EXHIBIT 10.8
COMMERCIAL LEASE AGREEMENT
THIS COMMERCIAL LEASE AGREEMENT ("Lease"), dated February 21, 1996, for
reference purposes only, is made and entered into by and between ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ("LESSOR") and ▇▇▇▇▇▇▇▇.▇▇▇, INC., a California corporation ("LESSEE"),
(sometimes, collectively the "PARTIES," or individually a "PARTY").
1. BASIC LEASE PROVISIONS ("BASIC PROVISIONS")
1.1 INTENTIONS OF THE PARTIES: Lessor is the owner of that certain real
property described in Paragraph 1.2 below, which Lessee desires to lease from
Lessor and which Lessor agrees to lease to Lessee pursuant to the terms of this
Lease.
1.2 PREMISES: That certain real property, including all improvements
thereon, commonly known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and
more particularly described in attached Exhibit "A" ("PREMISES"). The Premises
is improved with a first class, multi-use building ("BUILDING"), which the
Parties agree has a total of Ten Thousand Nine Hundred and Fifty (10,950) square
feet of space on two levels. (See Paragraph 2 for further provisions.)
1.3 TERM: Three (3) years ("ORIGINAL TERM") commencing on March 1, 1996
("COMMENCEMENT DATE"), and ending on February 28, 1999 ("EXPIRATION DATE"),
unless terminated earlier pursuant to the provisions of this Lease. (See
Paragraph 3 for further provisions.)
1.4 EARLY TERMINATION: Lessee may elect to terminate this Lease after
eighteen (18) months ("EARLY TERMINATION") provided notice is timely given
("EARLY TERMINATION NOTICE") and Lessee pays to Lessor the fee called for under
this Lease ("EARLY TERMINATION FEE"). (See Paragraph 3.4 for further
provisions.)
1.5 BASE RENT: A flexible amount consisting of the combined total of the
following two components: (i) Lessor's costs and expenses in relation to the
ownership and operation of the Premises as set forth in this Lease, including
Lessor's financing costs and expenses, and (ii) a Nine Percent (9%) return on
Lessor's actual cash invested in acquiring and improving the Premises in
accordance with the provisions of this Lease ("BASE RENT"). The Base Rent shall
be payable on the first day of each month, commencing on March 1, 1996. Until
the actual Base Rent is calculated, Lessee agrees to pay Thirteen Thousand One
Hundred and Fifty Dollars ($13,150) per month ("ESTIMATED BASE RENT"). This
Lease contains provisions for the Base Rent to be adjusted. (See Paragraph 4.2
for further provisions.)
1.6 BASE RENT PAID UPON EXECUTION: To facilitate Lessor's acquisition of
the Premises, Lessee has advanced Twenty Five Thousand Dollars ($25,000) into a
purchase escrow at Chicago Title Company for the benefit of Lessor. Accordingly,
Lessor agrees that Lessee shall be entitled to a credit against its Estimated
Base Rent obligation of Thirteen Thousand One Hundred and Fifty Dollars
($13,150) per month for the period from March 1, 1996, until such credit is
exhausted.
1.7 SECURITY DEPOSIT: Thirteen Thousand One Hundred and Fifty Dollars
($13,150) ("SECURITY DEPOSIT"). (See Paragraph 5 for further provisions.)
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1.8 PERMITTED USE: The Premises shall be used for research and
development, light manufacturing and general office purposes. (See Paragraph 6
for further provisions.)
1.9 INSURING PARTY: Lessor is the "INSURING PARTY" unless otherwise stated
herein. (See Paragraph 8 for further provisions.)
1.10 REAL ESTATE BROKERS: There are no real estate brokers, real estate
licensees or others entitled to a brokerage commission or "finders' fee"
involved in this transaction, and the Parties agree to indemnify and hold one
another harmless should there be a claim for a brokerage commission or finders'
fee arising from the actions of the other Party. (See Paragraph 15.)
1.11 LESSEE IMPROVEMENTS. Lessor shall provide Lessee with an allowance
pertaining to the construction of certain tenant improvements ("TENANT
IMPROVEMENTS") in the Building for the use and benefit of Lessee. (See Paragraph
2.5 for further provisions.)
1.12 OPTION TO EXTEND. Lessee shall have one (1) option ("OPTION") to
extend the Original Term of this Lease for three (3) years. (See Paragraph 39
for further provisions.)
2. PREMISES
2.1 LETTING. Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, the Premises, for the term, at the rental, and upon all of the terms,
covenants and conditions set forth in this Lease. The statement of square
footage set forth in Paragraph 1.2 above, which was used in calculating the
Estimated Base Rent, is an approximation which Lessor and Lessee agree is
reasonable. The Base Rent shall be calculated in accordance with Paragraph 4.2
following completion of the Tenant Improvements when Lessor's total actual total
cash investment in acquiring and improving the Premises is known.
2.2 CONDITION. Lessor shall deliver the Premises to Lessee clean and free
of debris on the Commencement Date and warrants to Lessee that the existing
elevator, plumbing, fire sprinkler system, lighting, air conditioning, heating,
and loading doors in the Premises, shall be in good operating condition on the
Commencement Date. If a noncompliance with said warranty exists as of the
Commencement Date, Lessor shall promptly after receipt of written notice from
Lessee setting forth with specificity the nature and extent of such
noncompliance, rectify same at Lessor's expense. If Lessee does not give Lessor
written notice of a noncompliance with this warranty within ninety (90) days
after the Commencement Date, correction of that noncompliance shall be the
obligation of Lessee at Lessee's sole cost and expense.
(a) IDENTIFIED CONSTRUCTION DEFECTS. Lessor has disclosed to Lessee
that the Building suffers from certain, identified construction defects which
allow water to penetrate interior spaces in the vicinity of the three (3) second
floor balconies and the roof mounted heating, ventilation and air conditioning
system. Lessor agrees to correct the identified defects concurrently with the
construction of the Tenant Improvements. Lessor shall be responsible for all
costs and expenses associated with such corrections, which costs and expenses
shall be in addition to the Tenant Improvement cost and expense allowance.
2.3 COMPLIANCE WITH BUILDING CODES. Lessor warrants to Lessee that the
improvements on the Premises comply with all applicable building codes,
regulations and ordinances in effect on the Commencement Date as those codes,
regulations and ordinances apply to the Building which was constructed in 1988.
Said warranty does not apply to the use to which Lessee will put the Premises or
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to any Alterations or Utility Installations (as defined in Paragraph 7.3(a))
made or to be made by Lessee. If the Premises do not comply with said warranty,
Lessor shall promptly after receipt of written notice from Lessee setting forth
with specificity the nature and extent of such noncompliance, rectify the same
at Lessor's expense. If Lessee does not give Lessor written notice of a
noncompliance within six (6) months following the Commencement Date, correction
of that noncompliance shall be the obligation of Lessee at Lessee's sole cost
and expense.
2.4 ACCEPTANCE OF PREMISES. Lessee hereby acknowledges: (a) that it has
been advised by Lessor to satisfy itself with respect to the condition of the
Premises (including but not limited to the electrical and fire sprinkler
systems, security, environmental aspects, compliance with Applicable Law, as
defined in Paragraph 6.3) and the present and future suitability of the Premises
for Lessee's intended use, (b) that Lessee has made such investigation as it
deems necessary with reference to such matters and assumes all responsibility
therefor as the same relate to Lessee's occupancy of the Premises and/or the
term of this Lease, and (c) that neither Lessor, nor any of Lessor's agents, has
made any oral or written representations or warranties with respect to the said
matters other than as set forth in this Lease.
2.5 CONSTRUCTION OF TENANT IMPROVEMENTS FOR THE BENEFIT OF LESSEE. Lessee
has had architectural plans prepared by ▇▇▇ ▇▇▇▇▇▇, an architect and civil
engineer selected by Lessee, pertaining to the Tenant Improvements desired by
Lessee. Lessor has reviewed and approved the conceptual plans and budget for the
Tenant Improvements and has agreed to permit construction of the same, for the
use and benefit of Lessee, at Lessor's cost and expense not to exceed a total,
actual cost of Four Hundred Thousand Dollars ($400,000). Lessor's financial
responsibility for services rendered by Lessee's design professionals
(architects, engineers and designers) relating to the Tenant Improvements shall
be limited to Five Percent (5%) of the total, actual cost of the Tenant
Improvements or Twenty Thousand Dollar ($20,000), whichever is less. This sum
is to be included with the Four Hundred Thousand Dollars ($400,000) Tenant
Improvement allowance amount. To the extent the total, actual costs and expenses
associated with designing, engineering, permitting and constructing the Tenant
Improvements are in excess of Four Hundred Thousand Dollars ($400,000), Lessee
agrees to contribute all additional sums.
(a) LESSEE'S SELECTION AND SUPERVISION OF GENERAL CONTRACTOR.
Construction of the Tenant Improvements shall begin on or before the
Commencement Date, and shall be undertaken by a licensed general contractor
selected by Lessee and approved by Lessor, whose approval shall not be
unreasonably withheld. Lessee's contractor shall maintain comprehensive general
liability insurance in an amount of not less than One Million Dollars
($1,000,000) for each accident and Two Million Dollars ($2,000,000) aggregate
which shall name Lessor as an additional insured and protect against any
liability that the general contractor, it employees and/or subcontractors may
incur on account of bodily injury, death, property damage or consequential
damages. In addition, Lessee's general contractor shall maintain workers'
compensation insurance in statutory form and employer's liability insurance
covering the contractor's liability to the extent of not less than One Million
Dollars ($1,0O0,000) for damages or injury on account of bodily injury or death.
The Tenant Improvements shall be constructed in accordance with the approved
plans and in compliance with applicable building codes, regulations and
ordinances in effect on the Commencement Date.
(b) OWNERSHIP OF TENANT IMPROVEMENTS. The Tenant Improvements,
including all prefabricated or modular wall structures attached to the
Building's fixed walls as depicted on the approved plans, shall belong to Lessor
at all times during the term of this Lease and any renewal thereof. Lessee shall
not be entitled to remove the Tenant Improvements or any portion thereof,
including the prefabricated or modular wall structures attached to the
Building's fixed walls, upon the Expiration Date or an earlier termination of
this Lease.
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(c) LESSOR'S PAYMENT OF INVOICES. Lessee shall submit monthly
invoices to Lessor for payment of the Tenant Improvements as the work
progresses. Lessor shall be entitled to request and receive supporting invoices
and lien releases from any of the general contractor's subcontractors or
suppliers that might have the right to assert a claim of mechanic's lien. Lessor
shall make payment to Lessee for all duly invoiced work in accordance with this
Paragraph 2.5, up to the Four Hundred Thousand Dollar ($400,000) allowance
amount, within ten (10) days after receipt of the invoices.
(d) LESSOR'S ACCEPTANCE OF THE COMPLETED WORK. Lessor shall inspect
and accept the Tenant Improvements constructed by Lessee within ninety (90) days
after the date of completion ("Completion Date" as evidenced by a duly executed
and recorded notice of completion), and notify Lessee in writing of any defects
or noncompliant conditions. If any defect or noncompliance exists with respect
to the Tenant Improvements, Lessee shall, promptly after receipt of written
notice from Lessor setting forth with specificity the nature and extent of such
defect or noncompliance, rectify the same at Lessee's sole cost and expense.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original Term of this
Lease are as specified in Paragraph 1.3.
