discharged, stored or disposed of any Hazardous Substances on, under,
in or about the Building or the land on which the Building is located (IF
--
APPLICABLE) [,other than Hazardous Substances used in the ordinary and
----------
commercially reasonable course of Tenant's business in compliance with all
applicable laws]. (IF APPLICABLE) [Except for such commercially reasonable use
-------------
by Tenant,] Tenant has no actual knowledge that any Hazardous Substance is
present, or has been used, generated, released, discharged, stored or disposed
of by any party, on, under, in or about such Building or land.
2
7. Tenant hereby acknowledges that Xxxxxxxx (CHOOSE ONE) [intends to
----------
encumber/has encumbered] the property containing the Premises with a Deed of
Trust in favor of Bank. Tenant acknowledges the right of Borrower, Bank and any
and all of Xxxxxxxx's present and future lenders to rely upon the statements and
representations of Tenant contained in this Certificate and further acknowledges
that any loan secured by any such Deed of Trust or further deeds of trust will
be made and entered into in material reliance on this Certificate.
8. Tenant hereby agrees to furnish Bank with such other and further
estoppel as Bank may reasonably request.
___________________________
By:________________________
Name:______________________
Title: ____________________
3
PARTICIPATION AGREEMENT
-----------------------
THIS PARTICIPATION AGREEMENT ("Agreement") is made and entered into as of
this 4/th/ day of DEC., 1995 by and between LA MIRADA REDEVELOPMENT AGENCY, a
public body, corporate and politic ("Agency"), and MOHAWK INDUSTRIES, INC., a
Georgia corporation ("Participant"), with reference to the following:
RECITALS
--------
A. Agency exists and is organized under, and exercises governmental
functions and powers pursuant, to the Community Redevelopment Law of the State
of California (California Health and Safety Code Section 33000, et seq.).
--------------------------------- ------
B. Agency desires to implement that certain Redevelopment Plan For
Project Area I adopted by Ordinance No. 221 of the City Council of the City of
La Mirada ("City") on July 16, 1974, as amended by Ordinance No. 390 on December
23, 1986 and further amended by Ordinance No. 420 on June 28, 1998 (the
"Redevelopment Plan").
C. Participant has acquired, or intends to acquire, fee title to, or a
leasehold interest in, certain real property located at 00000 Xxxxxx Xxx, Xx
Xxxxxx, Xxxxxxxxxx, which real property had previously been developed urban use
property and which real property, is identified and described in Exhibit A
---------
attached hereto (the "Property"), for the purpose of developing and operating
an approximately 220,000 square foot distribution and sales facility for sale
and/or distribution of carpeting and related products.
D. In connection with implementation of the Redevelopment Plan, Agency
desires to encourage and provide for Participant's proposed development,
improvement and use of the Property on the terms and conditions contained
herein.
AGREEMENT
---------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Agency and Participant agree as
follows:
1. Recitals. Each of the recitals set forth above is true and correct,
--------
and is incorporated herein by this reference.
2. Purpose. This Agreement is intended to effectuate the California
-------
Community Redevelopment Law of the State of California (California Health and
---------------------
Safety Code Section 33000, et seq.) by
----------- ------
providing for the development, improvement and use of the Property. In
particular, but without limitation, the development, improvement and use of the
Property as contemplated in this Agreement will assist in the generation of
additional sales tax and property tax revenues to the City and Agency as well as
assist in the creation of additional jobs and economic opportunities for the
residents of the City. Consequently, the development, improvement and use of the
Property as contemplated herein, and the fulfillment generally of this
Agreement, are in the vital and best interests of the City and the welfare of
its residents, and in accordance with the public purposes and provisions of
applicable federal, state and local laws and requirements.
3. Financial Assistance. In consideration of Participant's development,
--------------------
improvement, use and operation of the Property and its entry into this
Agreement, for a period of up to ten (10) years Agency shall periodically pay to
Participant the Specified Amount (as defined below) at the times, in the amounts
and subject to the conditions contained herein.
3.1 Conditions Precedent. Notwithstanding anything to the contrary
--------------------
contained in this Agreement, Agency's obligation to pay the Specified Amount to
Participant is expressly contingent and conditional upon (i) Participant paying
any and all taxes applicable to or arising out of Participant's ownership
(whether a fee or leasehold interest), operation, use and/or enjoyment of the
Property (including, without limitation, all taxes attributable to sales
occurring on the Property), (ii) Participant timely delivering to Agency full
and complete copies of the Sales Tax Reports (as defined below), (iii) City
receiving and having the legal right under state law to retain and control the
disposition of its portion of all Sales Tax Revenues (as defined below), (iv)
Participant retaining and continuing to solely own either fee title or a
leasehold interest in the Property in its entirety, and (v) Participant's
continued use and occupancy of substantially all of the Property in compliance
with all of the terms of this Agreement including, without limitation, use and
operation of the Property for the purpose of sale and distribution of carpeting
and related products (the "Specified Use") as provided in Paragraph 5.1 below,
-------------
maintenance of the Property as provided in Paragraph 5.2 below, and compliance
-------------
with the non-discrimination provisions of Paragraph 19 below. In the event that
------------
any or all of conditions (i) through (v) above shall not be satisfied or shall
no longer be satisfied, Agency shall be relieved of its obligations under this
Agreement for payment of the Specified Amount and Agency may terminate this
Agreement upon written notice to Participant.
3.2 Specified Amount. As used herein, the term "Specified Amount"
----------------
shall mean the following:
-2-
(a) for the first and second Contract Years (as defined below), the
Specified Amount shall be an amount equal to the sum of (1) one hundred
percent (100%) of the Sales Tax Revenues for each Contract Year in excess
of $150,000 but not exceeding $300,000, and (2) fifty percent (50%) of the
Sales Tax Revenue for each Contract Year in excess of $300,000.
(b) for the third, fourth and fifth Contract Years, the Specified
Amount shall be an amount equal to the sum of (1) one hundred percent
(100%) of the Sales Tax Revenues for each Contract Year in excess of
$200,000 but not exceeding $400,000, and (2) fifty percent (50%) of the
Sales Tax Revenue for each Contract Year in excess of $400,000.
(c) for the sixth through tenth Contract Years, the Specified Amount
shall be an amount equal to the sum of (1) one hundred percent (100%) of
the Sales Tax Revenues for each Contract Year in excess of $250,000 but
not exceeding $500,000, and (2) fifty percent (50%) of the Sales Tax
Revenue for each Contract Year in excess of $500,000.
The Specified Amount due Participant under this Agreement shall be paid by
Agency in arrears, on an annual basis, within sixty (60) days of City's and/or
Agency's receipt of all of its share of such Sale Tax Revenues during the
preceding four (4) calendar quarters.
3.3 Contract Year. As used herein, the term "Contract Year" shall
-------------
mean a period of four (4) full calendar quarters. The first Contract Year shall
be deemed to have commenced as of the first day of the calendar quarter in which
Participant shall have substantially opened for business at the Property. For
example, if Participant were to substantially open for business on July 15,
1995, the first Contract Year would be deemed to have commenced as of July 1,
1995 and each subsequent Contract Year would be deemed to have commenced as of
July 1 of such subsequent years.
3.4 Sales Tax Revenues. As used herein, the term "Sales Tax Revenues"
------------------
shall mean the total tax revenues paid by Participant and ultimately remitted by
the State Board of Equalization to City and/or Agency (the disposition of which
under then applicable state law is controlled by City and/or Agency) with
respect to the sale of any carpeting, related products or incidental goods sold
on the Property, or from a point of sale location outside the City, pursuant to
the Xxxxxxx-Xxxxx Uniform Sales and Use Tax Law (California Revenue and Taxation
-------------------------------
Code Section 7200 et seq.), as such law may be amended from time to time;
---- ------
provided, however, that such tax revenues, for the purposes of this Agreement,
shall be deemed never to exceed a maximum of one percent (1%) of the total
taxable sales on the
-3-
Property or from such other point of sale location outside the City.
3.5 Sales Tax Reports. As used herein, the term "Sales Tax Reports"
-----------------
shall mean the statements and quarterly reports, and any other or supplemental
reports, statements or submissions, actually filed or required to be filed by
Participant with the State Board of Equalization relating to or in connection
with the collection, remittance and/or calculation of Sales Tax Revenues from
the Property and/or any other facilities owned or operated by Participant within
the State of California. The Sales Tax Reports shall be delivered by Participant
to Agency on or before January 31, April 30, July 31 and October 31 of each
fiscal year (July 1-June 30).
3.6 Termination. Agency's obligations under this Agreement for
-----------
periodic payment of the Specified Amount to Participant shall terminate upon the
earlier of (i) written notice by Agency to Participant of the occurrence of any
of the events specified in Paragraph 3.1(i) through (v) above, (ii) breach of
----------------------------
this Agreement by Participant, (iii) expiration of the tenth (10th) Contract
Year, or (iv) written notice of termination by Participant to Agency pursuant to
Paragraph 7 below. In addition, this Agreement shall terminate in the event that
-----------
Participant shall fail to acquire fee title to, or a leasehold interest in, all
of the Property, and thereby qualify as "participant" within the meaning of the
Redevelopment Plan, on or before December 31, 1995.
4. Compliance With Laws and Requirements. Participant acknowledges and
-------------------------------------
agrees that the execution of this Agreement by Agency does not in any way
constitute, nor shall the same be inferred to constitute, waiver by Agency or
City of any applicable laws, regulations, requirements, permits, fees or
agreements pertaining to or affecting Participant's acquisition, or proposed
development, improvement, construction, occupancy or use, of the Property all of
which shall continue to be and remain fully applicable and effective with the
same force and effect as if this Agreement had never been executed by Agency and
Participant.
5. Use and Maintenance of the Property. As additional consideration to
-----------------------------------
Agency to enter into this Agreement, and as a material and substantial
inducement to Agency in the absence of which Agency would not have entered into
this Agreement, Participant agrees to use and maintain the Property as provided
herein.
5.1 Use of the Property. Participant shall continuously use and
-------------------
operate substantially all of the Property for the Specified Use. Participant
specifically acknowledges and agrees that, as provided in Paragraph 3.1(v)
----------------
above, Participant's
-4-
continued use and operation of the Property for the Specified Use is a condition
precedent to Agency's obligations under this Agreement. Participant covenants
and agrees that Participant shall not either directly or indirectly, in its own
name or in the name of any affiliated entity, enter into any other sales tax
subsidy agreement or a similar agreement with any other governmental agency or
take any other action which would cause or facilitate the transfer to another
location or locations of the sales contemplated in this Agreement to occur from
the Property's operation for the Specified Use. In addition, Participant
expressly covenants and agrees that for the full remaining term of the
Redevelopment Plan and irrespective of the earlier expiration or termination of
this Agreement, Participant shall not use or permit the use of the Property for
any purpose other than the purposes authorized in the Redevelopment Plan.
5.2 Maintenance of the Property. Participant covenants and agrees to
---------------------------
maintain all improvements on the Property in good condition and repair (and, as
to landscaping, in a healthy condition) and in accordance with all other
applicable laws, rules, ordinances, orders, and regulations of all federal,
state, county, municipal, and other governmental agencies and bodies having or
claiming jurisdiction and all their respective departments, bureaus, and
officials. In addition, Participant shall keep the Property free from all
graffiti and any accumulation of debris or waste material. Participant shall
make all repairs and replacements necessary to keep the improvements in good
condition and repair and shall promptly eliminate all graffiti and replace dead
and diseased plants and landscaping with comparable approved materials. In the
event that Participant breaches any of the covenants contained in this Paragraph
---------
5.2 and such default continues for a period of five (5) business days after
---
written notice from Agency (with respect to landscaping, graffiti, debris, waste
material, and general maintenance) or thirty (30) days after written notice from
Agency (with respect to building improvements), then Agency and/or City, in
addition to whatever other remedy it may have at law or in equity, shall have
the right to enter upon the Property and perform or cause to be performed all
such acts and work necessary to cure the default. Pursuant to such right of
entry, Agency and/or City shall be permitted (but are not required) to enter
upon the Property and perform all acts and work necessary to protect, maintain,
and preserve the improvements and landscaped areas on the Property, and to
attach a lien on the Property, or to assess the Property, in the amount of the
expenditures arising from such acts and work of protection, maintenance, and
preservation by Agency and/or City and/or costs of such cure, including a
fifteen percent (15%) administrative charge, which amount shall be promptly paid
by Participant to Agency upon demand.
-5-
In addition to any other remedy that Agency may have, it shall be entitled
to pay to the City the amount of any duly imposed assessments against the
Property, and to reduce the Specified Amount in a corresponding sum. Such
assessments might include, but shall not be limited to, the amounts required for
parking lot maintenance, landscape maintenance, graffiti removal or debris or
hazardous waste removal. No such assessment shall be made unless the provisions
of this Agreement have been complied with and the City's nuisance abatement
procedures.
6. No Third-Party Beneficiaries. Nothing contained in this Agreement is
----------------------------
intended nor shall this Agreement be construed as creating any third party
beneficiary to this Agreement, and no person or entity other than Agency and
Participant, and to the extent expressly permitted hereunder their permitted
successors and assigns, shall be authorized to enforce the provisions of this
Agreement.
7. Indemnification. Participant shall indemnify, defend (with counsel
---------------
selected by Agency), protect and hold harmless Agency and City, and each of
their officers, officials, employees and agents from and against any and all
challenges (including, without limitation, CEQA challenge to the development,
improvement or use of the Property as contemplated herein), claims, damages,
liabilities, causes of action, losses and expenses (including, without
limitation, attorneys' fees and costs) arising out of or incurred in connection
with this Agreement and/or Participant's performance or non-performance hereof;
provided, however, (i) in the event that any judicial action is filed against
Agency by any third party challenging the validity or enforceability of this
Agreement or seeking to prohibit the performance of this Agreement (including,
without limitation, CEQA challenge to the development, improvement or use of the
Property as contemplated herein), within thirty (30) days of receipt of written
notice of such judicial action Participant may terminate this Agreement by
written notice of termination to Agency, (ii) after that date which is one (1)
year from the date Participant shall substantially open for business at the
Property, Participant's obligation to indemnify, defend, protect and hold
harmless Agency and City as provided in this paragraph shall be limited to
challenges, claims, damages, liabilities, causes of action, losses and expenses
(including, without limitation, attorneys' fees and costs) arising out of or
incurred in connection with Participant's performance or non-performance hereof,
and (iii) Participant shall have no obligation under this paragraph to
indemnify, defend, protect and hold harmless Agency and the City from any
challenges, claims, damages, liabilities, causes of action, losses and expenses
(including, without limitation, attorneys' fees and costs) arising out of or
incurred by reason of negligent acts or intentional misconduct of Agency or
City.
-6-
8. Attorneys' Fees. If Agency or Participant institutes any legal action
---------------
or arbitration proceeding against the other in connection with any controversy
related to, concerning or arising out of the Agreement, or any facts based upon
or involving the Agreement, the prevailing party, whether in court, through
arbitration, or by way of out-of-court settlement, shall be entitled to recover
from the non-prevailing party such prevailing party's attorney's fees, court
costs, expert witness fees and other expenses relating to such controversy,
including such fees, costs and expenses on appeal, if any, and the
arbitrator(s), if any, is hereby authorized to make such an award to the
prevailing party in arbitration.
9. Entire Agreement. This Agreement shall constitute the entire agreement
----------------
between Agency and Participant with respect to the subject matter hereof, and
all prior or contemporaneous negotiations and agreements relating thereto,
whether oral or written, are merged herein and shall be of no further force or
effect.
10. Time of the Essence. Time is of the essence of this Agreement and each
-------------------
and every provision hereof.
11. Counterparts. Agency and Participant agree that this Agreement may be
------------
executed in two or more counterparts, each of which shall be an original but all
of the same when taken together shall be deemed one and the same instrument.
