EXHIBIT 10.6
LEASE AGREEMENT
BASIC LEASE INFORMATION
LEASE DATE: December 1, 1992
LESSOR: LINCOLN MENLO PHASE I ASSOCIATES LIMITED,
A California Limited Partnership acting through
LINCOLN PROPERTY COMPANY N.C., INC.,
As Manager and Agent for Owner
OWNER: LINCOLN MENLO PHASE I ASSOCIATES LIMITED,
A California Limited Partnership
LESSOR'S ADDRESS: 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000-0000
LESSEE: Jetfax, Inc.,
A Delaware Corporation
LESSEE'S ADDRESS: 0000 Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
LOT: The tax parcel on which the Building is located
PREMISES: Approximately 26,000 square feet as shown on
Exhibit A
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PREMISES ADDRESS: 0000 Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Building: X-0, X-0 xx Xxxxx I
Lot: X-0, X-0 xx Xxxxx I
Park: Willow Park
TERM: February 9, 1993 ("Commencement Date"), through
February 8, 1998
BASE RENT: See Addendum 1
SECURITY DEPOSIT: Nine thousand eight hundred eighty and no/100
dollars ($9,880.00)
LESSEE'S SHARE OF OPERATING EXPENSES: 15% of Phase 1
LESSEE'S SHARE OF TAX EXPENSE: 50% of Parcel M-1, M-2
LESSEE'S SHARE OF UTILITY EXPENSES: 15% of Phase 1
LESSEE'S SHARE OF BUILDING UTILITY EXPENSES: 50% of Building M-l, M-2
PERMITTED USES: GENERAL OFFICE, RESEARCH AND DEVELOPMENT, LIGHT
ASSEMBLY, STORAGE AND DISTRIBUTION OF FACSIMILE
MACHINES AND OTHER OFFICE AND COMPUTER EQUIPMENT,
AND RELATED ACTIVITIES.
INSURANCE AMOUNT: Bodily injury limit of not less than $1 million
dollars per occurrence. Property damage limit of
not less than $1 million dollars per occurrence.
PARKING SPACES: Thirty-nine (39)
EXHIBITS: Exhibit A - Premises
Exhibit B - Tenant Improvements
Exhibit C - Rules and Regulations
Exhibit D - CC&Rs
Addenda: Addendum 1: Adjustments to Rent
Addendum 2: Effectiveness of Lease
Addendum 3: Option to Extend the Lease
DATE: This Lease is made and entered into as of the Lease Date defined
on Page 1. The Basic Lease information set forth on Page 1 and
this Lease are and shall be construed as a single instrument.
1. PREMISES: Lessor hereby leases to Lessee upon the terms and conditions
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contained herein the Premises.
2. COMMENCEMENT DATE: The Commencement Date will be at least twenty (20)
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days after the full execution by Lessor and Liposome Technology, Inc. of a Lease
covering the Premises located at 000-000 Xxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx.
In the event that Lessor permits Lessee to occupy the Premises prior to the
Commencement Date, such occupancy shall be subject to all the provisions of this
Lease.
3. RENT: Lessee agrees to pay Lessor, without prior notice or demand, the
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Base Rent described on Page l, payable in advance at Lessor's address shown on
Page 1 on the first day of each month throughout the term of the Lease. In
addition to the Rent set forth on Page 1, Rent also includes Lessee's share of
Operating Expenses and Tax Expenses and Utilities as specified in Paragraphs
6.A. 6.B. and 7 of this Lease, and the term "Rent" whenever used herein refers
to all these amounts.
4. SECURITY DEPOSIT: Upon Lessee's execution of this Lease, Lessee shall
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deposit with Lessor as a Security Deposit for the performance by Lessee of its
obligations under this Lease the amount described on Page 1. If Lessee is in
default under this Lease as described in Paragraph 20 of this Lease, Lessor may
use the Security Deposit, or any portion thereof, to cure such default or to
compensate Lessor for all damage sustained by Lessor resulting from such
default. Lessee shall immediately on demand pay to Lessor a sum equal to the
portion of the Security Deposit so applied so as to maintain the Security
Deposit in the sum initially deposited with Lessor. As soon as practicable after
the expiration or termination of this Lease but in no event later than forty-
five (45) days thereafter, Lessor shall return the Security Deposit to Lessee,
less such amounts as are reasonably necessary to remedy Lessee's defaults under
this Lease as described in Paragraph 20 of this Lease. Lessor shall not be
required to keep the Security Deposit separate from other funds, and, unless
otherwise required by law, Lessee shall not be entitled to interest on the
Security Deposit.
5. TENANT IMPROVEMENTS: Lessor shall install the improvements ("Tenant
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Improvements") on the Premises as described and in accordance with the criteria
set forth in Exhibit B, attached and incorporated herein by this reference.
6. EXPENSES:
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A. OPERATING EXPENSES: In addition to the Rent set forth in
Xxxxxxxxx 0, Xxxxxx shall pay its share, which is defined on page 1, of all
operating expenses. "Operating Expenses" are defined as the total amounts paid
or payable by the Lessor in connection with the ownership, maintenance, repair
and operation of the Premises, the Building and the Lot, or where applicable, of
the Park referred to on Page 1. These Operating Expenses may include, but are
not limited to:
(a) Lessor's cost of non-structural repairs to and
maintenance of the roof and exterior walls of the Building;
(b) Lessor's cost of maintaining the outside paved area,
landscaping and other common areas for the Park;
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(c) Lessor's annual cost of all risk and other insurance
including earthquake endorsements for the Building and the Lot and rental
loss insurance;
(d) Lessor's cost of modifications to the Building
occasioned by any rules, laws or regulation effective subsequent to the
commencement of the Lease;
(e) Lessor's cost of modifications to the Building
occasioned by any rules, laws or regulations arising from Lessee's use of
the Premises regardless of when such rules, laws or regulations became
effective;
(f) Lessor's cost of preventative maintenance contracts
including, but not limited to, contracts for elevator systems and heating,
ventilation and air conditioning systems, with bi-monthly service;
(g) Lessor's cost of security and fire protection services
for the Project, if in Lessor's sole discretion such services are provided;
and
(h) As compensation to Lessor for accounting and management
services rendered, an additional amount equal to ten (10%) of the sum of
(i) the total cost and expenses described in Paragraphs 6.A. above and 6.B.
below, and (ii) all common area utility costs for the Project.
Notwithstanding anything to the contrary contained in this Lease, in
no event shall Operating Expenses include the following (collectively "Costs"):
(a) Cost relating to repairs, alterations, improvements,
equipment and tools which would be properly capitalized under generally
accepted accounting principals, except to the extent that Lessee's share of
such cost of the capital item in question;
(b) Costs incurred by Lessor to the extent that Lessor is
reimbursed by insurance proceeds or otherwise:
(c) Costs, including permit, license and inspection costs,
incurred with respect to the installation of improvements made for tenants
or other occupants in the Building or incurred with respect to the
installation of improvements made for tenants or other occupants in the
Building or incurred in renovating or otherwise improving, decorating,
painting or redecoration vacant space for tenants or other occupants of the
Building;
(d) Depreciation, amortization and interest payments, except
to the extent provided herein pursuant to paragraph (b) above, and except
on materials, tools, supplies and vendor-type equipment purchased by Lessor
to enable Lessor to supply services Lessor might otherwise contract for
with a third party where such depreciation, amortization and interest
payments would otherwise have been included in the charge for such third
party's services, all as determined in accordance with generally accepted
accounting principles, consistently applied (as applied to commercial real
estate), and when depreciation or amortization is permitted or required,
the item shall be amortized over its reasonably anticipated useful life (as
reasonably determined by Lessor);
(e) Leasing commissions, attorneys' fees, space planning
costs, and other costs and expenses in connection with negotiations with
present or prospective tenants or other occupants of the Building;
(f) Expenses in connection with services or other benefits
which are not offered to Lessee or for which Lessee is charged directly but
which are provided to another tenant or occupant of the Building;
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(g) Overhead and profit increments paid to Lessor or to
subsidiaries or affiliates of Lessor for goods and/or services to the
extent the same exceed the costs of such goods and/or services rendered by
unaffiliated third parties on a competitive basis;
(h) Costs (including in connection therewith all attorneys'
fees and costs of settlement, judgment and payments in lieu thereof),
arising from claims, disputes or potential disputes (other than claims or
disputes, including, but not limited to, tax disputes where tenants of the
Building would receive benefits if Lessor prevails) in connection with
potential or actual claims, litigation or arbitrations pertaining to Lessor
and/or the Building; and
(i) Any expense not an Operating Expense as defined under
GAAP.
B. TAX EXPENSES: In addition to the Rent set forth in
Xxxxxxxxx 0, Xxxxxx shall pay its share, which is defined on Page 1, of all real
property taxes applicable to the land and improvements included within the Lot.