3.2 EARLY POSSESSION. If Lessee totally or partially occupies the Premises
prior to the Commencement Date, the obligation to pay Base Rent shall be abated
for the period of such early possession. All other terms of this Lease, however,
(including but not limited to the obligations to pay Real Property Taxes and
insurance premiums and to maintain the Premises) shall be in effect during such
period. Any such early possession shall not affect nor advance the Expiration
Date of the Original Term.
3.3 DELAY IN POSSESSION. If for any reason Lessor cannot deliver
possession of the Premises to Lessee as agreed herein by the Commencement Date,
Lessor shall not be subject to any liability therefor, nor shall such failure
affect the validity of this Lease, or the obligations of Lessee hereunder, or
extend the term hereof, but in such case, Lessee shall not, except as otherwise
provided herein, be obligated to pay rent or perform any other obligation of
Lessee under the terms of this Lease until Lessor delivers possession of the
Premises to Lessee. Construction of the Tenant Improvements during the initial
ninety (90) days of the Original Term shall not be deemed a delay in possession
and Lessee shall be obligated to pay the Estimated Base Rent and all other rent
or charges under this Lease during construction of the Tenant Improvements.
3.4 EARLY TERMINATION. Lessee may elect to terminate this Lease, at any
time during the Original Term or any renewal term, after expiration of the
eighteenth (18th) full month of the Original Term. The then operative Lease Term
shall terminate six (6) months after Lessee provides Lessor with a written Early
Termination Notice. Additionally, Lessee's final monthly installment of Base
Rent pursuant to this Lease shall include an Early Termination Fee equivalent to
Two Thousand Six Hundred and Fifty Dollars ($2,650) multiplied by the number of
months for which Base Rent would otherwise be payable by Lessee during the
remaining balance of the then operative Lease Term.
4. RENT.
4.1 BASE RENT. Lessee shall cause payment of Base Rent and other rent or
charges, as the same may be adjusted from time to time, to be received by Lessor
in lawful money of the United States, without offset or deduction, on or before
the day on which it is due under the terms of this Lease. Base
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Rent and all other rent and charges for any period during the term hereof which
is for less than one (1) full calendar month shall be prorated based upon the
actual number of days of the calendar month involved. Payment of Base Rent and
other charges shall be made to Lessor at its address stated herein or to such
other persons or at such other addresses as Lessor may from time to time
designate in writing to Lessee.
4.2 ADJUSTMENTS IN BASE RENT. Lessee understands and agrees that the Base
Rent under this Lease shall be determined by calculating the sum of the
following: (i) Lessor's costs and expenses in relation to the ownership and
operation of the Premises as set forth in this Lease, (ii) the actual payments
(principal and interest) Lessor is obligated to pay on the promissory note and
deed of trust assumed by Lessor upon its acquisition of the Premises ("LESSOR'S
SECURED OBLIGATION"), and (iii) a Nine Percent (9%) return on Lessor's total
actual cash invested in acquiring and improving the premises ("LESSOR'S CASH
INVESTMENT"). The interest rate on Lessor's Secured Obligation is variable. On
the Commencement Date it was 7.619% per annum. Lessor's Cash Investment is
estimated at Six Hundred Thousand Dollars ($600,000). The Base Rent component
comprising the return on Lessor's Cash Investment shall be calculated at the
monthly rate of 72/100 of One Percent (.72%) per month, which is equivalent to
Nine Percent (9%) per year compounded monthly. During the term of this Lease, to
the extent the payments on Lessor's Secured Obligation change due to interest
rate adjustments, the Base Rent shall be contemporaneously adjusted by a like
amount following written notice by Lessor. Lessee also understands and agrees
that Lessor's Secured Obligation may be refinanced during the term of this Lease
and that Lessor may obtain new financing on the Premises. At such time, and at
all times thereafter, the Base Rent under this Lease shall be adjusted at the
times and by the amounts, if any, that the payments are adjusted under the new
financing. Lessor agrees not to refinance the Premises for eighteen (18) months
from the Commencement Date, and thereafter only at a commercially reasonable
rate pursuant to a loan having a principal balance approximately equivalent to
the remaining principal balance on Lessor's Secured Obligation (i.e.
approximately One Million Dollars ($1,000,000). Additionally, should Lessor
incur reasonable transaction costs and expenses associated with the one-time
required refinancing of Lessor's Secured Obligation, the Base Rent shall be
increased for the Lease Term by the amount equivalent to that amount necessary
to amortize such costs and expenses over the balance of the Lease Term and
provide Lessor with a Nine Percent (9%) per annum return on the principal
amount.
4.3 POTENTIAL APPRECIATION IN VALUE REBATE TO LESSEE. Lessee and Lessor
acknowledge and agree that there may be a reduction in the principal balance on
Lessor's Secured Obligation during the Original Term of the Lease and any
renewal thereof. Because the Base Rent is adjusted to, in part, to cover all of
Lessors payments under Lessor's Secured Obligation, which payments may result in
a reduction of the principal balance, it is possible that the calculated return
on Lessor's Cash Investment at the Expiration Date or earlier termination of
this Lease could be in excess of Nine Percent (9%) if the Premises appreciates
substantially in value. While acknowledging the substantial risk taken by Lessor
that the Premises may depreciate in value, if the Lessor's total calculated
return on Lessor's Cash Investment at the Expiration Date or earlier termination
of this Lease is in excess of the Nine Percent (9%), the Parties agree that
provided Lessee is not in Default or Breach of this Lease (as those terms are
defined in Paragraphs 13.1), Lessee shall be entitled to a rebate of a portion
of the rent paid during the Lease term. The maximum potential rebate due Lessee
shall be Fifty Percent (50%) of the total amount by which Lessee's payments of
Base Rent have caused the principal balance of Lessor's Secured Obligation to be
reduced. If Lessee believes it is entitled to a rebate under this Paragraph 4.3,
it shall within ten (10) days after vacating the Premises: (i) make a written
request to Lessor, and (ii) deposit with Lessor the estimated cost to have an
appraisal of the Premises prepared by an MAI appraiser. Lessor shall within
ninety (90) days select and retain an appraiser and have the appraisal
completed. Lessee shall be entitled to a rebate if the appraisal establishes
that the fair market value of
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the Premises at the time of Lessee's vacation (after deducting anticipated costs
of sale which are agreed as being six percent (6%) of the fair market value) is
in excess of the sum total of: (i) Lessor's Secured Obligation on the
Commencement Date ($979,494.70), and (ii) Lessor's Cash Investment
("APPRECIATION IN VALUE"). The amount of the rebate shall be Fifty Percent (50%)
of the Appreciation in Value up to a maximum of Fifty Percent (50%) of the total
amount by which Lessee's payments of Base Rent have caused the principal balance
on Lessor's Secured Obligation to be reduced. Lessor shall be obligated to
rebate any amount owing to Lessee under this Paragraph 4.3 within ninety (90)
days after the appraisal is complete.
4.4 LESSOR'S RESERVE ACCOUNT. Lessor shall be entitled to maintain a
reserve account in an amount not in excess of Fifty Thousand Dollars ($50,000)
("RESERVE ACCOUNT") to be used for purposes of satisfying Lessor's repair and
maintenance obligations with respect to the Premises. Provided the Reserve
Account is maintained in a conservative, commercially reasonable
interest-bearing account, Lessee agrees to pay Lessor annually, the difference
between the actual interest earned on such funds and the amount which would have
been earned had such funds earned interest at the rate of Nine Percent (9%) per
annum. The Lessee's payment obligations under this Paragraph 4.4 shall commence
on March 1, 1996, with the first payment being due on March 1, 1997, and
continuing annually thereafter on each subsequent anniversary of this Lease
during the Lease Term and any renewal thereof.
4.5 LESSOR'S ANNUAL ADMINISTRATIVE FEE. In addition to the Base Rent and
all other rent or charges due under this Lease, Lessee agrees to pay Lessor an
annual administrative fee ("ANNUAL ADMINISTRATIVE FEE") to cover administrative,
legal, accounting and other professional services relating to the Premises in
the amount of Lessor's actual costs and expenses for such services or Three
Thousand Dollars ($3,000) per year, whichever is less. Lessee's payment
obligations under this Paragraph 4.5 shall commence on March 1, 1996, with the
first payment being due on March 1, 1997, and continuing annually thereafter on
each subsequent anniversary of this Lease during the Lease term and any renewal
thereof.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
the Security Deposit set forth in Paragraph 1.7 as security for Lessee's
faithful performance of Lessee's obligations under this Lease. If Lessee fails
to pay Base Rent or other rent or charges due hereunder, or otherwise Defaults
under this Lease (as defined in Paragraph 13.1), Lessor may use, apply or retain
all or any portion of said Security Deposit for the payment of any amount due
Lessor or to reimburse or compensate Lessor for any liability, cost, expense,
loss or damage (including attorneys' fees) which Lessor may suffer or incur by
reason thereof. If Lessor uses or applies all or any portion of said Security
Deposit, Lessee shall within ten (10) days after written request therefor
deposit moneys with Lessor sufficient to restore said Security Deposit to the
full amount required by this Lease. Any time the Base Rent increases during the
term of this Lease, Lessee shall, upon written request from Lessor, deposit
additional moneys with Lessor sufficient to maintain the same ratio between the
Security Deposit and the Base Rent as those amounts are specified in the Basic
Provisions. Lessor shall not be required to keep all or any part of the Security
Deposit separate from its general accounts. Lessor shall, at the expiration or
earlier termination of the term hereof and after Lessee has vacated the
Premises, return to Lessee (or, at Lessor's option, to the last assignee, if
any, of Lessee's interest herein), that portion of the Security Deposit not used
or applied by Lessor. Unless otherwise expressly agreed in writing by Lessor, no
part of the Security Deposit shall be considered to be held in trust, to bear
interest or other increment for its use, or to be prepayment for any moneys to
be paid by Lessee under this Lease.
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6. USE.
6.1 USE. Lessee shall use and occupy the Premises only for the purposes
set forth in Paragraph 1.8, or any other use which is comparable thereto, and
for no other purpose. Lessee shall not use or permit the use of the Premises in
a manner that creates waste or a nuisance. Lessor hereby agrees to not
unreasonably withhold or delay its consent to any written request by Lessee to
modify the permitted purpose for which the Premises may be used or occupied, so
long as the same will not impair the structural integrity of the Building, the
mechanical or electrical systems therein, is not significantly more burdensome
to the Premises and the Building, and is otherwise permissible pursuant to this
Paragraph 6.