12. Modifications. This Agreement may only be modified in writing pursuant
-------------
to a written agreement executed by both Agency and Participant.
13. Notices. Any notice required or permitted to be given under this
-------
Agreement, shall be in writing and personally delivered or sent by United States
mail, registered or certified mail, or sent by Federal Express or other
nationally recognized overnight delivery service, postage prepaid, return
receipt requested, and addressed to the addressee at the address set forth below
(or such other address as either party may from time to time specify in writing
to the other in the manner provided herein), and shall be deemed to have been
given upon the date of actual delivery (or refusal to accept delivery) as
indicated on the return receipt.
If to Agency: La Mirada Redevelopment Agency
00000 Xx Xxxxxx Xxxxxxxxx
Xx Xxxxxx, XX 00000
Attn: Economic Development
Department
-7-
If to Participant: Mohawk Industries, Inc.
P.O. Box 2208
---------------------------
Dalton GA 30722
---------------------------
Attn: Xxxx Xxxxxx
-------------------
14. Assignment. Participant acknowledges and agrees that the rights,
----------
benefits, duties and obligations of Participant as provided in this Agreement
are personal to Participant. Neither this Agreement nor any rights, benefits,
duties or obligations of Participant may be assigned or delegated to any other
person or entity except as follows:
(a) upon compliance with the requirements of subparagraph (b) below,
without the prior consent of Agency, Participant may assign all, but not a
portion, of Participant's rights, benefits, duties and obligations under
this Agreement to (i) any affiliated person or entity, any successor by
merger or other entity resulting from a corporate reorganization
("Affiliated Transferee"), or (ii) any unaffiliated person or entity which
will use and operate the Property for a retail sales and distribution
center which is reasonably anticipated to produce Sales Tax Revenues from
the Property comparable or in excess of that produced by Participant from
the Property ("Unaffiliated Transferee");
(b) each Affiliated Transferee or Unaffiliated Transferee
(collectively, "Transferee") shall (i) acquire Participant's entire
interest in the Property, (ii) continue to use, operate and maintain the
Property as provided in this Agreement, and (iii) execute, acknowledge and
deliver to Agency a written assumption agreement in form and substance
reasonably acceptable to Agency.
Except as provided in subparagraph (a) above, any purported assignment or
delegation by Participant without such consent, at Agency's option, shall be
void and of no force or effect. Agency expressly reserves the right to assign
and delegate its obligations under this Agreement.
15. Captions. The paragraph headings or captions used herein are for
--------
convenience only and are not a part of this instrument and do not in any way
limit, define or amplify the scope or intent of the terms and provisions hereof.
16. Invalidity of Provision. If any provision of this Agreement shall be
-----------------------
adjudged by a court of competent jurisdiction to be void or unenforceable for
any reason, the same shall in no way affect (to the maximum extent permissible
by law) any other provision of this Agreement or the application of any such
provision under circumstances different from those adjudicated by
-8-
the court, or the validity or enforceability of the instrument as a whole.
17. Recording. At Agency's sole option to evidence of record Agency's
---------
acquisition of certain interests in the Property as specifically provided in
this Agreement, within ten (10) days of Agency's written request to Participant,
Participant shall execute, acknowledge and deliver to Agency a memorandum of
this Agreement in the form attached hereto as Exhibit B, which memorandum may be
---------
filed and/or recorded by Agency in the office of the County Recorder of Los
Angeles County, California.
18. Governing Law. This Agreement and the terms hereof shall be governed
-------------
by and construed in accordance with the laws of the State of California.
19. Non-Discrimination.
------------------
19.1 Obligation to Refrain from Discrimination. There shall be no
-----------------------------------------
discrimination against, or segregation of, any persons, or group of persons, on
account of race, color, creed, religion, sex, marital status, ancestry, or
national origin in the enjoyment of the Property, nor shall Participant itself,
or any person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants, lessees, subtenants,
sublessees, or vendees of the Property or any portion thereof.
19.2 Form Non-Discrimination and Non-Segregation Clauses. Participant
---------------------------------------------------
shall refrain from restricting the rental, sale, or lease of any portion of the
Property, or contracts relating to the Property, on the basis of race, color,
creed, religion, sex, marital status, ancestry, or national origin of any
person. All such deeds, leases or contracts shall contain or be subject to
substantially the following non-discrimination or non-segregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all
persons claiming under or through them, that there shall be no
discrimination against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital status, ancestry, or
national origin in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the land herein conveyed, nor shall the grantee or
any person claiming under or through him or her, establish or permit any
such practice or practices of discrimination or segregation with reference
to the selection, location, number, use, or occupancy of tenants, lessees,
sublessees,
-9-
or vendees in the land herein conveyed. The foregoing covenants shall run
with the land."
(b) In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all
persons claiming under or through him or her, and this lease is made and
accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion,
sex, marital status, ancestry, or national origin in the leasing,
subleasing, transferring, use, occupancy, tenure, or enjoyment of the
land herein leased, nor shall the lessee himself, or any person
claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference
to the selection, location, number, use, or occupancy of tenants,
lessees, sublessees, subtenants, or vendees in the land herein
leased."
(c) In contracts: "That there shall be no discrimination against or
segregation of any person or group of persons on account of race, color,
creed, religion, sex, marital status, ancestry, or national origin in the
leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of
the land herein leased, nor shall the transferee himself, or any person
claiming under or through him or her establish or permit any such practice
or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants, lessees,
sublessees, subtenants, or vendees of land."
19.3 Effect of Covenants. Agency is deemed a beneficiary of the terms
-------------------
and provisions of this Agreement and of the restrictions and covenants for and
in its own right and for the purposes of protecting the interests of the
community and other parties, public or private, in whose favor and for whose
benefit the covenants have been provided. Agency shall have the right, if any of
the covenants set forth in this Agreement which are provided for its benefit are
breached, to exercise all rights and remedies and to maintain any actions or
suits at law or in equity or other proper proceedings to enforce the curing of
such
-10-
breaches to which it or any other beneficiaries of such covenants may be
entitled.
IN WITNESS WHEREOF, Agency and Participant have executed this Agreement in
duplicate as of the day and year first above written.
AGENCY:
------
LA MIRADA REDEVELOPMENT AGENCY
By: /s/ X. Xxxxx Xxxxxx
----------------------------
X. Xxxxx Xxxxxx, Chairman
Attest: /s/ Xxxx X. Xxxxxxx
-----------------------
Xxxx X. Xxxxxxx
Assistant Secretary
Approved as to form: /s/ Xxxxx X. Xxxxxx
-------------------------
Xxxxx X. Xxxxxx
Xxxxxxx, Xxxxxx & Xxxxxxx
Attorneys for Agency
PARTICIPANT:
-----------
MOHAWK INDUSTRIES, INC.,
a Georgia corporation
By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------
Its: President
---------------------------
By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------
Its: ILLEGIBLE
---------------------------
-11-
EXHIBIT A
DESCRIPTION OF PROPERTY
-----------------------
PARCEL 1 OF PARCEL MAP NO. 1492 AS SHOWN ON MAP FILED IN BOOK 28, PAGE 88,
OF PARCEL MAPS FILED NOVEMBER 18, 1990 IN THE OFFICE OF THE COUNTY RECORDER
OF LOS ANGELES COUNTY, CALIFORNIA
EXHIBIT B
Recording Requested By and
When Recorded Mail To:
LA MIRADA REDEVELOPMENT AGENCY
00000 Xx Xxxxxx Xxxxxxxxx
Xx Xxxxxx, XX 00000
Attn: Economic Development Department
--------------------------------------------------------------------------------
MEMORANDUM OF AGREEMENT
-----------------------
THIS MEMORANDUM OF AGREEMENT (this "Memorandum") is made and entered
into as of the 4th day of December, 1995 by and among MOHAWK INDUSTIES, INC., a
Georgia corporation ("Participant"), and LA MIRADA REDEVELOPMENT AGENCY, a
public body, corporate and politic ("Agency"), with reference to the following:
R E C I T A L S
---------------
A: Participant is the current owner of a leasehold or fee title interest
in and to certain real property located in the City of La Mirada, State of
California and more particularly described in attached Exhibit 1 (the
"Property").
B. Participant and Agency have entered that certain unrecorded
Participation Agreement dated as of ___________, 1995 (the "Agreement"). The
Agreement provides, among other things, that Agency will make certain financial
assistance available to Participant and that Participant will develop, improve,
use and maintain the Property, all as more specifically provided therein.
X. Xxxxxxxx to the Agreement, Participant and Agency have agreed to
record this Memorandum to reflect of record and provide notice of the Agreement
and Agency's acquisition of certain interests in the Property.
A G R E E M E N T
-----------------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Participant and Agency for
themselves and all of their respective successors and assigns acknowledge and
agree as follows:
1. Recitals; Incorporation of Agreement: Definitions. Each of the
-------------------------------------------------
recitals set forth above is true and correct and is incorporated herein by this
reference. All of the terms and conditions of the Agreement are incorporated
herein by this
-13-
reference with the same effect as if set forth herein in full. All words and
phrases having their initial letters capitalized in this Memorandum and not
specifically defined herein shall have the meanings set forth in the Agreement.
2. Financial Assistance From Agency. As provided in the Agreement, Agency
--------------------------------
does hereby agree to pay to Participant the Specified Amount at the times, in
the amounts and subject to the terms and conditions set forth in the Agreement.
3. Grant of Interest; Covenants of Participant. As provided in the
-------------------------------------------
Agreement, Participant does hereby agree to, and grants to Agency an interest in
the Property sufficient to cause Participant to, comply with applicable laws,
use and maintain the Property and indemnify Agency and the City of La Mirada as
provided in and subject to the terms and conditions set forth in the Agreement.
Without limiting the foregoing, as provided in the Agreement, Participant
specifically covenants and agrees that the Property shall only be used and
operated for the purpose of sale and distribution of carpeting and related
products.
4. Covenant Running With the Land. The Agreement and this Memorandum
------------------------------
shall be and constitute a covenant running with the land, such that this
Agreement and this Memorandum shall be binding and effective against the
Property and each and every current and subsequent owner of all or any portion
of the Property or right or interest therein.
5. Interpretation. In the event of any conflict between the terms
--------------
contained in this Memorandum and the terms contained in
-14-
the Agreement, the terms contained in the Agreement shall prevail and be
controlling.
IN WITNESS WHEREOF, Agency and Participant have executed this
Memorandum effective as of the date first set forth above.
AGENCY:
------
LA MIRADA REDEVELOPMENT AGENCY
By: _______________________________
X. Xxxxx Xxxxxx, Chairman
Attest: _____________________
Xxxx X. Xxxxxxx,
Assistant Secretary
Approved as to form: ___________________
Xxxxx X. Xxxxxx
Xxxxxxx, Xxxxxx & Diamond
Attorneys for Agency
PARTICIPANT :
-----------
MOHAWK INDUSTRIES, INC.
a Georgia corporation
By: _________________________
Its : _______________________
By : ________________________
Its: ________________________
[ALL SIGNATURES TO BE ACKNOWLEDGED]
-15-
EXHIBIT 1
DESCRIPTION OF PROPERTY
-----------------------
PARCEL 1 OF PARCEL MAP NO. 1492 AS SHOWN ON MAP FILED IN BOOK 28, PAGE 88,
OF PARCEL MAPS FILED NOVEMBER 18, 1990 IN THE OFFICE OF THE COUNTY RECORDER
OF LOS ANGELES COUNTY, CALIFORNIA
-16-
SINGLE TENANT INDUSTRIAL LEASE
------------------------------
Effective Date: December 4, 1995
(The date set forth below Landlord's signature.)
BASIC LEASE INFORMATION
-----------------------
Landlord: CATELLUS DEVELOPMENT CORPORATION, a Delaware
corporation
Xxxxxxxx's Address
For Notice: 0000 X. XxxxxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Asset Management
Telephone: (000) 000-0000
Fax: (000) 000-0000
Xxxxxxxx's Address
For Payment of Rent: File #53694
Los Angeles, CA 90074-3694
Tenant: MOHAWK INDUSTRIES, INC., a Georgia corporation
Tenant's Address
For Notice: P.O. Box 2208
---------------------------------
Dalton CA, 30722
---------------------------------
Attn: Xxxx Xxxxxx
----------------------------
Telephone: 000-000-0000
-----------------------
Fax: 000-000-0000
-----------------------------
Project: 00000 Xxxxxx Xxx
Building: Approximately 220,000 rentable square feet as
shown in Exhibit A.
---------
Building Address:
Street: 00000 Xxxxxx Xxx
Xxxx xxx Xxxxx: Xx Xxxxxx, XX 00000
Lot: The tax parcel on which the Building is located.
Term: Sixty (60) months
Estimated Commencement
Date: September 1, 1996
Base Rent Per Month: Seventy Four Thousand Eight Hundred Dollars
($74,800.00)
Security Deposit: None
Broker: Xxx & Associates
Lease Year: Shall refer to each three hundred sixty-five
(365) day period during the Term commencing on
the Commencement Date and on each anniversary
thereof.
Permitted Uses: Warehousing and distribution of carpet and no
other uses shall be permitted without the prior
written consent of Landlord.
(i)
EXHIBITS
A - Building\Lot-Premises
B - Work Letter
B-1 - Space Plan
C - Commencement Date Memorandum
D - Insurance Certificate
E - Prohibited Uses
F - Correction Items
G - Estoppel Certificate
The Basic Lease Information set forth above and the Exhibits attached
hereto are incorporated into and made a part of the following Lease. Each
reference in this Lease to any of the Basic Lease Information shall mean the
respective information above and shall be construed to incorporate all of the
terms provided under the particular Lease paragraph pertaining to such
information. In the event of any conflict between the Basic Lease Information
and the provisions of the Lease, the latter shall control.
LANDLORD [ILLEGIBLE] AND TENANT (JV) AGREE.
initial initial
(ii)
Table of Contents
-----------------
Page
----
1. PREMISES......................................................... 1
1.1 Premises.................................................. 1
1.2 Reserved Rights........................................... 1
2. TERM............................................................. 1
2.1 Lease Term and Commencement Date........................... 1
2.2 Possession................................................. 1
3. RENT............................................................. 2
3.1 Rent....................................................... 2
3.2 Late Charge and Interest................................... 2
3.3 Intentionally Omitted...................................... 2
4. UTILITIES........................................................ 2
5. TAXES............................................................ 2
5.1 Real Property Taxes........................................ 2
5.2 Personal Property Taxes.................................... 3
6. TRIPLE NET LEASE................................................. 3
7. INSURANCE........................................................ 3
7.1 Landlord................................................... 3
7.2 Tenant .................................................... 3
7.3 General.................................................... 4
7.4 Indemnity.................................................. 4
7.5 Exemption of Landlord from Liability....................... 5
8. REPAIRS AND MAINTENANCE.......................................... 5
8.1 Landlord................................................... 5
8.2 Tenant..................................................... 5
8.3 Roof - Repair and Replacement.............................. 6
8.4 Condition of the Premises.................................. 6
9. ALTERATIONS...................................................... 6
9.1 Trade Fixtures; Alterations................................ 6
9.2 Damage; Removal............................................ 6
9.3 Liens...................................................... 6
10. USE.............................................................. 7
11. ENVIRONMENTAL MATTERS............................................ 7
11.1 Hazardous Materials........................................ 7
11.2 Indemnification............................................ 7
11.3 Landlord's Disclosure...................................... 8
11.4 Storage Tank Removal....................................... 8
12. DAMAGE AND DESTRUCTION........................................... 8
12.1 Casualty................................................... 8
12.2 Tenant's Fault ............................................ 8
12.3 Uninsured Casualty......................................... 9
12.4 Waiver..................................................... 9
13. EMINENT DOMAIN................................................... 9
13.1 Total Condemnation ........................................ 9
13.2 Partial Condemnation....................................... 9
13.3 Award...................................................... 9
13.4 Temporary Condemnation..................................... 9
(iii)
14. DEFAULT............................................................. 9
14.1 Events of Defaults............................................ 9
14.2 Remedies...................................................... 10
14.3 Cumulative.................................................... 11
15. ASSIGNMENT AND SUBLETTING........................................... 11
16. ESTOPPEL, ATTORNMENT AND SUBORDINATION.............................. 11
16.1 Estoppel...................................................... 11
16.2 Subordination................................................. 11
16.3 Attornment.................................................... 12
17. MISCELLANEOUS....................................................... 12
17.1 General....................................................... 12
17.2 Signs ........................................................ 12
17.3 Waiver........................................................ 12
17.4 Financial Statements.......................................... 13
17.5 Limitation of Liability....................................... 13
17.6 Notices....................................................... 13
17.7 Brokerage Commission ......................................... 13
17.8 Authorization................................................. 13
17.9 Holding Over, Surrender....................................... 13
17.10 Joint and Several............................................. 13
17.11 Covenants and Conditions...................................... 13
17.12 Addenda....................................................... 13
(iv)
1. PREMISES.
--------
1.1 Premises. Landlord hereby leases to Tenant the Building and that
--------
portion of the Lot (or all thereof if the Building constitutes the material
improvement thereon) upon which the same is situated (hereinafter collectively
referred to as the "Premises") as shown on Exhibit A attached hereto.