The term "Tax Expense" includes any form of tax and assessment (general,
special, ordinary or extraordinary), commercial rental tax, payments under any
improvement bond or bonds, license, rental tax, transaction tax, levy, or
penalty imposed by authority having the direct or indirect power of tax
(including any city, county, state or federal government, or any school,
agricultural, lighting, drainage or other improvement district thereof) as
against any legal or equitable interest of Lessor in the Premises, Lot or Park,
as against Lessor's right to rent or other income therefrom, or as against
Lessor's business of leasing the Premises or the occupancy of Lessee or any
other tax, fee, or excise, however described, other than inheritance or estate
taxes, including any value added tax, or any tax imposed in substitution,
partially or totally, of any tax previously included within the definition of
real property taxes, or any additional tax the nature of which was previously
included within the definition of real property tax. The term "Tax Expenses"
excludes income, franchise and transfer taxes.
C. PAYMENT OF EXPENSES: Lessor shall estimate the Operating
Expense and Tax Expense for the calendar year in which the Lease commences.
Commencing on the Commencement Date, one-twelfth (1/12th) of this estimate shall
be paid by Lessee to Lessor on the first day of each month of the remaining
months of the calendar year. Thereafter, Lessor may estimate such expenses as of
the beginning of each calendar year and require Lessee to pay one-twelfth
(1/12th) of such estimated amount as additional Rent hereunder on the first day
of each month. Not later than March 31 of the following calendar year, or as
soon thereafter as reasonably possible, including the year following the year in
which this Lease terminates, Lessor shall endeavor to furnish Lessee with a true
and correct accounting of actual Operating Expenses and Tax Expenses, and within
thirty (30) days of Lessor's delivery of such accounting, Lessee shall pay to
Lessor the amount of any underpayment. Lessor shall keep full, accurate and
separate books of account for this Park; and furnish Lessee with all
documentation reasonably required by Lessee. Notwithstanding the foregoing,
failure by Lessor to give such accounting by such date shall not constitute a
waiver of Lessor of its right to collect Lessee's share of any underpayment.
Lessor shall credit the amount of any overpayment by Lessee toward the next
estimated monthly installment(s) falling due, or where the term of the Lease has
expired, refund the amount of overpayment to Lessee. Lessee shall have the
right, upon reasonable notice and at Lessee's expense, to audit Lessor's books
of account with respect to the amounts underlying the Expenses described in
Paragraphs 6 and 7.
7. UTILITIES: Lessee shall pay the cost of all water, sewer use and
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connection fees, gas, heat, electricity, telephone and other utilities billed or
metered separately to Lessee. For utility fees or use charges that are not
billed separately to Lessee, Lessee shall pay the amount which is attributable
to Lessee's use of the Premises. In addition, Lessee shall within fifteen (15)
days after receiving a xxxx from Lessor pay Lessor its share, which is described
on Page 1, of any common area utility costs.
8. LATE CHARGES: Lessee acknowledges that late payment by Lessee to
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Lessor of Rent, Lessee's share of Operating Expenses, Tax Expenses, utility
costs or other sums due hereunder, will cause Lessor to incur costs not
contemplated by this Lease and the exact amount of such costs are extremely
difficult and impracticable to fix. Such costs, include, without limitation,
processing and
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accounting charges, and late charges that may be imposed on Lessor by the terms
of any note secured by any encumbrance against the Premises. Therefore, if any
installment of Rent or other sums due from Lessee is not received by Lessor
within five (5) business days of when due, Lessee shall pay to Lessor a sum
equal to ten percent (10%) of such overdue amount as a late charge. The parties
agree that this late charge represents a fair and reasonable estimate of the
costs that Lessor will incur by reason of late payment by Lessee. Acceptance of
any late charge shall not constitute a waiver of Lessee's default with respect
to the overdue amount, nor prevent Lessor from exercising any of the other
rights and remedies available to Lessor.
9. USE OF PREMISES: The Premises are to be used for the uses stated on
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Page 1 and for no other purposes without Lessor's prior written consent.
Lessee shall not do or permit improper, unlawful, or ultrahazardous
activity in or about the Premises nor keep or bring any improper, unlawful or
ultrahazardous materials in or about the Premises which will in any way
substantially increase the existing rate of or materially or adversely affect
any policy of fire or other insurance upon the Building or any of its contents,
or cause a cancellation of any insurance policy. Lessee shall not do or permit
anything to be done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Building or other
buildings in the Project or injure or annoy other tenants or use or allow the
Premises to be used for any improper, unlawful or objectionable purpose, nor
shall Lessee cause, maintain or permit any nuisance in, on or about the
Premises. Lessee shall not damage or deface or otherwise commit or suffer to be
committed any waste in or upon the Premises. Lessee shall honor the terms of all
recorded covenants, conditions and restrictions relating to the property on
which the Premises are located. Lessee shall honor the rules and regulations
attached to and made a part of this Lease and any other reasonable regulations
of the Lessor related to parking and the operation of the Building.
10. ALTERATIONS AND ADDITIONS: Lessee shall not install any signs,
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fixtures or improvements to the Premises without the prior written consent of
Lessor, which consent shall not be unreasonably withheld. Lessee shall be
permitted to add or install tenant fixtures within the Premises up to a value of
four thousand dollars ($4,000) per year without Lessor's prior written consent.
Lessee shall keep the Premises and the property on which the Premises are
situated free from any liens arising out of any work performed, materials
furnished or obligations incurred by or on behalf of Lessee. As a condition to
Lessor's consent to the installation of any fixtures or improvements, Lessor may
require Lessee to post a completion bond for up to 150% of the cost of the work.
Upon termination of this Lease, Lessee shall remove all signs, fixtures,
furniture and furnishings and if requested by Lessor, remove any improvements
made by Lessee and repair any damage caused by the installation or removal of
such signs, fixtures, furniture, furnishings and improvements and leave Premises
in as good condition as they were in at the time of the commencement of this
Lease, excepting for reasonable wear and tear. Lessor and Lessee agree that
Lessee shall be allowed to install a small directional sign at the southwest
corner of the Building, the appearance and size of which shall subject to prior
written approval by Lessor which shall not be unreasonably withheld. The content
of the sign shall be the location of "Jetfax Visitor Parking."
11. REPAIRS AND MAINTENANCE: Except as otherwise set forth in this Lease,
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Lessee shall, at Lessee's sole cost and expense, maintain the Premises and
adjacent areas in good, clean and safe condition and repair to the satisfaction
of the Lessor any damage caused by Lessee or its employees, agents, invitees,
licensees or contractors. Without limiting the generality of the foregoing, and
except as otherwise set forth in this Lease, Lessee shall be solely responsible
for maintaining and repairing all plumbing, electrical wiring and equipment,
lighting and interior wall, to the extent such are within the perimeter walls of
the Building. Lessor may repair the heating, ventilation and air conditioning
systems servicing the Building as deemed necessary by Lessor and Lessee shall
pay the cost of such repairs. Notwithstanding anything to the contrary contained
herein, any capital improvements mandated by law shall be prorated over the life
of the improvement, as determined by GAAP, and prorated over Lessee's remaining
Lease term.
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Except for repairs rendered necessary by the negligence of Lessee, its
agents, customers, employees and invitees, Lessor agrees, at Lessor's sole cost
and expense, to keep in good repair the structural portions of the roof,
foundations and exterior walls of the Premises (exclusive of glass and exterior
doors) and underground utility and sewer pipes outside the exterior walls of the
Building. Lessor agrees that repair costs of the roof membrane in excess of one
thousand five hundred dollars ($1,500) per year shall be at Lessor's cost and
expense.
Except for normal maintenance and repair of the items outlined above,
Lessee shall have no right of access to or install any device on the roof of the
Building nor make any penetrations of the roof of the Building without the
express prior written consent of Lessor.
12. INSURANCE: Lessee shall at all times during the term of this Lease,
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and at its sole cost and expense, maintain workers compensation insurance and
comprehensive general liability insurance against liability for bodily injury
and property damage with liability limits as set forth on Page 1 with such
insurance naming Lessor and Owner as an additional insured and including such
endorsements as may be required by Lessor. In no event shall the limits of said
policy or policies be considered as limiting the liability of Lessee under this
Lease.
All insurance shall be with companies licensed to do business with the
Insurance Commissioner of the State of California. A certificate of all such
insurance shall be delivered to the Lessor prior to the Commencement Date of
this Lease, and annually thereafter over the term of the Lease, which shall
certify that the policy names Lessor and the Owner as an additional insured and
that the policy shall not be cancelled or altered without thirty (30) days prior
written notice to Lessor.
Lessor shall at all times during the term of this Lease maintain a
policy or policies of fire and property damage insurance on the Building in so-
called "fire and extended coverage" (which includes liability coverage) form in
an amount equal to not less than eighty percent (80%) of the full replacement
value of the Building.
13. LIMITATION OF LIABILITY AND INDEMNITY: Except for damage resulting
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from the negligence or willful misconduct of Lessor or its authorized
representatives, Lessee agrees to save and hold Lessor harmless and indemnify
Lessor from and against all liabilities, charges and expenses (including
reasonable attorneys' fees, costs of court and expenses necessary in the
prosecution or defense of any litigation) by reason of injury to person or
property, from whatever cause, while in or on the Premises, or in any way
connected with the Premises or with the improvements or personal property
therein, including any liability for injury to person or property of Lessee, its
agents or employees or third party persons.
