Southern California Chapter of the Society of Industrial
Realtors, Inc.
INDUSTRIAL REAL ESTATE LEASE
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Lease between the
Landlord
and Tenant named below. Other Articles, Sections and Paragraphs of
the Lease
referred to in this Article One explain and define the Basic Terms
and are
to be read In conjunction with the Basic Terms.
Section 1.01. Date of Lease: JUNE 3 1999
Section 1.02. Landlord: MC DIVITT-SRI, LLC
Address of Landlord: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Section 1.03. Tenant: INDUSTRIAL RUBBER INNOVATIONS, INC.
A FLORIDA CORPORATION
Address of Tenant: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. SUITE 7
BAKERSFIELD, CALIF 93313
Section 1.04. Property: (Include street address, approximate square
footage and description)
6801 MC DIVITT BAKERSFIELD, CALIFORNIA
CONSISTING OF APPROX. 29,300 SQ FT WHICH INCLUDES
APPROX. 4900 SQ FT OF MEZANINE AND APPROX. 1280 SQ FT OF OFFICE
LOCATED ON APPROX. 1.35 ACRES OF LAND
LEGAL: APN# ▇▇▇-▇▇▇-▇▇▇▇▇ & ▇▇▇-▇▇▇-▇▇▇▇-▇
Section 1.05. Lease Term: FIVE (5) YEARS beginning on SEPTEMBER 1,
1999
or such other date as is specified in this Lease, and ending on
AUGUST 31, 2004
Section 1.06. Permitted Uses: (See Section 5.01) OFFICE, WAREHOUSE
AND LIGHT INDUSTRIAL AS APPROVED BY CITY OF BAKERSFIELD.
Section 1.07. Tenant's Guarantor: (If none, so state) ATTACHED PER
SCHED 1.07
Section 1.08. Landlord's Broker: (See Article Fourteen)(If none, so
state)
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ (▇▇▇▇ COMMERCIAL BROKERS)
Section 1.09. ▇▇▇▇▇▇'s Broker: (if none, so state) NONE
Section 1.10. Commission Payable to Landlords Broker: (See Article
Fourteen) $ 25,500
Section 1.11 Initial Security Deposit: (See Paragraphs 3.03 find
13.03(c))
$ 8,500
Section 1.12. Vehicle Parking Spaces Allocated to Tenant: (See
Multi-Tenant
Facility Lease Rider, if attached) ALL-AVAILABLE
Section 1.13. Rent and Other Charges Payable by Tenant:
(a) BASE RENT: Per sched 1.13A shall be increased
(b) OTHER PERIODIC PAYMENTS: (I) Real Property Taxes (See Section
4.02); (ii)
Utilities (See Section 4.03); (iii) Insurance Premiums (See Section
4.04);
(iv) Common Area Charges (See Section 4.05 or Multi-Tenant Facility
Lease
Rider, if attached. The initial monthly common area charge is $N/A);
(v)
Impounds for Insurance Premiums and Property Taxes (See Section
4.08);
(vi) Maintenance, Repairs and Alternations (See Article Six). PER
SCHED 1.13B
Section 1.14. Riders: The following Riders are attached to and
made part
of this Lease: (If none, so state) ALL SCHEDULES AND ADDENDUM TO LEASE.
ARTICLE TWO: LEASE TERM
Section 2.01. LEASE OF PROPERTY FOR LEASE TERM. Landlord leases the
Property
to Tenant and Tenant leases the Property from Landlord for the Lease
Term.
The Lease Term is for the period stated in Section 1.05 above and shall
begin and end on the dates specified in Section 1.05 above, unless the
beginning or end of the Lease Term is changed under any provision of
this
Lease. The "Commencement Date" shall be the date specified in
Section 1.05
above for the beginning of the Lease Term, unless advanced or
delayed under
any provision of this Lease.
Section 2.02. DELAY IN COMMENCEMENT. Landlord shall not be liable
to Tenant
if Landlord does not deliver possession of the Property to Tenant on
the
Commencement Date. Landlord's non-delivery of the Property to Tenant
on that date shall not affect this Lease or the obligations of
Tenant under
this Lease except that the Commencement Date shall be delayed until
Landlord delivers possession of the Property to Tenant and the Lease
Term
shall be extended for a period equal to the delay in delivery of
possession of the Property to Tenant, plus the number of days
necessary to end the Lease Term on the last day of a month. If
Landlord does
not deliver possession of the Property to
Tenant within sixty (60) days after the Commencement Date, Tenant
may elect
to cancel this Lease by giving written
notice to Landlord within ten (10) days after the sixty (60) -day
period
ends. If Tenant gives such notice, the Lease
shall be canceled and neither Landlord nor Tenant shall have any
further
obligations to the other. If Tenant does not
give such notice, ▇▇▇▇▇▇'s right to cancel the Lease shall expire
and the
Lease Term shall commence upon the
delivery of possession of the Property to Tenant. If delivery of
possession
of the Property to Tenant is delayed,
Landlord and Tenant shall, upon such delivery, execute an amendment
to this
Lease setting forth the actual
Commencement Date and expiration date of the Lease. Failure to
execute such
amendment shall not affect tile actual
Commencement Date and expiration date of the Lease.
Section 2.03. EARLY OCCUPANCY. If Tenant occupies the Property prior
to the
Commencement Date, ▇▇▇▇▇▇'s occupancy of the Property shall be
subject to
all of the provisions of this Lease. Early occupancy of the Property
shall
not advance the expiration date of this Lease. Tenant shall pay Base
Rent
and all other charges specified in this Lease for the early
occupancy Period.
Section 2.04. HOLDING OVER. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse
Landlord for and indemnify Landlord against all damages which Landlord
incurs from ▇▇▇▇▇▇'s delay in vacating the Property. If Tenant does not
vacate the Property upon the expiration or earlier termination of
the Lease
and Landlord thereafter accepts rent from Tenant, ▇▇▇▇▇▇'s occupancy
of the
Property shall be a "month-to-month" tenancy, subject to all of the
terms of
this Lease applicable to a month-to-month tenancy, except that the
Base Rent
then in effect shall be increased by twenty-five percent (25%).
ARTICLE THREE: BASE RENT
Section 3.01. TIME AND MANNER OF PAYMENT. Upon execution of this Lease,
Tenant shall pay Landlord the Base Rent in the amount stated in
Paragraph
1.12(a) above for the first month of the Lease Term. On the first
day of the
second month of the Lease Term and each month thereafter, Tenant
shall pay
Landlord the Base Rent, in advance, without offset, deduction or prior
demand. The Base Rent shall be payable at Landlord's address or at such
other place as Landlord may designate in writing.
Section 3.02. COST OF LIVING INCREASES. [OMITTED]
Section 3.03. SECURITY DEPOSIT; INCREASES.
(a) Upon the execution of this Lease, Tenant shall deposit with
Landlord a
cash Security Deposit in the amount set forth in Section 1.10 above.
Landlord may apply all or part of the Security Deposit to any unpaid
rent or
other charges due from Tenant or to cure any other defaults of
Tenant. If
Landlord uses any part of the Security Deposit, Tenant shall restore
the
Security Deposit to its full amount within ten (10) days after
Landlord's
written request. Tenant's failure to do so shall be a material
default under
this Lease. No interest shall be paid on the Security Deposit. Landlord
shall not be required to keep the Security Deposit separate from its
other
accounts and no trust relationship is created with respect to the
Security
Deposit.
(b) Each time the Base Rent is increased, Tenant shall deposit
additional
funds with Landlord sufficient to increase the Security Deposit to
an amount
which bears the same relationship to the adjusted Base Rent as the
initial
Security Deposit bore to the initial Base Rent.
Section 3.04. TERMINATION; ADVANCE PAYMENTS. Upon termination of
this Lease
under Article Seven (Damage or Destruction), Article Eight
(Condemnation) or
any other termination not resulting from Tenant's default, and after
Tenant
has vacated the Property in the manner required by this Lease, Landlord
shall refund or credit to Tenant (or Tenant's, successor) the unused
portion
of the Security Deposit, any advance rent or other advance payments
made by
Tenant to Landlord, and any amounts paid for real property taxes and
other
reserves which apply to any time periods after termination of the
Lease.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
Section 4.01. ADDITIONAL RENT. All charges payable by Tenant other than
Base Rent are called "Additional Rent." Unless this Lease provides
otherwise, Tenant shall pay all Additional Rent then due with the next
monthly installment of Base Rent. The term "rent" shall mean Base
Rent and
Additional Rent.
Section 4.02. PROPERTY TAXES.
(a) REAL PROPERTY TAXES. [OMITTED]
(b) DEFINITION OF "REAL PROPERTY TAX." [OMITTED]
(C) JOINT ASSESSMENT. [OMITTED]
(d) PERSONAL PROPERTY TAXES.
(I) Tenant shall pay all taxes charged against trade fixtures,
furnishings.,
equipment or any other personal property belonging to ▇▇▇▇▇▇. Tenant
shall
try to have personal property taxed separately from the Property.
(ii) If any of Tenant's personal property is taxed with the
Property, Tenant
shall pay Landlord the taxes for the personal property within
fifteen (15)
days after ▇▇▇▇▇▇ receives a written statement from Landlord for such
personal property taxes.
Section 4.03. UTILITIES. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer
service,
telephone, water, refuse disposal and other utilities and services
supplied to the Property. However, if any services or utilities are
jointly metered with other property, Landlord shall make a
reasonable
determination of Tenant's proportionate share of the cost of such
utilities and services and Tenant shall pay such share to Landlord
within fifteen (15) days after receipt of Landlord's written statement.
Section 4.04. Insurance Policies.