6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS SUBSTANCE"
as used in this Lease shall mean any product, substance, chemical, material or
waste whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on the Premises, is
either: (i) potentially injurious to the public health, safety or welfare, the
environment or the Premises, (ii) regulated or monitored by any governmental
authority, or (iii) a basis for liability of Lessor to any governmental agency
or third party under any applicable statute or common law theory. Hazardous
Substance shall include, but not be limited to, hydrocarbons, petroleum,
gasoline, crude oil or any products, by-products or fractions thereof. Lessee
shall not engage in any activity in, on or about the Premises which constitutes
a Reportable Use (as hereinafter defined) of Hazardous Substances without the
express prior written consent of Lessor and compliance in a timely manner (at
Lessee's sole cost and expense) with all Applicable Law (as defined in Paragraph
6.3). "REPORTABLE USE" shall mean (i) the installation, or use of any above or
below ground storage tank, (ii) the generation, possession, storage, use,
transportation, or disposal of a Hazardous Substance that requires a permit
from, or with respect to which a report, notice, registration or business plan
is required to be filed with, any governmental authority. Reportable Use shall
also include Lessee's being responsible for the presence in, on or about the
Premises of a Hazardous Substance with respect to which any Applicable Law
requires that a notice be given to persons entering or occupying the Premises or
neighboring properties. Notwithstanding the foregoing, Lessee may, without
Lessor's prior consent, but in compliance with all Applicable Law, use any
ordinary and customary materials reasonably required to be used by Lessee in the
normal course of Lessee's business permitted on the Premises, so long as such
use is not a Reportable Use and does not expose the Premises or neighboring
properties to any meaningful risk of contamination or damage or expose Lessor to
any liability therefor. In addition, Lessor may (but without any obligation to
do so) condition its consent to the use or presence of any Hazardous Substance,
activity or storage tank by Lessee upon Lessee's giving Lessor such additional
assurances as Lessor, in its reasonable discretion, deems necessary to protect
itself, the public, the Premises and the environment against damage,
contamination or injury and/or liability therefrom or therefor, including, but
not limited to, the installation (and removal on or before Lease expiration or
earlier termination) of reasonably necessary protective modifications to the
Premises (such as concrete encasements) and/or the deposit of an additional
Security Deposit under Paragraph 5 hereof.
(b) DUTY TO INFORM LESSOR. If Lessee knows, or has reasonable cause
to believe, that a Hazardous Substance, or a condition involving or resulting
from same, has come to be located in, on, under or about the Premises, other
than as previously consented to by Lessor, Lessee shall immediately give written
notice of such fact to Lessor. Lessee shall also immediately give Lessor a copy
of any statement, report, notice, registration, application, permit, business
plan, license, claim, action or proceeding given to, or received from, any
governmental authority or private party, or persons entering
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or occupying the Premises, concerning the presence, spill, release, discharge
of, or exposure to, any Hazardous Substance or contamination in, on, or about
the Premises, including but not limited to all such documents as may be
involved in any Reportable Uses involving the Premises.
(c) INDEMNIFICATION. Lessee shall indemnify, protect, defend and
hold Lessor, its agents, employees, lenders and the Premises, harmless from and
against any and all loss of rents and/or damages, liabilities, judgments, costs,
claims, liens, expenses, penalties, permits and attorney's and consultant's fees
arising out of or involving any Hazardous Substance or storage tank brought onto
the Premises by or for Lessee or under Lessee's control. Lessee's obligations
under this Paragraph 6 shall include, but not be limited to, the effects of any
contamination or injury to person, property or the environment created or
suffered by Lessee, and the cost of investigation (including consultant's and
attorney's fees and testing), removal, remediation, restoration and/or abatement
thereof, or of any contamination therein involved, and shall survive the
expiration or earlier termination of this Lease. No termination, cancellation,
or release agreement entered into by Lessor and Lessee shall release Lessee from
its obligations under this Lease with respect to Hazardous Substances or storage
tanks, unless specifically so agreed by Lessor in writing at the time of such
agreement.
6.3 LESSEE'S COMPLIANCE WITH LAW. Except as otherwise provided in this
Lease, Lessee, shall, at Lessee's sole cost and expense, fully, diligently and
in a timely manner, comply with all "APPLICABLE LAW," which term is used in this
Lease to include all laws, rules, regulations, ordinances, directives,
covenants, easements and restrictions of record, permits, the requirements of
any applicable fire insurance underwriter or rating bureau, and the
recommendations of Lessor's engineers and/or consultants, relating in any manner
to the Premises (including but not limited to matters pertaining to (i)
industrial hygiene, (ii) environmental conditions on, in, under or about the
Premises, including soil and groundwater conditions, and (iii) the use,
generation, manufacture, production, installation, maintenance, removal,
transportation, storage, spill or release of any Hazardous Substance or storage
tank), now in effect or which may hereafter come into effect, and whether or
not reflecting a change in policy from any previously existing policy Lessee
shall, within five (5) days after receipt of Lessor's written request, provide
Lessor with copies of all documents and information, including, but not limited
to, permits, registrations, manifests, applications, reports and certificates,
evidencing Lessee's compliance with any Applicable Law specified by Lessor, and
shall immediately upon receipt, notify Lessor in writing (with copies of any
documents involved) of any threatened or actual claim, notice, citation,
warning, complaint or report pertaining to or involving failure by Lessee or the
Premises to comply with any Applicable Law.
6.4 INSPECTION; COMPLIANCE. Lessor and Lessor's Lender(s) (as defined in
Paragraph 8.3(a)) shall have the right to enter the Premises at any time, in the
case of an emergency, and otherwise at reasonable times, for the purpose of
inspecting the condition of the Premises and for verifying compliance by Lessee
with this Lease and all Applicable Laws (as defined in Paragraph 6.3), and to
employ experts and/or consultants in connection therewith and/or to advise
Lessor with respect to Lessee's activities, including but not limited to the
installation, operation, use, monitoring, maintenance, or removal of any
Hazardous Substance or storage tank on or from the Premises. The costs and
expenses of any such inspections shall be paid by the party requesting same,
unless a Default or Breach of this Lease, violation of Applicable Law or a
contamination, caused or materially contributed to by Lessee is found to exist
or be imminent, or unless the inspection is requested or ordered by a
governmental authority as the result of any such existing or imminent violation
or contamination. In any such case, Lessee shall upon request reimburse Lessor
or Lessor's Lender, as the case may be, for the costs and expenses of such
inspections.
8
7. MAINTENANCE; REPAIRS; UTILITY INSTALLATIONS; TRADE FIXTURES AND
ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS.
(a) Subject to the provisions of Paragraphs 2.2, 2.3 (Lessor's
warranty as to compliance with building codes), 7.2 (Lessor's obligations to
repair), 9 (damage and destruction), and 14 (condemnation), and except as
otherwise provided in this Lease, Lessee shall, at Lessee's sole cost and
expense and at all times, keep the Premises and every nonstructural part thereof
in good order, condition and repair, (whether or not such portion of the
Premises requiring repairs, or the means of repairing the same, are reasonably
or readily accessible to Lessee, and whether or not the need for such repairs
occurs as a result of Lessee's use, any prior use, the elements the age of such
portion of the Premises), including, without limiting the generality of the
foregoing, all equipment or facilities serving the Premises, such as plumbing,
heating, air conditioning, ventilating, electrical, lighting facilities,
elevators, fire sprinkler and/or standpipe and hose or other automatic fire
extinguishing system, including fire alarm and/or smoke detection systems and
equipment, fire hydrants, fixtures, interior walls, ceilings, windows, doors,
plate glass, skylights and signs located in, on, about, or adjacent to the
Premises. With respect to the Tenant Improvements which constitute modifications
of the Premises, Lessee shall be fully responsible for all costs and expenses
required to keep such improvements in good order, condition and repair. Lessee
shall not cause or permit any Hazardous Substance to be spilled or released in,
on, under or about the Premises (including through the plumbing or sanitary
sewer system) and shall promptly, at Lessee's expense, take all investigatory
and/or remedial action reasonably recommended, whether or not formally ordered
or required, for the cleanup of any contamination of, and for the maintenance,
security and/or monitoring of the Premises, the elements surrounding same, or
neighboring properties, that was caused or materially contributed to by Lessee,
or pertaining to or involving any Hazardous Substance brought onto the Premises
by or for Lessee. Lessee, in keeping the Premises in good order, condition and
repair, shall exercise and perform good maintenance practices. Lessee's
obligations shall include restorations, replacements or renewals when necessary
to keep the Premises and all improvements thereon or a part thereof in good
order, condition and state of repair.
(b) Lessee shall, at Lessee's sole cost and expense, procure and
maintain contracts, with copies to Lessor, in customary form and substance for,
and with contractors specializing and experienced in, the inspection,
maintenance and service of the following equipment and improvements, if any,
located on the Premises: (i) heating, air conditioning and ventilation
equipment, (ii) fire sprinkler and/or standpipe and hose or other automatic fire
extinguishing systems, including fire alarm and/or smoke detection, and (iii)
elevator maintenance.
7.2 LESSOR'S OBLIGATIONS. Lessor shall, at Lessor's sole cost and expense
and at all times keep the foundation, exterior walls, floors and roof of the
Premises in good order, condition and repair. Except for the items set forth
above in this Paragraph 7.2 and the warranties and agreements of Lessor
contained in Paragraphs 2.2 (relating to condition of the Premises), 2.3
(relating to Compliance with building code), 9 (relating to destruction of the
Premises) and 14 (relating to condemnation of the Premises), it is intended by
the Parties hereto that Lessor have no obligation, in any manner whatsoever, to
repair and maintain the Premises, the improvements located thereon, or the
equipment therein, all of which obligations are intended to be that of the
Lessee under Paragraph 7.1 hereof. It is the intention of the Parties that the
terms of this Lease govern the respective obligations of the Parties as to
maintenance and repair of the Premises. Lessee and Lessor expressly waive the
benefit of any statute now or hereafter in effect to the extent it is
inconsistent with the terms of this Lease with respect to, or which affords
Lessee the right to make repairs at the expense of Lessor or to terminate this
Lease by reason of any needed repairs.
9
7.3 UTILITY INSTALLATIONS; TRADE FIXTURES; ALTERATIONS.
(a) DEFINITIONS; CONSENT REQUIRED. The term "Utility Installations"
is used in this Lease to refers to all carpeting, window coverings, air lines,
power panels, electrical distribution, security, fire protection systems,
communication systems, lighting fixtures, heating, ventilating, and air
conditioning equipment and plumbing on or about the Premises. The term "Trade
Fixtures" shall mean Lessee's machinery and equipment that can be removed
without doing material damage to the Premises. The term "Alterations" shall mean
any modification of the improvements on the Premises from that which are
provided by Lessor under the terms of this Lease, other than Utility
Installations or Trade Fixtures, whether by addition or deletion. "LESSEE OWNED
ALTERATIONS AND/OR UTILITY INSTALLATIONS" are defined as Alterations and/or
Utility Installations made by Lessee that are not yet owned by Lessor as defined
in Paragraph 7.4(a). Lessee shall not make any Alterations or Utility
Installations in, on, under or about the Premises without Lessor's prior written
consent. Lessee may, however, make nonstructural Utility Installations to the
interior of the Premises (excluding the roof), as long as they are not visible
from the outside, do not involve puncturing, relocating or removing the roof,
any balconies or any existing walls, and the cumulative cost thereof during the
term of this Lease as extended does not exceed Twenty Five Thousand Dollars
($25,000).