Except for damage resulting from the negligence or willful misconduct
of Lessor or its authorized representatives, Lessor shall not be liable to
Lessee for any damage to Lessee or Lessee's property, for any injury to or loss
of Lessee's business or for any damage or injury to any person from any cause.
14. ASSIGNMENT AND SUBLEASING: Lessee shall not assign or transfer this
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Lease nor sublet all or any portion of the Premises without the written consent
of Lessor, which consent shall not be unreasonably withheld, provided, however,
that no such consent shall be necessary for any assignment to any successor in
interest to Lessee in connection with any sale or transfer of all or
substantially all of its assets or upon any merger or consolidation. If Lessee
seeks to sublet or assign all or any portion of the Premises, a copy of the
proposed sublease or assignment agreement and all agreements collateral thereto,
shall be delivered to Lessor at least thirty (30) days prior to the commencement
of the sublease or assignment (the "Proposed Effective Date").
Each permitted assignee or sublessee shall assume and be deemed to assume this
Lease and shall be and remain liable jointly and severally with Lessee for
payment of Rent and for the due performance of, and compliance with all the
terms, covenants, conditions and agreements herein contained on Lessee's part to
be performed or complied with, for the term of this Lease. In the event of any
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sublease or assignment of all or any portion of the Premises where the rent
reserved in the sublease or assignment exceeds the rent or pro rata portion of
the rent, as the case may be, for such space reserved in the Lease, Lessee shall
pay the Lessor monthly, as additional Rent, at the same time as the monthly
installments of Rent hereunder, one-half (l/2) of the excess of the Rent
reserved in the sublease over the Rent reserved in this Lease applicable to the
sublease space.
15. SUBROGATION: Subject to the approval of their respective insurers,
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Lessor and Lessee hereby mutually waive their respective rights of recovery
against each other from any insured loss. Each party shall obtain any special
endorsements, if required by their insurer, to evidence compliance with the
aforementioned waiver.
16. AD VALOREM TAXES: Lessee shall pay before delinquent all taxes
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assessed against the personal property of the Lessee and all taxes attributable
to any leasehold improvements made by Lessee.
17. SUBORDINATION: Lessee shall, upon request of the Lessor, execute any
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instrument necessary or desirable to subordinate this Lease and all its rights
contained hereunder to any and all encumbrances now or hereafter in force
against the Lot and the Building, provided, that in the event of foreclosure of
any such encumbrances, so long as Lessee is not in default, the holder thereof
shall agree to recognize Lessee's rights under this Lease as long as Lessee pays
rent and observes and performs all the provisions of this Lease to be observed
and performed by Lessee.
In the event any proceedings are brought for foreclosure or in the
event of the exercise of the power of sale under any deed of trust made by
Lessor covering the Premises or a deed in lieu of foreclosure thereunder, Lessee
shall attorn to the purchaser upon any such foreclosure or sale and recognize as
the Lessor under this Lease any such purchaser or such transferee who acquires
the Premises by deed in lieu of foreclosure.
18. RIGHT OF ENTRY: Lessee grants Lessor or its agents the right to enter
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the Premises at all reasonable times and upon reasonable advance notice of no
less than twenty-four (24) hours (provided that no notice is required in the
event of an emergency) for purposes of inspection, exhibition, repair or
alteration. Lessor shall at all times have and retain a key with which to unlock
all the doors in, upon and about the Premises, excluding Lessee's vaults and
safes, and Lessor shall have the right to use any and all means Lessor deems
necessary to enter the Premises in an emergency. Lessor shall also have the
right to place "for rent" and/or "for sale" signs on the outside of the Premises
during the last three (3) months of the Lease term. Lessee hereby waives any
claim from damages or for any injury or inconvenience to or interference with
Lessee's business resulting from such entry, or any other loss occasioned
thereby except for any claim for any of the foregoing arising out of the
negligent acts or omissions or willful misconduct of Lessor or its authorized
representatives.
19. ESTOPPEL CERTIFICATE: Lessee shall execute and deliver to Lessor, upon
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not less than ten (10) days prior written notice, a statement in writing
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification) and the date to which the
Rent and other charges are paid in advance, if any, and acknowledging that there
are not, to Lessee's knowledge, any uncured defaults on the part of Lessor
hereunder or specifying such defaults as are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the
Premises. Lessee's failure to deliver such statement within such time shall be
conclusive upon the Lessee that (1) this Lease is in full force and effect,
without modification except as may be represented by Lessor; (2) there are no
uncured defaults in the Lessor's performance; and (3) not more than one month's
rent has been paid in advance.
20. LESSEE'S DEFAULT: The occurrence of any one or more of the following
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events shall constitute a default and breach of this Lease by Lessee:
(a) The abandonment of the Premises by the Lessee.
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(b) The failure by Lessee to make any payment of Rent or any other
payment required hereunder within three (3) business days of written notice
therefore given after the date said payment is due. Notwithstanding the
foregoing, any notice delivered by Lessor including the written notice
referenced herein to Lessee of such default shall satisfy and be in accordance
with all laws and statutes under California Law.
(c) The failure of Lessee to observe, perform or comply or have
commenced to and continue to observe, perform or comply with any of the
conditions or provisions of this Lease for a period, unless otherwise noted
herein, of ten (10) days after written notice.
(d) The Lessee becoming the subject of any bankruptcy (including
reorganization or arrangement proceedings pursuant to any bankruptcy act) or
insolvency proceeding whether voluntary or involuntary.
(e) The Lessee using or storing Hazardous Materials on the Premises
other than as permitted by the provisions of paragraph 29 below.
21. REMEDIES FOR LESSEE'S DEFAULT: In the event of Lessee's default or
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breach of the Lease, Lessor may terminate Lessee's right to possession of the
Premises by any lawful means in which case this Lease shall terminate and Lessee
shall immediately surrender possession of the Premises to Lessor. In addition,
the Lessor shall have the immediate right of re-entry, and if this right of re-
entry is exercised following abandonment of the Premises by Lessee, Lessor may
consider any personal property belonging to Lessee and left on the Premises to
also have been abandoned.
If Lessee breaches this Lease and abandons the property before the end
of the term, or if Lessee's right to possession is terminated by Lessor because
of a breach of the Lease, then in either such case, Lessor may recover from
Lessee all damages suffered by Lessor as a result of Lessee's failure to perform
its obligations hereunder, including, but not restricted to, the worth at the
time of the award (computed in accordance with paragraph (3) of Subdivision (a)
of Section 1951.2 of the California Civil Code) of the amount by which the Rent
then unpaid hereunder for the balance of the Lease term exceeds the amount of
such loss of Rent for the same period which the Lessee proves could be
reasonably avoided by Lessor and in such case, Lessor prior to the award, may
relet the Premises for the purpose of mitigating damages suffered by Lessor
because of Lessee's failure to perform its obligations hereunder; provided,
however, that even though Lessee has abandoned the Premises following such
breach, this Lease shall nevertheless continue in full force and effect for as
long as the Lessor does not terminate Lessee's right of possession, and until
such termination, Lessor may enforce all its rights and remedies under this
Lease, including the right to recover the Rent from Lessee as it becomes due
hereunder. The "worth at the time of the award" within the meaning of
Subparagraphs (a)(1) and (a)(2) of Section 1951.2 of the California Civil Code
shall be computed by allowing interest at the rate of ten percent (10%) per
annum.
The foregoing remedies are not exclusive; they are cumulative in
addition to any remedies now or later allowed by law or to any equitable
remedies Lessor may have, and to any remedies Lessor may have under bankruptcy
laws or laws affecting creditor's rights generally.
The waiver by Lessor of any breach of any term of this Lease shall not
be deemed a waiver of such term or of any subsequent breach thereof.
22. HOLDING OVER: If Lessee holds possession of the Premises after the
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term of this Lease with Lessor's consent, Lessee shall become a tenant from
month to month upon the terms specified at a monthly Rent of 115 % of the Rent
due on the last month of the Lease term, payable in advance on or before the
first day of each month. All options, if any, granted under the terms of this
Lease shall be deemed terminated and be of no effect during said month to month
tenancy. Lessee shall continue in possession until such tenancy shall be
terminated by either Lessor or Lessee giving written notice of termination to
the other party at least thirty (30) days prior to the effective date of
termination.
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23. LESSOR'S DEFAULT: Lessee agrees to give any holder of a deed of trust
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encumbering the Premises ("Trust Deed Holders"), by certified mail, a copy of
any notice of default served upon the Lessor by Lessee, provided that prior to
such notice Lessee has been notified in writing (by way of Notice of Assignment
of Rents and Leases, or otherwise) of the address of such Trust Deed Holder.
Lessee further agrees that if Lessor shall have failed to cure such default
within the time, if any, provided for in this Lease, then the Trust Deed Holders
shall have an additional thirty (30) days within which to cure such default or
if such default cannot be cured within that time, then such additional time as
may be necessary, if within such thirty (30) days, the Trust Deed Holder has
commenced and is diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings, if
necessary to effect such cure), in which event this Lease shall not be
terminated while such remedies are being so diligently pursued.