(a) LIABILITY INSURANCE. During the Lease Term, Tenant shall
maintain a
policy of commercial general liability insurance (sometimes known as
broad
form comprehensive general liability insurance) insuring Tenant against
liability for bodily injury, property damage (including loss of use of
property) and personal injury arising out of the operation, use or
occupancy
of the Property. Tenant shall name Landlord as an additional insured
under
such Policy. The initial amount of such insurance shall be One Million
Dollars ($1,000,000) per occurrence and shall he subject to periodic
increase based upon inflation, increased liability awards,
recommendation of
Landlord's professional insurance advisers and other relevant
factors. The
liability insurance obtained by Tenant under this Paragraph 4.04(a)
shall
(I) be primary and non-contributing; (ii) contain cross-liability
endorsements; and (iii) insure Landlord against Tenant's performance
under
Section 5.05, if the matters giving rise to the indemnity under
Section 5.05
result from the negligence of Tenant. The amount and coverage of such
insurance shall not limit Tenant's liability nor relieve Tenant of
any other
obligation under this Lease. Landlord may also obtain comprehensive
public,
liability insurance in an amount and with coverage determined by
Landlord
insuring Landlord against liability arising out of ownership,
operation,
use or occupancy of the Property. The policy obtained by Landlord
shall not
be contributory and shall not provide primary insurance.
(b) Property and Rental Income Insurance. During the Lease Term,
Landlord
shall maintain policies of insurance covering loss of or damage to the
Property in the full amount of its replacement value. Such policy shall
contain an Inflation Guard Endorsement and shall provide protection
against
all perils included within the classification of fire, extended
coverage,
vandalism, malicious mischief, special extended perils (all risk),
sprinkler
leakage and any other perils which Landlord deems reasonably necessary.
Landlord shall have the right to obtain flood and earthquake
insurance if
required by any lender holding a security interest in the Property.
Landlord
shall not obtain insurance for Tenant's fixtures or equipment or
building
improvements installed by Tenant on the Property. During the Lease
Term,
Landlord shall also maintain a rental income insurance policy, with
loss
payable to Landlord, in an amount equal to one year's Base Rent, plus
estimated real properly taxes and insurance premiums. Tenant shall
be liable
for the payment of any deductible amount under ▇▇▇▇▇▇▇▇'s or Tenant's
insurance policies maintained pursuant to this Section 4.04, in an
amount
not to exceed Ten Thousand Dollars ($10,000). Tenant shall not do or
permit
anything to be done which invalidates any such insurance policies.
(C) Payment of Premiums. Subject to Section 4.08, Tenant shall pay all
premiums for the insurance policies described in Paragraphs 4.04(a)
and (b)
(whether obtained by Landlord or Tenant) within fifteen (15) days after
▇▇▇▇▇▇'s receipt of a copy of the premium statement or other
evidence of
the amount due, except Landlord shall pay all premiums for non-primary
comprehensive public liability insurance which Landlord elects to
obtain as
provided in Paragraph 4.04(a). For insurance policies maintained by
Landlord which cover improvements on the entire Project, Tenant
shall pay
Tenant's prorated share of the premiums, in accordance with the
formula in
Paragraph 4.05(e) for determining Tenant's share of Common Area
costs. If
insurance policies maintained by Landlord cover improvements on real
property other than the Project, Landlord shall deliver to Tenant a
statement of the premium applicable to the Property showing in
reasonable
detail how Tenant's share of the premium was computed. If the Lease
Term expires before the expiration Of all insurance policy
maintained by
Landlord, Tenant shall be liable for Tenant's prorated share of the
insurance premiums. Before the Commencement Date, Tenant shall
deliver to
Landlord a copy of any policy of insurance which Tenant is required to
maintain under this Section 4,04. At least thirty (30) days prior to
the
expiration of any such policy, Tenant shall deliver to Landlord a
renewal of
such policy. As an alternative to providing a policy of insurance,
Tenant
shall have the right to provide Landlord a certificate of insurance,
executed by an authorized officer of the insurance company, showing
that the
insurance which Tenant is required to maintain under this Section
4.04 is in
full force and effect and containing such other information which
Landlord
reasonably requires.
(d) GENERAL INSURANCE PROVISIONS.
(I) Any insurance which Tenant is required to maintain under this Lease
shall include a provision which requires the insurance carrier to give
Landlord not less than thirty (30) days' written notice prior to any
cancellation or modification of such coverage.
(ii) If Tenant fails to deliver any policy, certificate or renewal to
Landlord required under this Lease within the prescribed time period
or if
any such policy is canceled or modified during the Lease Term without
Landlord's consent, Landlord may obtain such insurance, in which
case Tenant
shall reimburse Landlord for the cost of such insurance within
fifteen (15)
days after receipt of a statement that indicates the cost Of such
insurance.
(iii) Tenant shall maintain all insurance required under this Lease
with
companies holding a "General Policy Rating" of A-12 or better, as
set forth
in the most current issue of "Best Key Rating Guide". Landlord and
Tenant
acknowledge the insurance markets are rapidly changing and that
insurance in
the form and amounts described in this Section 4.04 may not be
available in the
future. Tenant acknowledges that the insurance described in this
Section 4.04
is for the primary benefit of Landlord. If at any time during the
Lease Term,
Tenant is unable to maintain the insurance required under the Lease,
Tenant
shall nevertheless maintain insurance coverage which is customary and
commercially reasonable in the insurance industry for Tenant's type of
business, as that coverage may change from time to time. ▇▇▇▇▇▇▇▇
makes no
representation as to the adequacy of such insurance to protect
▇▇▇▇▇▇▇▇'s
or ▇▇▇▇▇▇'s interests. Therefore, Tenant shall obtain any such
additional
property or liability insurance which Tenant deems necessary to
protect
Landlord and Tenant.
(iv) Unless prohibited under any applicable insurance policies
maintained,
Landlord and Tenant each hereby waive any and all rights of recovery
against
the other, or against the officers, employees, agents or
representatives of
the other, for loss of or damage to its property or the property of
others
under its control, if such loss or damage is covered by any insurance
policy in force (whether or not described in this Lease) at the time of
such loss or damage. Upon obtaining the required policies of insurance,
Landlord and Tenant shall give notice to the insurance carriers of this
mutual waiver of subrogation.
Section 4.05. COMMON AREAS; USE, MAINTENANCE AND COSTS.
(a) COMMON AREAS. [OMITTED]
(b) USE OF COMMON AREAS. [OMITTED]
(C) SPECIFIC PROVISION RE: VEHICLE PARKING. [OMITTED]
(d) MAINTENANCE OF COMMON AREAS. Landlord shall maintain the Common
Areas in
good order, condition and repair and shall operate the Project, in
Landlord's
sole discretion, as a first-class industrial/commercial real
property development.
(e) TENANT'S SHARE AND PAYMENT. [OMITTED]
SECTION 4.06. LATE CHARGES. ▇▇▇▇▇▇'s failure to pay rent promptly
may cause
Landlord to incur unanticipated costs. The exact amount of such
costs are
impractical or extremely difficult to ascertain. Such costs may
include, but
are not limited to, processing and accounting charges and late
charges which
may be imposed on Landlord by any ground lease, mortgage or trust deed
encumbering the Property. Therefore, if Landlord does not receive
any rent
payment within ten (10) days after it becomes due, Tenant shall pay
Landlord
a late charge equal to ten percent (10%) of the overdue amount. The
parties
agree that such late charge represents a fair and reasonable
estimate of
the costs Landlord will incur by reason of such late payment.
Section 4.07. INTEREST ON PAST DUE OBLIGATIONS. Any amount owed by
Tenant to
Landlord which is not paid when due shall bear interest at the rate of
fifteen percent (15%) per annum from the due date of such amount.
However,
interest shall not be payable on late charges to be paid by Tenant
under this Lease. The payment of interest on such amounts shall not
excuse
or cure any default by Tenant under this Lease. If the interest rate
specified in this Lease is higher than the rate permitted by law, the
interest rate is hereby decreased to the maximum legal interest rate
permitted by law.
Section 4.08. IMPOUNDS FOR INSURANCE PREMIUMS AND REAL PROPERTY
TAXES. If
requested by any ground lessor or lender to whom Landlord has
granted a
security interest in tire Property, or if Tenant is more than ten
(10) days
late in the payment of rent more than once in any consecutive twelve
(12)
-month period. Tenant, shall pay Landlord a sum equal to one-twelfth
(1/12)
of the annual real property taxes and, insurance premiums payable by
Tenant
under this Lease, together with each payment of Base Rent. Landlord
shall
hold such payments in a non-interest bearing impound account. If
unknown,
Landlord shall reasonably estimate the amount of real property taxes
and
insurance premiums when due. Tenant shall pay any deficiency. of
funds in
the impound account to Landlord upon written request. If Tenant
defaults
under this Lease, Landlord may apply any funds in the impound
account to
any obligation then due under this Lease.
ARTICLE FIVE: USE OF PROPERTY
SECTION 5.01. PERMITTED USES. Tenant may use the Property only for the
Permitted Uses set forth in Section 1.06 above.
SECTION 5.02. MANNER OF USE. Tenant shall not cause or permit the
Property
to be used in any way which constitutes a violation of any law,
ordinance,
or governmental regulation or order, which annoys or interferes with
tile
rights of tenants of the Project, or which constitutes a nuisance or
waste.
Tenant shall obtain and pay for all permits, including a Certificate of
Occupancy, required for Tenant's occupancy of the Property and shall
promptly take all actions necessary to comply with all applicable
statutes,
ordinances, rules, regulations, orders and requirements regulating
tile use
by Tenant of the Property, including the Occupational Safety and
Health Act.