(b) CONSENT. Any Alterations or Utility Installations that Lessee
shall desire to make and which require the consent of the Lessor shall be
presented to Lessor in written form with proposed detailed plans. All consents
given by Lessor, whether by virtue of Paragraph 7.3(a) or by subsequent specific
consent, shall be deemed conditioned upon: (i) Lessee's acquiring all applicable
permits required by governmental authorities, (ii) the furnishing of copies of
such permits together with a copy of the plans and specifications for the
Alteration or Utility Installation to Lessor prior to commencement of the work
thereon, and (iii) the compliance by Lessee with all conditions or said permits
in a prompt and expeditious manner. Any Alterations or Utility Installations by
Lessee during the term of this Lease shall be done in a good and workmanlike
manner, with good and sufficient materials, and in compliance with all
Applicable Law. Lessee shall promptly upon completion thereof furnish Lessor
with as-built plans and specifications therefore. Lessor may (but without
obligation to do so) condition its consent to any requested Alteration or
Utility Installation that costs Ten Thousand Dollars ($10,000) or more upon
Lessee's providing Lessor with a lien and completion bond in an amount equal to
one and one-half times the estimated cost of such Alteration or Utility
Installation and/or upon Lessee's posting an additional Security Deposit with
Lessor under Paragraph 36 hereof.
(c) INDEMNIFICATION. Lessee shall pay, when due, all claims for
labor or materials furnished or alleged to have been furnished to or for Lessee
at or for use on the Premises, which claims are or may be secured by any
mechanic's or materialmen's lien against the Premises or any interest therein.
Lessee shall give Lessor not less than ten (10) days' notice prior to the
commencement of any work in, on or about the Premises, and Lessor shall have the
right to post notices of nonresponsibility in or on the Premises as provided by
law. If Lessee shall, in good faith, contest the validity of any such lien,
claim or demand, then Lessee shall, at its sole expense defend and protect
itself, Lessor and the Premises against the same and shall pay and satisfy any
such adverse judgment that may be rendered thereon before the enforcement
thereof against the Lessor or the Premises. if Lessor shall require, Lessee
shall furnish to Lessor a surety bond satisfactory to Lessor in an amount equal
to one and one-half times the amount of such contested lien claim or demand,
indemnifying Lessor against liability for the same, as required by law for the
holding of the Premises free from the effect of such lien or claim. in addition,
Lessor may require Lessee to pay Lessor's attorneys' fees and costs in
participating in such action if Lessor shall decide it is to its best interest
to do so.
10
7.4 OWNERSHIP; REMOVAL; SURRENDER; AND RESTORATION.
(a) OWNERSHIP. Subject to Lessor's right to require their removal or
become the owner thereof as hereinafter provided in this Paragraph 7.4, all
Alterations and Utility Additions made to the Premises by Lessee shall be the
property of and owned by Lessee, but considered a part of the Premises. Lessor
may, at any time and at its option, elect in writing to Lessee to be the owner
of all or any specified part of the Lessee Owned Alterations and Utility
Installations. Unless otherwise instructed per subparagraph 7.4(b) hereof, all
Lessee Owned Alterations and Utility Installations shall, at the expiration or
earlier termination of this Lease, become the property of Lessor and remain upon
and be surrendered by Lessee with the Premises.
(b) REMOVAL. Unless otherwise agreed in writing, Lessor may require
that any or all Lessee Owned Alterations or Utility Installations be removed by
the expiration or earlier termination of this Lease notwithstanding their
installation may have been consented to by Lessor. Lessor may require the
removal at any time of all or any part of any Lessee Owned Alterations or
Utility Installations made without the required consent of Lessor.
(c) SURRENDER/RESTORATION. Lessee shall surrender the Premises by
the end of the last day of the Lease term or any earlier termination date, with
all of the improvements, parts and surfaces thereof clean and free of debris and
in good operating order, condition and state of repair, ordinary wear and tear
excepted. "Ordinary wear and tear" shall not include any damage or deterioration
that would have been prevented by good maintenance practice or by Lessee
performing all of its obligations under this Lease. Except as otherwise agreed
or specified in writing by Lessor, the Premises, as surrendered, shall include
the Utility Installations. The obligation of Lessee shall include the repair of
any damage occasioned by the installation, maintenance or removal of Lessee's
Trade Fixtures, furnishings, equipment, and Alterations and/or Utility
Installations, and the removal, replacement, or remediation of any soil,
material or groundwater contaminated by Lessee, all as may then be required by
Applicable Law and/or good service practice. Lessee's Trade Fixtures shall
remain the property of Lessee and shall be removed by Lessee subject to its
obligation to repair and restore the Premises per this Lease.
8. INSURANCE; INDEMNITY.
8.1 PAYMENT FOR INSURANCE. Lessor is the Insuring Party under this
[ILLEGIBLE] shall pay for all insurance required under this Paragraph 8 except
to the extent [ILLEGIBLE] to liability insurance carried by Lessor in excess of
$2,000,000 per occurrence. Pr [ILLEGIBLE] riods commencing prior to or extending
beyond the Lease term shall be prorated to [ILLEGIBLE] ease term. Payment shall
be made by Lessee to Lessor within ten (10) days following [ILLEGIBLE] invoice
for any amount due.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in force during
the term of this Lease a Commercial General Liability policy of insurance
protecting Lessee and Lessor (as an additional insured) against claims for
bodily injury, personal injury and property damage based upon, involving or
arising out of the ownership, use, occupancy or maintenance of the Premises and
all areas appurtenant thereto. Such insurance shall be on an occurrence basis
providing single limit coverage in an amount not less than $2,000,000 per
occurrence with an "Additional Insured-Managers or Lessors of Premises"
Endorsement and contain the "Amendment of the Pollution Exclusion" for damage
caused by heat, smoke or fumes from a hostile fire. The policy shall not contain
any intra-insured exclusions as between insured persons or organizations, but
shall include coverage for liability assumed under this Lease as an
11
"insured contract" for the performance of Lessee's indemnity obligations under
this Lease. The limits of said insurance required by this Lease or as carried by
Lessee shall not, however, limit the liability of Lessee nor relieve Lessee of
any obligation hereunder. All insurance to be carried by Lessee shall be primary
to and not contributory with any similar insurance carried by Lessor, whose
insurance shall be considered excess insurance only.
(b) CARRIED BY LESSOR. Lessor may also elect to maintain liability
insurance described in Paragraph 8.2(a), above, in addition to, and not in lieu
of, the insurance required to be maintained by Lessee. Lessee shall not be named
as an additional insured therein.
8.3 PROPERTY INSURANCE--BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. Lessor shall obtain and keep in force
during the term of this Lease a policy or policies in the name of Lessor, with
less payable to Lessor and to the holders of any mortgages or deeds of trust on
the Premises ("Lender(s)"), insuring against loss or damage to the Premises. The
amount of such insurance shall be equal to the full replacement cost of the
Premises, as the same shall exist from time to time; or the amount required by
Lenders, but in no event more than the commercially reasonable. However, Lessee
Owned Alterations and Utility Installations shall be insured by Lessee under
Paragraph 8.4 rather than by Lessor. If the coverage is available and
commercially appropriate, such policy or policies shall insure against all risks
of direct physical loss or damage (except the perils of flood and/or earthquake
unless required by a Lender), including coverage for any additional costs
resulting from debris removal and reasonable amounts of coverage for the
enforcement of any ordinance or law regulating the reconstruction or replacement
of any undamaged sections of the Premises required to be demolished or removed
by reason of the enforcement of any building, zoning, safety or land use laws as
the result of a covered cause of loss. Said policy or policies shall also
contain an agreed valuation provision in lieu of any coinsurance clause, waiver
of subrogation, and inflation guard protection causing an increase in the annual
property insurance coverage amount by a factor of not less than the adjusted
U.S. Department of Labor Consumer Price Index for All Urban Consumers for the
Los Angeles Urban Area. If such insurance coverage has a deductible clause, the
deductible amount shall not exceed $1,000 per occurrence, and Lessee shall be
liable for such deductible amount in the event of an Insured Loss, as defined in
Paragraph 9.1 (c).
(b) RENTAL VALUE. Lessor shall, in addition, obtain and [ILLEGIBLE]
the term of this Lease a policy or policies in the name of Lessor, with loss
[ILLEGIBLE] ???(s), insuring the loss of the full rental and other charges
payable by Lessee [ILLEGIBLE] or one (1) year (including all Real Estate Taxes,
insurance costs, and any sch [ILLEGIBLE] aid insurance shall provide that in the
event the Lease is terminated by the [ILLEGIBLE] the period of indemnity for
such coverage shall be extended beyond t [ILLEGIBLE] of repairs or replacement
of the Premises, to provide for one full year's los [ILLEGIBLE] e date of any
such loss. Said insurance shall contain an agreed valuation ??? [ILLEGIBLE] ance
clause and the amount of coverage shall be adjusted annually to refl [ILLEGIBLE]
ental income, property taxes, insurance premium costs and other expenses, if
any, otherwise payable by Lessee, for the next twelve (12) month period. Lessee
shall be liable for any deductible amount in the event of such loss.
(c) TENANT'S IMPROVEMENTS. Lessor shall not be required to insure
Lessee Owned Alterations and Utility Installations unless the item in question
has become the property of Lessor under the terms of this Lease.
8.4 LESSEE'S PROPERTY INSURANCE. Subject to the requirements in Paragraph
8.5, Lessee at its cost shall either by separate policy or, at Lessor's option,
by endorsement to a policy already carried,
12
maintain insurance coverage on all of Lessee's personal property, Lessee Owned
Alterations and Utility Installations in, on, or about the Premises similar in
coverage to that carried by Lessor under Paragraph 8.3. Such insurance shall be
full replacement cost coverage with a deductible of not to exceed $1,000 per
occurrence. The proceeds from any such insurance shall be used by Lessee for the
replacement of personal property or the restoration of Lessee Owned Alterations
and Utility Installations. Lessee shall be the Insuring Party with respect to
the insurance required by this Paragraph 8.4 and shall provide Lessor with
written evidence that such insurance is in force.
8.5 INSURANCE POLICIES. Insurance required hereunder shall be in companies
duly licensed to transact business in the state where the Premises are located,
and maintaining during the policy term a "General Policyholders Rating" of at
least B +, V, or such other rating as may be required by a Lender having a lien
on the Premises, as set forth in the most current issue of "Best's Insurance
Guide." Lessee shall not do or permit to be done anything which shall invalidate
the insurance policies referred to in this Paragraph 8. If Lessee is the
Insuring Party, Lessee shall cause to be delivered to Lessor certified copies of
policies of such insurance or certificates evidencing the existence and amounts
of such insurance with the insureds and loss payable clauses as required by this
Lease. No such policy shall be cancelable or subject to modification except
after thirty (30) days prior written notice to Lessor. Lessee shall at least
thirty (30) days prior to the expiration of such policies, furnish Lessor with
evidence of renewals or "insurance binders" evidencing renewal thereof, or
Lessor may order such insurance and charge the cost thereof to Lessee, which
amount shall be payable by Lessee to Lessor upon demand. If the Insuring Party
shall fail to procure and maintain the insurance required to be carried by the
Insuring Party under this Paragraph 8, the other Party may, but shall not be
required to, procure and maintain the same, but at Lessee's expense.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or remedies,
Lessee and Lessor ("Waiving Party") each hereby release and relieve the other,
and waive their entire right to recover damages (whether in contract or in tort)
against the other, for loss of or damage to the Waiving Party's property
arising out of or incident to the perils required to be insured against under
Paragraph 8. The effect of such releases and waivers of the right to recover
damages shall not be limited by the amount of insurance carried or required, or
by any deductibles applicable thereto.