24. PARKING: Lessee shall have the use of the number of undesignated
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parking spaces set forth on Page 1. Lessor shall exercise its best efforts to
insure that such spaces are available to Lessee for its use, but Lessor shall
not be required to enforce Lessee's right to use the same.
25. SALE OF PREMISES: In the event of any sale of the Premises by Lessor,
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Lessor shall be and is hereby released from its obligation to perform under this
Lease to the extent such obligations arise from and after the date of such sale;
and the purchaser, at such sale or any subsequent sale of the Premises shall be
deemed, without any further agreement between the parties or their successors in
interest or between the parties and any such purchaser, to have assumed and
agreed to carry out any and all of the covenants and obligations of the Lessor
under this Lease.
26. WAIVER: No delay or omission in the exercise of any right or remedy of
------
Lessor or Lessee on any default by Lessee or Lessor shall impair such a right of
remedy or be construed as a waiver.
The subsequent acceptance of Rent by Lessor after breach by Lessee of
any covenant or term of this Lease shall not be deemed a waiver of such breach,
other than a waiver of timely payment for the particular Rent payment involved,
and shall not prevent Lessor from maintaining an unlawful detainer or other
action based on such breach.
No payment by Lessee or receipt by Lessor of a lesser amount than the
monthly Rent and other sums due hereunder shall be deemed to be other than on
account of the earliest Rent or other sums due, nor shall any endorsement or
statement on any check or accompanying any check or payment be deemed an accord
and satisfaction; and Lessor may accept such check or payment without prejudice
to Lessor's right to recover the balance of such Rent or other sum or pursue any
other remedy provided in this Lease.
27. CASUALTY DAMAGE: If the Premises or any part thereof shall be damaged
---------------
by fire or other casualty, Lessee shall give prompt written notice thereof to
Lessor. In case the Building shall be so damaged by fire or other casualty that
substantial alteration or reconstruction of the Building shall, in Lessor's
reasonable opinion, be required (whether or not the Premises shall have been
damaged by such fire or other casualty), Lessor may, at its option, terminate
this Lease by notifying Lessee in writing of such termination within sixty (60)
days after the date of such damage, in which event the Rent shall be abated as
of the date of such damage. If Lessor does not elect to terminate this Lease or
substantial alteration or reconstruction of the Building is not required, Lessor
shall within sixty (60) days after the date of such damage commence to repair
and restore the Building and shall proceed with reasonable diligence to restore
the Building (except that Lessor shall not be responsible for delays outside its
control) to substantially the same condition in which it was immediately prior
to the happening of the casualty, except that Lessor shall not be required to
rebuild, repair, or replace any part of Lessee's furniture, furnishings or
fixtures and equipment removable by Lessee or any improvements installed by
Lessee under the provisions of this Lease. If the Premises are substantially
damaged or impaired by fire or other casualty as reasonably determined by
Lessor, and the Premises cannot be restored within one hundred eighty (180) days
after the date of such damage, Lessee may terminate the Lease. Lessor shall not
in any event be required to spend for such work an amount in excess of the
insurance proceeds, without regard to any deductible actually received by Lessor
as a result of the fire or other casualty, unless caused by the gross negligence
or willful
-9-
misconduct of Lessor or Lessor's representative. Lessor shall not be liable for
any inconvenience or annoyance to Lessee, injury to the business of Lessee, loss
of use of any part of the Premises by the Lessee or loss of Lessee's personal
property resulting in any way from such damage or the repair thereof, except
that, subject to the provisions of the next sentence, Lessee's Rent and all
other payment obligations hereunder shall be proportionately reduced based upon
the extent to which damages or repairs prevent Lessee from the conduct of its
business at the Premises, as reasonably determined by Lessor. If the Premises or
any other portion of the Building be damaged by fire or other casualty resulting
from the fault or negligence of Lessee or any of Lessee's agents, employees, or
invitees, the Rent shall not be diminished during the repair of such damage and
Lessee shall be liable to Lessor for the cost and expense of the repair and
restoration of the Building caused thereby to the extent such cost and expense
is not covered by insurance proceeds.
Except as otherwise provided in this Xxxxxxxxx 00, Xxxxxx hereby
waives the provisions of Sections 1932(2.), 1933(4.), 1941 and 1942 of the
California Civil Code.
28. CONDEMNATION: If twenty-five percent (25%) or more of the Premises is
------------
taken for any public or quasi-public purpose of any lawful governmental power or
authority or sold to a governmental entity to prevent such taking, the Lessee or
the Lessor may terminate this Lease as of the date when physical possession of
the Premises is taken by the taking authority. Lessee shall not because of such
taking assert any claim against the Lessor or the taking authority for any
compensation because of such taking, and Lessor shall be entitled to receive the
entire amount of any award provided, however, Lessee shall receive from the
award a sum equal to its reasonable removal and relocation costs without
deduction for any estate of interest or interest of Lessee. If a substantial
portion of the Building or the Lot is so taken, Lessor at its option may
terminate this Lease. xx Xxxxxx does not elect to terminate this Lease, Lessor
shall, if necessary, promptly proceed to restore the Premises or the Building to
substantially its same condition prior to such partial taking, allowing for the
reasonable effects of such taking, and a proportionate allowance shall be made
to Lessee for the Rent and other payments hereunder corresponding to the time
during which, and to the part of the Premises of which, Lessee is deprived on
account of such taking and restoration. Lessor shall not be required to spend
funds for restoration in excess of the amount received by Lessor as compensation
awarded.
29. HAZARDOUS MATERIALS: Subject to the remaining provisions of this
-------------------
paragraph, Lessee shall be entitled to use and store only those Hazardous
Materials (defined below), that are necessary for Lessee's business, provided
that such usage and storage is in full compliance with all applicable local,
state and federal statutes, orders, ordinances, rules and regulations (as
interpreted by judicial and administrative decisions). Lessor shall have the
right at all times during the term of this Lease, upon reasonable advanced
notice, to (i) inspect the Premises, (ii) conduct tests and investigations to
determine whether Lessee is in compliance with the provisions of this paragraph,
and (iii) request lists of all Hazardous Materials used, stored or located on
the Premises; the cost of all such inspections, tests and investigations to be
borne by Lessee, if Lessor finds violations of environmental laws and
regulations. Lessee shall give to Lessor immediate verbal and follow-up written
notice of any spills, releases or discharges of Hazardous Materials on the
Premises, or in any common areas or parking lots (if not considered part of the
Premises), caused by the acts or omissions of Lessee, or its agents, employees,
representatives, invitees, licensees, subtenants, customers or contractors.
Lessee covenants to investigate, clean up and otherwise remediate any spill,
release or discharge of Hazardous Materials caused by the acts or omissions of
Lessee, or its agents, employees, representatives, invitees, licensees,
subtenants, customers or contractors at Lessee's cost and expense; such
investigation, clean up and remediation to be performed after Lessee has
obtained Lessor's written consent, which shall not be unreasonably withheld;
provided, however, that Lessee shall be entitled to respond immediately to an
emergency without first obtaining Lessor's written consent. Lessee shall
indemnify, defend and hold Lessor harmless from and against any and all claims,
judgments, damages, penalties, fines, liabilities, losses, suits, administrative
proceedings and costs (including, but not limited to, attorneys' and consultant
fees) arising from or related to the use, presence, transportation, storage,
disposal, spill, release or discharge of Hazardous Materials on or about the
Premises caused by the acts or omissions of Lessee, its agents, employees,
representatives, invitees, licensees, subtenants, customers or contractors.
Lessee shall not be entitled
-10-
to install any tanks under, on or about the Premises for the storage of
Hazardous Materials without the express written consent of Lessor, which may be
given or withheld in Lessor's sole discretion. As used herein, the term
Hazardous Materials shall mean (i) any hazardous or toxic wastes, materials or
substances, and other pollutants or contaminants, which are or become regulated
by all applicable local, state and federal laws; (ii) petroleum; (iii) asbestos;
(iv) polychlorinated biphenyls; and (v) radioactive materials. The provisions of
this paragraph shall survive the termination of this Lease.
Lessor shall indemnify Lessee from and against any and all costs and
expenses actually to be expended by Lessee pursuant to the terms of a final
clean up order issued by a government entity having jurisdiction, which final
clean up or remediate a release, spill or discharge of Hazardous Materials on
the Premises to the extent such clean up or remediation results from (i) the
acts or omissions of Lessor; or (ii) as a result of Hazardous Materials known to
Lessor to exist on, under or about the Premises or the Building as of the date
of this Lease; or (iii) Hazardous Materials in existence or present which are
caused by tenants other than Lessee of the Building and Park. This indemnity by
Lessor shall not include any costs of defense of Lessee, any third party
recovery against Lessee, any damages or injuries to property, person or natural
resources, or any costs or expenses not required by the final clean up order
this indemnity by Lessor shall not be construed to create an independent
obligation for Lessor to perform or pay for any remediation or clean up over and
above what Lessor would otherwise be required to perform by law following a
final adjudication of said matter.