Section 5.03. HAZARDOUS MATERIALS. As used in this Lease, the term
"Hazardous Material" means any flammable items, explosives, radioactive
materials, hazardous or toxic substances, material or waste or related
materials, including any substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous
materials" or "toxic substances" now or subsequently regulated under
any applicable federal, state or local laws or regulations, including
without limitation petroleum-based products, paints, solvents, lead,
cyanide, DDT, printing inks, acids, pesticides, ammonia compounds and
other chemical products, asbestos, PCBs and similar compounds, and
including any different products and materials which are subsequently
found to have adverse effects on the environment or the health and
safety of persons. Tenant shall not cause or permit any Hazardous
Material to be generated, produced, brought upon, used, stored, treated
or disposed of in or about the Property by Tenant, its agents,
employees
contractors, sublessees or invitees without the prior written consent
of Landlord. Landlord shall be entitled to take into account such
other factors or facts as Landlord may reasonably determine to be
relevant in determining whether to grant or withhold consent to
Tenant's proposed activity with respect to Hazardous Material. In no
event, however, shall Landlord be required to consent to the
installation or use of any storage tanks on the Property.
Section 5.04. SIGNS AND AUCTIONS. Tenant shall not place any signs
on the
Property without Landlord's prior written consent. Tenant shall not
conduct
or permit any auctions or sheriff's sales at the Property.
Section 5.05. INDEMNITY. Tenant shall indemnify Landlord against and
hold
Landlord harmless from any and all costs, claims or liability
arising from:
(a) Tenant's use of the Property; (b) the conduct of Tenant's
business or
anything else done or permitted by Tenant to be done in or about the
Property, including any contamination of the Property or any other
property
resulting from the presence or use of Hazardous Material caused or
permitted
by Tenant; (C) any breach or default in the performance of Tenant's
obligations under this Lease; (it) any misrepresentation or breach of
warranty by Tenant under this Lease; or (e) other acts or omissions of
Tenant. Tenant shall defend Landlord against any such cost, claim or
liability at ▇▇▇▇▇▇'s expense with counsel reasonably acceptable to
Landlord
or, at Landlord's election, Tenant shall reimburse Landlord for any
legal
fees or costs incurred by Landlord in connection with any such
claim. As a
material part of the consideration to Landlord, ▇▇▇▇▇▇ assumes all
risk of
damage to property or injury to persons in or about the Property
arising
from any cause, and Tenant hereby waives all claims in respect thereof
against Landlord, except for any claim arising out of Landlord's gross
negligence or willful misconduct. As used in this Section, the term
"Tenant"
shall include Tenant's employees, agents, contractors and invitees,
if
applicable.
Section 5.06. LANDLORD'S ACCESS. Landlord or its agents may enter the
Property at all reasonable times to show the Property to potential
buyers,
investors or tenants or other parties-, to do any other act or to
inspect
and conduct tests in order to monitor Tenant's compliance with all
applicable environmental laws and all laws governing the presence
and use of
Hazardous Material; or for any other purpose Landlord deems necessary.
Landlord shall give Tenant prior notice of such entry, except in the
case of
an emergency. Landlord may place customary "For Sale" or "For Lease"
signs
on the Property.
Section 5.07. QUIET POSSESSION. If Tenant pays the rent and complies
with
all other terms of this Lease, Tenant may occupy and enjoy the
Property for
the full Lease Term, subject to the provisions of this Lease.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND
ALTERATIONS
Section 6.01. EXISTING CONDITIONS. Tenant accepts the Property in its
condition as of the execution of the Lease, subject to all recorded
matters,
laws, ordinances, and governmental regulations and orders. Except as
provided herein, ▇▇▇▇▇▇ acknowledges that neither ▇▇▇▇▇▇▇▇ nor any
agent of
Landlord has made any representation as to the condition of the
Property or
the suitability of the Property for ▇▇▇▇▇▇'s intended use. Tenant
represents
and warrants that Tenant has made its own inspection of and inquiry
regarding the condition of the Property and is not relying on any
representations of Landlord or any Broker with respect thereto. If
Landlord
or Landlord's Broker has provided a Property Information Sheet or other
Disclosure Statement regarding the Property, a copy is attached as an
exhibit to the Lease.
Section 6.02. EXEMPTION OF LANDLORD FROM LIABILITY. Landlord shall
not be
liable for any damage or injury to the person, business (or any loss of
income therefrom), goods, wares, merchandise or other property of
Tenant,
Tenant's employees, invitees, customers or any other person in or
about the
Property, whether such damage or injury is caused by or results
from: (a)
fire, steam, electricity, water, gas or rain; (b) the breakage,
leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures or any other cause; (C)
conditions arising in or about the Property or upon other portions
of the
Project, or from other sources or places; or (d) any act or omission
of any
other tenant of the Project. Landlord shall not be liable for any such
damage or injury even though the cause of or the means of repairing
such
damage or injury are not accessible to Tenant. The provisions of this
Section 6.02 shall not, however, exempt Landlord from liability for
Landlord's gross negligence or willful misconduct.
Section 6.03. LANDLORD'S OBLIGATIONS.
(a) Except as provided in Article Seven (Damage or Destruction) and
Article
Eight (Condemnation), Landlord shall keep the following in good order,
condition and repair: the foundations, exterior walls and roof of the
Property (including painting the exterior surface of the exterior
walls of
the Property not more often than once every five (5) years, if
necessary)
and all components of electrical, mechanical, plumbing, heating and air
conditioning systems and facilities located in the Property which are
concealed or used in common by tenants of the Project. However,
Landlord
shall not be obligated to maintain or repair windows, doors, plate
glass or
the interior surfaces of exterior walls. Landlord shall make repairs
under
this Section 6.03 within a reasonable time after receipt of written
notice
from Tenant of the need for such repairs.
(b) Tenant shall pay or reimburse Landlord for all costs Landlord
incurs
under Paragraph 6.03(a) above as Common Area costs as provided for in
Section 4.05 of the Lease. Tenant waives the benefit of any statute in
effect now or in the future which might give Tenant the right to make
repairs at Landlord's expense or to terminate this Lease due to
Landlord's
failure to keep the Property in good order, condition and repair.
SECTION 6.04. TENANT'S OBLIGATIONS.
(a) Except as provided in Section 6.03, Article Seven (Damage or
Destruction) and Article Eight (Condemnation), Tenant shall keep all
portions of the Property (including structural, nonstructural,
interior,
systems and equipment) in good order, condition and repair (including
interior repainting and refinishing, as needed). If any portion of the
Property or any system or equipment in the Property which Tenant is
obligated to repair cannot be fully repaired or restored, Tenant shall
promptly replace such portion of the Property or system or equipment
in the
Property, regardless of whether the benefit of such replacement extends
beyond the Lease Term; but if the benefit or useful, life of such
replacement extends beyond the Lease Term (as such term may be
extended by
exercise of any options), the useful life of such replacement shall be
prorated over the remaining portion of the Lease Term (as extended),
and
Tenant shall be liable only for that portion of the cost which is
applicable
to the Lease Term (as extended). Tenant shall maintain a preventive
maintenance contract providing for the regular inspection and
maintenance of
the heating and air conditioning system by a licensed heating and air
conditioning contractor, unless Landlord maintains such equipment under
Section 6.03 above. If any part of the Property or the Project is
damaged by
any act or omission of Tenant, Tenant shall pay Landlord the cost of
repairing or replacing such damaged property, whether or not
Landlord would
otherwise be obligated to pay the cost of maintaining or repairing such
property. It is the intention of Landlord and Tenant that at all times
Tenant shall maintain the portions of the Property which Tenant is
obligated
to maintain in an attractive, first-class and fully operative
condition.
(b) Tenant shall fulfill all of Tenant's obligations under this
Section
6.04 at Tenant's sole expense. If Tenant
fails to maintain, repair or replace the Property as required by this
Section 6.04, Landlord may, upon ten (10) days'
prior notice to Tenant (except that no notice shall be required in
the case
of an emergency), enter the Property and
perform such maintenance or repair (including replacement, as
needed) on
behalf of Tenant. In such case, Tenant
shall reimburse Landlord for all costs incurred in performing such
maintenance or repair immediately upon demand.
Section 6.05. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS.
(a) Tenant shall not make any alterations, additions, or
improvements to the
Property Without Landlord's prior written consent, except for
non-structural
alterations which do not exceed Ten Thousand Dollars ($10,000) in cost
cumulatively over the Lease Term and which are not visible from the
outside
of any building of which the Property is part. Landlord may require
Tenant
to provide demolition and/or lien and completion bonds in form and
amount
satisfactory to Landlord. Tenant shall promptly remove any alterations,
additions, or improvements constructed in violation of this Paragraph
6.05(a) upon Landlord's written request. All alterations, additions,
and
improvements .shall be done in a good and workmanlike manner, in
conformity
with all applicable laws and regulations, and by a contractor
approved by
Landlord. Upon completion of any such work, Tenant shall provide
Landlord
with "as built" plans, copies of all construction contracts, and
proof of
payment for all labor and materials.
(b) Tenant shall pay when due all claims for labor and material
furnished to
the Property. Tenant shall give Landlord at least twenty (20) days'
prior
written notice of the commencement of any work on the Property,
regardless
of whether ▇▇▇▇▇▇▇▇'s consent to such work is required. Landlord may
elect
to record and post notices of non-responsibility on the Property.
Section 6.06. CONDITION UPON TERMINATION. Upon the termination of
the Lease,
▇▇▇▇▇▇ shall surrender the Property to Landlord, broom clean and in
the same
condition as received except for ordinary wear and tear which Tenant
was not
otherwise obligated to remedy under any provision of this Lease.