8.7 INDEMNITY. Except for Lessor's negligence and/or breach of express
warranties, Lessee shall indemnify, protect, defend and hold harmless the
Premises, Lessor and its members and Lenders, from and against any and all
claims, loss of rents and/or damages, costs, liens, judgments, penalties,
permits, attorney's and consultant's fees, expenses and/or liabilities arising
out of, involving, or in dealing with, the occupancy of the Premises by Lessee,
the conduct of Lessee's business, any act, omission or neglect of Lessee, its
agents, contractors, employees or invitees, and out of any Default or Breach by
Lessee in the performance in a timely manner of any obligation on Lessee's part
to be performed under this Lease. The foregoing shall include, but not be
limited to, the defense or pursuit of any claim or any action or proceeding
involved therein, and whether or not (in the case of claims made against Lessor)
litigated and/or reduced to judgment, and whether well founded or not. In case
any action or proceeding be brought against Lessor by reason of any of the
foregoing matters, Lessee upon notice from Lessor shall defend the same at
Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor shall
cooperate with Lessee in such defense. Lessor need not have first paid any such
claim in order to be so indemnified.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other property of
Lessee, Lessee's employees, contractors, invitees, customers, or any other
person in or about the Premises, whether such damage or injury is caused by or
results from fire, electricity, gas, water or rain, or from the breakage,
leakage, obstruction
13
or other defects of pipes, fire sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, or from any other cause, whether the said
injury or damage results from conditions arising upon the Premises, or from
other sources or places, and regardless of whether the cause of such damage or
injury or the means of repairing the same is accessible or not. Notwithstanding
Lessor's negligence or breach of this Lease, Lessor shall under no circumstances
be liable for injury to Lessee's business or for any loss of income or profit
therefrom.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or destruction to
the improvements on the Premises, other than Lessee Owned Alterations and
Utility Installations, the repair cost of which damage or destruction is less
than Fifty Percent (50%) of the then Replacement Cost of the Premises
immediately prior to such damage or destruction, excluding from such calculation
the value of the land and Lessee Owned Alterations and Utility Installations.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or destruction to
the Premises, other than Lessee Owned Alterations and Utility Installations the
repair cost of which damage or destruction is 50% or more of the then
Replacement Cost of the Premises immediately prior to such damage or
destruction, excluding from such calculation the value of the land and Lessee
Owned Alterations and Utility Installations.
(c) "INSURED LOSS" shall mean damage or destruction to improvements
on the Premises, other than Lessee Owned Alterations and Utility installations,
which was caused by an event required to be covered by the insurance described
in Paragraph 8.3(a), irrespective of any deductible amounts, or coverage limits
involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or rebuild the
improvements owned by Lessor at the time of the occurrence to their condition
existing immediately prior thereto, including demolition, debris removal and
upgrading required by the operation of applicable building codes, ordinances or
laws, and without deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the occurrence or
discovery of a condition involving the presence of, or a contamination by, a
Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the
Premises.
9.2 PARTIAL DAMAGE--INSURED LOSS. If a Premises Partial Damage that is an
Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such damage
(but not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility
Installations) as soon as reasonably possible and this Lease shall continue in
full force and effect; provided, however, that Lessee shall, at Lessor's
election, make the repair of any damage or destruction the total cost to repair
of which is Ten Thousand Dollars ($10,000) or less, and, in such event, Lessor
shall make the insurance proceeds available to Lessee on a reasonable basis for
that purpose. Notwithstanding the foregoing, if the required insurance was not
in force or the insurance proceeds are not sufficient to effect such repair, the
Insuring Party shall promptly contribute the shortage in proceeds (except as to
the deductible which is Lessee's responsibility) as and when required to
complete said repairs. Unless otherwise agreed, Lessee shall in no event have
any right to reimbursement from Lessor for any funds contributed by Lessee to
repair any such damage or destruction. Premises Partial Damage due to flood or
earthquake shall be subject to Paragraph 9.3
14
rather than Paragraph 9.2, notwithstanding that there may be some insurance
coverage, but the net proceeds of any such insurance shall be made available for
the repairs if made by either Party.
9.3 PARTIAL DAMAGE--UNINSURED LOSS. If a Premises Partial Damage that is
not an Insured Loss occurs, unless caused by a negligent or willful act of
Lessee (in which event Lessee shall make the repairs at Lessee's expense and
this Lease shall continue in full force and effect, but subject to Lessor's
rights under Paragraph 13), Lessor may at Lessor's option, either: (i) repair
such damage as soon as reasonably possible at Lessor's expense, in which event
this Lease shall continue in full force and effect, or (ii) give written notice
to Lessee within thirty (30) days after receipt by Lessor of knowledge of the
occurrence of such damage of Lessor's desire to terminate this Lease as of the
date sixty (60) days following the giving of such notice. In the event Lessor
elects to give such notice of Lessor's intention to terminate this Lease, Lessee
shall have the right within ten (10) days after the receipt of such notice to
give written notice to Lessor of Lessee's commitment to pay for the repair of
such damage totally at Lessee's expense and without reimbursement from Lessor.
Lessee shall provide Lessor with the required funds or satisfactory assurance
thereof within thirty (30) days following Lessee's said commitment. In such
event this Lease shall continue in full force and effect, and Lessor shall
proceed to make such repairs as soon as reasonably possible and the required
funds are available. If Lessee does not give such notice and provide the funds
or assurance thereof within the times specified above, this Lease shall
terminate as of the date specified in Lessor's notice of termination.
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof, if a
Premises Total Destruction occurs (including any destruction required by any
authorized public authority), this Lease shall terminate sixty (60) days
following the date of such Premises Total Destruction, whether or not the damage
or destruction is an Insured Loss or was caused by a negligent or willful act of
Lessee. In the event, however, that the damage or destruction was caused by
Lessee, Lessor shall have the right to recover Lessor's damages from Lessee
except as released and waived in Paragraph 8.6.
9.5 DAMAGE NEAR END OF TERM. If at any time during the last six (6) months
of the term of this Lease there is damage for which the cost to repair exceeds
one (1) month's Base Rent, whether or not an Insured Loss, Lessor may, at
Lessor's option, terminate this Lease effective sixty (60) days following the
date of occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within thirty (30) days after the date of occurrence of such
damage. Provided, however, if Lessee at that time has an exercisable option to
extend this Lease, then Lessee may preserve this Lease by, within twenty (20)
days following the occurrence of the damage, or before the expiration of the
time provided in such option for its exercise, whichever is earlier ("Exercise
Period"), (i) exercising such option and (ii) providing Lessor with any shortage
in insurance proceeds (or adequate assurance thereof) needed to make the
repairs. If Lessee duly exercises such option during said Exercise Period and
provides Lessor with funds (or adequate assurance thereof) to cover any shortage
in insurance proceeds, Lessor shall, at Lessor's expense repair such damage as
soon as reasonably possible and this Lease shall continue in full force and
effect. If Lessee fails to exercise such option and provide such funds or
assurance during said Exercise Period, then Lessor may at Lessor's option
terminate this Lease as of the expiration of said sixty (60) day period
following the occurrence of such damage by giving written notice to Lessee of
Lessor's election to do so within ten (10) days after the expiration of the
Exercise Period, notwithstanding any term or provision in the grant of option to
the contrary.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) In the event of damage described in Paragraph 9.2 (Partial
Damage--Insured), whether or not Lessor or Lessee repairs or restores the
Premises, the Base Rent, Real Property Taxes, insurance premiums, and other
charges, if any, payable by Lessee hereunder for the period during which
15
such damage, its repair or the restoration continues (not to exceed the period
for which rental value insurance is required under Paragraph 8.3(b)), shall be
abated in proportion to the degree to which Lessee's use of the Premises is
impaired. Except for abatement of Base Rent, Real Property Taxes, insurance
premiums, and other charges, if any, as aforesaid, all other obligations of
Lessee hereunder shall be performed by Lessee, and Lessee shall have no claim
against Lessor for any damage suffered by reason of any such repair or
restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this Paragraph 9 and shall not commence, in a
substantial and meaningful way, the repair or restoration of the Premises within
ninety (90) days after such obligation shall accrue, Lessee may, at any time
prior to the commencement of such repair or restoration, give written notice to
Lessor and to any Lenders of which Lessee has actual notice of Lessee's election
to terminate this Lease on a date not less than sixty (60) days following the
giving of such notice. If Lessee gives such notice to Lessor and such Lenders
and such repair or restoration is not commenced within thirty (30) days after
receipt of such notice, this Lease shall terminate as of the date specified in
said notice. If Lessor or a Lender commences the repair or restoration of the
Premises within thirty (30) days after receipt of such notice, this Lease shall
continue in full force and effect. "Commence" as used in this Paragraph shall
mean either the unconditional authorization of the preparation of the required
plans, or the beginning of the actual work on the Premises, whichever first
occurs.
9.7 HAZARDOUS SUBSTANCE CONDITIONS. If a Hazardous Substance Condition
occurs, unless Lessee is legally responsible therefor (in which case Lessee
shall make the investigation and remediation thereof required by Applicable Law
and this Lease shall continue in full force and effect, but subject to Lessor's
rights under Paragraph 13), Lessor may at Lessor's option either: (i)
investigate and remediate such Hazardous Substance Condition, if required, as
soon as reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) if the estimated cost to investigate
and remediate such condition exceeds twelve (12) times the then monthly Base
Rent or $100,000, whichever is greater, give written notice to Lessee within
thirty (30) days after receipt by Lessor of knowledge of the occurrence of such
Hazardous Substance Condition of Lessor's desire to terminate this Lease as of
the date sixty (60) days following the giving of such notice. In the event
Lessor elects to give such notice of Lessor's intention to terminate this Lease,
Lessee shall have the right within ten (10) days after the receipt of such
notice to give written notice to Lessor of Lessee's commitment to pay for the
investigation and remediation of such Hazardous Substance Condition totally at
Lessee's expense and without reimbursement from Lessor except to the extent of
an amount equal to twelve (12) times the then monthly Base Rent or $100,000,
whichever is greater. Lessee shall provide Lessor with the funds required of
Lessee or satisfactory assurance thereof within thirty (30) days following
Lessee's said commitment. In such event this Lease shall continue in full force
and effect, and Lessor shall proceed to make such investigation and remediation
as soon as reasonably possible and the required funds are available. If Lessee
does not give such notice and provide the required funds or assurance thereof
within the times specified above, this Lease shall terminate as of the date
specified in Lessor's notice of termination. If a Hazardous Substance Condition
occurs for which Lessee is not legally responsible, there shall be abatement of
Lessee's obligations under this Lease to the same extent as provided in
Paragraph 9.6(a) for a period of not to exceed twelve (12) months.