30. FINANCIAL STATEMENTS: Within ten (10) days after Lessor's request
--------------------
Lessee shall deliver to Lessor the then current audited financial statements of
Lessee (including interim periods following the end of the last fiscal year for
which annual statements are available) which statements shall be prepared or
compiled by a certified public accountant (except for interim period statements
which may be internally prepared) and shall present fairly the financial
condition of Lessee at such dates and the result of its operations and changes
in its financial positions for the periods ended on such dates. If an audited
financial statement has not been prepared, Lessee shall provide Lessor with an
unaudited financial statement and/or such other information, the type and form
of which shall be reasonably agreed to by Lessor and Lessee, which reflects the
financial condition of Lessee.
31. GENERAL PROVISIONS:
------------------
(i) TIME. Time is of the essence in this Lease and with respect to
each and all of its provisions in which performance is a factor.
(ii) SUCCESSORS AND ASSIGNS. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
(iii) RECORDATION. Lessee shall not record this Lease or a short form
memorandum hereof without the prior written consent of the Lessor.
(iv) LESSOR'S PERSONAL LIABILITY. The personal liability of Lessor
(which, for purposes of this Lease, shall include Lessor and the Owner of the
Building if other than the Lessor) to Lessee for any default by Lessor under the
terms of this Lease shall be limited to the actual interest of Lessor and its
present or future partners in the Building and Lessee agrees to look solely to
Lessor's or Lessor's present or future partners' actual interest in the Building
for the recovery of any judgment against Lessor, it being intended that Lessor
shall not be personally liable for any judgment or deficiency. The liability of
Lessor under this Lease is limited to its actual period of ownership of title to
the Building, and Lessor shall be released from liability upon transfer of title
to the Building.
(v) SEPARABILITY. Any provisions of this Lease which shall prove to
be invalid, void or illegal shall in no way affect, impair or invalidate any
other provisions hereof and such other provision shall remain in full force and
effect.
-11-
(vi) CHOICE OF LAW. This Lease shall be governed by the laws of the
State of California.
(vii) ATTORNEYS' FEES. In the event any legal action is brought to
enforce or interpret the provisions of this Lease, the prevailing party therein
shall be entitled to recover all costs and expenses including reasonable
attorneys' fees.
(viii) This Lease supersedes any prior agreements and contains
the entire agreement of the parties on matters covered. No other agreement,
statement or promise made by any party that is not in writing and signed by all
parties to this Lease shall be binding.
(ix) WARRANTY OF AUTHORITY. Each person executing this agreement on
behalf of a party represents and warrants that (1) such person is duly and
validly authorized to do so on behalf of the entity it purports to so bind, and
(2) if such party is a partnership, corporation or trustee, that such
partnership, corporation or trustee has full right and authority to enter into
this Lease and perform all of its obligations hereunder.
(x) NOTICES. All notices and demands required or permitted to be
sent to the Lessor or Lessee shall be in writing and shall be sent by United
States mail, postage prepaid, certified or by personal delivery or by overnight
courier, addressed to Lessor at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxx,
Xxxxxxxxxx 00000, or to Lessee at the Premises, or to such other place as such
party may designate in a notice to the other party given as provided herein.
Notice shall be deemed given upon the earlier of actual receipt or the third day
following deposit in the United States mail.
(xi) INTERLINEATION. The use of underlining or strikeouts
(strikeouts) within the Lease is for reference purposes only, and any such
strikeout language shall have no meaning or effect. No other meaning or emphasis
is intended by this use, nor should any be inferred.
32. BLANKET ENCUMBRANCE: Lessee is aware of the fact that the Lot may be
-------------------
subject to a deed of trust, mortgage, or other lien known as a "Blanket
Encumbrance." According to California law, Lessee could lose its interest
through foreclosure of the Blanket Encumbrance or other legal process even
though Lessee is not delinquent in Lessee's payments or other obligations under
the Lease.
-12-
IN WITNESS WHEREOF, this Lease is executed on the date and year first
written above.
LESSEE:
Jetfax, Inc.,
A Delaware Corporation
By:
--------------------------------------------------
Xxxx Xxxxxx
President
OWNER/LESSOR:
LINCOLN MENLO PHASE I ASSOCIATES LIMITED,
A California Limited Partnership
By: Lincoln Property Company N.C., Inc.
As Manager and Agent for Owner
By:
--------------------------------------------------
Vice President
-13-
EXHIBIT A - PREMISES
Page 1 of 1
Lease dated December 1, 1993, between
Jetfax, Inc.,
A Delaware Corporation
("Lessee"),
and
LINCOLN MENLO PHASE I ASSOCIATES LIMITED,
A California Limited Partnership acting through
LINCOLN PROPERTY COMPANY N.C., INC.,
As Manager and Agent for Owner
("Owner/Lessor")
- DESCRIBE DIAGRAM HERE -
-14-
EXHIBIT B - TENANT IMPROVEMENTS
Page 1 of 2
Lease dated December 1, 1992, between
Jetfax, Inc.,
A Delaware Corporation
("Lessee"),
and
LINCOLN MENLO PHASE I ASSOCIATES LIMITED,
A California Limited Partnership acting through
LINCOLN PROPERTY COMPANY N.C., INC.,
As Manager and Agent for Owner
("Owner/Lessor")
Lessee agrees to accept the Premises on an "as is" basis. However, Lessor and
Lessee agree that Lessee shall be permitted to install improvements at its own
cost and expense during the period commencing on the date of Lease execution
which shall be at least twenty (20) days prior to the commencement date. The
right to early access is subject to the terms and conditions detailed below:
1. Lessee shall obtain insurance coverage as specified in
Paragraph 12 of this Lease prior to the commencement of
construction of improvements.
2. Lessee shall be responsible for the payment of all utility
charges as of the commencement of construction of
improvements.
3. Lessor reserves the right to approve all improvements
required by Lessee. The improvements requested by Lessee
shall be detailed on a full set of working drawings ("Plans")
and submitted to Lessor for approval prior to the
commencement of any work.
4. All work shall be performed by California licensed
contractors, and said contractors shall obtain the necessary
permits from the City of Menlo Park prior to the performance
of any work. A copy of all permits shall be submitted to
Lessor.
5. A copy of the fully executed Construction Contract or similar
document, if any, and a list of subcontractors shall be
submitted to Lessor prior to the commencement of any work.
6. A copy of the Certificate of Insurance furnished by the
general contract in an amount not less than $1 million,
naming Lincoln Property Company as its interests may appear,
anti Lincoln Menlo Associates Limited, A California Limited
Partnership as the additional insured.
7. Copies of lien releases from all contractors, and
subcontractors shall be submitted to Lessor as their
respective work is completed and their contracts are paid.
8. Any changes to the Plans shall be submitted to Lessor for
review and approval, such approval shall not be unreasonably
withheld.
9. Structural calculations are required for any roof-mounted
equipment. Lessor requires the contractor(s) to use its roof-
mount detail for any equipment mounted on the roof and that
all roof work be inspected by Lessor's agent.
-15-
EXHIBIT B - TENANT IMPROVEMENTS
Page 2 of 2
10. Lessor must be notified in advance of the commencement date
of any work so it may file a Notice of Non-Responsibility.
INITIALS:
--------
LESSEE:
-------------------
OWNER/LESSOR:
---------------------
-16-
EXHIBIT C - RULES & REGULATIONS
Page 1 of 2
Lease dated December 1, 1992, between
Jetfax, Inc.,
A Delaware Corporation
("Lessee"),
and
LINCOLN MENLO PHASE I ASSOCIATES LIMITED,
A California Limited Partnership acting through
LINCOLN PROPERTY COMPANY N.C., INC.,
As Manager and Agent for Owner
("Owner/Lessor")
1. No advertisement, picture or sign of any sort shall be displayed on or
outside the Premises without the prior written consent of Lessor. Lessor
shall have the right to remove any such unapproved item without notice and
at Lessee's expense.
2. Lessee shall not regularly park motor vehicles in designated parking areas
after the conclusion of normal daily business activity.
3. Lessee shall not use any method of heating or air conditioning other than
that supplied by Lessor without the consent of Lessor.
4. All window coverings installed by Lessee and visible from the outside of
the building require the prior written approval of Lessor.
5. Lessee shall not use, keep or permit to be used or kept any foul or noxious
gas or substance or any flammable or combustible materials on or around the
Premises.
6. Lessee shall not alter any lock or install any new locks or bolts on any
door at the Premises without the prior consent of Lessor.
8. Lessee shall park motor vehicles in those general parking areas as
designated by Lessor except for loading and unloading. During those periods
of loading and unloading, Lessee shall not unreasonably interfere with
traffic flow within the Project and loading and unloading areas of other
Lessees.
9. Lessee shall not disturb, solicit or canvas any occupant of the Building or
Project and shall cooperate to prevent same.
10. No person shall go on the roof without Lessor's permission.
11. Business machines and mechanical equipment belonging to Lessee which cause
noise or vibration that may be transmitted to the structure of the
Building, to such a degree as to be objectionable to Lessor or other
Lessees, shall be placed and maintained by Lessee, at Lessee's expense, on
vibration eliminators or other devices sufficient to eliminate noise or
vibration.