However,
Tenant shall not be obligated to repair any damage which Landlord is
required to repair under Article Seven (Damage or Destruction). In
addition,
Landlord may require Tenant to remove any alterations, additions or
improvements (whether or not made with ▇▇▇▇▇▇▇▇'s consent) prior to the
expiration of the Lease and to restore the Property to its prior
condition,
all at Tenant's expense. All alterations, additions and improvements
which
Landlord has not required Tenant to remove shall become Landlord's
property
and shall be surrendered to Landlord upon the expiration or earlier
termination of the Lease, except that Tenant may remove any of Tenant's
machinery or equipment which can be removed without material damage
to the
Property. Tenant shall repair, at Tenant's expense, any damage to the
Property caused by the removal of any such machinery or equipment.
In no
event, however, shall Tenant remove any of the following materials or
equipment (which shall be deemed Landlord's property) without
Landlord's
prior written consent: any power wiring or power panels; lighting or
lighting fixtures; wall coverings; drapes, blinds or other window
coverings;
carpets or other floor coverings; heaters, air conditioners or any
other
heating or air conditioning equipment; fencing or security gates; or
other
similar building operating equipment and decorations.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
SECTION 7.01. PARTIAL DAMAGE TO PROPERTY.
(a) Tenant shall notify Landlord in writing immediately upon the
occurrence
of any damage to the Property. If the Property is only partially
damaged
(i.e., less than fifty percent (50%) of the Property is untenantable
as a
result of such damage or less than fifty percent (50%) of Tenant's
operations
are materially impaired) and if the proceeds received by Landlord
from
the insurance policies described in Paragraph 4.04(b) are sufficient
to
pay for the necessary repairs, this Lease shall remain in effect and
Landlord shall repair the damage as soon as reasonably possible.
Landlord
may elect (but is not required) to repair any damage to Tenant's
fixtures,
equipment, or improvements.
(b) If the insurance proceeds received by Landlord are not
sufficient to pay
the entire cost of repair, or if the cause of the damage is not
covered by
the insurance policies which Landlord maintains under Paragraph
4.04(b),
Landlord may elect either to (I) repair the damage as soon as
reasonably
possible, in which case this Lease shall remain in full force and
effect, or
(ii) terminate this Lease as of the date the damage occurred.
Landlord shall
notify Tenant within thirty (30) days after receipt of notice of the
occurrence of the damage whether Landlord elects to repair the
damage or
terminate the Lease. If Landlord elects to repair the damage, Tenant
shall
pay Landlord the "deductible amount" (if any) under Landlord's
insurance
policies and, if the damage was due to an act or omission of Tenant, or
Tenant's employees, agents, contractors or invitees, the difference
between
the actual cost of repair and any insurance proceeds received by
Landlord.
If Landlord elects to terminate this Lease, Tenant may elect to
continue
this Lease in full force and effect, in which case Tenant shall
repair any
damage to the Property and any building in which the Property is
located.
Tenant shall pay the cost of such repairs, except that upon
satisfactory
completion of such repairs, Landlord shall deliver to Tenant any
insurance
proceeds received by Landlord for the damage repaired by Tenant. Tenant
shall give Landlord written notice of such election within ten (10)
days
after receiving Landlord's termination notice.
(C) If the damage to the Property occurs during the last six (6)
months of
the Lease Term and such damage will require more than thirty (30)
days to
repair, either Landlord or Tenant may elect to terminate this Lease
as of
the date the damage occurred, regardless of the sufficiency of any
insurance
proceeds. The party electing to terminate this Lease shall give written
notification to the other party of such election within thirty (30)
days
after ▇▇▇▇▇▇'s notice to Landlord of the occurrence of the damage.
Section 7.02. SUBSTANTIAL OR TOTAL DESTRUCTION. if the Property is
substantially or totally destroyed by any cause whatsoever (i.e., the
damage to the Property is greater than partial damage as described in
Section 7.01), and regardless of whether Landlord receives any
insurance
proceeds, this Lease shall terminate as of the date the destruction
occurred. Notwithstanding the preceding sentence, if the Property
can be
rebuilt within six (6) months after the date of destruction,
Landlord may
elect to rebuild the Property at Landlord's own expense, in which
case this
Lease shall remain in full force and effect. Landlord shall notify
Tenant of
such election within thirty (30) days after ▇▇▇▇▇▇'s notice of the
occurrence of total or substantial destruction. If Landlord so elects,
Landlord shall rebuild the Property at Landlord's sole expense,
except that
if the destruction was caused by an act or omission of Tenant,
Tenant shall
pay Landlord the difference between the actual cost of rebuilding
and any
insurance proceeds received by Landlord.
Section 7.03. TEMPORARY REDUCTION OF RENT. If the Property is
destroyed or
damaged and Landlord or Tenant repairs or restores the Property
pursuant to
the provisions of this Article Seven, any rent payable during the
period of
such damage, repair and/or restoration shall be reduced according to
the
degree, if any, to which ▇▇▇▇▇▇'s use of the Property is impaired.
However,
the reduction shall not exceed the sum of one year's payment of Base
Rent,
insurance premiums and real property taxes. Except for such possible
reduction in Base Rent, insurance premiums and real property taxes,
Tenant
shall not be entitled to any compensation, reduction, or
reimbursement from
Landlord as a result of any damage, destruction, repair, or
restoration of
or to the Property.
Section 7.04. WAIVER. Tenant waives the protection of any statute,
code or
judicial decision which grants a tenant the right to terminate a
lease in
the event of the substantial or total destruction of the leased
property.
Tenant agrees that the provisions of Section 7.02 above shall govern
the
rights and obligations of Landlord and Tenant in the event of any
substantial or total destruction to the Property.
ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Property is taken under the power of
eminent
domain or sold under the threat of that power (all of which are called
"Condemnation"), this Lease shall terminate as to the part taken or
sold on
the date the condemning authority takes title or possession, whichever
occurs first. If more than twenty percent (20%) of the floor area of
the
building in which the Property is located, or which is located on the
Property, is taken, either Landlord or Tenant may terminate this
Lease. as
of the date the condemning authority takes title or possession, by
delivering written notice to the other within ten (10) days after
receipt of
written notice of such taking (or in the absence of such notice,
within ten
(10) days after the condemning authority takes title or possession). If
neither Landlord nor Tenant terminates this Lease, this Lease shall
remain
in effect as to the portion of the Property not taken, except that
the Base
Rent and Additional Rent shall be reduced in proportion to the
reduction in
the floor area of the Property. Any Condemnation award or payment
shall be
distributed in the following order: (a) first, to any ground lessor,
mortgagee or beneficiary under a deed of trust encumbering the
Property, the
amount of its interest in the Property; (b) second, to Tenant, only the
amount of any award specifically designated for loss of or damage to
Tenant's trade fixtures or removable personal property; and (C)
third, to
Landlord, the remainder of such award, whether as compensation for
reduction
in the value of the leasehold, the taking of the fee, or otherwise.
If this
Lease is not terminated, Landlord shall repair any damage to the
Property
caused by the Condemnation, except that Landlord shall not be
obligated to
repair any damage for which Tenant has been reimbursed by the
condemning
authority. If the severance damages received by Landlord are not
sufficient to pay for such repair, Landlord shall have the right to
either terminate this Lease or make such repair at Landlord's expense.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
SECTION 9.01. ▇▇▇▇▇▇▇▇'s Consent Required. No portion of the
Property or of
Tenant's interest in this Lease may be acquired by any other person or
entity, whether by sale, assignment, mortgage, sublease, transfer,
operation
of law, or act of Tenant, without ▇▇▇▇▇▇▇▇'s prior written consent,
except
as provided in Section 9.02 below. Landlord has the right to grant or
withhold its consent as provided in Section 9.05 below. Any attempted
transfer without consent shall be void and shall constitute a
noncurable
breach of this Lease. If Tenant is a partnership, any cumulative
transfer of
more than twenty percent (20%) of the partnership interests shall
require
Landlord's consent. If Tenant is a corporation, any change in the
ownership
of a controlling interest of the voting stock of the corporation shall
require Landlord's consent.
Section 9.02. Tenant Affiliate. Tenant may assign this Lease or
sublease the
Property, without Landlord's consent, to any corporation which
controls, is
controlled by or is under common control with Tenant, or to any
corporation
resulting from the merger of or consolidation with Tenant ("Tenant's
Affiliate"). In such case, any Tenant's Affiliate shall assume in
writing
all of Tenant's obligations under this Lease.
Section 9.03. No Release of Tenant. No transfer permitted by this
Article
Nine, whether with or without Landlord's consent, shall release
Tenant or
change Tenant's primary liability to pay the rent and to perform all
other
obligations of Tenant under this Lease. ▇▇▇▇▇▇▇▇'s acceptance of
rent from
any other person is not a waiver of any provision of this Article Nine.
Consent to one transfer is not a consent to any subsequent transfer. If
▇▇▇▇▇▇'s transferee defaults under this Lease, Landlord may proceed
directly
against Tenant without pursuing remedies against the transferee.
Landlord
may consent to subsequent assignments or modifications of this Lease by
▇▇▇▇▇▇'s transferee, without notifying Tenant or obtaining its
consent. Such
action shall not relieve ▇▇▇▇▇▇'s liability under this Lease.
Section 9.04. Offer to Terminate. If Tenant desires to assign the
Lease or
sublease the Property, Tenant shall have the right to offer,- in
writing, to
terminate the Lease as of a date specified in the offer. If Landlord
elects
in writing to accept the offer to terminate within twenty (20) days
after
notice of the offer, the Lease shall terminate as of the date
specified and
all the terms and provisions of the Lease governing termination
shall apply.