9.8 TERMINATION--ADVANCE PAYMENTS. Upon termination of this Lease pursuant
to this Paragraph 9, an equitable adjustment shall be made concerning advance
Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall,
in addition, return Lessee so much of Lessee's Security Deposit as has not been,
or is not then required to be, used by Lessor under the terms of this Lease.
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9.9 WAIVE STATUTES. Lessor and Lessee agree that the terms of this Lease
shall govern the effect of any damage to or destruction of the Premises with
respect to the termination of this Lease and hereby waive the provisions of
any present or future statute to the extent inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 (A) PAYMENT OF TAXES. Lessee shall pay the Real Property Taxes, as
defined in Paragraph 10.2, applicable to the Premises during the term of this
Lease. Subject to Paragraph 10.1 (b), all such payments shall be made at least
ten (10) days prior to the delinquency date of the applicable installment.
Lessee shall promptly furnish Lessor with satisfactory evidence that such taxes
have been paid. If any such taxes to be paid by Lessee shall cover any period of
time prior to or after the expiration or earlier termination of the term hereof,
Lessee's share of such taxes shall be equitably prorated to cover only the
period of time within the tax fiscal year this Lease is in effect, and Lessor
shall reimburse Lessee for any overpayment after such proration. If Lessee shall
fail to pay any Real Property Taxes required by this Lease to be paid by Lessee,
Lessor shall have the right to pay the same, and Lessee shall reimburse Lessor
therefor upon demand.
(B) ADVANCE PAYMENT. In order to insure payment when due and before
delinquency of any or all Real Property Taxes, Lessor reserves the right, at
Lessor's option, to estimate the current Real Property Taxes applicable to the
Premises, and to require such current year's Real Property Taxes to be paid in
advance to Lessor by Lessee, either: (i) in a lump sum amount equal to the
installment due, at least twenty (20) days prior to the applicable delinquency
date, or (ii) monthly in advance with the payment of the Base Rent. If Lessor
elects to require payment monthly in advance, the monthly payment shall be that
equal monthly amount which, over the number of months remaining before the month
in which the applicable tax installment would become delinquent (and without
interest thereon), would provide a fund large enough to fully discharge before
delinquency the estimated installment of taxes to be paid. When the actual
amount of the applicable tax ▇▇▇▇ is known, the amount of such equal monthly
advance payment shall be adjusted as required to provide the fund needed to pay
the applicable taxes before delinquency. If the amounts paid to Lessor by Lessee
under the provisions of this Paragraph are insufficient to discharge the
obligations of Lessee to pay such Real Property Taxes as the same become due,
Lessee shall pay to Lessor, upon Lessor's demand, such additional sums as are
necessary to pay such obligations. All moneys paid to Lessor under this
Paragraph may be intermingled with other moneys of Lessor and shall not bear
interest. In the event of a Breach by Lessee in the performance of the
obligations of Lessee under this Lease, then any balance of funds paid to Lessor
under the provisions of this Paragraph may, subject to proration as provided in
Paragraph 10.1 (a), at the option of Lessor, be treated as an additional
Security Deposit under Paragraph 5.
10.2 DEFINITION OF "REAL PROPERTY TAXES." As used herein, the term "Real
Property Taxes" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed upon the Premises by any authority
having the direct or indirect power to tax, including any city, state or federal
government, or any school, agricultural, sanitary, fire, street, drainage or
other improvement district thereof, levied against any legal or equitable
interest of Lessor in the Premises. The term "Real Property Taxes" shall also
include any tax, fee, levy, assessment or charge, or any increase therein,
imposed by reason of events occurring, or changes in applicable law taking
effect, during the term of this Lease, including but not limited to a change in
the ownership of the Premises or in the improvements thereon, the execution of
this Lease, or any modification, amendment or transfer thereof, and whether or
not contemplated by the Parties.
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10.3 PERSONAL PROPERTY TAXES. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon Lessee Owned Alterations, Utility
Installations, Trade Fixtures, furnishings, equipment and all personal
property of Lessee contained in the Premises or elsewhere. When possible, Lessee
shall cause its Trade Fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
If any of Lessee's said personal property shall be assessed with Lessor's real
property, Lessee shall pay Lessor the taxes attributable to Lessee within ten
(10) days after receipt of a written statement setting forth the taxes
applicable to Lessee's property or, at Lessor's option, as provided in Paragraph
10.1 (b).
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to the
Premises, together with any taxes thereon.
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED.
(a) Lessor's decision to acquire the Premises and the establishment
of the Base Rent was premised upon Lessor's existing relationship with Lessee.
The mutual intent of the Parties was to provide Lessee with operational space
within which to conduct and expand Lessee's business. The Parties intend that
Lessee shall occupy at least Fifty Percent (50%) of the space within the
Premises at all times during the Lease Term and any renewal thereof.
Accordingly, Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage or otherwise transfer or encumber (collectively,
"assignment") or sublet all or any part of Lessee's interest in this Lease or in
the Premises without Lessor's prior written consent given under and subject to
the terms of Paragraph 36.
(b) A change in the control of Lessee shall constitute an assignment
requiring Lessor's consent. The transfer, on a cumulative basis, of fifty
percent (50%) or more of the voting control of Lessee shall constitute a change
in control for this purpose.
(c) The involvement of Lessee or its assets in any transaction, or
series of transactions (by way of merger, sale, acquisition, financing,
refinancing, transfer, leveraged buy-out or otherwise), whether or not a formal
assignment or hypothecation of this Lease or Lessee's assets occurs, which
results or will result in a reduction of the Net Worth of Lessee, as hereinafter
defined, by an amount equal to or greater than twenty-five percent (25%) of such
Net Worth of Lessee as it was represented in writing to Lessor at the time of
the execution by Lessor of this Lease or at the time of the most recent
assignment to which Lessor has consented, or as it exists immediately prior to
said transaction or transactions constituting such reduction, at whichever time
said Net Worth of Lessee was or is greater, shall be considered an assignment of
this Lease by Lessee to which Lessor may reasonably withhold its consent. "NET
WORTH OF LESSEE" for purposes of this Lease shall be the net worth of Lessee
established under generally accepted accounting principles consistently applied.
Lessee shall provide to Lessor an unaudited balance sheet as of the date of the
most recent quarter prior to the Commencement Date, at the time of the execution
of this Lease.
(d) An assignment or subletting of Lessee's interest in this Lease
without Lessor's specific prior written consent shall, at Lessor's option, be a
Default curable after notice per Paragraph 13.1 (c), or a noncurable Breach
without the necessity of any notice and grace period. If Lessor elects to treat
such unconsented to assignment or subletting as a noncurable Breach, Lessor
shall have the right to either: (i) terminate this Lease, or (ii) upon thirty
(30) days written notice ("LESSOR'S NOTICE"), increase the monthly Base Rent to
fair market rental value or one hundred ten percent (110%) of the Base Rent then
in effect, whichever is greater. Pending determination of the new fair market
rental value, if disputed
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by Lessee, Lessee shall pay the amount set forth in Lessor's Notice, with any
overpayment credited against the next installment(s) of Base Rent coming due,
and any underpayment for the period retroactively to the effective date of the
adjustment being due and payable immediately upon the determination thereof.
Further, in the event of such Breach and market value adjustment, (i) any index-
oriented rental or price adjustment formulas contained in this Lease shall be
adjusted to require that the base index be determined with reference to the
index applicable to the time of such adjustment, and (ii) any fixed rental
adjustments scheduled during the remainder of the Lease term shall be increased
in the same ratio as the new market rental bears to the Base Rent in effect
immediately prior to the market value adjustment.
(e) Lessee's remedy for any breach of this Paragraph 12.1 by Lessor
shall be limited to compensatory damages and injunctive relief.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
(a) Regardless of Lessor's consent, any assignment or subletting
shall not: (i) be effective without the express written assumption by such
assignee or sublessee of the obligations of Lessee under this Lease, (ii)
release Lessee of any obligations hereunder, or (iii) alter the primary
liability of Lessee for the payment of Base Rent and other sums due Lessor
hereunder or for the performance of any other obligations to be performed by
Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's
obligations from any person other than Lessee pending approval or disapproval of
an assignment. Neither a delay in the approval or disapproval of such assignment
nor the acceptance of any rent or performance shall constitute a waiver or
estoppel of Lessor's right to exercise its remedies for the Default or Breach by
Lessee of any of the terms, covenants or conditions of this Lease.
(c) The consent of Lessor to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting by Lessee or to
any subsequent or successive assignment or subletting by the sublessee. However,
Lessor may consent to subsequent sublettings and assignments of the sublease or
any amendments or modifications thereto without notifying Lessee or anyone else
liable on the Lease or sublease and without obtaining their consent, and such
action shall not relieve such persons from liability under this Lease.
(d) In the event of any Default or Breach of Lessee's obligations
under this Lease, Lessor may proceed directly against Lessee, or any one else
responsible for the performance of the Lessee's obligations under this Lease,
including the sublessee, without first exhausting Lessor's remedies against any
other person or entity responsible therefor to Lessor, or any security held by
Lessor or Lessee.
(e) Each request for consent to an assignment or subletting shall
be in writing, accompanied by information relevant to Lessor's determination as
to the financial and operational responsibility and appropriateness of the
proposed assignee or sublessee, including but not limited to the intended use
and/or required modification of the Premises, if any, together with a
nonrefundable deposit of $1,000 or ten percent (10%) of the current monthly Base
Rent, whichever is greater, as reasonable consideration for Lessor's considering
and processing the request for consent. Lessee agrees to provide Lessor with
such other or additional information and/or documentation as may be reasonably
requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by reason
of accepting such assignment or entering into such sublease, be deemed, for the
benefit of Lessor, to have assumed and
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agreed to conform and comply with each and every term, covenant, condition and
obligation herein to be observed or performed by Lessee during the term of said
assignment or sublease.
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The
following terms and conditions shall apply to any subletting by Lessee of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease of all or a portion
of the Premises heretofore or hereafter made by Lessee, and Lessor may collect
such rent and income and apply same toward Lessee's obligations under this
Lease; provided, however, that until a Breach (as defined in Paragraph 13.1)
shall occur in the performance of Lessee's obligations under this Lease, Lessee
may, except as otherwise provided in this Lease, receive, collect and enjoy the
rents accruing under such sublease. Lessor shall not, by reason of this or any
other assignment of such sublease to Lessor, nor by reason of the collection of
the rents from a sublessee, be deemed liable to the sublessee for any failure of
Lessee to perform and comply with any of Lessee's obligations to such sublessee
under such sublease. Lessee hereby irrevocably authorizes and directs any such
sublessee, upon receipt of a written notice from Lessor stating that a Breach
exists in the performance of Lessee's obligations under this Lease, to pay to
Lessor the rents and other charges due and to become due under the sublease.
Sublessee shall rely upon any such statement and request from Lessor and shall
pay such rents and other charges to Lessor without any obligation or right to
inquire as to whether such Breach exists and notwithstanding any notice from or
claim from Lessee to the contrary. Lessee shall have no right or claim against
said sublessee, or, until the Breach has been cured, against Lessor, for any
such rents and other charges so paid by said sublessee to Lessor.