12. All goods, including material used to store goods, delivered to the
Premises of Lessee shall be immediately moved into the Premises and shall
not be left in parking or receiving areas overnight.
-17-
EXHIBIT C - RULES & REGULATIONS
Page 2 of 2
13. Tractor trailers which must be unhooked or parked with dolly wheels beyond
the concrete loading areas must use steel plates or wood blocks 'tinder the
dolly wheels to prevent damage to the asphalt paving surfaces. No parking
or storing of such trailers will be permitted in the auto parking areas of
the Project or on streets adjacent thereto.
14. Forklifts which operate on asphalt paving areas shall not have solid rubber
tires and shall only use tires that do not damage the asphalt.
15. Lessee is responsible for the storage and removal of all trash and refuse.
All such trash and refuse shall be contained in suitable receptacles stored
behind screened enclosures at locations approved by Lessor.
16. Lessee shall not store or permit the storage or placement of goods or
merchandise in or around the common areas surrounding the Premises. No
displays or sales or merchandise shall be allowed in the parking lots or
other common areas.
INITIALS:
--------
LESSEE:
----------------------
OWNER/LESSOR:
-----------------------
-18-
EXHIBIT D
WILLOW PARK
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
Page 1 of 8
This Declaration of Covenants, Conditions and Restrictions
(hereinafter called "Declaration") is made this twenty-fifth day of August 1979,
by Lincoln Property Company No. 238, A California Limited Partnership (Phases 1
& 2) (hereinafter called "Lincoln Property Company").
RECITALS
1. Declarant is, or at the time of recording this Declaration
will be, the Owner in fee of all that certain real property which is situated in
the City of Xxxxx Xxxx, Xxxxxx xx Xxx Xxxxx, Xxxxx xx Xxxxxxxxxx, described on
the map (hereinafter called "Map") entitled "Menlo Industrial Center, Menlo
Park, California" which Map is filed in the office of the Recorder of the County
of San Mateo, State of California, on October 1, 1979, in Book No. 99 of Maps,
at pages 81, 82 and 83.
2. As Owner of the real property described in Paragraph 1 of
these Recitals, Declarant has executed this Declaration for the purpose of
imposing upon all portions of said real property (other than Parcel E as shown
on the Map) a general plan of improvement for the benefit of said real property
(other than said Parcel E) and its present and future owners. Said real property
(other than Parcel E) is hereinafter called the "Property."
NOW, THEREFORE, Declarant hereby declares that the Property is now
held, and shall hereafter be held, developed, encumbered, hypothecated,
transferred, sold, leased, conveyed, improved, used and occupied subject to the
covenants, conditions, restrictions and limitations hereinafter set forth, all
of which are declared to be in furtherance of a plan for the development and
operation of a landscaped business and industrial park and are established for
the purpose of enhancing and protecting the value, attractiveness and
desirability of the Property and every part thereof. Each of the covenants,
conditions, restrictions and limitations set forth herein shall run with the
land, and every part thereof, and shall burden as well as inure to the benefit
of and pass with each and every portion of the Property hereinafter developed,
encumbered, hypothecated, transferred, sold, leased, conveyed, improved, used or
occupied and shall apply to and bind any and all parties having or acquiring any
right, title, license or interest in the Property or any part thereof.
ARTICLE I
DEFINITIONS
Unless the context otherwise specifies or requires, the terms defined
in this Article I shall, for all purposes of this Declaration, have the meanings
herein specified.
1.1 Building. "Building" shall mean the principal structure or
--------
structures on any Site, including all garages, outside platforms, outbuildings,
docks and the like.
1.2 Declarant. "Declarant shall mean Lincoln Property Company,
---------
its successors and assigns. Declarant's assigns shall be deemed' to include any
party whom Declarant designates, by means of a notice recorded in the Official
Records of San Mateo County, as the party who, from and after the date such
notice is recorded, will perform Declarant's functions under this Declaration.
-19-
EXHIBIT D
Page 2 of 8
1.3 Deed of Trust. "Deed of Trust" shall mean, with respect to
-------------
any portion of the property, a duly recorded Deed of Trust, mortgage or other
instrument which created a lien on the portion of the Property is describes.
1.4 Improvements. "Improvements" shall mean and include without
------------
limitation buildings, outbuildings, pedestrian and vehicle access facilities,
parking areas, loading areas, fences, walls, hedged mass plantings, landscaping,
poles, signs and any structures of any type or kind.
1.5 Owner. "Owner" shall mean any person, firm, corporation or
-----
other legal entity (including Declarant) which owns fee title to a Site, as
shown by the Official Records of the County of San Mateo; provided, however,
that the term "Owner" shall not include a mortgage or beneficiary under a deed
of trust holding a security interest in a Site unless such mortgagee or
beneficiary is in actual physical possession of the Site. Whenever this
Declaration creates or imposes an obligation with respect to a Site, the Owner
of the Site shall be responsible for the timely and proper performance of the
obligation, notwithstanding any delegation of such responsibility by lease,
contract, or otherwise to another party.
1.6 Property. "Property" shall mean that certain real property
--------
subject to the covenants, conditions and restrictions set forth herein, namely,
that real property described on Exhibit A attached hereto and incorporated
herein.
1.7 Site. "Site" shall mean a continuous area of land within the
----
Property which is owned of record by the same Owner, whether shown as one parcel
on any recorded map or as a combination of parcels or of portions thereof.
ARTICLE II
REGULATION OF USES
2.1 Permitted Uses. Unless otherwise specifically prohibited
--------------
herein, or by applicable law, any business/industrial use will be permissible if
it does not constitute a nuisance to adjacent Sites. Permitted uses will
include, but not be limited to, manufacturing, warehousing, distribution,
cartage, processing, storage, wholesaling, office, laboratory, professional and
research and development.
2.2 Nuisance. No noxious or offensive activity shall be carried
--------
on nor shall anything be done on any Site which may be or become an annoyance or
nuisance to the Owners or occupants of other Sites, or which will be offensive
to the Owners or occupants of other Sites by reason of odor, fumes, discharge of
any chemical or industrial waste above or below ground, dust, dirt, fly-ash,
smoke, noise, glare or which will be hazardous by reason of danger of fire or
explosion or any other hazard.
2.3 Right of Entry. During reasonable hours and subject to reasonable
--------------
security requirements, Declarant or its authorized representative shall have the
right to enter upon and inspect any Building and/or Site and the Improvements
thereon for the purpose of ascertaining whether or not the provisions of this
Declaration have been or are being complied with and shall not be deemed guilty
of trespass by reason of such entry.
-20-
EXHIBIT D
Page 3 of 8
ARTICLE III
REGULATION OF IMPROVEMENTS
3.1 Minimum Setback Lines
----------------------
(a) General. No Improvement and no part thereof shall be placed on
-------
any Site closer to a property line than herein provided. The following
Improvements are specifically excluded from these setback provisions:
(1) Roof overhang, subject to the specific approval of Declarant
in writing.
(2) Steps and walks.
(3) Paving and associated curbing, except that vehicle parking
areas shall not be permitted within ten (10) feet of the street property
line or lines.
(4) Fences, except that no fence shall be placed within the
street setback area unless specif~c approval is given by Declarant in
writing.
(5) Landscaping.
(6) Planters, not to exceed three (3) feet in height.
(7) Railroad spur tracks, switches and bumpers, provided that
the location of such tracks, switches and bumpers is specifically approved
by Declarant in writing.
(8) Displays identifying the Owner, Lessee or occupant, subject
to the specific approval of Declarant in writing.
(b) Setback from interior property lines. No setback is established
from a rear or side interior property line. The interior lot lines for a corner
lot shall be considered to have a real property line.
(c) Setback Street Property Lines. The setback line is established as
twenty (20) feet from property line on all streets on the property.
3.2 Completion of Construction. After commencement of construction of
--------------------------
any Improvement, the Owner shall diligently prosecute the work thereon to the
end that the Improvement shall not remain in a partly finished condition any
longer than reasonably necessary for the completion thereof.
3.3 No excavation shall be made except in connection with construction
of an Improvement, and upon completion thereof, exposed openings shall be
backfilled and disturbed ground shall be graded and leveled.
3.4 Landscaping.
-----------
(a) Every Site on which a Building shall have been placed shall be
landscaped according to plans approved as specified herein and maintained
thereafter in a sightly and well-kept condition.
-21-
EXHIBIT D
Page 4 of 8
(b) An Owner, Lessee or occupant shall landscape and maintain unpaved
areas between the property lines and the setback lines.
(c) An Owner, Lessee or occupant shall provide hose bibs and
maintenance facilities in the vicinity of the landscaped areas.
(d) Landscape as approved by Declarant shall be installed within
ninety (90) days of occupancy or completion of the Building, whichever occurs
first.