---------
1.2 Reserved Rights. Landlord reserves the right to enter the Premises
---------------
upon reasonable notice to Tenant (except in case of an emergency) and/or to
undertake the following: inspect the Premises and/or the performance by Tenant
of the terms and conditions hereof; grant easements on the Project, dedicate for
public use portions thereof and record covenants, conditions and restrictions
("CC&R's") affecting the Project and/or amendments to existing CC&R's which do
not unreasonably interfere with Xxxxxx's use of the Premises; change the name of
the Project; and, during the last nine (9) months of the Term, show the Premises
to prospective tenants.
2. TERM.
----
2.1 Lease Term and Commencement Date. The Term of the Lease shall be for a
--------------------------------
period of sixty (60) months, subject to extension in accordance with Section 20
below. The Term shall commence (the "Commencement Date") on the first day of the
first full calendar month following the Possession Date (as defined in Section
2.2.2), except that if the Possession Date occurs on the first day of a month,
that day shall also be the Commencement Date. Tenant shall execute and deliver
to Landlord, upon request by Xxxxxxxx, a Commencement Date Memorandum in the
form attached hereto as Exhibit C acknowledging (i) the Commencement Date (and,
---------
if requested, the Possession Date and Rent Commencement Date, as defined below),
(ii) the final square footage of the Premises, and (iii) Tenant's acceptance of
the Premises.
2.2 Possession.
----------
2.2.1 Landlord's Possession. Tenant acknowledges that the Premises
---------------------
are currently occupied by an existing tenant thereof and that Landlord's
delivery of possession of the Premises is contingent upon such tenant vacating
the Premises. Landlord presently anticipates that the current tenant will vacate
the Premises and restore possession thereof to Landlord on or about September 1,
1996 and Landlord shall use its commercially reasonable efforts to recover
possession on such date or as soon as practicable thereafter. In the event that
Landlord does not recover possession of the Premises on or before such date, as
a result of the failure of the existing tenant to vacate the Premises on or
before such date, Landlord shall not be subject to any liability therefor and
such failure shall not affect the validity of this Lease or the obligations of
either party hereunder, provided, however, that if the existing tenant fails to
vacate the Premises on or before November 1, 1996 (subject to Force Majeure
events), either Landlord or Tenant may, at its option, by written notice to the
other party given within ten (10) days thereafter, terminate this Lease, in
which event Landlord shall return to Tenant all funds paid in advance and the
Parties shall be discharged from all further obligations hereunder.
Notwithstanding anything set forth in this Section 2.2, Tenant shall not be
obligated to pay Base Rent for its use and occupancy of the Premises until the
Rent Commencement Date, as defined in Section 3.1.
2.2.2 Tender of Possession to Tenant. Landlord shall tender
------------------------------
possession of the Premises to Tenant as soon as practicable following the date
on which Xxxxxxxx receives possession thereof. Xxxxxx's possession and use of
the Premises from the date, on which Landlord tenders possession thereof to
Tenant (the "Possession Date") to the Commencement Date (the "Early Possession
Period") shall be subject to all the provisions of this Lease. During the Early
Possession Period, Tenant shall (i) arrange for and pay for all utilities
delivered to the Premises, (ii) arrange for, and maintain in effect, the
insurance coverages required to be obtained by Tenant pursuant to Section 7.2 of
this Lease, (iii) pay to Landlord, as and when due, all sums payable to Landlord
hereunder, including, without limitation, amounts payable for Real Property
Taxes (as defined in Section 5) and insurance premiums, and (iv) perform all
other obligations required by Tenant pursuant to this Lease.
2.2.3 Tenant Improvements. Landlord shall arrange for the
-------------------
construction of certain Tenant Improvements (as defined in the Work Letter
attached hereto as Exhibit B) in accordance with and subject to the terms of the
---------
Work Letter. Landlord shall commence the construction of the Tenant improvements
and diligently pursue such construction to completion as soon as reasonably
practicable following the Possession Date. Tenant's use of the Premises shall
not unreasonably interfere with Xxxxxxxx's contractor(s) or otherwise impede the
completion of the Tenant improvements. The construction of the Tenant
Improvements shall not delay the occurrence of the Commencement Date. Tenant has
determined that the Premises are acceptable for Xxxxxx's use and Tenant
acknowledges that, except as set forth in the Work Letter, neither Landlord nor
any broker or agent has made any representations or warranties in connection
with the physical condition of the Premises or their fitness for Tenant's use
upon which Xxxxxx has relied directly or indirectly for any purpose.
2.2.4 Substantial Completion. The Tenant Improvements shall be deemed
----------------------
to be "Substantially Complete" on the date on which Landlord files or causes to
be filed with the City in which the Premises are located (if required) and
1.
delivers to Tenant an architect's notice of substantial completion, or similar
written notice that the Tenant Improvements are Substantially Complete. As used
herein, the term "Substantially Complete" means that the Tenant Improvements
have been constructed in substantial compliance with the applicable plans and
specifications, except only minor "punchlist" items. Landlord shall promptly
complete such punchlist items to the reasonable satisfaction of Tenant.
3. RENT.
----
3.1 Rent.
----
3.1.1 Tenant's obligation to pay Base Rent shall commence on the
first (1st) calendar day following the date on which the Tenant Improvements are
Substantially Complete and possession of the Premises has been tendered to
Tenant (the "Rent Commencement Date"). Tenant shall pay to Landlord, at
Landlord's Address for Payment of Rent designated in the Basic Lease
Information, or at such other address as Landlord may from time to time
designate in writing to Tenant for the payment of Rent, the Base Rent, without
notice, demand, offset or deduction, in advance, on the first day of each
calendar month. Upon the execution of this Lease, Tenant shall pay to Landlord
the first month's Base Rent. Base Rent for the period from the Rent Commencement
Date to the first day of the next calendar month shall be prorated on a per diem
basis. All sums other than Base Rent which Tenant is obligated to pay under this
Lease shall be deemed to be additional rent due hereunder, whether or not such
sums are designated "additional rent." The term "Rent" means the Base Rent and
all additional rent payable hereunder.
3.1.2 As set forth in the Basic Lease Information, the initial Base
Rent shall be the sum of $74,800.00 per month, which is calculated on the basis
of $0.34 per square foot. Tenant acknowledges that the Premises contains
approximately 220,000 rentable square feet of space. The parties acknowledge
that such measurement is an estimate and that the Base Rent shall not be
adjusted on the basis of a difference in the actual number of rentable square
feet.
3.2 Late Charge and Interest. The late payment of any Rent will cause
------------------------
Landlord to incur additional costs, including administration and collection
costs and processing and accounting expenses and increased debt service
("Delinquency Costs"). If Landlord has not received any installment of Rent
within ten (10) days after such amount is due, Tenant shall pay a late charge
of five percent (5%) of the delinquent amount, which is agreed to represent a
reasonable estimate of the Delinquency Costs incurred by Landlord. In addition,
all such delinquent amounts shall bear interest from the date such amount was
due until paid in full at a rate per annum ("Applicable Interest Rate") equal to
the lesser of(a) the maximum interest rate permitted by law or (b) five percent
(5%) above the rate publicly announced by Bank of America, N.A. (or if Bank of
America, N.A. ceases to exist, the largest bank then headquartered in the State
of California ("Bank") as its "Reference Rate." If the use of the announced
Reference Rate is discontinued by the Bank, then the term Reference Rate shall
mean the announced rate charged by the Bank which is, from time to time,
substituted for the Reference Rate. Landlord and Xxxxxx recognize that the
damage which Landlord shall suffer as a result of Xxxxxx's failure to pay such
amounts is difficult to ascertain and said late charge and interest are the best
estimate of the damage which Landlord shall suffer in the event of late payment.
If a late charge becomes payable for any three (3) installments of Rent within
any twelve (12) month period, then the Rent shall automatically become due and
payable quarterly in advance.
3.3 Intentionally Omitted.
---------------------
4. UTILITIES. Tenant shall make all arrangements for and shall pay all charges
---------
for heat, water, gas, electricity, telephone and any other utilities used on or
provided to the Premises including, without limitation, paying any deposits and
"hook up charges." Landlord shall not be liable to Tenant for interruption in or
curtailment of any utility service, nor shall any such interruption or
curtailment constitute constructive eviction or grounds for rental abatement.
The cost of maintaining and repairing the plumbing, electrical distribution, and
mechanical systems, and other utility installations shall be borne by the
parties as provided in Section 8.
5. TAXES.
-----
5.1 Real Property Taxes. Landlord shall pay to the proper taxing
-------------------
authorities as the same become due all Real Property Taxes applicable to the
Premises, subject to reimbursement by Xxxxxx as provided below. The term "Real
Property Taxes" shall be the sum of the following: all real property taxes,
possessory-interest taxes, business or license taxes or fees, service payments
in lieu of such taxes or fees, annual or periodic license or use fees, excises,
transit and traffic charges, housing fund assessments, open space charges, child
care fees, school, sewer and parking fees or any other assessments, levies,
fees, exactions or charges, general and special, ordinary and extraordinary,
unforeseen as well as foreseen (including fees "in-lieu" of any such tax or
assessment) which are assessed, levied, charged, conferred or imposed by any
public authority upon the Premises (or any real property comprising any portion
thereof) or its operations, together with all taxes, assessments or other fees
imposed by any public authority upon or measured by any Rent or other charges
payable hereunder, including any gross receipts tax or excise tax levied by any
governmental authority with respect to receipt of rental income, or upon, with
respect to or by reason of the development, possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof, or documentary transfer taxes upon this
transaction or
2.
any document to which Xxxxxx is a party creating or transferring an interest in
the Premises, together with any tax imposed in substitution, partially or
totally, of any tax previously included within the aforesaid definition or any
additional tax the nature of which was previously included within the aforesaid
definition, together with the costs and expenses (including attorneys and expert
witness fees and costs) of challenging any of the foregoing or seeking the
reduction in or abatement, redemption or return of any of the foregoing, but
only to the extent of any such reduction, abatement, redemption or return.
Nothing contained in this Lease shall require Tenant to pay any franchise,
corporate, estate or inheritance tax of Landlord, or any income, profits or
revenue tax or charge upon the net income of Landlord.
5.1.1 Reimbursement By Tenant. Tenant shall pay to Landlord an amount
-----------------------
equal to the Real Property Taxes then due within fifteen (15) days after
delivery to Tenant by Landlord of an invoice for the same, together with a copy
of the corresponding tax bill. Landlord may, at Xxxxxxxx's option, deliver
statements from different taxing authorities at different times or deliver all
such statements at one time; provided, however, that Landlord shall not change
the method of invoicing Tenant for Real Property Taxes more than one (1) time
in each three (3) year period and, in each case, shall give Tenant thirty (30)
days notice prior to any change in such method of invoicing Tenant. In addition,
Landlord may elect to collect such Real Property Taxes from Tenant in advance,
on a monthly or quarterly basis, based upon Landlord's reasonable estimate of
such Real Property Taxes. If the amount of monthly or quarterly payments for
estimated Real Property Taxes received by Landlord from Tenant is more or less
than the actual Real Property Taxes due, an appropriate adjustment shall be made
by Landlord and Tenant.
5.1.2 Partial Years. Real Property Taxes for partial tax fiscal
-------------
years, if any, falling within the Term, shall be prorated. Tenant's obligations
for Real Property Taxes for the last full or partial year of the Term shall
survive the expiration or earlier termination of this Lease.
5.2 Personal Property Taxes. Prior to delinquency, Tenant shall pay all
-----------------------
taxes and assessments levied upon trade fixtures, alterations, additions,
improvements, inventories and other personal property located and/or installed
on the Premises by Xxxxxx; and Tenant shall provide Landlord copies of receipts
for payment of all such taxes and assessments. To the extent any such taxes are
not separately assessed or billed to Tenant, Tenant shall pay the amount thereof
as invoiced by Landlord.
6. TRIPLE NET LEASE. It is intended that this Lease be a "triple net lease,"
----------------
and that the Rent to be paid hereunder by Xxxxxx will be received by Landlord
without any deduction or offset whatsoever by Tenant, foreseeable or
unforeseeable. Except as expressly provided to the contrary in this Lease,
Landlord shall not be required to make any expenditure, incur any obligation, or
incur any liability of any kind whatsoever in connection with this Lease or the
ownership, construction, maintenance, operation or repair of the Premises.
Notwithstanding the foregoing, Tenant shall reimburse Landlord monthly, as
additional rent, for all costs and fees reasonably incurred by Landlord in
connection with the management of this Lease and the Premises including the cost
of those services which are customarily performed by a property management
services company.
7. INSURANCE.
---------
7.1 Landlord. Landlord shall maintain insurance insuring the Building
--------
against fire and extended coverage (including, if Landlord elects, "all risk"
coverage, earthquake/volcanic action, flood and/or surface water insurance) for
the full replacement cost of the Building, with deductibles and the form and
endorsements of such coverage as selected by Landlord, together with rental
abatement insurance against loss of Rent in an amount equal to the amount of
Rent for a period of at least twelve (12) months commencing on the date of loss.
Landlord may also carry such other insurance as Landlord may deem prudent or
advisable, including, without limitation, liability insurance in such amounts
and on such terms as Landlord shall determine. Tenant shall pay to Landlord an
amount equal to the premiums then due within fifteen (15) days after delivery to
Tenant by Landlord of an invoice for any such premiums. Landlord may, at
Xxxxxxxx's option, elect to collect such premiums from Tenant in advance, on a
monthly or quarterly basis, based upon Landlord's reasonable estimate of such
premiums. If the amount of monthly or quarterly payments for estimated premiums
received by Landlord from Tenant are more or less than the actual premiums due,
an appropriate adjustment shall be made by Landlord and Tenant.
7.2 Tenant. Tenant shall, at Tenant's expense, obtain and keep in force at
------
all times the following insurance:
7.2.1 Commercial General Liability Insurance (Occurrence Form). A
--------------------------------------------------------
policy of commercial general liability insurance (occurrence form) having a
combined single limit of not less than Two Million Dollars ($2,000,000) per
occurrence and Two Million Dollars ($2,000,000) aggregate per location if Tenant
has multiple locations, providing coverage for, among other things, blanket
contractual liability, premises, products/completed operations and personal and
advertising injury coverage, with deletion of (a) the exclusion for operations
within fifty (50) feet of a railroad track (railroad protective liability), if
applicable, and (b) the exclusion for explosion, collapse or underground hazard,
if applicable, and, if necessary, Tenant shall provide for restoration of the
aggregate limit.