If Landlord does not so elect, the Lease shall continue in effect until
otherwise terminated and the provisions of Section 9.05 with respect
to any
proposed transfer shall continue to apply.
Section 9.05. Landlord's Consent.
(a) ▇▇▇▇▇▇'s request for consent to any transfer described in
Section 9.01
shall set forth in writing the details of the proposed transfer,
including
the name, business and financial condition of the prospective
transferee,
financial details of the proposed transfer (e.g., the term of and
the rent
and security deposit payable -under any proposed assignment or
sublease),
and any other information Landlord deems relevant. Landlord shall
have the
right to withhold consent, if reasonable, or to grant consent, based
on the
following factors: (I) the business of the proposed assignee or
subtenant
and the proposed use of the Property; (ii) the net worth and financial
reputation of the proposed assignee or subtenant; (iii) Tenant's
compliance
with all of its obligations under the Lease; and (iv) such other
factors as
Landlord may reasonably deem relevant. If Landlord objects to a
proposed
assignment solely because of the net worth and/or financial
reputation of
the proposed assignee, Tenant may nonetheless sublease (but not
assign), all
or a portion of the Property to the proposed transferee, but only on
the
other terms of the proposed transfer.
(b) If Tenant assigns or subleases, the following shall apply:
(I) Tenant shall pay to Landlord as Additional Rent under the Lease the
Landlord's Share (stated in Section 1.13) of the Profit (defined
below) on
such transaction as and when received by ▇▇▇▇▇▇, unless ▇▇▇▇▇▇▇▇ gives
written notice to ▇▇▇▇▇▇ and the assignee or subtenant that
Landlord's Share
shall be paid by the assignee or subtenant to Landlord directly. The
"Profit" means (A) all amounts paid to Tenant for such assignment or
sublease, including "key" money, monthly rent in excess of the
monthly rent
payable under the Lease, and all fees and other consideration paid
for the
assignment or sublease, including fees under any collateral
agreements, less
(B) costs and expenses directly incurred by Tenant in connection
with the
execution and performance of such assignment or sublease for real
estate
broker's commissions and costs of renovation or construction of tenant
improvements required under such assignment or sublease. Tenant is
entitled
to recover such costs and expenses before Tenant is obligated to pay
the
Landlord's Share to Landlord. The Profit in the case of a sublease
of less
than all the Property is the rent allocable to the subleased space
as a
percentage on a square footage basis.
(ii) Tenant shall provide Landlord a written statement certifying all
amounts to be paid from any assignment or sublease of the Property
within
thirty (30) days after the transaction documentation is signed, and
Landlord
may inspect Tenant's books and records to verify the accuracy of such
statement. On written request, Tenant shall promptly furnish to
Landlord
copies of all the transaction documentation, all of which shall be
certified by Tenant to be complete, true and correct. ▇▇▇▇▇▇▇▇'s
receipt
of Landlord's Share shall not be a consent to any further assignment or
subletting. The breach of Tenant's obligation under this Paragraph
9.05(b)
shall be a material default of the Lease.
Section 9.06. No Merger. No merger shall result from ▇▇▇▇▇▇'s
sublease
of the Property under this Article Nine, ▇▇▇▇▇▇'s surrender of this
Lease or the termination of this Lease in any other manner. In any
such
event, Landlord may terminate any or all subtenancies or succeed to the
interest of ▇▇▇▇▇▇ as sublandlord under any or all subtenancies.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. COVENANTS AND CONDITIONS. ▇▇▇▇▇▇'s performance of
each of
Tenant's obligations under this Lease is a condition as well as a
covenant.
▇▇▇▇▇▇'s right to continue in possession of the Property is
conditioned upon
such performance. Time is of the essence in the performance of all
covenants
and conditions.
Section 10.02. DEFAULTS. Tenant shall be in material default under
this Lease:
(a) If ▇▇▇▇▇▇ abandons the Property or if ▇▇▇▇▇▇'s vacation of the
Property
results in the cancellation of any insurance described in Section 4.04;
(b) If Tenant fails to pay rent or any other charge when due;
(C) If Tenant fails to perform any of ▇▇▇▇▇▇'s non-monetary obligations
under this Lease for a period of thirty (30) days after written
notice from
Landlord; provided that if more than thirty (30) days are required to
complete such performance, Tenant shall not be in default if Tenant
commences such performance within the thirty (30) -day period and
thereafter
diligently pursues its completion. However, Landlord shall not be
required
to give such notice if ▇▇▇▇▇▇'s failure to perform constitutes a
non-curable
breach of this Lease. The notice required by this Paragraph is
intended to
satisfy any and all notice requirements imposed by law on Landlord
and is
not in addition to any such requirement.
(d) (I) If Tenant makes a general assignment or general arrangement
for the
benefit of creditors; (ii) if a petition for adjudication of
bankruptcy or
for reorganization or rearrangement is' filed by or against Tenant
and is
not dismissed within thirty (30) days; (iii) if a trustee or
receiver is
appointed to take possession of substantially all of Tenant's assets
located
at the Property or of Tenant's interest in this Lease and possession
is not
restored to Tenant within thirty (30) days; or (iv) if substantially
all of
Tenant's assets located at the Property or of Tenant's interest in this
Lease is subjected to attachment, execution or other judicial
seizure which
is not discharged within thirty (30) days. If a court of competent
jurisdiction determines that any of the acts described in this
subparagraph
(d) is not a default under this Lease, and a trustee is appointed to
take
possession (or if Tenant remains a debtor in possession) and such
trustee or
Tenant transfers Tenant's interest hereunder, then Landlord shall
receive,
as Additional Rent, the excess, if any, of the rent (or any other
consideration) paid in connection with such assignment or sublease
over the
rent payable by Tenant under this Lease.
(e) If any guarantor of the Lease revokes or otherwise terminates, or
purports to revoke or otherwise terminate, any guaranty of all or any
portion of Tenant's obligations under the Lease. Unless otherwise
expressly
provided, no guaranty of the Lease is revocable.
Section 10.03. REMEDIES. On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter, with or without notice or
demand and without limiting Landlord in the exercise of any right or
remedy
which Landlord may have:
(a) Terminate ▇▇▇▇▇▇'s right to possession of the Property by any
lawful
means, in which case this Lease shall terminate and Tenant shall
immediately
surrender possession of the Property to Landlord. In such event,
Landlord
shall be entitled to recover from Tenant all damages incurred by
Landlord by
reason of Tenant's default, including (I) the worth at the time of
the award
of the unpaid Base Rent, Additional Rent and other charges which
Landlord
had earned at the time of the termination; (ii) the worth at the
time of the
award of the amount by which the unpaid Base Rent, Additional Rent
and other
charges which ▇▇▇▇▇▇▇▇ would have earned after termination until the
time of
the award exceeds the amount of such rental loss that Tenant proves
Landlord
could have reasonably avoided; (iii) the worth at the time of the
award-of
the amount by which the unpaid Base Rent, Additional Rent and other
charges
which ▇▇▇▇▇▇ would have paid for the balance of the Lease term after
the
time of award exceeds the amount of such rental loss that Tenant proves
Landlord could have reasonably avoided; and (iv) any other amount
necessary
to compensate Landlord for all the detriment proximately caused by
▇▇▇▇▇▇'s
failure to perform its obligations under the Lease or which in THE
ORDINARY
COURSE of things would be likely to result therefrom, including, but
not
limited to, any costs or expenses Landlord incurs in maintaining or
preserving the Property after such default, the cost of recovering
possession of the Property, expenses of reletting, including necessary
renovation or alteration of the Property, ▇▇▇▇▇▇▇▇'s reasonable
attorneys'
fees incurred in connection therewith, and any real estate
commission paid
or payable. As used in subparts (I) and (ii) above, the "worth at
the time
of the award" is computed by allowing interest on unpaid amounts at
the rate
of fifteen percent (15%) per annum, or such lesser amount as may
then be the
maximum lawful rate. As used in subpart (iii) above, the "worth at
the time
of the award" is computed by discounting such amount at the discount
rate of
the Federal Reserve Bank of San Francisco at the time of the award,
plus one
percent (1%). If Tenant has abandoned the Property, Landlord shall
have the
option of (I) retaking possession of the Property and recovering
from Tenant
the amount specified in this Paragraph .10.03(a), or (ii) proceeding
under
Paragraph 10.03(b);
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant has abandoned the
Property. In such event, Landlord shall be entitled to enforce all
of Landlord's rights and remedies under this Lease, including the
right to recover the rent as it becomes due;
(C) Pursue any other remedy now or hereafter available to Landlord
under
the laws or judicial decisions of the state in which the Property is
located.
Section 10.04. REPAYMENT OF "FREE" RENT. If this Lease provides for a
postponement of any monthly rental payments, a period of "free" rent or
other rent concession, such postponed rent or "free" rent is called the
"Abated Rent". Tenant shall be credited with having paid all of the
Abated
Rent on the expiration of the Lease Term only if ▇▇▇▇▇▇ has fully,
faithfully, and punctually performed all of Tenant's obligations
hereunder,
including the payment of all rent (other than the Abated Rent) and
all other
monetary obligations and the surrender of the Property in the physical
condition required by this Lease. Tenant acknowledges that its right to
receive credit for the Abated Rent is absolutely conditioned upon
Tenant's
full, faithful and punctual performance of its obligations under
this Lease.
If Tenant defaults and does not cure within any applicable grace
period, the
Abated Rent shall immediately become due and payable in full and
this Lease
shall be enforced as if there were no such rent abatement -or other
rent
concession. In such case Abated Rent shall be calculated based on
the full
initial rent payable under this Lease.