3.5 Site Maintenance. All Improvements on each Site including, without
----------------
limitation, all walks. driveways, fences, parking areas, landscaping and the
exterior of all structures on each Site, shall be maintained free of litter and
debris and in good condition, order and repair. Landscaping shall be kept in
thriving condition, weed-free and neatly trimmed. All undeveloped Sites shall be
kept clean, mowed and in a condition so as not to be a dust or weed problem.
3.6 Signs and Lighting. No signs or displays shall be created on any
------------------
Site, other than the following:
(a) Signs identifying the name, building and business of any person
or firm occupying a Site, the size, design and color of which has been
specifically approved by Declarant in writing; and
(b) Offering a Site for sale or lease if Declarant has specifically
approved said signs in writing. All signs and displays shall be located below
the roof line of the building and shall comply with all applicable laws and
ordinances. Lighting shall be restricted to parking and security lights, fire
lighting and low-level sign illumination and floodlighting of buildings or
landscaping. All lighting shall be shielded and contained within property lines.
3.7 Parking Areas. Adequate parking on a Site shall be provided to
-------------
accommodate all parking needs for employees, visitors and company vehicles.
There shall also be adequate areas provided for truck loading and unloading. The
intent of this provision is to eliminate the need for any on-street parking. If
parking or loading requirements increase as a result of a change in use or
number of employees, additional off-street parking shall be provided to satisfy
the intent of this section.
3.8 Building Regulations. Any building erected on a Site shall
--------------------
conform to the following construction practices:
(a) Exterior walls of sheet or corrugated iron, steel, aluminum
or asbestos will be permitted only upon specific approval in writing by
Declarant.
(b) Exterior walls shall be painted or suitably treated in a
manner acceptable to Declarant.
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EXHIBIT D
Page 5 of 8
ARTICLE IV
APPROVAL OF PLANS
4.1 No Improvement shall be erected, placed, altered, maintained
or permitted to remain on any land subject to these restrictions until plans and
specifications showing plot layout, including parking and all exterior
elevations, with materials and colors, have been submitted to and approved in
writing by Declarant. Said approval shall be in addition to any approvals and/or
permits required by the City of Menlo Park or any other legal entity having
jurisdiction. Such plans and specifications shall be submitted in writing over
the signature of the Owner of Lessee of the Site or his authorized agent.
4.2 Approval shall be based, among other things, on adequacy of Site
dimensions, adequacy of structural design, conformity and harmony of external
design with neighboring Improvements, effect of location and use of Improvements
on neighboring Sites; proper facing of main elevation with respect to nearby
streets; and conformity of the plans and specifications to the purpose and
general plan and intent of these restrictions. Declarant shall not arbitrarily
or unreasonably withhold its approval of such plans and specifications .
4.3 If Declarant fails either to approve or to disapprove such plans
and specifications within thirty (30) days after the same have been submitted to
it, it shall be conclusively presumed that Declarant has approved said plans and
specifications, subject, however, to the restrictions contained in ARTICLE III
hereof.
4.4 Notwithstanding anything to the contrary herein contained, after
the expiration of one year from the date of issuance of a building permit by
municipal or other governmental authority for any Improvement, said Improvement
shall, in favor of purchasers and encumbrancers in good faith and for value, be
deemed to be in compliance with all provisions of this ARTICLE IV, unless actual
notice of such non-compliance or non-completion executed by Declarant shall
appear of record in the _____ of the County Recorder of San Mateo County,
California, or unless legal proceedings shall have been instituted to enforce
compliance or completion.
4.5 Fee. An architectural review fee shall be paid to Declarant at the
time plans are submitted for approval based upon the following schedule:
(a) When the plans submitted are prepared by an architect
licensed to practice in the State of California, the architectural review
fee shall be $100.00.
(b) In all other cases, the architectural review fee shall be
$200.00.
ARTICLE V
DURATION AND MODIFICATION AND REPEAL
5.1 Term. This Declaration, every provision hereof and every covenant,
----
conditions and restriction contained herein shall continue in full force and
effect for a period of sixty (60) years from the date hereof.
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EXHIBIT D
Page 6 of 8
5.2 Termination and Modification. This Declaration or any provisions
----------------------------
thereof or any covenant, condition or restriction contained herein may be
terminated, extended, modified or amended as to the whole of said property or
any portion thereof, with the written consent of the Owners of sixty-five
percent (65 %) in area of the Property; provided that so long as Declarant owns
at least twenty percent (20%) in area of the Property, no such termination,
extension, modification or amendment shall be effective without Declarant's
written approval. No termination, extension, modification or amendment hereof
shall be effective until a written instrument embodying the same has been
executed and recorded in the Official Records of San Mateo County.
ARTICLE VI
ENFORCEMENT
6.1 Abatement and Suit. Violation or breach of any restriction herein
------------------
contained shall give to Declarant the right to enter upon the Property upon or
as to which said violation or breach exists and summarily to xxxxx and remove at
the expense of the Owner, Lessee or occupant thereof any structure, thing or
condition that may be or exist thereon contrary to the intent and meaning of the
provisions hereof, or to prosecute a proceeding at law or in equity against the
person or persons who have violated or are attempting to violate any of these
restrictions to enjoin or prevent them from doing so, to cause said violation to
be remedied or to recover damages for said violation. In addition, every Owner
of a Site shall have the right, in the event of violation or breach of any
restriction herein contained, to prosecute a proceeding at law or in equity
against the person or persons who have violated or are attempting to violate any
of these restrictions to enjoin or to recover damages for said violation. All
remedies provided herein or at law or in equity shall be cumulative and not
exclusive.
6.2 Deemed to Constitute a Nuisance. The result of every action or
-------------------------------
omission whereby any restriction herein contained is violated in whole or in
part is hereby declared to be and to constitute a nuisance. Every remedy allowed
by law or equity against an Owner, either public or private, shall be applicable
against every such result and may be exercised by Declarant or by any Owner of
property subject hereto. Any costs or expenses paid or incurred by Declarant or
an Owner (collectively referred to as "Declarant" in this Section 6.2) in
abating such nuisance or prosecuting any such remedy (including all reasonable
attorneys' fees and costs of collection), together with interest thereon at the
rate of ten percent (10%) per annum, shall be a charge against the Site on which
the nuisance has occurred or is occurring, shall be a continuing lien thereon
until paid, and shall also be the personal obligation of the Owner of such Site
when such charges became due and who committed such breach or violation. In
addition to any other rights or remedies hereunder, Declarant may deliver to the
Owner of the Site on which the nuisance has occurred or is occurring and record
with the San Mateo County Recorder a certificate of notice of claim of lien. If
the violation recited in such lien claim has not been cured to Declarant's
satisfaction and any recited amounts so charged have not been paid within thirty
(30) days thereafter, Declarant or its authorized representative may foreclose
such lien by a sale conducted pursuant to Sections 2924, 2924b and 2924c of the
California Civil Code, as amended from time to time, or other statues applicable
to the exercise of powers of sales in mortgages or Deeds of Trust, or in any
other manner permitted by law. Declarant, through its authorized
representatives, may bid on and acquire any land subject to such lien at any
such foreclosure sale. If the violations recited in such lien claim are timely
cured and any recited amounts timely paid as provided above, Declarant shall
forthwith record an appropriate release of such lien at Declarant's sole
expense.
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EXHIBIT D
Page 7 of 8
6.3 Attorneys' Fees. In any legal or equitable proceeding for
---------------
the enforcement or to restrain the violation of this Declaration or any
provision hereof, the losing party or parties shall pay the attorneys' fees of
the prevailing party or parties, in such amount as may be fixed by the court in
such proceedings. 6.4 Failure to Enforce Not a Waiver of Rights. The failure of
Declarant or any Owner to enforce any restriction herein contained shall in no
event be deemed to be a waiver of the right to do so thereafter nor of the right
to enforce any other restriction.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 Assignment of Declarant's Rights and Duties. Declarant may assign
-------------------------------------------
any and all of its rights, powers, reservations and obligations hereunder to any
person, corporation or association. To be effective, any such assignments must
be accepted in writing by the assignee and the acceptance must be recorded in
the Official Records of San Mateo County. To the extent of the assignment, the
assignee shall have the same rights, obligations, duties and powers and be
subject to the same obligations and duties as given to and assumed by Declarant
herein. The term Declarant as used herein includes all such assignees and their
heirs, successors and assigns. Declarant may also resign as Declarant by
recording a written notice of resignation in the Official Records of San Mateo
County and mailing a copy thereof to each then Owner. The resignation shall be
effective on the date it is recorded and Declarant shall thereafter have no
further rights, powers, reservations, obligation or liabilities hereunder. If at
any time Declarant either resigns or ceases to exist without making an
assignment of its authority as Declarant, a successor Declarant may be appointed
in the same manner as this Declaration may be terminated, extended, modified or
amended under Section 2 of ARTICLE IV.
7.2 Constructive Notice and Acceptance. Every person or other entity
----------------------------------
who now or hereafter owns or acquires any right, title or interest in or to any
portion of the Property is and shall be conclusively deemed to have consented
and agreed to every covenant, condition and restriction contained herein,
whether or not any reference to this Declaration is contained in the instrument
by which such person or entity acquired an interest in said property.