3.
7.2.2 Automobile Liability Insurance. Comprehensive automobile
------------------------------
liability insurance having a combined single limit of not less than Two Million
Dollars ($2,000,000) per occurrence and insuring Tenant against liability for
claims arising out of ownership, maintenance, or use of any owned, hired or non-
owned automobiles:
7.2.3 Workers' Compensation and Employer's Liability Insurance.
--------------------------------------------------------
Workers' compensation insurance having limits not less than those required by
state statute and federal statute, if applicable, and covering all persons
employed by Tenant in the conduct of its operations on the Premises (including
the all states endorsement and, if applicable, the volunteers endorsement),
together with employer's liability insurance coverage in the amount of at least
One Million Dollars ($1,000,000); and
7.2.4 Property Insurance. "All risk" property insurance including
------------------
boiler and machinery comprehensive form, if applicable, covering damage to or
loss of any of Tenant's personal property, fixtures, equipment and alterations,
including electronic data processing equipment (collectively "Tenant's
Property") (and coverage for the full replacement cost thereof including
business interruption of Tenant), together with, if the property of Tenant's
invitee's is to be kept in the Premises, warehouser's legal liability or bailee
customers insurance for the full replacement cost of the property belonging to
invitee's and located in the Premises.
7.3 General.
-------
7.3.1 Insurance Companies. Insurance required to be maintained by
-------------------
Tenant shall be written by companies licensed to do business in the state in
which the Premises are located and having a "General Policyholders Rating" of at
least A 8 (or such higher rating as may be required by a lender having a lien on
the Premises) as set forth in the most current issue of "Best's Insurance
Guide."
7.3.2 Certificates of Insurance. Tenant shall deliver to Landlord
-------------------------
certificates of insurance for all insurance required to be maintained by Tenant
in the form of Exhibit D, attached hereto, no later than seven (7) days prior to
---------
the date of possession of the Premises. Tenant shall, at least ten (10) days
prior to expiration of the policy, furnish Landlord with certificates of renewal
or "binders" thereof. Each certificate shall expressly provide that such
policies shall not be cancelable or otherwise subject to modification except
after sixty (60) days prior written notice to the parties named as additional
insured in this Lease (except in the case of cancellation for nonpayment of
premium in which case cancellation shall not take effect until at least (10)
days' notice has been given to Landlord). If Tenant fails to maintain any
insurance required in this Lease, Tenant shall be liable for all losses and cost
resulting from said failure.
7.3.3 Additional Insured. Landlord and any property management
------------------
company of Landlord for the Premises shall be named as additional insured under
all of the policies required by Section 7.2.1. The policies required under
Section 7.2.1 shall provide for severability of interest.
7.3.4 Primary Coverage. All insurance to be maintained by Tenant
----------------
shall, except for workers' compensation and employer's liability insurance, be
primary, without right of contribution from insurance of Landlord. Any umbrella
liability policy or excess liability policy (which shall be in "following form")
shall provide that if the underlying aggregate is exhausted, the excess coverage
will drop down as primary insurance. The limits of insurance maintained by
Tenant shall not limit Tenant's liability under this Lease.
7.3.5 Mutual Waiver of Subrogation. Tenant waives any right to
----------------------------
recover against Landlord for claims for damages to Tenant's Property to the
extent covered, or required by this Lease to be covered by insurance. Landlord
waives any right to recover against Tenant for damages to Landlord's property to
the extent covered, or required by this Lease to be covered by property
insurance. This provision is intended to waive fully, and for the benefit of
Landlord and Tenant, any rights and/or claims which might give rise to a right
of subrogation in favor of any insurance carrier. The coverage obtained by
Landlord and Tenant pursuant to this Lease shall include, without limitation, a
waiver of subrogation endorsement attached to the certificate of insurance.
7.3.6 Notification of Incidents. Tenant shall notify Landlord within
-------------------------
seventy-two (72) hours after the occurrence of any accidents or incidents in the
Premises which could give rise to a claim under any of the insurance policies
required under this Section 7.
7.4 Indemnity.
---------
7.4.1 Tenant's Indemnity. Tenant shall indemnify, protect, defend (by
------------------
counsel reasonably acceptable to both Landlord and Tenant) and hold harmless
Landlord and its partners, directors, officers, employees, shareholders,
lenders, agents, contractors and each of their successors and assigns from and
against any and all claims, judgments, causes of action, damages, penalties,
costs, liabilities, and expenses, including all costs, attorneys' fees, expenses
and liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon, arising at any time during or after the Term as a
result (directly or indirectly) of or in connection with (i) any default in the
performance of any obligation on Xxxxxx's part to be
4.
performed under the terms of this Lease, or (ii) Tenant's use of the Premises,
the conduct of Tenant's business or any activity, work or things done, permitted
or suffered by Tenant in or about the Premises or other portions of the Project,
except to the extent caused by Xxxxxxxx's gross negligence or willful
misconduct. The obligations of Tenant under this Section 7.4 shall survive the
termination of this Lease with respect to any claims or liability arising out of
any act, omission, or event occurring on or before the date of such termination.
7.4.2 Landlord's Indemnity. Except as expressly provided in this
--------------------
Lease, and subject to the limitations of Section 17.5, Landlord shall indemnify,
protect, defend (by counsel reasonably acceptable to both Landlord and Tenant)
and hold harmless Tenant and its partners, directors, officers, employees,
shareholders, lenders, agents, contractors and each of their successors and
assigns from and against any and all claims, judgments, causes of action,
damages, penalties, costs, liabilities, and expenses, including all costs,
attorneys' fees, expenses and liabilities incurred in the defense of any such
claim or any action or proceeding brought thereon, arising at any time during or
after the Term as a result (directly or indirectly) of or in connection with (i)
any default in the performance of any obligation on Landlord's part to be
performed under the terms of this Lease, or (ii) landlord's gross negligence or
intentional misconduct in connection with Xxxxxxxx's activities in or about the
Premises. The obligations of Landlord under this Section 7.4 shall survive the
termination of this Lease with respect to any claims or liability arising out of
any act, omission, or event occurring on or before the date of such termination.
7.5 Exemption of Landlord from Liability. Tenant, as a material part of
------------------------------------
the consideration to Landlord, hereby assumes all risk of damage to property
including, but not limited to, Xxxxxx's fixtures, equipment, furniture and
alterations or injury to persons in, upon or about the Premises or other
portions of the Project arising from any cause, and Tenant hereby waives all
claims in respect thereof against Landlord, except to the extent such claims are
caused by the gross negligence or willful misconduct of Landlord, its employees,
agents, and contractors. Tenant hereby agrees that Landlord shall not be liable
for injury to Xxxxxx's business or any loss of income therefrom or for damage to
the property of Tenant, or injury to or death of Xxxxxx, Tenant's employees,
invitee's, customers, agents or contractors or any other person in or about the
Premises or the Project, whether such damage or injury is caused by fire, steam,
electricity, gas, water or rain, or from the breakage, leakage or other defects
of sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, or from any other cause, whether said damage or injury results from
conditions arising upon the Premises, or from other sources or places, and
regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Tenant, except to the extent caused by the
gross negligence or willful misconduct of Landlord, its employees, agents, and
contractors.
8. REPAIRS AND MAINTENANCE.
-----------------------
8.1 Landlord. Landlord shall, subject to the following sentence, maintain
--------
the structural portions of the roof, foundation, and load-bearing portions of
walls (excluding wall coverings, painting, glass and doors) of the Improvements.
Landlord shall not be required to make any repair resulting from (i) any
alteration or modification to the Improvements or to mechanical equipment within
the Improvements performed by, for or because of Tenant or to special equipment
or systems installed by, for or because of Tenant, (ii) the installation, use or
operation of Tenant's property, fixtures and equipment, (iii) the moving of
Tenant's property in or out of the Improvements or in and about the Premises,
(iv) Tenant's use or occupancy of the Premises in violation of Section 10 of
this Lease or in the manner not contemplated by the parties at the time of the
execution of this Lease, (v) the acts or omissions of Tenant and Xxxxxx's
employees, agents, invitees, subtenants, licensees or contractors, (vi) fire and
other casualty, except as provided by Section 12 of this Lease or (vii)
condemnation, except as provided in Section 13 of this Lease. Landlord shall
make repairs under this Section 8.1 as soon as reasonably practicable after
receipt of written notice from Tenant of the need for such repairs. Landlord
shall procure and maintain, at Tenant's expense, regularly scheduled preventive
maintenance/service contracts for (i) the maintenance and repair of the fire
detection and sprinkler system, and (ii) the regular and routine maintenance and
annual inspection of the roof membrane. Tenant shall reimburse Landlord upon
thirty (30) days written notice for the reasonable cost thereof. Tenant waives
any right to repair the Premises at the expense of Landlord under any applicable
governmental laws, ordinances, statutes, orders or regulations now or hereafter
in effect which might otherwise apply.
8.2 Tenant. Except for the portions of the Premises expressly required to
------
be maintained by Landlord under Section 8.1, Tenant, at Tenant's expense, shall
maintain the Premises in good order, condition and repair, including, without
limitation, subfloors and floor coverings, walls and wall coverings, mechanical,
electrical, and plumbing systems, doors, windows. parking lots, and truck
aprons, gutters and downspouts, landscaping and any signage. During the Term of
this Lease, or any extensions thereof, Tenant shall procure and maintain, at
Tenant's expense, regularly scheduled preventive maintenance/service contracts
with maintenance contractors reasonably acceptable to Landlord for (i) servicing
all hot water and heating and air conditioning systems and equipment ("HVAC") in
the Premises, and (ii) the landscape maintenance. Tenant shall provide Landlord
with a copy of the HVAC contract and shall furnish a copy of all reports and
correspondence involving the condition of the HVAC equipment to Landlord. Each
contract shall provide that the maintenance contractor will notify Landlord in
writing at least ten (10) days prior to any termination of the contract.
Notwithstanding the foregoing, Landlord reserves the right to procure and
maintain the foregoing maintenance/service contracts, and Tenant shall promptly
reimburse Landlord upon thirty (30) days written notice for the cost thereof. In
the event Tenant fails, in the reasonable judgment of Landlord, to maintain the
Premises in good order, condition and repair, Landlord shall have the right to
perform such maintenance, repairs or refurbishing at Tenant's expense.
5.
8.3 Roof -- Repair and Replacement. As provided in Section 8.1. Landlord,
------------------------------
at its cost, shall maintain the structural portions of the roof during the Term
of this Lease. In addition, Landlord shall arrange for regular and routine
maintenance and annual inspection of the roof surface and membrane, subject to
Xxxxxx's reimbursement to Landlord for the reasonable cost thereof within thirty
(30) days' written notice. In the event that the surface and membrane of the
roof needs to be replaced as a matter of prudent building management and
ownership, as reasonably determine by an independent and qualified roofing
consultant, during the initial Term of this Lease or, if the Term is extended
pursuant to Section 20, during the First Extension Term, Landlord shall arrange
and pay for the replacement thereof at Landlord's sole cost and expense. If the
Term of this Lease is further extended, either pursuant to Section 20 or by
other agreement of the parties, and the roof surface and membrane needs to be
replaced as a matter of prudent building management and ownership, as reasonably
determined by an independent and qualified roofing consultant, during such
additionally extended term, Tenant shall arrange and pay for the replacement
thereof at Tenant's sole cost and expense.
8.4 Condition of the Premises.
-------------------------
8.4.1 Landlord warrants to Tenant that the Premises comply with all
applicable covenants or restrictions of record and applicable building codes,
regulations and ordinances in effect on the Commencement Date. Said warranty
does not apply to the use to which Tenant will put the Premises or to any
alterations or utility installations made or to be made by Tenant. If the
Premises do not comply with said warranty, Landlord shall, except as otherwise
provided in this Lease, promptly after receipt of written notice from Tenant
setting forth with specificity the nature and extent of such condition of non-
compliance, rectify the same at Landlord's expense. If Tenant fails to give
Landlord written notice of a condition of non-compliance with this warranty
within six (6) months alter the Possession Date, the correction of such
condition of non-compliance shall be the obligation of Tenant at Tenant's sole
cost and expense.
8.4.2 Landlord and Tenant have jointly conducted a walk-through of
the Premises and have agreed that those items which are set forth in Exhibit F
---------
hereto require correction and that such items shall be corrected by Landlord, at
its sole cost and expense. On or about the Possession Date, Landlord and Tenant
shall conduct a subsequent walk-through of the Premises and shall jointly and
reasonably determine if there are any new and additional items in the Premises
which require correction and, if so, such items shall be added to Exhibit F.
---------
Landlord shall cause the items set forth in Exhibit F, as the same may be
---------
revised following the Possession Date walk through, to be corrected promptly and
at Landlord's sole cost and expense.
9. ALTERATIONS.
-----------
9.1 Trade Fixtures; Alterations. Tenant may install necessary trade
---------------------------
fixtures, equipment and furniture in the Premises, provided that such items are
installed and are removable without structural or material damage to the
Premises or the Project. Tenant shall not construct, nor allow to be
constructed, any alterations or physical additions in, about or to the Premises
without obtaining the prior written consent of Landlord, which consent shall be
conditioned upon Tenant's compliance with Landlord's reasonable requirements
regarding construction of improvements and alterations but such consent
otherwise shall not be unreasonably withheld. Tenant shall submit plans and
specifications to Landlord with Xxxxxx's request for approval and shall
reimburse Landlord for all costs which Landlord may incur in connection with
granting approval to Tenant for any such alterations and additions, including
any costs or expenses which Landlord may incur in electing to have outside
architects and engineers review said matters. Tenant shall file a notice of
completion after completion of such work and provide Landlord with a copy
thereof. Tenant shall provide Landlord with a set of "as-built" drawings for any
such work.
9.2 Damage; Removal. Tenant shall repair all damage to the Premises caused
---------------
by the installation or removal of Tenant's fixtures, equipment, furniture and
alterations. Upon the termination of this Lease, Tenant shall remove any or all
alterations, additions, improvements and partitions made or installed by Tenant
and restore the Premises to its condition existing prior to the construction of
any such items; provided, however, Landlord may permit, upon written notice to
Tenant, any such items designated by Landlord to remain on the Premises, in
which event (and if Tenant elects to leave such items on the Premises) they
shall be and become the property of Landlord upon the termination of this Lease.
All such removals and restoration shall be accomplished in a good and
workmanlike manner and so as not to cause any damage to the Premises or the
Project whatsoever.
9.3 Liens. Tenant shall promptly pay and discharge all claims for labor
-----
performed, supplies furnished and services rendered at the request of Tenant and
shall keep the Premises free of all mechanics' and materialmen's liens in
connection therewith. Tenant shall provide at least ten (10) days prior written
notice to Landlord before any labor is performed, supplies furnished or services
rendered on or at the Premises and Landlord shall have the right to post on the
Premises notices of non-responsibility. If any lien is filed, Tenant shall cause
such lien to be released and removed within ten (10) days after the date of
filing, and if Tenant fails to do so, Landlord may take such action as may be
necessary to remove such lien and Tenant shall pay Landlord such amounts
expended by Landlord together with interest thereon at the Applicable interest
Rate from the date of expenditure.
6.