(b) In the event of a Breach by Lessee in the performance of its
obligations under this Lease, Lessor, at its option and without any obligation
to do so, may require any sublessee to attorn to Lessor, in which event Lessor
shall undertake the obligations of the sublessor under such sublease from the
time of the exercise of said option to the expiration of such sublease;
provided, however, Lessor shall not be liable for any prepaid rents or security
deposit paid by such sublessee to such sublessor or for any other prior Defaults
or Breaches of such sublessor under such sublease.
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. Lessor and Lessee agree that if an attorney is
consulted by Lessor in connection with a Lessee Default or Breach (as
hereinafter defined), $350.00 is a reasonable minimum sum per such occurrence
for legal services and costs in the preparation and service of a notice of
Default, and that Lessor may include the cost of such services and costs in said
notice as rent due and payable to cure said Default. A "DEFAULT" is defined as a
failure by the Lessee to observe, comply with or perform any of the terms,
covenants, conditions or rules applicable to Lessee under this Lease. A "BREACH"
is defined as the occurrence of any one or more of the following Defaults, and,
where a grace period for cure after notice is specified herein, the failure by
Lessee to cure such Default prior to the expiration of the applicable grace
period, shall entitle Lessor to pursue the remedies set forth in Paragraphs 13.2
and/or 13.3:
(a) The vacating of the Premises without the intention to reoccupy
same, or the abandonment of the Premises.
(b) Except as expressly otherwise provided in this Lease, the
failure by Lessee to make any payment of Base Rent or any other monetary payment
required to be made by Lessee hereunder,
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whether to Lessor or to a third party, as and when due, the failure by Lessee to
provide Lessor with reasonable evidence of insurance or surety bond required
under this Lease, or the failure of Lessee to fulfill any obligation under this
Lease which endangers or threatens life or property, where such failure
continues for a period of three (3) days following written notice thereof by or
on behalf of Lessor to Lessee.
(c) Except as expressly otherwise provided in this Lease, the
failure by Lessee to provide Lessor with reasonable written evidence (in duly
executed original form, if applicable) of: (i) compliance with Applicable Law
per Paragraph 6.3, (ii) the inspection, maintenance and service contracts
required under Paragraph 7.1 (b), (iii) the rescission of an unauthorized
assignment or subletting per Paragraph 12.1 (b), (iv) the subordination or
non-subordination of this Lease per Paragraph 30, (v) any other documentation or
information which Lessor may reasonably require of Lessee under the terms of
this Lease, where any such failure continues for a period of ten (10) days
following written notice by or on behalf of Lessor to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease that are to be observed, complied with or performed by
Lessee, other than those described in subparagraphs (a), (b) or (c), above,
where such Default continues for a period of thirty (30) days after written
notice thereof by or on behalf of Lessor to Lessee; provided, however, that if
the nature of Lessee's Default is such that more than thirty (30) days are
reasonably required for its cure, then it shall not be deemed to be a Breach of
this Lease by Lessee if Lessee commences such cure within said thirty (30) day
period and thereafter diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) The making by
lessee of any general arrangement or assignment for the benefit of creditors;
(ii) Lessee's becoming a "debtor" as defined in 11 U.S.C. (S)101 or any
successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of
a trustee or receiver to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where possession
is not restored to Lessee within thirty (30) days; or (iv) the attachment,
execution or other judicial seizure of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where such
seizure is not discharged within thirty (30) days; provided, however, in the
event that any provision of this subparagraph (e) is contrary to any applicable
law, such provision shall be of no force or effect, and not affect the validity
of the remaining provisions.
(f) The discovery by Lessor that any financial statement given to
Lessor by Lessee was materially false.
13.2 REMEDIES. If Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after written notice
to Lessee (or in case of an emergency, without notice), Lessor may at its option
(but without obligation to do so), perform such duty or obligation on Lessee's
behalf, including but not limited to the obtaining of reasonably required bonds,
insurance policies, or governmental licenses, permits or approvals. The costs
and expenses of any such performance by Lessor shall be due and payable by
Lessee to Lessor upon invoice therefor. If any check given to Lessor by Lessee
shall not be honored by the bank upon which it is drawn, Lessor, at its option,
may require all future payments to be made under this Lease by Lessee to be made
only by cashier's check. In the event of a Breach of this Lease by Lessee, as
defined in Paragraph 13.1, with or without further notice or demand, and without
limiting Lessor in the exercise of any right or remedy which Lessor may have by
reason of such Breach, Lessor may:
21
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate and
Lessee shall immediately surrender possession of the Premises to Lessor. In
such event Lessor shall be entitled to recover from Lessee: (i) the worth at the
time of the award of the unpaid rent which had been earned at the time of
termination; (ii) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that the Lessee proves could have
been reasonably avoided; (iii) the worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, including but not limited to the cost of recovering
possession of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, and that
portion of the leasing commission paid by Lessor applicable to the unexpired
term of this Lease. The worth at the time of award of the amount referred to in
provision (iii) of the prior sentence shall be computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent (1%). Efforts by Lessor to mitigate damages
caused by Lessee's Default or Breach of this Lease shall not waive Lessor's
right to recover damages under this Paragraph. If termination of this Lease is
obtained through the provisional remedy of unlawful detainer, Lessor shall have
the right to recover in such proceeding the unpaid rent and damages as are
recoverable therein, or Lessor may reserve therein the right to recover all or
any part thereof in a separate suit for such rent and/or damages. If a notice
and grace period required under subparagraphs 13.1 (b), (c) or (d) was not
previously given, a notice to pay rent or quit, or to perform or quit, as the
case may be, given to Lessee under any statute authorizing the forfeiture of
leases for unlawful detainer shall also constitute the applicable notice for
grace period purposes required by subparagraphs 13.1 (b), (c) or (d). In such
case, the applicable grace period under subparagraphs 13.1 (b), (c) or (d) and
under the unlawful detainer statute shall run concurrently after the one such
statutory notice, and the failure of Lessee to cure the Default within the
greater of the two such grace periods shall constitute both an unlawful detainer
and a Breach of this Lease entitling Lessor to the remedies provided for in this
Lease and/or by said statute.
(b) Continue the Lease and Lessee's right to possession in effect
after Lessee's Breach and abandonment and recover the rent as it becomes due
under California Civil Code Section 1951.4. See Paragraphs 12 and 36 for the
limitations on assignment and subletting which limitations Lessee and Lessor
agree are reasonable. Acts of maintenance or preservation, efforts to relet the
Premises, or the appointment of a receiver to protect the Lessor's interest
under the Lease, shall not constitute a termination of the Lessee's right to
possession.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises are
located.
(d) The expiration or termination of this Lease and/or the
termination of Lessee's right to possession shall not relieve Lessee from
liability under any indemnity provisions of this Lease as to matters occurring
or accruing during the term hereof or by reason of Lessee's occupancy of the
Premises.
13.3 RECAPTURE IN EVENT OF BREACH. Lessor's agreement to fund the
construction of the Tenant Improvements described in Paragraph 2.5 was
conditioned upon Lessee's full and faithful performance of all of the terms,
covenants and conditions of this Lease to be performed or observed by Lessee
during the term hereof as the same may be extended. Upon the occurrence of a
Breach of this Lease by Lessee, as defined in Paragraph 13.1, Lessor shall be
entitled to recover from Lessee, the difference
22
between the fair market value of the Premises at the time of the Breach, and the
sum total of Lessor's actual costs and expenses associated with acquiring the
Premises and constructing the Tenant Improvements. The fair market value of the
Premises shall be determined by a real estate appraiser mutually selected by
Lessor and Lessee.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent and other sums due hereunder will cause Lessor to incur costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed upon Lessor by the
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or any other sum due from Lessee shall not be received by
Lessor or Lessor's designee within five (5) days after such amount shall be due,
then, without any requirement for notice to Lessee, Lessee shall pay to Lessor a
late charge equal to six percent (6%) of such overdue amount. The Parties hereby
agree that such late charge represents a fair and reasonable estimate of the
costs Lessor will incur by reason of late payment by Lessee. Acceptance of such
late charge by Lessor shall in no event constitute a waiver of Lessee's Default
or Breach with respect to such overdue amount, nor prevent Lessor from
exercising any of the other rights and remedies granted hereunder. In the event
that a late charge is payable hereunder, whether or not collected, for three (3)
consecutive installments of Base Rent, then notwithstanding Paragraph 4.1 or any
other provision of this Lease to the contrary, Base Rent shall, at Lessor's
option, become due and payable quarterly in advance.
13.5 BREACH BY LESSOR. Lessor shall not be deemed in breach of this Lease
unless Lessor fails within a reasonable time to perform an obligation required
to be performed by Lessor. For purposes of this Paragraph 13.5, a reasonable
time shall in no event be less than thirty (30) days after receipt by Lessor,
and by the holders of any mortgage or deed of trust covering the Premises whose
name and address shall have been furnished Lessee in writing for such purpose,
of written notice specifying wherein such obligation of Lessor has not been
performed; provided, however, that if the nature of Lessor's obligation is such
that more than thirty (30) days after such notice are reasonably required for
its performance, then Lessor shall not be in breach of this Lease if performance
is commenced within such thirty (30) day period and thereafter diligently
pursued to completion.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said power
(all of which are herein called "condemnation"), this Lease shall terminate as
to the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. If more than ten percent (10%) of the floor
area of the Premises, or more than twenty-five percent (25%) of the land area
not occupied by any building, is taken by condemnation, Lessee may, at Lessee's
option, to be exercised in writing within ten (10) days after Lessor shall have
given Lessee written notice of such taking (or in the absence of such notice,
within ten (10) days after the condemning authority shall have taken possession)
terminate this Lease as of the date the condemning authority takes such
possession. If Lessee does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the portion of
the Premises remaining, except that the Base Rent shall be reduced in the same
proportion as the rentable floor area of the Premises taken bears to the total
rentable floor area of the building located on the Premises. No reduction of
Base Rent shall occur if the only portion of the Premises taken is land on which
there is no building. Any award for the taking of all or any part of the
Premises under the power of eminent domain or any payment made under threat of
the exercise of such power shall be the property of Lessor, whether such award
shall be made as compensation for diminution in value of the leasehold or for
the taking of the fee, or as severance damages; provided, however, that Lessee
shall be entitled to any compensation separately awarded to Lessee for Lessee's
relocation expenses and/or loss of Lessee's Trade Fixtures. In the event that
this Lease is not terminated by reason of such condemnation,
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Lessor shall to the extent of its net severance damages received, over and above
the legal and other expenses incurred by Lessor in the condemnation matter,
repair any damage to the Premises caused by such condemnation, except to the
extent that Lessee has been reimbursed therefor by the condemning authority.
Lessee shall be responsible for the payment of any amount in excess of such net
severance damages required to complete such repair.