Section 10.05. AUTOMATIC TERMINATION. Notwithstanding any other term or
provision hereof to the contrary, the Lease shall terminate on the
occurrence of any act which affirms the Landlord's intention to
terminate
the Lease as provided in Section 10.03 hereof, including the filing
of an
unlawful detainer action against Tenant. On such termination,
▇▇▇▇▇▇▇▇'s
damages for default shall include all costs and fees, including
reasonable
attorneys' fees that Landlord incurs in connection with the filing,
commencement, pursuing and/or defending of any action in any bankruptcy
court or other court with respect to the Lease; the obtaining of
relief from
any stay in bankruptcy restraining any action to evict Tenant; or the
pursuing of any action with respect to Landlord's right to
possession of the
Property. All such damages suffered (apart from Base Rent and other
rent
payable hereunder) shall constitute pecuniary damages which must be
reimbursed to Landlord prior to assumption of the Lease by Tenant or
any
successor to ▇▇▇▇▇▇ in any bankruptcy or other proceeding.
Section 10.06. CUMULATIVE REMEDIES. ▇▇▇▇▇▇▇▇'s exercise of any right or
remedy shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01. SUBORDINATION. Landlord shall have the right to
subordinate
this Lease to any ground lease, deed of trust or mortgage
encumbering the
Property, any advances made on the security thereof and any renewals,
modifications, consolidations, replacements or extensions thereof,
whenever
made or recorded. Tenant shall cooperate with Landlord and any
lender which
is acquiring a security interest in the Property or the Lease.
Tenant shall
execute such further documents and assurances as such lender may
require,
provided that Tenant's obligations under this Lease shall not be
increased
in any material way (the performance of ministerial acts shall not
be deemed
material), and Tenant shall not be deprived of its rights under this
Lease.
▇▇▇▇▇▇'s right to quiet possession of the Property during the Lease
Term
shall not be disturbed if Tenant pays the rent and performs all of
Tenant's
obligations under this Lease and is not otherwise in default. If any
ground
lessor, beneficiary or mortgagee elects to have this Lease prior to
the lien
of its ground lease, deed of trust or mortgage and gives written notice
thereof to Tenant, this Lease shall be deemed prior to such ground
lease,
deed of trust or mortgage whether this Lease is dated prior or
subsequent to
the date of said ground lease, deed of trust or mortgage or the date of
recording thereof.
Section 11.02. ATTORNMENT. If ▇▇▇▇▇▇▇▇'s interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust,
mortgagee,
or purchaser at a foreclosure sale. Tenant shall attorn to the
transferee of
or successor to ▇▇▇▇▇▇▇▇'s interest in the Property and recognize such
transferee or successor as Landlord under this Lease. Tenant waives the
protection of any statute or rule of law which gives or purports to
give
Tenant any right to terminate this Lease or surrender possession of the
Property upon the transfer of Landlord's interest.
Section 11.03. SIGNING OF DOCUMENTS. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such
attornment or subordination or agreement to do so. If Tenant fails
to do so
within ten (10) days after writt6n- request, Tenant hereby makes,
constitutes and irrevocably appoints Landlord, or any transferee or
successor of Landlord, the attorney-in-fact of Tenant to execute and
deliver
any such instrument or document.
Section 11.04. Estoppel Certificates.
(a) Upon Landlord's written request, Tenant shall execute,
acknowledge and
deliver to Landlord a written statement certifying: (I) that none of
the
terms or provisions of this Lease have been changed (or if they have
been
changed, stating how they have been changed); (ii) that this Lease
has not
been canceled or terminated; (iii) the last date of payment of the Base
Rent and other charges and the time period covered by such payment;
(iv)
that Landlord is not in default under this Lease (or, if Landlord is
claimed
to be in default, stating why); and (v) such other representations or
information with respect to Tenant or the Lease as Landlord may
reasonably
request or which any prospective purchaser or encumbrancer of the
Property
may require. Tenant shall deliver such statement to Landlord within
ten (10)
days after ▇▇▇▇▇▇▇▇'s request. Landlord may give any such statement by
Tenant to any prospective purchaser or encumbrancer of the Property.
Such
purchaser or encumbrancer may rely conclusively upon such statement
as true
and correct.
(b) If Tenant does not deliver such statement to Landlord within such
ten (10) -day period, Landlord, and any prospective purchaser or
encumbrancer, may conclusively presume and rely upon the following
facts: (I) that the terms and provisions of this Lease have not been
changed except as otherwise represented by Landlord; (ii) that this
Lease has not been canceled or terminated except as otherwise
represented by Landlord; (iii) that not more than one month's Base Rent
or other charges have been paid in advance; and (iv) that Landlord
is not in default under the Lease. In such event, Tenant shall be
estopped from denying the truth of such facts.
Section 11.05. TENANT'S FINANCIAL CONDITION. Within ten (10) days after
written request from Landlord, Tenant shall deliver to Landlord such
financial statements as Landlord reasonably requires to verify the
net worth
of Tenant or any assignee, subtenant, or guarantor of Tenant. In
addition,
Tenant shall deliver to any lender designated by Landlord any financial
statements required by such lender to facilitate the financing or
refinancing of the Property. Tenant represents and warrants to
Landlord that
each such financial statement is a true and accurate statement as of
the
date of such statement. All financial statements shall be
confidential and
shall be used only for the purposes set forth in this Lease.
ARTICLE TWELVE: LEGAL COSTS
SECTION 12.01 LEGAL PROCEEDINGS. If Tenant or Landlord shall be in
breach or
default under this Lease, such party (the "Defaulting Party") shall
reimburse the other party (the "Nondefaulting Party") upon demand
for any
costs or expenses that the Nondefaulting Party incurs in connection
with any
breach or default of the Defaulting Party under this Lease, whether
or not
suit is commenced or judgment entered. Such costs shall include
legal fees
and costs incurred for the negotiation of a settlement, enforcement of
rights or otherwise. Furthermore, if any action for breach of or to
enforce
the provisions of this Lease is commenced, the court in such action
shall
award to the party in whose favor a judgment is entered, a
reasonable sum as
attorneys' fees and costs. The losing party in such action shall pay
such
attorneys' fees and costs. Tenant shall also indemnify Landlord
against and
hold Landlord harmless from all costs, expenses, demands and liability
Landlord may incur if Landlord becomes or is made a party to any
claim or
action (a) instituted by Tenant against any third party, or by any
third
party against Tenant, or by or against any person holding any
interest under
or using the Property by license, of or agreement with Tenant, (b) for
foreclosure of any lien for labor or material furnished to or for
Tenant or
such other person; (C) otherwise arising out of or resulting from
any act or
transaction of Tenant or such other person" or (d) necessary to protect
▇▇▇▇▇▇▇▇'s interest under this Lease in a bankruptcy proceeding, or
other
proceeding under Title 11 of the United States Code, as amended. Tenant
shall defend Landlord against any such claim or action at Tenant's
expense
with counsel reasonably acceptable to Landlord or, at Landlord's
election,
Tenant shall reimburse Landlord for any legal fees or costs Landlord
incurs
in any such claim or action.
Section 12.02. LANDLORD'S CONSENT. Tenant shall pay Landlord's
reasonable
attorneys' fees incurred in connection with ▇▇▇▇▇▇'s request for
▇▇▇▇▇▇▇▇'s
consent under Article Nine (Assignment and Subletting), or in
connection
with any other act which ▇▇▇▇▇▇ proposes to do and which requires
▇▇▇▇▇▇▇▇'s
consent.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. NON-DISCRIMINATION. Tenant promises, and it is a
condition to
the continuance of this Lease, that there will be no discrimination
against,
or segregation of, any person or group of persons on the basis of race,
color, sex, creed, national origin or ancestry in the leasing,
subleasing,
transferring, occupancy, tenure or use of the Property or any
portion thereof.
Section 13.02. LANDLORD'S LIABILITY; CERTAIN DUTIES.
(a) As used in this Lease, the term "Landlord" means only the
current owner
or owners of the fee title to the Property or Project or the leasehold
estate under a ground lease of the Property or Project at the time in
question. Each Landlord is obligated to perform the obligations of
Landlord
under this Lease only during the time such Landlord owns such
interest or
title. Any Landlord who transfers its title or interest is relieved
of all
liability with respect to the obligations of Landlord under this
Lease to be
performed on or after the date of transfer. However, each Landlord
shall
deliver to its transferee all funds that Tenant previously paid if such
funds have not yet been applied under the terms of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to
perform
any of its obligations under this Lease to Landlord and to any ground
lessor, mortgagee or beneficiary under any deed of trust encumbering
the
Property whose name and address have been furnished to Tenant in
writing.
Landlord shall not be in default under this Lease unless Landlord
(or such
ground lessor, mortgagee or beneficiary) fails to cure such
non-performance
within thirty (30) days after receipt of Tenant's notice. However,
if such
non-performance reasonably requires more than thirty (30) days to cure,
Landlord shall not be in default if such cure is commenced within such
thirty (30) -day period and thereafter diligently pursued to
completion.
(C) Notwithstanding any term or provision herein to the contrary, the
liability of Landlord for the performance of its duties and obligations
under this Lease is limited to Landlord's interest in the Property
and the
Project, and neither the Landlord nor its partners, shareholders,
officers
or other principals shall have any personal liability under this Lease.
Section 13.03. Severability. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is
illegal
or any part thereof is illegal or unenforceable shall not cancel or
invalidate the remainder of such provision or this Lease, which shall
remain in full force and effect.