10. USE. The Premises shall be used only for the Permitted Uses set forth in the
---
Basic Lease Information and for no other uses. Tenant's use of the Premises
shall be in compliance with and subject to all applicable governmental laws,
ordinances, statutes, orders and regulations and any CC&R's or any supplement
thereto recorded in any official or public records with respect to the Project
or any portion thereof. In no event shall the Premises be used for any of the
Prohibited Uses set forth on Exhibit E attached hereto. Tenant shall comply with
---------
the reasonable rules and regulations as Landlord may from time to time
prescribe. Tenant shall not commit waste, overload the floors or structure of
the Premises, subject the Premises or the Project to any use which would damage
the same or increase the risk of loss or violate any insurance coverage, permit
any unreasonable odors, smoke, dust, gas, substances, noise or vibrations to
emanate from the Premises, take any action which would constitute a nuisance or
would disturb, obstruct or endanger any other tenants of the Project, take any
action which would abrogate any warranties, or use or allow the Premises to be
used for any unlawful purpose. Tenant shall have the right to use for its
employees and invitees, the parking areas on the Premises. Landlord shall not be
responsible for non-compliance by any other tenant or occupant of the Project
with, or Landlord's failure to enforce, any of the rules or regulations or any
other terms or provisions of such tenant's or occupant's lease. Tenant shall
promptly comply with the reasonable requirements of any board of fire insurance
underwriters or other similar body now or hereafter constituted. Tenant shall
not do any act which shall in any way encumber the title of Landlord in and to
the Premises or the Project.
11. ENVIRONMENTAL MATTERS.
---------------------
11.1 Hazardous Materials. Tenant shall not cause nor permit, nor allow any
-------------------
of Tenant's employees, agents, customers, visitors, invitees, licensees,
contractors, assignees or subtenants (collectively, "Tenant's Parties") to cause
or permit, any Hazardous Materials to be brought upon, stored, manufactured,
generated, blended, handled, recycled, treated, disposed or used on, under or
about the Premises or the Project, except for routine office and janitorial
supplies in usual and customary quantities stored, used and disposed of in
accordance with all applicable Environmental Laws. As used herein, "Hazardous
Materials" means any chemical, substance, material, controlled substance,
object, condition, waste, living organism or combination thereof which is or may
be hazardous to human health or safety or to the environment due to its
radioactivity, ignitability, corrosivity, reactivity, explosivity, toxicity,
carcinogenicity, mutagenicity, phytotoxicity, infectiousness or other harmful or
potentially harmful properties or effects, including, without limitation,
petroleum and petroleum products, asbestos, radon, polychlorinated biphenyls
(PCBs) and all of those chemicals, substances, materials, controlled substances.
objects, conditions, wastes, living organisms or combinations thereof which are
now or become in the future listed, defined or regulated in any manner by any
Environmental Law based upon, directly or indirectly, such properties or
effects. As used herein, "Environmental Laws" means any and all federal, state
or local environmental, health and/or safety-related laws, regulations,
standards, decisions of courts, ordinances, rules, codes, orders, decrees,
directives, guidelines, permits or permit conditions, currently existing and as
amended, enacted, issued or adopted in the future which are or become applicable
to Tenant, the Premises, the Building or the Project. Tenant and Xxxxxx's
Parties shall comply with all Environmental Laws and promptly notify Landlord of
the violation of any Environmental Law or presence of any Hazardous Materials,
other than office and janitorial supplies as permitted above, on the Premises.
Landlord shall have the right to enter upon and inspect the Premises and to
conduct tests, monitoring and investigations. If such tests indicate the
presence of any environmental condition which occurred during the Term of this
Lease, Tenant shall reimburse Landlord for the cost of conducting such tests.
The phrase "environmental condition" shall mean any adverse condition relating
to any Hazardous Materials or the environment, including surface water,
groundwater, drinking water supply, land, surface or subsurface strata or the
ambient air and includes air, land and water pollutants, noise, vibration, light
and odors. In the event of any such environmental condition, Tenant shall
promptly take any and all steps necessary to rectify the same to Landlord's
reasonable satisfaction or shall, at Landlord's election, reimburse Landlord,
upon demand, for the cost to Landlord of performing rectifying work. The
reimbursement shall be paid to Landlord in advance of Landlord's performing such
work, based upon Xxxxxxxx's reasonable estimate of the cost thereof; and upon
completion of such work by Landlord, Tenant shall pay to Landlord any shortfall
within thirty (30) days after Landlord bills Tenant therefore or Landlord shall
within thirty (30) days refund to Tenant any excess deposit, as the case may be.
11.2 Indemnification. Tenant shall indemnify, protect, defend (by counsel
---------------
acceptable to Landlord) and hold harmless Landlord and its partners, directors,
officers, employees, shareholders, lenders, agents, contractors and each of
their respective successors and assigns (individually and collectively,
"Indemnitees") from and against any and all claims, judgments, causes of action,
damages, penalties, fines, taxes, costs, liabilities, losses and expenses
arising at any time during or after the Term as a result (directly or
indirectly) of or in connection with (a) Tenant and/or Tenant's Parties' breach
of any prohibition or provision of the preceding section, or (b) the presence of
Hazardous Materials on, under or about the Premises or other property as a
result (directly or indirectly) of Tenant's and/or Tenant's Parties' activities,
or failure to act, in connection with the Premises. This indemnity shall include
the cost of any required or necessary repair, cleanup or detoxification, and the
preparation and implementation of any closure, monitoring or other required
plans, whether such action is required or necessary prior to or following the
termination of this Lease. Neither the written consent by Xxxxxxxx to the
presence of Hazardous Materials on, under or about the Premises, nor the strict
compliance by Tenant with all Environmental Laws, shall excuse Tenant from
Tenant's obligation of indemnification pursuant hereto. Tenant's obligations
pursuant to the foregoing indemnity shall survive the termination of this Lease.
7.
11.3 Landlord's Disclosure. Landlord has no actual knowledge and has
---------------------
received no written notice that (i) any Hazardous Materials are located on,
under, or in the Premises, or (ii) there is a pending proceeding, inquiry,
investigation, or order by any governmental authority with respect to any
Hazardous Materials on, under, or in be Premises. As use herein, the term
"actual knowledge" means that the specific matter has come to the actual
attention of the person or persons employed by Landlord who are responsible and
authorized to act with respect to such matter.
11.4 Storage Tank Removal. The parties acknowledge that the previous
--------------------
tenant of the Premises had installed a 10,000 gallon underground diesel storage
tank (the "Tank"). Landlord shall remove or cause the Tank to be removed in
accordance with all applicable laws and regulations and within sixty (60) days
following the Commencement Date. Landlord further acknowledges and agrees that
Tenant shall have no liability for any cost or expense arising out of the
installation, use, or removal of the Tank.
12. DAMAGE AND DESTRUCTION.
----------------------
12.1 Casualty. If the Premises should be damaged or destroyed by fire or
--------
other casualty, Tenant shall give immediate written notice to Landlord. Within
thirty (30) days after receipt thereof, Landlord shall notify Tenant whether the
necessary repairs can reasonably be made: (a) within ninety (90) days; (b) in
more than ninety (90) days but in less than one hundred eighty (180) days; or
(c) in more than one hundred eighty (180) days from the date of such notice.
12.1.1 Less Than 90 Days. If the Premises should be damaged only to
-----------------
such extent that rebuilding or repairs can reasonably be completed within ninety
(90) days, this Lease shall not terminate and, provided that insurance proceeds
are available to fully repair the damage. Landlord shall repair the Premises
utilizing such insurance proceeds and shall not recover any of such repair costs
from Tenant pursuant to Section 6. Landlord shall not be required to rebuild,
repair or replace any alterations, partitions, fixtures, additions and other
improvements (collectively, "Improvements") which may have been placed in, on or
about the Premises by or for the benefit of Tenant, it being the intent of the
parties that Tenant shall replace such Improvements utilizing insurance proceeds
available to Tenant pursuant to Section 7.2.4. If Tenant is required to vacate
all or a portion of the Premises during Landlord's repair thereof, the Base Rent
payable hereunder shall be abated proportionately from the date Tenant vacates
all or a portion of the Premises only to the extent rental abatement insurance
proceeds are received by Landlord and only during the period the Premises are
unfit for occupancy.
12.1.2 Greater Than 90 Days. If the Premises should be damaged only
--------------------
to such extent that rebuilding or repairs can reasonably be completed in more
than ninety (90) days but in less than one hundred eighty (180) days, then
Landlord shall have the option of: (a) terminating the Lease effective upon the
occurrence of such damage, in which event the Rent shall be abated from the date
Tenant vacates the Premises; or (b) electing to repair the Premises, provided
insurance proceeds are available to fully repair the damage (except that
Landlord shall not be required to rebuild, repair or replace any part of the
Improvements which may have been placed in, on or about the Premises by or for
the benefit of Tenant). If Tenant is required to vacate all or a portion of the
Premises during Landlord's repair thereof, the Base Rent payable hereunder shall
be abated proportionately from the date Tenant vacates all or a portion of the
Premises only to the extent rental abatement insurance proceeds are received by
Landlord and only during the period the Premises are unfit for occupancy. In the
event that Landlord should fail to substantially complete such repairs within
one hundred eighty (180) days after the date upon which Landlord is notified by
Tenant of the casualty (such period to be extended for delays caused by Tenant
or because of any items of Force Majeure, as hereinafter defined) and Tenant has
not re-occupied the Premises. Tenant shall have the right, as Xxxxxx's exclusive
remedy, within ten (10) days after the expiration of such one hundred eighty
(180) day period, to terminate this Lease by delivering written notice to
Landlord as Xxxxxx's exclusive remedy, whereupon all rights hereunder shall
cease and terminate thirty (30) days after Xxxxxxxx's receipt of such notice.
12.1.3 Greater Than 180 Days. If the Premises should be so damaged
---------------------
that rebuilding or repairs cannot be completed within one hundred eighty (180)
days, either Landlord or Tenant may terminate this Lease by giving written
notice within ten (10) days after notice from Landlord specifying such time
period of repair; and this Lease shall terminate and the Rent shall be abated
from the date Tenant vacates the Premises. In the event that neither party
elects to terminate this Lease. Landlord shall promptly commence and diligently
prosecute to completion the repairs to the Premises, provided insurance proceeds
are available to repair the damage (except that Landlord shall not be required
to rebuild, repair or replace any Improvements which may have been placed in, on
or about the Premises by or for the benefit of Tenant). If Tenant is required to
vacate all or a portion of the Premises during Landlord's repair thereof, the
Base Rent payable hereunder shall be abated proportionately from the date Tenant
vacates all or a portion of the Premises only to the extent rental abatement
insurance proceeds are received by Landlord and only during the period that the
Premises are unfit for occupancy.
12.2 Tenant's Fault. If the Premises or any portion of the Premises is
--------------
damaged resulting from the negligence or breach of this Lease by Tenant or any
of Tenant's Parties. Rent shall not be reduced during the repair of such damage
and Tenant shall be liable to Landlord for the cost of the repair caused thereby
to the extent such cost is not covered by insurance proceeds.
8.
12.3 Uninsured Casualty. In the event that the Premises or any portion of
------------------
the Premises is damaged to the extent Tenant is unable to use the Premises and
such damage is not covered by insurance proceeds received by Landlord or in the
event that the holder of any indebtedness secured by the Premises requires that
the insurance proceeds be applied to such indebtedness, then Landlord shall have
the right at Landlord's option either (i) to repair such damage as soon as
reasonably possible at Landlord's expense, or (ii) to give written notice to
Tenant within thirty (30) days after the date of the occurrence of such damage
of Landlord's intention to terminate this Lease as of the date of the occurrence
of such damage. In the event Landlord elects to terminate this Lease, Tenant
shall have the right (but not the obligation) within ten (10) days after receipt
of such notice to give written notice to landlord of Tenant's intention to pay
the cost of repair of such damage, in which event this Lease shall continue in
full force and effect, Landlord shall make such repairs as soon as reasonably
possible and Tenant shall reimburse Landlord for such repairs within fifteen
(15) days after receipt of an invoice from Landlord. If Tenant is required to
vacate all or a portion of the Premises during Landlord's repair thereof, the
Base Rent payable hereunder shall be abated proportionately from the date Tenant
vacates all or a portion of the Premises only to the extent rental abatement
insurance proceeds are received by Landlord and only during the period that the
Premises are unfit for occupancy. If Tenant does not give such notice within the
ten ( 10) day period, this Lease shall terminate automatically as of the date of
the occurrence of the damage.
12.4. Waiver. With respect to any damage or destruction which Landlord is
------
obligated to repair or may elect to repair, Tenant waives all rights to
terminate this Lease pursuant to rights otherwise presently or hereafter
accorded by law and not specifically set forth herein.
13. EMINENT DOMAIN.
--------------
13.1 Total Condemnation. If all of the Premises is condemned by eminent
------------------
domain, inversely condemned or sold under threat of condemnation for any public
or quasi-public use or purpose ("Condemned"), this Lease shall terminate as of
the earlier of the date the condemning authority takes title to or possession of
the Premises, and Rent shall be adjusted to the date of termination.
13.2 Partial Condemnation, If any portion of the Premises is Condemned and
--------------------
such partial condemnation materially impairs Tenant's ability to use the
Premises for Xxxxxx's business as reasonably determined by Landlord. Landlord
shall have the option of either (i) relocating Tenant to comparable space within
the Project or (ii) terminating this Lease as of the earlier of the date title
vests in the condemning authority or as of the date an order of immediate
possession is issued and Rent shall be adjusted to the date of termination. If
such partial condemnation does not materially impair Xxxxxx's ability to use the
Premises for the business of Tenant, Landlord shall promptly restore the
Premises to the extent of any condemnation proceeds recovered by Xxxxxxxx,
excluding the portion thereof lost in such condemnation, and this Lease shall
continue in full force and effect except that after the date of such title
vesting Rent shall be adjusted as reasonably determined by Landlord.
13.3 Award. If the Premises are wholly or partially Condemned, Landlord
-----
shall be entitled to the entire award paid for such condemnation, and Tenant
waives any claim to any part of the award from Landlord or the condemning
authority; provided, however, Tenant shall have the right to recover from
Landlord such compensation, if any, as may be specifically awarded to Landlord
in connection with costs in removing Tenant's merchandise, furniture, fixtures,
leasehold improvements and equipment to a new location. No condemnation of any
kind shall be construed to constitute an actual or constructive eviction of
Tenant or a breach of any express or implied covenant of quiet enjoyment.
13.4 Temporary Condemnation. In the event of a temporary condemnation not
----------------------
extending beyond the Term, this Lease shall remain in effect, Tenant shall
continue to pay Rent and Tenant shall receive any award made for such
condemnation except damages to any of Landlord's property. If a temporary
condemnation is for a period which extends beyond the Term, this Lease shall
terminate as of the date of initial occupancy by the condemning authority and
any such award shall be distributed in accordance with the preceding section. If
a temporary condemnation remains in effect at the expiration or earlier
termination of this Lease, Tenant shall pay Landlord the reasonable cost of
performing any obligations required of Tenant with respect to the surrender of
the Premises, unless Xxxxxxxx receives such costs from the condemning authority.
14. DEFAULT.
-------
14.1 Events of Defaults. The occurrence of any of the following events
------------------
shall, at Landlord's option, constitute an "Event of Default":
14.1.1 Vacation or abandonment of the Premises for a period of thirty
(30) consecutive days;
14.1.2 Failure to pay Rent on the date when due and the failure
continuing for a period of five (5) days after such payment is due:
14.1.3 Failure to perform Tenant's covenants and obligations
hereunder (except default in the payment of Rent) where such failure continues
for a period of thirty (30) days after written notice from Landlord: provided,
however, if the
9.
nature of the default is such that more than thirty (30) days are reasonably
required for its cure. Tenant shall not be deemed to be in default if Tenant
commences the cure within the thirty (30) day period and diligently prosecutes
such cure to completion;
14.1.4 The making of a general assignment by Xxxxxx for the benefit
of creditors: the filing of a voluntary petition by Xxxxxx or the filing of an
involuntary petition by any of Tenant's creditors seeking the rehabilitation,
liquidation or reorganization of Tenant under any law relating to bankruptcy,
insolvency or other relief of debtors and, in the case of an involuntary action,
the failure to remove or discharge the same within sixty (60) days of such
filing; the appointment of a receiver or other custodian to take possession of
substantially all of Tenant's assets or this leasehold; Tenant's insolvency or
inability to pay Tenant's debts or failure generally to pay Xxxxxx's debts when
due; any court entering a decree or order directing the winding up or
liquidation of Tenant or of substantially all of Tenant's assets; Tenant taking
any action toward the dissolution or winding up of Tenant's affairs; the
cessation or suspension of Xxxxxx's use of the Premises; or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets or
this leasehold;
14.1.5 The making of any material misrepresentation or omission by
Tenant or any successor in interest of Tenant in any materials delivered by or
on behalf of Tenant to Landlord or Xxxxxxxx's lender pursuant to this Lease; or
14.1.6 The occurrence of an Event of Default set forth in Section
14.1.4 or 15.1.5 with respect to any guarantor of this Lease, if applicable.