7.3 Waiver. Neither Declarant nor its successors or assigns shall be
------
liable to any Owner, Lessee, licensee or occupant of land subject to his
Declarant by reason of any mistake in judgment, negligence, nonfeasance, action
or inaction and/or for the enforcement or failure to enforce any provision of
this Declaration. Every Owner, Lessee, licensee or occupant of any of said
property by acquiring his interest therein agrees that he will not bring any
action or suit against Declarant to recover any damages or to seek equitable
relief because of any mistake in judgment, negligence, nonfeasance, action or
inaction and/or the enforcement or failure to enforce any provision of this
Declaration.
7.4 Mutuality. Reciprocity. Runs with Land. All covenants, conditions,
---------
restrictions and agreements contained herein are made for the direct, mutual and
reciprocal benefit of each and every part and parcel of the property now or
hereafter made subject to this Declaration, shall create reciprocal rights and
obligations between the respective Owners of all parcels and privily of contract
and estate between all grantees of said parcels, their heirs, successors and
assigns, and shall, as to the Owner of each parcel, his heirs, successors and
assigns, operate as covenants running with the land for the benefit of all other
parcels.
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EXHIBIT D
Page 8 of 8
7.5 Rights of Beneficiaries. No breach of the restrictions and other
-----------------------
provisions contained herein shall defeat or render invalid the lien of any Deed
of Trust now or hereafter executed upon land subject to these restrictions;
provided, however, that if any portion of said property is sold under a
foreclosure of any mortgage or under the provisions of any deed of trust, any
purchaser at such sale and his successors and assigns shall hold any and all
property so purchased subject to all of the restrictions and other provisions of
this Declaration.
7.6 Paragraph Headings. Paragraph headings, where used herein, are
------------------
inserted for convenience only and are not intended to be a part of this
Declaration or in any way to define, limit or describe the scope and intent to
the particular paragraphs to which they refer.
7.7 Effect of Invalidation. If any provision of this Declaration is
----------------------
held to be invalid by any court, the invalidity of such provision shall not
affect the validity of the remaining provisions hereof.
7.8 Existing Improvements. Improvements which are completely
---------------------
constructed on the date this Declaration is recorded are deemed to satisfy all
the requirements hereof.
7.9 Estoppel Certificate. At the request of an Owner, Declarant shall
--------------------
supply to such Owner or any actual or potential encumbrancer or purchaser of a
Site a written certificate stating that there are no violations hereof, or if
there are any such violations, the nature of such violations. Such certificate
shall be delivered within ten (10) working days after such request by an Owner.
INITIALS:
--------
LESSEE:
----------------------
OWNER/LESSOR:
----------------------
-26-
ADDENDUM 1
ADJUSTMENTS TO RENT
Page 1 of 1
Lease dated December 1, 1992, between
Jetfax, Inc.,
A Delaware Corporation
("Lessee"),
and
LINCOLN MENLO PHASE I ASSOCIATES LIMITED,
A California Limited Partnership acting through
LINCOLN PROPERTY COMPANY N.C., INC.,
As Manager and Agent for Owner
("Owner/Lessor")
This Addendum No. 1 is incorporated as a part of that certain Lease Agreement
dated December 1, 1992, by and between Jetfax, Inc., A Delaware Corporation
("Lessee"), and LINCOLN MENLO PHASE I ASSOCIATES LIMITED, A California Limited
Partnership acting through LINCOLN PROPERTY COMPANY N.C., INC., As Manager and
Agent for Owner ("Owner/Lessor''), for the Premises located at 0000 Xxxxxx Xxxx,
Xxxxx Xxxx, Xxxxxxxxxx 00000.
Base Rent Schedule
February __, through February __, 1995 Base Rent shall be $9,360.00 per month
February __, through February __, 1995 Base Rent shall be $9,620.00 per month
February __, through February __, 1995 Base Rent shall be $9,880.00 per month
Lessee and Lessor agree that all of the t and conditions including Lessee s
payment of its proportionate share of Operating Expenses, Tax Expenses and
Utility Expenses referred to on page 1 of the above-referenced Lease, and more
specifically on pages 2, 3 and 0, xxxxxxxxxx 0.X, 0.X, 6.C and paragraph 7 of
said Lease, are to be in full force and effect as of the date of Lessee's
possession of the Premises, and that such date shall be deemed to be the
commencement date of said Lease.
INITIALS:
--------
LESSEE:
------------------
OWNER/LESSOR:
-----------------------
-27-
ADDENDUM 2
ADJUSTMENTS TO RENT
Page 1 of 1
Lease dated December 1, 1992, between
Jetfax, Inc.,
A Delaware Corporation
("Lessee"),
and
LINCOLN MENLO PHASE I ASSOCIATES LIMITED,
A California Limited Partnership acting through
LINCOLN PROPERTY COMPANY N.C., INC.,
As Manager and Agent for Owner
("Owner/Lessor")
This Addendum No. 2 is incorporated as a part of that certain Lease Agreement
dated December 1, 1992, by and between Jetfax, Inc., A Delaware Corporation
("Lessee"), and LINCOLN MENLO PHASE I ASSOCIATES LIMITED, A California Limited
Partnership acting through LINCOLN PROPERTY COMPANY N.C., INC., As Manager and
Agent for Owner ("Owner/Lessor"), for the Premises located at 0000 Xxxxxx Xxxx,
Xxxxx Xxxx, Xxxxxxxxxx 00000.
This Lease and the effectiveness thereof is expressly conditioned upon (a) the
full execution by Lessor and Lessee of Amendments to Lessee's existing Leases
dated September 22, 1989 and June 4, 1990 for the Premises located at 978 and
000 Xxxxxxxx Xxxxx, respectively, amending the expiration dates of the Leases to
the commencement date of this Lease; and (b) the satisfaction of all conditions
precedent to the effectiveness of such Amendments. If the aforementioned
Amendments are not executed, then this Lease shall be deemed null and void, and
Lessor shall refund all deposits made in consideration of this Lease.
INITIALS:
--------
LESSEE:
---------------------
OWNER/LESSOR:
--------------------------
-28-
ADDENDUM 3
ADJUSTMENTS TO RENT
Page 1 of 1
Lease dated December 1, 1992, between
Jetfax, Inc.,
A Delaware Corporation
("Lessee"),
and
LINCOLN MENLO PHASE I ASSOCIATES LIMITED,
A California Limited Partnership acting through
LINCOLN PROPERTY COMPANY N.C., INC.,
As Manager and Agent for Owner
("Owner/Lessor")
This Addendum No. 3 is incorporated as a part of that certain Lease Agreement
dated December 1, 1992, by and between LINCOLN MENLO PHASE I ASSOCIATES LIMITED,
A California Limited Partnership acting through LINCOLN PROPERTY COMPANY N.C.,
INC., As Manager and Agent for Owner ("Owner/Lessor"), and Jetfax, Inc., A
Delaware Corporation ("Lessee''), of the Premises located at 0000 Xxxxxx Xxxx,
Xxxxx Xxxx, Xxxxxxxxxx 00000.
If Lessee is not in default in the performance of any of its obligations under
this Lease, Lessee shall have the right at its option to extend the term of the
Lease for five (5) years (the "Extended Term"). The Lease of the Premises during
the Extended Term shall be upon the same terms, covenants and conditions as are
set forth in this Lease, other than rent and the term of the Leasehold. If
Lessor does not receive from Lessee written notice of Lessee's exercise of this
option by 5:00 p.m. on August 16, 1997 (the "Option Notice"), all rights under
this option shall automatically terminate. Time is of the essence herein.
The monthly rent for the Extended Term shall be 9570 of the then current market
rent for the highest and best use for similar space (the "Fair Rental Value")
agreed upon solely by and between Lessor and Lessee and their agents appointed
for this purpose. Neither Lessor nor Lessee shall have the right to have a court
or any other third party entity establish the Fair Rental Value. If Lessor and
Lessee are unable to agree on the Fair Rental Value for the Extended Term within
thirty (30) days after receipt by Lessor cf the Option Notice, Lessor and Lessee
being obligated only to act in good faith, this option shall automatically
terminate and the end of its Initial Term. In no event shall the rent for any
period of the Extended Term be less than the highest rent charged during the
Initial Term of the Lease. Upon determination of the Rent for the Extended Term,
pursuant to the terms outlined above, the parties shall immediately execute an
amendment to the Lease stating the minimum monthly Rent for the Extended Term.
Lessee shall have no other right to extend the term of the Lease unless Lessor
and Lessee otherwise agree in writing.
This option is personal to Lessee and may not be assigned, voluntarily or
involuntarily, separate from or as a part of the Lease provided, however, Lessee
may assign the Lease with the option as provided in Paragraph 14. Any assignment
shall not in any way affect or limit the liability of Lessee pursuant to the
Lease. Notwithstanding the timely giving of the Option Notice, if Lessee is in
default of any provision of the Lease on the date of commencement of the
Extended Term, at Lessor's option, all rights of Lessee under this option shall
terminate and be of no force and effect.
INITIALS:
--------
LESSEE:
---------------------
OWNER/LESSOR:
------------------------------
-29-