Section 13.04.. Interpretation. The captions of the Articles or
Sections of
this Lease are to assist the parties in reading this Lease and are
not a
part of the terms or provisions of this Lease. Whenever required by
the
context of this Lease, the singular shall include the plural and the
plural
shall include the singular. The masculine, feminine and neuter genders
shall each include the other. In any provision relating to the
conduct,
acts or omissions of Tenant, the term "Tenant" shall include
Tenant's agents,
employees, contractors, invitees, successors or others using the
Property
with ▇▇▇▇▇▇'s expressed or implied permission.
Section 13.05. INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS.
This Lease
is the only agreement between the parties pertaining to the lease of
the
Property and no other agreements are effective. All amendments to
this Lease
shall be in writing and signed by all parties. Any other attempted
amendment
shall be void.
Section 13.06. NOTICES. All notices 'required or permitted under
this Lease
shall be in writing and shall be personally delivered or sent by
certified
mail, return receipt requested, postage prepaid. Notices to Tenant
shall be
delivered to the address specified in Section 1.03 above, except
that upon
▇▇▇▇▇▇'s taking possession of the Property, the Property shall be
Tenant's
address for notice purposes. Notices to Landlord shall be -delivered
to the
address specified in Section 1.02 above. All notices shall be
effective upon
delivery. Either party may change its notice address upon written
notice to
the other party.
Section 13.07. WAIVERS. All waivers must be in writing and signed by
the
waiving party. Landlord's failure to enforce any provision of this
Lease or
its acceptance of rent shall not be a waiver and shall not prevent
Landlord
from enforcing that provision or any other provision of this Lease
in the
future. No statement on a payment check from Tenant or in a letter
accompanying a payment check shall be binding on Landlord. Landlord
may,
with or without notice to Tenant, negotiate such check without being
bound
to the conditions of such statement.
Section 13.08. NO RECORDATION. Tenant shall not record this Lease
without
prior written consent from Landlord. However, either Landlord or
Tenant may
require that a "Short Form" memorandum of this Lease executed by both
parties be recorded. The party requiring such recording shall pay all
transfer taxes and recording fees.
Section 13.09. BINDING EFFECT; CHOICE OF LAW. This Lease binds any
party who
legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, Landlord shall have no obligation to ▇▇▇▇▇▇'s
successor
unless the rights or interests of ▇▇▇▇▇▇'s successor are acquired in
accordance with the terms of this Lease. The laws of the state in
which the
Property is located shall govern this Lease.
Section 13.10. CORPORATE AUTHORITY; PARTNERSHIP AUTHORITY. If Tenant
is a
corporation, each person signing this Lease on behalf of Tenant
represents
and warrants that he has full authority to do so and that this Lease
binds
the corporation. Within thirty (30) days after this Lease is signed,
Tenant
shall deliver to Landlord a certified copy of a resolution of
Tenant's Board
of Directors authorizing the execution of this Lease or other
evidence of
such authority reasonably acceptable to Landlord. If Tenant is a
partnership, each person or entity signing this Lease for Tenant
represents
and warrants that he or it is a general partner of the partnership,
that he
or it has full authority to sign for the partnership and that this
Lease
binds the partnership and all general partners of the partnership.
Tenant
shall give written notice to Landlord of any general partner's
withdrawal or
addition. Within thirty (30) days after this Lease is signed, ▇▇▇▇▇▇
shall
deliver to Landlord a copy of ▇▇▇▇▇▇'s recorded statement of
partnership or
certificate of limited partnership.
Section 13.11. JOINT AND SEVERAL LIABILITY. All parties signing this
Lease
as Tenant shall be jointly and severally liable for all obligations
of Tenant.
Section 13.12. FORCE MAJEURE. If Landlord cannot perform any of its
obligations due to events beyond Landlord's control, the time
provided for
performing such obligations shall be extended by a period of time
equal to
the duration of such events. Events beyond ▇▇▇▇▇▇▇▇'s control
include, but
are not limited to, acts of God, war, civil commotion, labor disputes,
strikes, fire, flood or other casualty, shortages of labor or material,
government regulation or restriction and weather conditions.
Section 13.13. EXECUTION OF LEASE. This Lease may be executed in
counterparts and, when all counterpart documents are executed, the
counterparts shall constitute a single binding instrument. ▇▇▇▇▇▇▇▇'s
delivery of this Lease to Tenant shall not be deemed to be an offer
to lease
and shall not be binding upon either party until executed and
delivered by
both parties.
Section 13.14. SURVIVAL. All representations and warranties of
Landlord and
Tenant shall survive the termination of this Lease.
ARTICLE FOURTEEN: BROKERS
Section 14.01. BROKER'S FEE. when this Lease is signed by and
delivered to
both Landlord and Tenant, Landlord shall pay a real estate
commission to
Landlord's Broker named in Section 1.08 above, if any, as provided
in the
written agreement between Landlord and ▇▇▇▇▇▇▇▇'s Broker, or the sum
stated
in Section 1.09 above for services rendered to Landlord by Landlord's
Broker in this transaction. Landlord shall pay Landlord's Broker a
commission if Tenant exercises any option to extend the Lease Term
or to buy
the Property, or any similar option or right which Landlord may
grant to
Tenant, or if Landlord's Broker is the procuring cause of any other
lease or
sale entered into between Landlord and Tenant covering the Property.
Such
commission shall be the amount set forth in Landlord's Broker's
commission
schedule in effect as of the execution of this Lease. If a Tenant's
Broker
is named in Section 1.08 above, ▇▇▇▇▇▇▇▇'s Broker shall pay an
appropriate
portion of its commission to Tenant's Broker if so provided in any
agreement
between ▇▇▇▇▇▇▇▇'s Broker and ▇▇▇▇▇▇'s Broker. Nothing contained in
this
Lease shall impose any obligation on Landlord to pay a commission or
fee to
any party other than ▇▇▇▇▇▇▇▇'s Broker.
Section 14.02. PROTECTION OF BROKERS. If Landlord sells the Property,
or assigns Landlord's interest in this Lease, the buyer or assignee
shall, by accepting such conveyance of the Property or assignment of
the Lease, be conclusively deemed to have agreed to make all
payments to
Landlord's Broker thereafter required of Landlord under this Article
Fourteen. ▇▇▇▇▇▇▇▇'s Broker shall have the right to bring a legal
action to enforce or declare rights under this provision. The
prevailing party in such action shall be entitled to reasonable
attorneys' fees to be paid by the losing party. Such attorneys'
fees shall be fixed by the court in such action. This paragraph
is included in this Lease for the benefit of Landlord's Broker.
Section 14.03. BROKER'S DISCLOSURE OF AGENCY. ▇▇▇▇▇▇▇▇'s Broker hereby
discloses to Landlord and ▇▇▇▇▇▇▇▇▇▇ 'and Landlord and Tenant hereby
consent
to Landlord's Broker acting in this transaction as the agent of
(check one):
[X] Landlord exclusively; or
[ ] both Landlord and Tenant.
Section 14.04. No Other Brokers. Tenant represents and warrants to
Landlord
that the brokers named in Section 1.08 above are the only agents,
brokers,
finders or other parties with whom ▇▇▇▇▇▇ has dealt who are or may be
entitled to any commission or fee with respect to this Lease or the
Property.
ADDITIONAL PROVISIONS MAY BE SET FORTH IN A RIDER OR RIDERS ATTACHED
HERETO
OR IN THE BLANK SPACE BELOW. IF NO ADDITIONAL PROVISIONS ARE
INSERTED, PLEASE
DRAW A LINE THROUGH THE SPACE BELOW.
LANDLORD HEREBY GRANTS TENANT FIRST RIGHT OF REFUSAL TO
PURCHASE THE PROPERTY DESCRIBED IN SECTION 1.04 PAGE 1 OF THIS LEASE.
LANDLORD HEREBY GRANTS TENANT AN OPTION TO RENEW LEASE FOR AN
ADDITIONAL 5
YEARS STARTING AT $9877.00 PER MONTH WITH 3% INCREASES PER ANNUM.
TENANT TO
GIVE LANDLORD WRITTEN NOTICE OF INTENT ON OR BEFORE APRIL 1 2004.
Landlord
and ▇▇▇▇▇▇ have signed this Lease at the place and on the dates
specified
adjacent to their signatures below and have initialed all Riders
which are
attached to or incorporated by reference in this Lease.
"LANDLORD"
MC DIVITT - SRI, LLC
By: /s/▇. ▇▇▇▇▇
M ▇▇▇▇▇
Its: PRESIDENT
Signed on June 9, 1999 at Ontario, California.
"TENANT"
INDUSTRIAL RUBBER INNOVATIONS INC.
A FLORIDA CORPORATION
By: /s/▇▇▇▇ ▇▇▇▇▇▇
Its: President/CEO
By: /s/▇▇▇▇▇▇ ▇▇▇▇
Its: Vice President of Technical Support
Signed on June 7, 1999 at Bakersfield, California 9:30 AM.
IN ANY REAL ESTATE TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT
WITH
A PROFESSIONAL, SUCH AS A CIVIL ENGINEER, INDUSTRIAL HYGIENIST OR
OTHER
PERSON WITH EXPERIENCE IN EVALUATING THE CONDITION OF THE PROPERTY
THE
POSSIBLE PRESENCE OF ASBESTOS, HAZARDOUS MATERIALS AND UNDERGROUND
STORAGE TANKS.