14.2 Remedies.
--------
14.2.1 Termination. In the event of the occurrence of any Event of
-----------
Default, Landlord shall have the right to give a written termination notice to
Tenant and, on the date specified in such notice, this Lease shall terminate
unless on or before such date all arrears of Rent and all other sums payable by
Tenant under this Lease and all costs and expenses incurred by or on behalf of
Landlord hereunder shall have been paid by Tenant and all other Events of
Default at the time existing shall have been fully remedied to the satisfaction
of Landlord.
14.2.1.1 Repossession. Following termination, without
------------
prejudice to other remedies Landlord may have, Landlord may (i) peaceably re-
enter the Premises upon voluntary surrender by Tenant or remove Tenant therefrom
and any other persons occupying the Premises, using such legal proceedings as
may be available; (ii) repossess the Premises or relet the Premises or any part
thereof for such term (which may be for a term extending beyond the Term), at
such rental and upon such other terms and conditions as Landlord in Landlord's
sole discretion shall determine, with the right to make reasonable alterations
and repairs to the Premises; and (iii) remove all personal property therefrom.
14.2.1.2 Unpaid Rent. Landlord shall have all the rights and
-----------
remedies of a landlord provided by applicable law, including the right to
recover from Tenant: (a) the worth, at the time of award, of the unpaid Rent
that had been earned at the time of termination, (b) the worth, at the time of
award, of the amount by which the unpaid Rent that would have been earned after
the date of termination until the time of award exceeds the amount of loss of
rent that Xxxxxx proves could have been reasonably avoided, (c) 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 the loss of rent that Xxxxxx
proves could have been reasonably avoided, and (d) any other amount, and court
costs, necessary to compensate Landlord for all detriment proximately caused by
Xxxxxx's default, The phrase "worth, at the time of award," as used in (a) and
(b) above, shall be computed at the Applicable Interest Rate, and as used in (c)
above, shall be computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one percent
(1%).
14.2.2 Continuation. Even though an Event of Default may have
------------
occurred, this Lease shall continue in effect for so long as Landlord does not
terminate Tenant's right to possession; and Landlord may enforce all of
Landlord's rights and remedies under this Lease, including the right to recover
Rent as it becomes due. Landlord, without terminating this Lease, may, during
the period Tenant is in default, enter the Premises and relet the same, or any
portion thereof, to third parties for Tenant's account and Tenant shall be
liable to Landlord for all costs Landlord incurs in reletting the Premises,
including, without limitation, brokers' commissions, expenses of remodeling the
Premises and like costs. Reletting may be for a period shorter or longer than
the remaining Term. Tenant shall continue to pay the Rent on the date the same
is due. No act by Landlord hereunder, including acts of maintenance,
preservation or efforts to lease the Premises or the appointment of a receiver
upon application of Landlord to protect Xxxxxxxx's interest under this Lease,
shall terminate this Lease unless Landlord notifies Tenant that Landlord elects
to terminate this Lease. In the event that Landlord elects to relet the
Premises, the rent that Landlord receives from reletting shall be applied to the
payment of, first, any indebtedness from Tenant to Landlord other than Base Rent
and Real Property Taxes; second, all costs, including maintenance, incurred by
Landlord in reletting; and, third, Base Rent and Real Property Taxes under this
Lease. After deducting the payments referred to above, any sum remaining from
the rental Landlord receives from reletting shall be held by Landlord and
applied in payment of future Rent as Rent becomes due under this Lease. In no
event, and notwithstanding anything in Section 15 to the contrary, shall Tenant
be entitled to any excess rent received by Landlord. If, on the date Rent is due
under this Lease, the rent received from the reletting is less than the Rent due
on that date. Tenant shall pay to Landlord, in addition to the remaining
10.
Rent due, all costs, including maintenance, which Landlord incurred in reletting
the Premises that remain after applying the rent received from reletting as
provided hereinabove. So long as this Lease is not terminated, Landlord shall
have the right to remedy any default of Tenant, to maintain or improve the
Premises, to cause a receiver to be appointed to administer the Premises and new
or existing subleases and to add to the Rent payable hereunder all of Landlord's
reasonable costs in so doing, with interest at the Applicable Interest Rate from
the date of such expenditure.
14.3 Cumulative. Each right and remedy of Landlord provided for herein or
----------
now or hereafter existing at law, in equity, by statute or otherwise shall be
cumulative and shall not preclude Landlord from exercising any other rights or
remedies provided for in this Lease or now or hereafter existing at law or in
equity, by statute or otherwise. No payment by Tenant of a lesser amount than
the Rent nor any endorsement on any check or letter accompanying any check or
payment as Rent shall be deemed an accord and satisfaction of full payment of
Rent; and Landlord may accept such payment without prejudice to Landlord's right
to recover the balance of such Rent or to pursue other remedies.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, sublet or otherwise
-------------------------
transfer, whether voluntarily or involuntarily or by operation of law, the
Premises or any part thereof without Xxxxxxxx's prior written approval, which
shall not be unreasonably withheld. The merger of Tenant with any other entity
or the transfer of any controlling or managing ownership or beneficial interest
in Tenant, or the assignment of a substantial portion of the assets of Tenant,
whether or not located at the Premises, shall constitute an assignment
hereunder. If Tenant desires to assign this Lease or sublet any or all of the
Premises, Tenant shall give Landlord written notice thereof with copies of all
related documents and agreements associated with the assignment or sublease,
including without limitation, the financial statements of any proposed assignee
or subtenant, forty-five (45) days prior to the anticipated effective date of
the assignment or sublease. Tenant shall pay Landlord's reasonable attorneys'
fees incurred in the review of such documentation plus an administrative fee of
Three Hundred Fifty Dollars ($350.00) for each proposed transfer. Landlord shall
have a period of thirty (30) days following receipt of such notice and all
related documents and agreements to notify Tenant in writing of Landlord's
approval or disapproval of the proposed assignment or sublease. If Landlord
fails to notify Tenant in writing of such election, Landlord shall be deemed to
have approved such assignment or subletting. This Lease may not be assigned by
operation of law. Any purported assignment or subletting contrary to the
provisions hereof shall be void and shall constitute an Event of Default
hereunder. If Tenant receives rent or other consideration for any such transfer
in excess of the Rent, or in case of the sublease of a portion of the Premises,
in excess of such Rent that is fairly allocable to such portion after
appropriate adjustments to assure that all other payments required hereunder are
appropriately taken into account, Tenant shall pay Landlord fifty percent (50%)
of the difference between each such payment of rent or other consideration and
the Rent required hereunder. During any period in which an Event of Default (as
defined in Section 14.1) remains uncured, Landlord may, without waiving any
other rights or remedies, collect rent from the assignee, subtenant or occupant
and apply the net amount collected to the Rent herein reserved and apportion any
excess rent so collected in accordance with the terms of the preceding sentence.
Tenant shall continue to be liable as a principal and not as a guarantor or
surety to the same extent as though no assignment or subletting had been made.
Landlord may consent to subsequent assignments or subletting of this Lease or
amendments or modifications to the Lease by assignees of Tenant without
notifying Tenant or any successor of Tenant and without obtaining their consent.
No permitted transfer shall be effective until there has been delivered to
Landlord a counterpart of the transfer instrument in which the transferee agrees
to be and remain jointly and severally liable with Tenant for the payment of
Rent pertaining to the Premises and for the performance of all the terms and
provisions of this Lease relating thereto arising on or after the date of the
transfer. Subject to the provisions hereof and provided Xxxxxxxx receives thirty
(30) days prior written notice and a true and correct copy of the assignment
instrument. Landlord hereby consents to the assignment of Xxxxxx's interest in
and to this Lease to any wholly owned subsidiary of Tenant.
16. ESTOPPEL ATTORNMENT AND SUBORDINATION.
-------------------------------------
16.1 Estoppel. Within ten (10) days after request by Landlord, Tenant
--------
shall deliver an estoppel certificate duly executed (and acknowledged if
required by any lender), in the form attached hereto as Exhibit G, or in such
---------
other form as may be acceptable to the lender, which form may include some or
all of the provisions contained in Exhibit G, to any proposed mortgagee,
---------
purchaser or Landlord. Tenant's failure to deliver said statement in such time
period shall be an Event of Default hereunder and shall be conclusive upon
Tenant that (a) this Lease is in full force and effect, without modification
except as may be represented by Landlord; (b) there are no uncured defaults in
Landlord's performance and Tenant has no right of offset, counterclaim or
deduction against Rent hereunder; and (c) no more than one month's Base Rent has
been paid in advance. If any financier should require that this Lease be amended
(other than in the description of the Premises, the Term, the Permitted Use, the
Rent or as will substantially, materially and adversely affect the rights of
Tenant). Landlord shall give written notice thereof to Tenant, which notice
shall be accompanied by a Lease supplement embodying such amendments. Tenant
shall, within ten ( 10) days after the receipt of Landlord's notice, meet and
confer with Landlord in good faith with respect to such proposed amendments.
16.2 Subordination. This Lease shall be subject and subordinate to all
-------------
ground leases and the lien of all mortgages and deeds of trust which now or
hereafter affect the Premises or the Project or Landlord's interest therein, and
all amendments thereto, all without the necessity of Tenant's executing further
instruments to effect such subordination. If requested, Xxxxxx shall execute and
deliver to Landlord within ten (10) days after Xxxxxxxx's request whatever
documentation that may
11.
reasonably be required to further effect the provisions of this paragraph. With
respect to any new mortgage or deed of trust encumbering the Premises after the
date of this Lease, Landlord shall use its best efforts to obtain from such
mortgagee or beneficiary under the deed of trust a non-disturbance agreement in
such party's usual and customary form protecting the interest of Tenant
hereunder.
16.3 Attornment. In the event of a foreclosure proceeding, the exercise of
----------
the power of sale under any mortgage or deed of trust or the termination of a
ground lease, Tenant shall, if requested, attorn to the purchaser thereupon and
recognize such purchaser as Landlord under this Lease; provided, however,
Xxxxxx's obligation to attorn to such purchaser shall be conditioned upon
Xxxxxx's receipt of a non-disturbance agreement protecting the interest of
Tenant hereunder.
17. MISCELLANEOUS.
-------------
17.1 General.
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17.1.1 Entire Agreement. This Lease sets forth all the agreements
----------------
between Landlord and Tenant concerning the Premises; and there are no agreements
either oral or written other than as set forth herein.
17.1.2 Time of Essence. Time is of the essence of this Lease.
---------------
17.1.3 Attorneys' Fees. In any action or proceeding which either
---------------
party brings against the other to enforce its rights hereunder, the unsuccessful
party shall pay all costs incurred by the prevailing party, including reasonable
attorneys' fees, which amounts shall be a part of the judgment in said action or
proceeding.
17.1.4 Severability. If any provision of this Lease or the
------------
application of any such provision shall be held by a court of competent
jurisdiction to be invalid, void or unenforceable to any extent, the remaining
provisions of this Lease and the application thereof shall remain in full force
and effect and shall not be affected, impaired or invalidated.
17.1.5 Law. This Lease shall be construed and enforced in
---
accordance with the laws of the state in which the Premises are located.
17.1.6 No Option. Submission of this Lease to Tenant for
---------
examination or negotiation does not constitute an option to lease, offer to
lease or a reservation of, or option for, the Premises; and this document shall
become effective and binding only upon the execution and delivery hereof by
Landlord and Tenant.
17.1.7 Successors and Assigns. This Lease shall be binding upon
----------------------
and inure to the benefit of the successors and assigns of Landlord and, subject
to compliance with the terms of Section 15, Tenant.
17.1.8 Third Party Beneficiaries. Nothing herein is intended to
-------------------------
create any third party benefit.
17.1.9 Memorandum of Lease. Tenant shall not record this Lease or
-------------------
a short form memorandum hereof without Landlord's prior written consent.
17.1.10 Agency Partnership or Joint Venture. Nothing contained
-----------------------------------
herein nor any acts of the parties hereto shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture by the parties hereto
or any relationship other than the relationship of landlord and tenant.
17.1.11 Merger. The voluntary or other surrender of this Lease by
------
Tenant or a mutual cancellation thereof or a termination by Landlord shall not
work a merger and shall, at the option of Landlord, terminate all or any
existing subtenancies or may, at the option of Landlord, operate as an
assignment to Landlord of any or all of such subtenancies.
17.1.12 Headings. Section headings have been inserted solely as a
--------
matter of convenience and are not intended to define or limit the scope of any
of the provisions contained therein.
17.2 Signs. All signs and graphics of every kind visible in or from public
-----
view or the exterior of the Premises shall be subject to Landlord's prior
written approval and shall be subject to any applicable governmental laws,
ordinances, and regulations and in compliance with Landlord's signage program.
Tenant shall remove all such signs and graphics prior to the termination of this
Lease. Such installations and removals shall be made in such manner as to avoid
injury or defacement of the Premises; and Tenant shall repair any injury or
defacement, including without limitation, discoloration caused by such
installation or removal.
17.3 Waiver. No waiver of any default or breach hereunder shall be implied
------
from any omission to take action on account thereof, notwithstanding any custom
and practice or course of dealing. No waiver by either party of any provision
under this Lease shall be effective unless in writing and signed by such party.
No waiver shall affect any default other than
12.
the default specified in the waiver and then such waiver shall be operative only
for the time and to the extent therein stated. Waivers of any covenant shall not
be construed as a waiver of any subsequent breach of the same.
17.4 Financial Statements. Tenant shall provide to any lender, purchaser
--------------------
or Landlord, within ten (10) days after request, a current, accurate, certified
financial statement for Tenant and Xxxxxx's business prepared under generally
accepted accounting principles consistently applied and such other certified
financial information as may be reasonably required by Landlord, purchaser or
any lender of either.
17.5 Limitation of Liability. The obligations of Landlord under this Lease
-----------------------
are not personal obligations of the individual partners, directors, officers,
shareholders, agents or employees of Landlord; and Tenant shall look solely to
the Premises for satisfaction of any liability of Landlord and shall not look to
other assets of Landlord nor seek recourse against the assets of the individual
partners, directors, officers, shareholders, agents or employees of Landlord.
Whenever Landlord transfers its interest, Landlord shall be automatically
released from further performance under this Lease and from all further
liabilities and expenses hereunder and the transferee of Landlord's interest
shall assume all liabilities and obligations of Landlord hereunder from the date
of such transfer.
17.6 Notices. All notices to be given hereunder shall be in writing and
-------
mailed postage prepaid by certified or registered mail, return receipt
requested, or delivered by personal or courier delivery, or sent by facsimile
(immediately followed by one of the preceding methods), to Landlord's Address
and Xxxxxx's Address, or to such other place as Landlord or Tenant may designate
in a written notice given to the other party. Notices shall be deemed served
upon the earlier of receipt or three (3) days after the date of mailing.
17.7 Brokerage Commission. Landlord shall pay a brokerage commission to
--------------------
Broker in accordance with a separate agreement between Landlord and Broker.
Tenant warrants to Landlord that Xxxxxx's sole contact with Landlord or with the
Premises in connection with this transaction has been directly with Landlord and
Broker, and that no other broker or finder can properly claim a right to a
commission or a finder's fee based upon contacts between the claimant and
Tenant. Xxxxxx agrees to indemnify and hold Landlord harmless from any claims or
liability, including reasonable attorneys' fees, in connection with a claim by
any person for a real estate broker's commission, finder's fee or other
compensation based upon any statement, representation or agreement of Tenant,
and Xxxxxxxx agrees to indemnify and hold Tenant harmless from any such claims
or liability, including reasonable attorneys' fees, based upon any statement,
representation or agreement of Landlord.
17.8 Authorization. Each individual executing this Lease on behalf of
-------------
Tenant represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of Tenant and that such execution is binding upon
Xxxxxx.
17.9 Holding Over; Surrender.
-----------------------
17.9.1 Holding Over. If Tenant holds over the Premises or any part
------------
thereof after expiration of the Term, such holding over shall constitute a
month-to-month tenancy, at a rent equal to one hundred twenty-five percent
(125%) of the Base Rent in effect immediately prior to such holding over and
shall otherwise be on all the other terms and conditions of this Lease. This
paragraph shall not be construed as Landlord's permission for Tenant to hold
over. Acceptance of Rent by Landlord following expiration or termination shall
not constitute a renewal of this Lease or extension of the Term except as
specifically set forth above. If Xxxxxx falls to surrender the Premises upon
expiration or earlier termination of this Lease, Tenant shall indemnify and hold
Landlord harmless from and against all loss or liability resulting from or
arising out of Tenant's failure to surrender the Premises, including, but not
limited to, any amounts required to be paid to any tenant or prospective tenant
who was to have occupied the Premises after the expiration or earlier
termination of this Lease and any related attorneys' fees and brokerage
commissions.
17.9.2 Surrender. Upon the termination of this Lease or Tenant's
---------
right to possession of the Premises, Xxxxxx will surrender the Premises,
together with all keys, in good condition and repair, reasonable wear and tear
excepted. Conditions existing because of Tenant's failure to perform
maintenance, repairs or replacements shall not be deemed "reasonable wear and
tear."
17.10 Joint and Several. If Tenant consists of more than one person, the
-----------------
obligation of all such persons shall be joint and several.
17.11 Covenants and Conditions. Each provision to be performed by Tenant
------------------------
hereunder shall be deemed to be both a covenant and a condition.
17.12 Addenda. The Addenda attached hereto, if any, and identified with
-------
this Lease are incorporated herein by this reference as if fully set forth
herein.
13.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
set forth above.
"Landlord" "Tenant"
CATELLUS DEVELOPMENT CORPORATION, MOHAWK INDUSTRIES. INC.,
a Delaware corporation a Georgia corporation
By: /s/ [SIGNATURE ILLEGIBLE] By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------- ------------------------------
Its: VP Its: PRESIDENT
------------------------- --------------------------
Date: 12-4-95 Date: 11-28-95
--------------------------- -------------------------
14.
ADDENDUM TO LEASE
-----------------
THIS ADDENDUM TO LEASE ("Addendum") is attached to and constitutes an
integral part of the Lease between CATELLUS DEVELOPMENT CORPORATION, as
Landlord, and MOHAWK INDUSTRIES, INC., as Tenant. The terms of this Addendum
shall be incorporated in the Lease for all purposes. In the event of a conflict
between the provisions of the Lease and the provisions of this Addendum, this
Addendum shall control.
THE FOLLOWING NEW SECTIONS ARE HEREBY ADDED TO THE LEASE WHICH STATE IN THEIR
ENTIRETY AS FOLLOWS:
18. Force Majeure Event. For purposes of this Lease, the term "Force Majeure
-------------------
Event" shall mean and include the following: any delay caused by any action,
inaction, order, ruling, moratorium, regulation, statute, condition or other
decision of any governmental agency having jurisdiction over any portion of the
Project, over the construction anticipated to occur thereon or over any uses
thereof, or by fire, flood, inclement weather, strikes, lockouts or other labor
or industrial disturbance (whether or not on the part of agents or employees of
either party hereto engaged in the construction of the Premises), civil
disturbance, order of any government, court or regulatory body claiming
jurisdiction or otherwise, act of public enemy, war, riot, sabotage, blockade,
embargo, failure or inability to secure materials, supplies or labor through
ordinary sources by reason of shortages or priority, discovery of hazardous or
toxic materials, earthquake, or other natural disaster, or any cause whatsoever
beyond the reasonable control (excluding financial inability) of the party whose
performance is required, or any of its contractors or other representatives,
whether or not similar to any of the causes hereinabove stated.
19. CPI Adjustment. Effective as of the first day of the thirty-first (31st)
--------------
month of the Term (the "CPI Adjustment Date"), the Base Rent in effect
immediately before the CPI Adjustment Date shall be increased, in accordance
with the percentage increase, if any, in the Consumer Price Index, to an amount
which is equal to the product of (i) the Index (as hereinafter defined) for the
third month preceding the CPI Adjustment Date, multiplied by (ii) the initial
Base Rent set forth in the Basic Lease Information, divided by (iii) the Basic
Index (as hereinafter defined); provided, however, in no event shall the Base
Rent (as adjusted) in effect immediately prior to the CPI Adjustment Date be
decreased, nor shall it be increased as a result of a CPI adjustment by more
than six percent (6%) per Lease Year, compounded annually. The "Index" shall
mean the Consumer Price Index, All Items, 1982-1984 = 100, All Urban Consumers,
for the Los Angeles/Riverside/Anaheim Area, as published by the United States
Department of Labor, Bureau of Labor Statistics, or its successor index, and the
"Basic Index" shall mean the Index published for the third month preceding the
Commencement Date. The adjusted Base Rent shall be rounded to the nearest $1.00.
If the Index required for the calculation specified in this subsection is not
available on the CPI Adjustment Date in question, Tenant shall continue to pay
the same amount of Base Rent payable during the period immediately preceding the
CPI Adjustment Date until the Index is available and the necessary calculation
is made. As soon as such calculation is made, Tenant shall immediately pay to
Landlord the amount of any underpayment of Base Rent for the month(s) that may
have elapsed. In the event the compilation or publication of the Index shall be
transferred to any other governmental department, bureau or agency or shall be
discontinued, the index most nearly the same as the Index shall be used to make
such calculation.
15.
20. Options to Extend.
-----------------
20.1 Terms of Options. Provided (i) Tenant is not in default under the
----------------
terms of this Lease at the time each renewal option is exercised or at the
commencement of the applicable Extension Term (as hereinafter defined). (ii)
Tenant is occupying at least ninety percent (90%) of the Premises, including any
expansion space, and (iii) Landlord has not given more than two (2) notices of
default in any twelve (12) month period for nonpayment of monetary obligations,
Tenant shall have two (2) options to renew this Lease for an additional period
of sixty (60) months each (the "First and Second Extension Terms"). The
Extension Terms shall be on all the terms and conditions of this Lease, except
that Landlord shall have no additional obligation for free rent, leasehold
improvements or for any other tenant inducements for the Extension Terms. Base
Rent shall be increased (but not decreased) as set forth below. There shall be
no additional extension terms beyond the Extension Terms set forth herein.
Tenant must exercise its options to extend this Lease by giving Landlord written
notice of its election to do so not less than one hundred eighty (180) days
prior to the end of the initial Term, or the First Extension Term, as
applicable. Any notice not given in a timely manner shall be void, and Tenant
shall be deemed to have waived its extension rights. The extension options set
forth herein are personal to Tenant and shall not be included in any assignment
of this Lease.
20.2 Base Rent During First Extension Term. Effective as of the first day
-------------------------------------
of the First Extension Term, and on the first day of the thirty-first (31st)
month thereafter (the "First Extension CPI Adjustment Date(s)"), the monthly
Base Rent shall be increased in accordance with the percentage increase, if any,
in the Consumer Price Index, calculated in the manner set forth in Section 19;
provided, however, in no event shall the Base Rent (as adjusted) in effect
immediately prior to the applicable First Extension CPI Adjustment Date be
decreased, nor shall it be increased as a result of a CPI adjustment by more
than six percent (6%) per Lease Year, compounded annually.
20.3 Base Rent During Second Extension Term. The monthly Base Rent payable
--------------------------------------
for the first thirty (30) months of the Second Extension Term shall be increased
(but not decreased) to 98% of the fair market rental rate ("Market Rent") to be
determined as follows:
20.3.1 Agreement on Base Rent. Landlord and Tenant shall have thirty
----------------------
(30) days after Xxxxxxxx receives the exercise notice in which to agree on the
Base Rent during the Second Extension Term. Notwithstanding anything in this
Section 20.3 to the contrary, in no event shall the Base Rent for the Second
Extension Term be less than the Base Rent in effect immediately prior to the
Second Extension Term.
20.3.2 Appraisal. If Landlord and Tenant are unable to agree upon the
---------
Base Rent for the Second Extension Term within such thirty (30) day period, then
within fifteen (15) days after the expiration of the thirty (30) day period,
each party, by giving notice to the other party, shall appoint a real estate
appraiser who is a current member of the American Institute of Real Estate
Appraisers, with at least five (5) years of experience appraising building space
comparable to the Premises in the city and county where the Premises is located
to determine the Market Rent. Market Rent shall mean the monthly amount per
rentable square foot in the Premises that a willing, non-equity new tenant would
pay and a willing landlord would accept at arm's length for space in a
comparable building or buildings, with comparable tenant improvements, in a
comparable location, giving appropriate consideration to monthly rental rates
per rentable square foot, the presence or absence of rent escalation clauses
such as operating expense and tax pass-throughs, length of lease term, size and
location of premises being leased and other
16.
generally applicable terms and conditions of tenancy for a similar building or
buildings. If the two (2) appraisers are unable to agree on the Market Rent for
the Second Extension Term within twenty (20) days, they shall select a third
appraiser meeting the qualifications stated in this Section within five (5) days
after the last day the two (2) appraisers are given to set the Market Rent for
the Second Extension Term. The third appraiser, however selected, shall be a
person who has not previously acted in any capacity for either party. Within
twenty (20) days after the selection of the third appraiser, a majority of the
appraisers shall set the Market Rent for the Second Extension Term. If a
majority of the appraisers is unable to set the Market Rent within the twenty
(20) day period, the two (2) closest appraisals shall be added together and
their total divided by two (2). The resulting quotient shall be the Market Rent
for the first thirty (30) months of the Second Extension Term. Each party shall
be responsible for the costs, charges and fees of the appraiser appointed by
that party plus one-half of the cost of the third appraiser.
20.3.3 Amendment of Lease. Immediately after the Base Rent is
------------------
determined pursuant to this Section 20.3, Landlord and Tenant shall execute an
amendment to this Lease stating the new Base Rent in effect.
20.3.4 Base Rent Increase During Second Extension Term. Effective as
-----------------------------------------------
of the first day of the thirty-first (31st) month of the Second Extension Term
(the "Second Extension CPI Adjustment Date"), the monthly Base Rent shall be
increased in accordance with the percentage increase, if any, in the Consumer
Price Index, calculated in the manner set forth in Section 19; except that the
Index shall be multiplied by the monthly Base Rent payable during the first
thirty (30) months of the Second Extension Term, and the Basic Index shall mean
the Index published for the third month preceding the commencement of the Second
Extension Term; provided, however, in no event shall the Base Rent in effect
after the Second Extension CPI Adjustment Date be less than the Base Rent in
effect immediately preceding the Second Extension CPI Adjustment Date.
LANDLORD'S INITIALS ?? TENANT'S INITIALS JL
----- -----
17.
EXHIBIT A
[PLAN APPEARS HERE]
EXHIBIT B
---------
WORK LETTER
-----------
Tenant Improvements.
-------------------
1.1 Landlord shall construct or cause to be constructed in and to the Premises,
at Landlord's cost and expense, not to exceed One Hundred Eighty Thousand
Dollars ($180,000.00), certain tenant improvements, including space planning,
permits and related costs (the "Tenant Improvements"), substantially in
accordance with the space plan or other appropriate exhibit (the "Space Plan")
attached hereto, marked Exhibit B-1 and made a part hereof and in accordance
-----------
with Landlord's current building standards. If said Exhibit is not attached, the
Space Plan shall be prepared by Landlord and submitted to Tenant for approval,
which approval shall be given within five (5) days following receipt thereof,
and evidenced by Xxxxxx's signature thereon. A failure by Xxxxxx to respond
within said five (5) day period shall be deemed approval. Upon approval by both
parties, the Space Plan shall be deemed incorporated herein by reference,
although not attached hereto.
1.2 The Tenant Improvements shall include costs approved by Landlord and
associated with the design, permit process and construction (including, a fee
equal to five percent (5%) of the total cost thereof as reimbursement for the
expense of Landlord's administration and coordination) of the Tenant
Improvements, including but not limited to, architect's fees, plan check and
permit fees, and fees for utility and telephone service hook-ups. The Tenant
Improvements shall not include any improvements which Landlord, in its sole
discretion, considers specialized, or any equipment or trade fixtures of Tenant,
nor any improvements not shown on the Space Plan which Tenant may desire or
governing agencies may require.
1.3 In the event that Tenant desires any change in the Tenant Improvements which
is reasonable and practical (which shall be conclusively determined by the
Architect), such change may only be requested by the delivery to Landlord by
Tenant of a proposed written "Change Order" specifically setting forth the
requested change. Landlord shall have five (5) business days from the receipt of
the proposed Change Order to provide Tenant with the Architect's disapproval of
the proposed change stating the reason(s) for such disapproval, or if the
Architect approves the proposed change, the following items: (i) a summary of
any increase in the cost caused by such change (the "Change Order Cost"), (ii) a
statement of the number of days of any delay caused by such proposed change (the
"Change Order Delay"), and (iii) a statement of the cost of the Change Order
Delay (the "Change Order Delay Expense"), which Change Order Delay Expense shall
be the product of the number of days of delay multiplied by $2,500.00. Tenant
shall then have three (3) business days to approve the Change Order Cost, the
Change Order Delay and the Change Order Delay Expense. If Xxxxxx gives timely
written notice of approval of the Change Order Cost, the Change Order Delay and
the Change Order Delay Expense, Landlord shall promptly execute the Change Order
and cause the appropriate changes to the Plans and Specifications to be made.
Tenant's approval shall include full payment of the Change Order Cost and Change
Order Delay Expense. If Xxxxxx fails to respond to Landlord within said three
(3) business day period, the Change Order Cost, the Change Order Delay and the
Change Order Delay Expense shall be deemed disapproved by Xxxxxx and Landlord
shall have no further obligation to perform any work set forth in the proposed
Change Order. The Change Order Cost shall include all costs associated with the
Change Order, including, without limitation, architectural fees and construction
costs, as conclusively determined by the Architect and the General Contractor,
respectively, together with a five percent (5%) fee of these costs as
reimbursement for the expense of administration and coordination of such Change
Order by Landlord. The Change Order Delay shall include all delays caused by the
Change Order, including, without limitation, all architectural and construction
delays, as conclusively determined by the Architect and the General Contractor,
respectively.
1.4 Landlord hereby to assign to Tenant, upon request, the benefit of any and
all contractor's and manufacturer's warranties received by Landlord in
connection with the construction of the Tenant Improvements.
LANDLORD'S INITIALS ?? TENANT'S INITIALS _____
-----
EXHIBIT B-1
-----------
SPACE PLAN
----------
EXHIBIT C
---------
COMMENCEMENT DATE MEMORANDUM
----------------------------
With respect to that certain lease ("Lease") dated ______, 19__ ,
between ____________________________, a _____________________ ("Tenant"), and
Catellus Development Corporation, a Delaware corporation ("Landlord"), whereby
Landlord leased to Tenant and Tenant leased from Landlord approximately ________
rentable square feet of the building located at ______________________
("Premises"), Tenant hereby acknowledges and certifies to Landlord as follows:
(1) Landlord delivered possession of the Premises to Tenant in a
Substantially completed condition on ________________________
("Possession Date");
(2) The Commencement Date is______________________________.