THIS PRINTED FORM LEASE HAS BEEN DRAFTED BY LEGAL COUNSEL AT THE
DIRECTION OF THE SOUTHERN CALIFORNIA CHAPTER OF THE SOCIETY OF
INDUSTRIAL AND OFFICE REALTORS, INC. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY THE SOUTHERN CALIFORNIA CHAPTER OF THE
SOCIETY OF INDUSTRIAL AND OFFICE REALTORS, INC., ITS LEGAL COUNSEL,
THE REAL ESTATE BROKERS NAMED HEREIN, OR THEIR EMPLOYEES OR
AGENTS, AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT OR TAX
CONSEQUENCES OF THIS LEASE OR OF THIS TRANSACTION. LANDLORD
AND TENANT SHOULD RETAIN LEGAL COUNSEL TO ADVISE THEM ON SUCH
MATTERS AND SHOULD RELY UPON THE ADVICE OF SUCH LEGAL COUNSEL.
ADDENDUM TO LEASE
This Addendum to Lease is made effective as of the Agreement Date by
and
between ▇▇▇▇▇▇▇ Ranch, Inc., a California corporation ("Seller" or
"Landlord"), and Industrial Rubber Innovations, Inc., a Florida
corporation,
("Buyer" or "Tenant"), with reference to the following facts:
WHEREAS, the parties are entering into that certain Industrial Real
Estate
Lease (the "Lease"); and
WHEREAS, this Agreement is incorporated by reference into Lease and is
material to the Lease;
IN CONSIDERATION OF THE PREMISES, the terms, conditions and covenants
contained herein and for other valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as
follows:
AGREEMENT
1 . DEFINITIONS. As used in this Agreement, the 'terms below shall
have the
following meanings unless the context requires otherwise.
1.1 "AGREEMENT." This Addendum to Lease, as amended or
supplemented
from time to time.
1.2 "AGREEMENT DATE." The effective date of this Agreement,
which is
June 1, 1999.
1.3 "APPLICABLE ENVIRONMENTAL LAWS." The Federal Water Pollution
Control Act
(33 U.S.C. ' 1251 et seq.), the Resource Conservation and Recovery
Act of
1976 (42 U.S.C. '6901 et seq.), the Safe Drinking Water Act (42 U.S.C.
'3600(f) et seq.) the Toxic Substances Control Act (15 U.S.C. '2601 et
seq.), the Clean Air Act (42 U.S.C. '7401 et seq.), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C.
'9601 et seq.), the Clean Water Act (33 U.S.C. '1251 et seq.), the
Hazardous
Materials Transportation Act of 1974 (49 U.S.C. '1801 et seq.) the
Occupational Safety and Health Act (29 U.S.C. '651 et seq.), the
Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. ' 136 et seq.),
the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. '1101
et seq.)
and California environmental laws, including but not limited to:
Health and
Safety '25396 et seq., Health and Safety '25570 et seq., Health and
Safety
'59000 et seq., Health and Safety '218000 et seq., and Pub. Res. C.
'21000.,
and any other law, rule, regulation, ordinance or statute now
existing or
hereinafter enacted relating to air, soil, water, environmental or
health
and safety conditions.
1.4 "BUSINESS DAY." Any day of the year, excluding Saturday, Sunday
and any
day which is a legal holiday or a day on which banking institutions are
authorized by law or other governmental actions to close and are
actually
closed in Bakersfield, California.
1.5 "COUNTY." The County of ▇▇▇▇, California.
1.6 "HAZARDOUS SUBSTANCE", "SOLID WASTE" AND "HAZARD" each shall have
the broadest meanings specified in the Applicable Environmental Laws.
1.7 "LEASE." That certain Industrial/Real Estate Lease dated
effective as of
June 1, 1999 wherein Seller is the Landlord and Buyer is the Tenant,
whereby
Seller has leased the Property to Buyer.
1.8 "LEASE PAYMENTS." The lease payments paid by the lessee to the
lessor under the Lease.
1.9 "PROPERTY." The real property described in EXHIBIT A
attached hereto.
2. ENVIRONMENTAL MATTERS.
LANDLORD
2.1 SELLER'S RIGHT TO REMOVE HAZARDOUS SUBSTANCES. In the event
▇▇▇▇▇
discovers prior to the Feasibility Period that Hazardous Substances,
Solid
Wastes or Hazards are located on or in or affect any portion of the
Property,
Buyer shall give Seller written notice as soon as reasonably
possible of
such discovery ("BUYER'S ENVIRONMENTAL NOTICE"). Within thirty (30)
days
after ▇▇▇▇▇'s Environmental Notice has been given, Seller, at its
option,
may commence and complete the clean up and removal of such Hazardous
Substances, Solid Wastes or Hazards in accordance with 911 Applicable
Environmental Laws, to the satisfaction of Buyer. In the event Seller
elects not to commence and complete the clean up and removal of such
Hazardous Substances, Solid Wastes or Hazards in accordance with all
Applicable Environmental Laws, and to the satisfaction of Buyer,
Seller
give written notice to Buyer within thirty (30) days after Buyers
Environmental Notice has been given, of such an election.
TENANT
2.2 BUYER'S RIGHT TO REMOVE HAZARDOUS SUBSTANCES. In the event
Seller elects
not to clean up the Property as provided in paragraph ___ hereof, or
Seller,
after having made the election to clean up the Property, fails,
refuses or
neglects to commence and complete the clean up and removal of such
Hazardous
Substances, Solid Wastes or Hazards in accordance with the
provisions of
paragraph 16.00 hereof, Buyer shall have the right, but not the
obligation,
without in any way limiting Buyer's other rights and remedies under
this
Agreement or at law, to enter onto the Property or to take such other
actions as it deems necessary or advisable to clean up, remove,
resolve, or
minimize the impact of,
or otherwise deal with, any Hazardous Substances, Solid Wastes or
Hazards on
or affecting the Property.
LANDLORD
2.3 SELLER'S ENVIRONMENTAL INDEMNITY. Seller covenants that Seller will
indemnify, defend and hold harmless Buyer and any current or former
officer, director, employee, shareholder, partner, member or agent
of Buyer
(the "Buyer Indemnitees") for, from and against any and all claims,
losses,
damages, response costs, clean-up costs and expenses arising out of
or in
any way relating to the existence of Hazardous Substances, Solid
Waste or
Hazards over, beneath, in or upon any of the Property purchased by
▇▇▇▇▇
from Seller under the terms of this Agreement, which exist as a
result of
the actions or inactions of Seller or any other persons prior to the
June 1,
1999, including, but not limited to reasonable attorneys' fees,
incurred at,
before and after any trial or appeal therefrom whether or not
taxable as
costs (the ENVIRONMENTAL EXPENSES), all of which shall be paid by
Seller to
the Buyer Indemnitees upon demand. In the event of the existence of
Environmental Expenses, ▇▇▇▇▇▇ agrees to pay the first Fifty Thousand
Dollars ($50,000), on a cumulative basis, of the Environmental
Expenses.
Once Seller has paid said Fifty Thousand Dollars ($50,000), Seller's
obligations in regard to the payment of the Environmental Expenses
shall
terminate and Buyer thereafter shall be solely responsible for the
Environmental Expenses.
TENANT
2.4 BUYER'S ENVIRONMENTAL INDEMNITY. Buyer covenants that Buyer will
indemnify, defend and hold harmless Seller and any current or former
officer, director, employee, shareholder, partner, member or agent
of Seller
(the "Seller Indemnitees") for, from and against any and all claims,
losses,
damages, response costs, clean-up costs and expenses arising out of
or in
any way relating to the existence of Hazardous Substances, Solid
Waste or
Hazards over, beneath., in or upon any of the Property leased by
▇▇▇▇▇ from
Seller under the terms of this Agreement or the Lease, which exist
as a
result of the actions or inactions of Buyer or any other persons on
or after
June 1, 1999, including, but not limited to reasonable attorneys' fees,
incurred at, before and after any trial or appeal therefrom whether
or not
taxable as costs, all of which shall be paid by Buyer to the Seller
Indemnitees upon demand.
2.5 EXHIBITS AND SCHEDULES. All exhibits and schedules attached
hereto and
referred to in this Agreement are incorporated herein by this
reference and
are part of this Agreement.
2.6 COUNTERPARTS. This Agreement may be executed simultaneously or in
counterparts, each of which shall be deemed an original, but all of
which
together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Agreement Date.
LANDLORD
MC DIVITT - SRI, LLC
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
Date of Execution: June 9, 1999
TENANT
INDUSTRIAL RUBBER INNOVATIONS, INC., a Florida corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇
Its: President/CEO
Date of Execution: June 7, 1999
SCHEDULE 1.07
Guarantees
The following officers of Tenant and their spouses, if any, shall
provide
personal guarantees in the form attached hereto.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
9903 CASA DEL SOL
BAKERSFIELD, CALIF 93311
/s/▇▇▇▇ ▇▇▇▇▇▇ June 7, 1999
▇▇▇▇ ▇▇▇▇▇▇ DATE
C.E.0 INDUSTRIAL RUBBER INNOVATIONS
A FLORIDA CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
9903 CASA DEL SOL
BAKERSFIELD, CALIF 93311
/s/▇▇▇▇▇ ▇▇▇▇▇▇ June 7, 1999
▇▇▇▇▇ ▇▇▇▇▇▇ DATE
/s/name unknown June 7, 1999
WITNESSED DATE
SCHEDULE 1.13(a)
Base Rent
September 1, 1999 to August 31, 2000 - $8,500.00 per month
September 1, 2000 to August 31, 2001 - $8,775.00 per month
September 1, 2001 to August 31, 2002 - $9,038.00 per month
September 1, 2002 to August 31, 2003 - $9,309.00 per month
September 1, 2003 to August 31, 2004 - $9,589.00 per month
SCHEDULE 1.13(b)
Other Periodic Payments
LANDLORD
TO PAY: PROPERTY TAXES ONLY
TENANT
TO PAY: UTILITIES
JANITORIAL
INSURANCE
PERSONAL PROPERTY TAXES
GARDENING