(3) The Premises contain ________________ square feet of space; and
(4) Tenant has accepted and is currently in possession of the Premises and
the Premises are acceptable for Tenant's use.
IN WITNESS WHEREOF, this Commencement Date Memorandum is executed this ____
day of ________________, 199__ .
"Tenant"
__________________________
a ________________________
By: _____________________
Its: ____________________
By: _____________________
Its: ____________________
[LOGO] CERTIFICATE OF INSURANCE. ISSUE DATE (MM/DD/YY)
PRODUCER
--------------------------------------------------------------------------------
THIS CERTIFICATE IS ISSUED AS A MATTER OF
INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE
CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT
AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY
THE POLICIES BELOW.
-------------------------------------------------
COMPANIES AFFORDING COVERAGE
(Must have "Best" Rating or "A B" or better)
-------------------------------------------------
COMPANY
LETTER A
-------------------------------------------------
COMPANY
----------------------------
INSURED LETTER B
-------------------------------------------------
COMPANY
LETTER C
-------------------------------------------------
COMPANY
LETTER D
-------------------------------------------------
COMPANY
LETTER E
--------------------------------------------------------------------------------
COVERAGES
--------------------------------------------------------------------------------
THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE SEEN
ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR
OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY
PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS
SUBJECT TO ALL THE TERMS, EXCLUSIONS, AND CONDITIONS OF SUCH POLICIES.
LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS
------------------------------------------------------------------------------------------------------------------------------------
CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION ALL LIMITS IN THOUSANDS
LTR DATE (MM/DD/YY) DATE (MM/DD/YY)
------------------------------------------------------------------------------------------------------------------------------------
GENERAL LIABILITY GENERAL AGGREGATE $2,000
-----------------------------------------
[X] COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP/OPS AGGREGATE $2,000
-----------------------------------------
[_] [_] CLAIMS MADE [x] OCCURRENCE PERSONAL AND ADVERTISING xxx $2,000
-----------------------------------------
[X] OWNERS & CONTRACTORS PROCECTIVE EACH OCCURRENCE $2,000
-----------------------------------------
[X] RAILROAD Prot. Liab. FIRE DAMAGE (ANY ONE FIRE) $ 50
------------------------------- -----------------------------------------
[X] X C 11 Included MEDICAL EXPENSE (ANY ONE PERSON)$ 5
-------------------------------
-----------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY
[X] ANY AUTO CK.
$2000
[_] ALL OWNED AUTOS BODILY
INJURY
PER PERSON $
-----------------------------------------
[_] SCHEDULED AUTOS
[X] HIRED AUTOS BODILY
INJURY
PER
ACCIDENT $
-----------------------------------------
[X] NON-OWNED AUTOS
[_] GARAGE LIABILITY PROPERTY
DAMAGE $
[_] _______________________________
------------------------------------------------------------------------------------------------------------------------------------
EXCESS LIABILITY EACH AGGREGATE
[X] Following Form OCCURRENCE
[_]OTHER THAN UMBRELLA FORM $ $
------------------------------------------------------------------------------------------------------------------------------------
STATUTORY
-----------------------------------------
WORKERS' COMPENSATION $1, 000 (EACH ACCIDENT)
-----------------------------------------
AND $1, 000 (DISEASE POLICY LIMIT)
-----------------------------------------
EMPLOYERS' LIABILITY $1, 000 (DISEASE EACH EMPLOYEE)
------------------------------------------------------------------------------------------------------------------------------------
OTHER
------------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/RESTRICTIONS/SPECIAL ITEMS
Certificate holder is named as additional insured as respects:
_______________________________________________________________ (Location)
REFER to Additional Insured endorsement attached. Aggregate limits apply
per location.
--------------------------------------------------------------------------------
CERTIFICATE HOLDER CANCELLATION
--------------------------------------------------------------------------------
CATELLUS DEVELOPMENT CORPORATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED
0000 X. XXXXXXXXXXXX XXXXX , XXXXX 000 XX LIMITS REDUCED BEFORE THE EXPIRATION DATE THEREOF. THE ISSUING
ANAHEIM, CA 92806 COMPANY WILL ENDEAVOR TO MAIL 60 DAYS WRITTEN NOTICE TO THE
ATTN: ASSET MANAGEMENT CERTIFICATE HOLDER NAMED TO THE LEFT.
FAX (714) 237--7416
------------------------------------------------------------------------
AUTHORIZED REPRESENTATIVE
------------------------------------------------------------------------------------------------------------------------------------
EVIDENCE OF PROPERTY INSURANCE
THIS IS EVIDENCE THAT INSURANCE AS IDENTIFIED BELOW HAS BEEN ISSUED, IS IN
FORCE, AND CONVEYS ALL, THE RIGHTS AND PRIVILEGES AFFORDED UNDER THE
POLICY. (MUST HAVE "BEST" RATING OF "A 8" OR BETTER
[ILLEGIBLE] COMPANY
CODE SUB--CODE
LOAN NUMBER POLICY NUMBER
INSURED EFFECTIVE DATE (MM/DD/YY) EXPIRATION DATE (MM/DD/YY)
CONT. UNTIL
TERMINATED
IF CHECKED
THIS REPLACES PRIOR EVIDENCE DATED:
-----------------------------------------------------------------------------------------------------------------
PROPERTY INFORMATION
LOCATION/DESCRIPTION
(provide address of leased PREMISES)
-----------------------------------------------------------------------------
COVERAGE INFORMATION
COVERAGE/PERSONAL/FORMS AMOUNT OF INSURANCE DEDUCTIBLE
Business Personal. Property (including Tenants Improvements $ ________________ $ _____________
and Betterments, if applicable)
Business Income (100% contribution) $ ________________ $ _____________
Boiler & Machinery (if applicable) $ ________________ $ _____________
Warehousers legal liability (if applicable) $ ________________ $ _____________
Replacement Cost Coverage, special form
-----------------------------------------------------------------------------------------------------------------
REMARKS INCLUDING SPECIAL CONDITIONS:
Waiver of Subrogation provision included (per lease)
------------------------------------------------------------------------------
CANCELLATION
THE POLICY IS SUBJECT TO THE PREMIUMS, FORMS, AND RULES IN EFFECT FOR
EACH POLICY PERIOD. SHOULD THE POLICY BE TERMINATED, THE COMPANY WILL
GIVE THE ADDITIONAL INTEREST IDENTIFIED BELOW 60 days WRITTEN NOTICE.
AND WILL SEND NOTIFICATION OF ANY CHANGES TO THE POLICY THAT WOULD
AFFECT THAT INTEREST, IN ACCORDANCE WITH THE POLICY PROVISIONS OR AS
REQUIRED BY LAW.
--------------------------------------------------------------------------------
ADDITIONAL INTEREST
NAME AND ADDRESS NATURE OF INTEREST
MORTGAGEE ADDITIONAL INSURED
CATELLUS DEVELOPMENT CORPORATION
0000 X. XXXXXXXXXXXX XXXXX, XXXXX 000
XXXXXXX, XX 00000 LOSS PAYEE X (OTHER) Landlord
-----------------------------------------------------------------
ATTN: ASSET MANAGEMENT SIGNATURE OF AUTHORIZED AGENT OF COMPANY
FAX 714) 000-0000
-----------------------------------------------------------------------------------------------------------------
EXHIBIT E
---------
PROHIBITED USES
---------------
The following types of operations and activities are expressly prohibited on the
Premises:
1. automobile/truck maintenance, repair or fueling;
2. battery manufacturing or reclamation;
3. ceramics and jewelry manufacturing or finishing;
4. chemical (organic or inorganic) storage, use or manufacturing;
5. drum recycling;
6. dry cleaning;
7. electronic components manufacturing;
8. electroplating and metal finishing;
9. explosives manufacturing, use or storage;
10. hazardous waste treatment, storage, or disposal;
11. leather production, tanning or finishing;
12. machinery and tool manufacturing;
13. medical equipment manufacturing and hospitals;
14. metal shredding, recycling or reclamation;
15. metal smelting and refining;
16. mining;
17. paint, pigment and coating operations;
18. petroleum refining;
19. plastic and synthetic materials manufacturing;
20. solvent reclamation;
21. tire and rubber manufacturing;
22. above- and/or underground storage tanks; and
23. residential use or occupancy.
EXHIBIT F
---------
CORRECTION ITEMS
----------------
EXHIBIT G
---------
TENANT ESTOPPEL CERTIFICATE
To: Bank of America National Trust
and Savings Association ("Bank")
Real Estate Industries Division No.____
___________________________________
___________________________________
Attn: _____________________________
Re: Lease Dated:
Current Landlord: ___________________________
Current Tenant: ___________________________
Square Feet Approximately _____________
Floor(s): ___________________________
Located at: ___________________________
_______________________ ("Tenant") hereby certifies that as of __________,
199__.
1. Tenant is the present owner and holder of the tenant's interest under
the lease described above, as it may be amended to date (the "Lease") with
___________________ as Landlord (who is called "Borrower" for the purposes of
this Certificate). (USE THE NEXT SENTENCE IF THE LANDLORD OR TENANT NAMED IN THE
LEASE IS A PREDECESSOR TO THE CURRENT LANDLORD OR TENANT.) [The original
landlord under the Lease was ______________________, and the original tenant
under the Lease was ______________.] The Lease covers the premises commonly
known as (the "Premises") in the building (the "Building") at the address set
forth above.
(CHOOSE ONE OF THE FOLLOWING SECTION 2(a)s BELOW)
-------------------------------------------------
[2. (a) A true, correct and complete copy of the Lease (including all
modifications, amendments, supplements, side letters, addenda and riders of and
to it) is attached to this Certificate as Exhibit A.]
---------
[2 (a) The attached Exhibit A accurately identifies the Lease and all
---------
modifications, amendments, supplements, side letters, addenda and riders of and
to it.]
(b) (IF APPLICABLE) [The Lease provides that in addition to the
Premises, Tenant has the right to use or rent ______ [assigned/unassigned]
parking spaces near the Building or in the garage portion of the building during
the term of the Lease.]
(c) The term of the Lease commenced on _________ 199__ and will
expire on ____________, ___, including any presently exercised option or renewal
term. (CHOOSE ONE OF THE FOLLOWING TWO SENTENCES:) [Tenant has no option or
------------------------------------------
right to renew, extend or cancel the Lease, or to lease additional space in the
Premises or Building, or to use any parking (IF APPLICABLE) [other than that
-------------
specified in Section 2(b) above].] [Except as specified in Paragraph(s) _______
of the Lease (copy attached), Tenant has no option or right to renew, extend or
cancel the Lease, or to lease additional space in the Premises or Building, or
to use any parking (IF APPLICABLE) [other than that specified in Section 2(b)
-------------
above].]
(CHOOSE ONE OF THE FOLLOWING SECTION 2(d)s)
-----------------------------------------
[(d) Tenant has no option or preferential right to purchase all or any
part of the Premises (or the land of which the Premises are a part). Tenant has
no right or interest with respect to the Premises or the Building other than as
Tenant under the Lease.]
[(d) Except as specified in Paragraph(s) ____________ of the Lease
(copy attached), Tenant has no option or preferential right to purchase all or
any part of the Premises (or the land of which the Premises are a part). Except
for the foregoing, Xxxxxx has no right or interest with respect to the Premises
or the Building other than as Tenant under the Lease.]
(e) The annual minimum rent currently payable under the Lease is
$________ and such rent has been paid through ________________, 199__. (IF
--
APPLICABLE) [The annual percentage rent currently payable under the Lease is at
----------
the rate of and such rent has been paid through _______________, 199__.]
(f) (IF APPLICABLE) [Additional rent is payable under the Lease for
-------------
(i) operating, maintenance or repair expenses, (ii) property taxes, (iii)
consumer price index cost of living adjustments, or (iv) percentage of gross
sales adjustments (i.e., adjustments made based on underpayments of percentage
rent). Such additional rent has been paid in accordance with Xxxxxxxx's rendered
bills through _______________, 199__. The base year amounts for additional
rental items are as follows: (1) operating, maintenance or repair expenses
$______________ (2) property taxes $____________, and (3) consumer price index
______________ (please indicate base year CPI level).]
(g) Tenant has made no agreement with Borrower or any agent,
representative or employee of Borrower concerning free rent, partial rent,
rebate of rental payments or any other similar rent concession (IF APPLICABLE)
-------------
(except as expressly set forth in Paragraph(s) _____ of the Lease (copy
attached)].
(h) Borrower currently holds a security deposit in the amount of
$___________ which is to be applied by Borrower or returned to Tenant in
accordance with Paragraph(s) of the Lease. Tenant acknowledges and agrees that
bank shall have no responsibility or liability for any security deposit, except
to the extent that any security deposit shall have been actually received by
Bank.
3. (a) The Lease constitutes the entire agreement between Tenant and
Borrower with respect to the Premises, has not been modified changed, altered or
amended and is in full force and effect in the form (CHOOSE ONE) [attached
----------
as/described in] Exhibit A. There are no other agreements, written or oral,
which affect Tenant's occupancy of the Premises.
(b) All insurance required of Tenant under the Lease has been provided
by Tenant and all premiums have been paid.
(c) To the best knowledge of Tenant, no party is in default under the
Lease. To the best knowledge of Tenant, no event has occurred which, with the
giving of notice or passage of time, or both, would constitute such a default.
(d) The interest of Tenant in the Lease has not been assigned or
encumbered. Tenant is not entitled to any credit against any rent or other
charge or rent concession under the Lease except as set forth in the Lease. No
rental payments have been made more than one month in advance.
4. All contributions required to be paid by Borrower to date for
improvements to the Premises have been paid in full and all of Borrower's
obligations with respect to tenant improvements have been fully performed.
Tenant has accepted the Premises, subject to no conditions other than those set
forth in the Lease.
5. Neither Tenant nor any guarantor of Tenant's obligations under the
Lease is the subject of any bankruptcy or other voluntary or involuntary
proceeding, in or out of court, for the adjustment of debtor-creditor
relationships.
6. (a) As used here. "Hazardous Substance" means any substance, material
or waste (including petroleum and petroleum products) which is designated,
classified or regulated as being "toxic" or "hazardous" or a "pollutant" or
which is similarly designated, classified or regulated, under any federal, state
or local law, regulation or ordinance.
(b) Tenant represents and warrants that it has not used, generated,
released, discharged, stored or disposed of any Hazardous Substances on, under,
in or about the Building or the land on which the Building is located (IF
--
APPLICABLE) [, other than Hazardous Substances used in the ordinary and
-----------
commercially reasonable course of Tenant's business in compliance with all
applicable laws]. (IF APPLICABLE) [Except for such commercially reasonable use
-------------
by Tenant,] Tenant has no actual knowledge that any Hazardous Substance is
present, or has been used, generated, released, discharged, stored or disposed
of by any party, on, under, in or about such Building or land.
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7. Tenant hereby acknowledges that Xxxxxxxx (CHOOSE ONE) [intends to
----------
encumber/has encumbered] the property containing the Premises with a Deed of
Trust in favor of Bank. Tenant acknowledges the right of Borrower, Bank and any
and all of Xxxxxxxx's present and future lenders to rely upon the statements and
representations of Tenant contained in this Certificate and further acknowledges
that any loan secured by any such Deed of Trust or further deeds of trust will
be made and entered into in material reliance on this Certificate.
8. Tenant hereby agrees to furnish Bank with such other and further
estoppel as Bank may reasonably request.
________________________
By:_____________________
Name:___________________
Title:__________________
3