15. BROKER'S FEE. There have been no real estate brokers involved in the
negotiation of this Lease. Lessee and Lessor each represent and warrant to the
other that it has had no dealings with any person, firm, broker or finder in
connection with the negotiation of this Lease and/or the consummation of the
transaction contemplated hereby, and that no broker or other person, firm or
entity is entitled to any commission or finder's fee in connection with said
transaction. Lessee and Lessor do each hereby agree to indemnify, protect,
defend and hold the other harmless from and against liability for compensation
or charges which may be claimed by any such unnamed broker, finder or other
similar party by reason of any dealings or actions of the indemnifying party,
including any costs, expenses, attorneys' fees reasonably incurred with respect
thereto.
16. LESSEE'S CONTINUING COOPERATION. If Lessor desires to finance, refinance, or
sell the Premises, Lessee shall deliver to any potential lender or purchaser
designated by Lessor such financial statements of Lessee as may be reasonably
required by such lender or purchaser, including but not limited to Lessee's
financial statements for the past three (3) years. All such financial statements
shall be received by Lessor and such lender or purchaser in confidence and shall
be used only for the purposes herein set forth.
17. LESSOR'S LIABILITY. The term "LESSOR" as used herein shall mean the owner at
the time in question of the fee title to the Premises. In the event of a
transfer of Lessor's title or interest in the Premises or in this Lease, Lessor
shall deliver to the transferee or assignee (in cash or by credit) any unused
Security Deposit held by Lessor at the time of such transfer or assignment,
Lessee understands and agrees in advance that Lessor shall be entitled to
transfer or assign all of Lessor's right, title and interest in this Lease to
525 ANACAPA, LLC, a California limited liability company, of which Lessor is the
managing member. Upon such transfer or assignment and delivery of the Security
Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with
respect to the obligations and/or covenants under this Lease thereafter to be
performed by the Lessor. Subject to the foregoing, the obligations and/or
covenants in this Lease to be performed by the Lessor shall be binding only upon
the Lessor as hereinabove defined.
18. SEVERABILITY. The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Any monetary payment due Lessor hereunder,
other than late charges, not received by Lessor within thirty (30) days
following the date on which it was due, shall bear interest from the
thirty-first (31st) day after it was due at the rate of Twelve Percent (12%) per
annum, but not exceeding the maximum rate allowed by law, in addition to the
late charge provided for in Paragraph 13.4.
20. TIME OF ESSENCE. Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under this Lease.
21. RENT DEFINED. All monetary obligations of Lessee to Lessor under the terms
of this Lease are deemed to be rent.
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22. NO PRIOR OR OTHER AGREEMENTS. This Lease contains all agreements between the
Parties with respect to any matter mentioned herein, and no other prior or
contemporaneous agreement or understanding shall be effective unless evidenced
by a writing. Lessee represents and warrants to Lessor that it has made, and is
relying solely upon, its own investigation as to the nature, quality, and
character of the Premises and Building.
23. NOTICES.
23.1 All notices required or permitted by this Lease shall be in writing
and may be delivered in person (by hand or by messenger or courier service) or
may be sent by regular, certified or registered mail or U.S. Postal Service
Express Mail, with postage prepaid, or by facsimile transmission, and shall be
deemed sufficiently given if served in a manner specified in this Paragraph 23.
The addresses noted adjacent to a Party's signature on this Lease shall be that
Party's address for delivery or mailing of notice purposes. Either Party may by
written notice to the other specify a different address for notice purposes,
except that upon Lessee's taking possession of the Premises, the Premises shall
constitute Lessee's address for the purpose of mailing or delivering notices to
Lessee.
23.2 Any notice sent by registered or certified mail, return receipt
requested, shall be deemed given on the date of delivery shown on the receipt
card, or if no delivery date is shown, the postmark thereon. If sent by regular
mail the notice shall be deemed given forty-eight (48) hours after the same is
addressed as required herein and mailed with postage prepaid. Notices delivered
by United States Express Mail or overnight courier that guarantees next day
delivery shall be deemed given twenty-four (24) hours after delivery of the same
to the United States Postal Service or courier. If any notice is transmitted by
facsimile transmission or similar means, the same shall be deemed served or
delivered upon telephone confirmation of receipt of the transmission thereof,
provided a copy is also delivered via delivery or mail. If notice is received on
a Sunday or legal holiday, it shall be deemed received on the next business day.
24. WAIVERS. No waiver by Lessor of the Default or Breach of any term, covenant
or condition hereof by Lessee, shall be deemed a waiver of any other term,
covenant or condition hereof, or of any subsequent Default or Breach by Lessee
of the same or of any other term, covenant or condition hereof. Lessor's consent
to, or approval of, any act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to, or approval of, any subsequent or similar act
by Lessee, or be construed as the basis of an estoppel to enforce the provision
or provisions of this Lease requiring such consent. Regardless of Lessor's
knowledge of a Default or Breach at the time of accepting rent, the acceptance
of rent by Lessor shall not be a waiver of any preceding Default or Breach by
Lessee of any provision hereof, other than the failure of Lessee to pay the
particular rent so accepted. Any payment given Lessor by Lessee may be accepted
by Lessor on account of moneys or damages due Lessor, notwithstanding any
qualifying statements or conditions made by Lessee in connection therewith,
which such statements and/or conditions shall be of no force or effect
whatsoever unless specifically agreed to in writing by Lessor at or before the
time of deposit of such payment.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease.
25
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. COVENANTS AND CONDITIONS. All provisions of this Lease to be observed or
performed by Lessee are both covenants and conditions.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the parties,
their personal representatives, successors and assigns and be governed by
California law. Any litigation between the Parties hereto concerning this Lease
shall be initiated in Santa ▇▇▇▇▇▇▇ County.
30. SUBORDINATION; ATTORNMENT; NONDISTURBANCE.
30.1 SUBORDINATION. This Lease and the Option granted hereby shall be
subject and subordinate to any mortgage, deed of trust, or other hypothecation
or security device (collectively, "Security Device"), now or hereafter placed by
Lessor upon the Premises, to any and all advances made on the security thereof,
and to all renewals, modifications, consolidations, replacements and extensions
thereof. Lessee agrees that the Lenders holding any such Security Device shall
have no duty, liability or obligation to perform any of the obligations of
Lessor under this Lease, but that in the event of Lessor's default with respect
to any such obligation, Lessee will give any Lender whose name and address have
been furnished Lessee in writing for such purpose notice of Lessor's default and
allow such Lender thirty (30) days following receipt of such notice for the cure
of said default before invoking any remedies Lessee may have by reason thereof.
If any Lender shall elect to have this Lease and/or the Option granted hereby
superior to the lien of its Security Device and shall give written notice
thereof to Lessee, this Lease and such Options shall be deemed prior to such
Security Device, notwithstanding the relative dates of the documentation or
recordation thereof.
30.2 ATTORNMENT. Subject to the nondisturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who acquires
ownership of the Premises by reason of a foreclosure of a Security Device, and
that in the event of such foreclosure, such new owner shall not: (i) be liable
for any act or omission of any prior lessor or with respect to events occurring
prior to acquisition of ownership, (ii) be subject to any offsets or defenses
which Lessee might have against any prior lessor, or (iii) be bound by
prepayment of more than one (1) month's rent.
30.3 NONDISTURBANCE. With respect to Security Devices entered into by
Lessor after the execution of this Lease, Lessee's subordination of this Lease
shall be subject to receiving assurance (a "nondisturbance agreement") from the
Lender that Lessee's possession and this Lease, including any options to extend
the term hereof, will not be disturbed so long as Lessee is not in Breach hereof
and attorns to the record owner of the Premises.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30 shall
be effective without the execution of any further documents; provided, however,
that, upon written request from Lessor or a Lender in connection with a sale,
financing or refinancing of the Premises, Lessee and Lessor shall execute such
further writings as may be reasonably required to separately document any such
subordination or nonsubordination, attornment and/or nondisturbance agreement as
is provided for herein.
31. ATTORNEY'S FEES. If any Party brings an action or proceeding to enforce the
terms hereof or declare rights hereunder, the Prevailing Party (as hereafter
defined) in any such proceeding, action, or appeal thereon, shall be entitled to
reasonable attorney's fees. Such fees may be awarded in the same suit or
recovered in a separate suit, whether or not such action or proceeding is
pursued to decision or
26
judgment. The term, "PREVAILING PARTY" shall include, without limitation, a
Party who substantially obtains or defeats the relief sought, as the case may
be, whether by compromise, settlement, judgment, or the abandonment by the other
Party of its claim or defense. The attorney's fees award shall not be computed
in accordance with any court fee schedule, but shall be such as to fully
reimburse all attorney's fees reasonably incurred. Lessor shall be entitled to
attorney's fees, costs and expenses incurred in the preparation and service of
notices of Default and consultations in connection therewith, whether or not a
legal action is subsequently commenced in connection with such Default or
resulting Breach.
32. LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS. Lessor and Lessor's agents shall
have the right to enter the Premises at any time, in the case of an emergency,
and otherwise at reasonable times for the purpose of showing the same to
prospective purchasers, lenders, or lessees, and making such alterations,
repairs, improvements or additions to the Premises, as Lessor may reasonably
deem necessary. Lessor may at any time place on or about the Premises or
building any ordinary "For Sale" signs and Lessor may at any time during the
last (120) days of the term hereof place on or about the Premises any ordinary
"For Lease" signs. All such activities of Lessor shall be without abatement of
rent or liability to Lessee.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
34. SIGNS. Lessee shall not place any sign upon the Premises, except that Lessee
may, with Lessor's prior written consent, install such signs as are reasonably
required to advertise Lessee's own business. The installation of any sign on the
Premises by or for Lessee shall be subject to the provisions of Paragraph 7
(Maintenance, Repairs, Utility Installations, Trade Fixtures and Alterations).
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, Lessor shall, in the event of any such surrender,
termination or cancellation, have the option to continue any one or all of any
existing subtenancies. Lessor's failure within ten (10) days following any such
event to make a written election to the contrary by written notice to the holder
of any such lesser interest, shall constitute Lessor's election to have such
event constitute the termination of such interest.
36. CONSENTS.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise provided
herein, wherever in this Lease the consent of a Party is required to an act by
or for the other Party, such consent shall not be unreasonably withheld or
delayed. Lessor's actual costs and expenses (including but not limited to
architects', attorneys', engineers' or other consultants' fees) incurred in the
consideration of, or response to, a request by Lessee for any Lessor consent
pertaining to this Lease or the Premises, including but not limited to consents
to an assignment, a subletting or the presence or use of a Hazardous Substance,
practice or storage tank, shall be paid by Lessee to Lessor upon receipt of an
invoice and supporting documentation therefor. Subject to Paragraph 12.2(e)
(applicable to assignment or subletting), Lessor may, as a condition to
considering any such request by Lessee, require that Lessee deposit with Lessor
an amount of money (in addition to the Security Deposit held under Paragraph 5)
reasonably calculated by Lessor to represent the cost Lessor will incur in
considering and responding to Lessee's request. Except as otherwise provided,
any unused portion of said deposit shall be refunded to Lessee without
27
interest. Lessor's consent to any act, assignment of this Lease or subletting of
the Premises by Lessee shall not constitute an acknowledgment that no Default or
Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver
of any then existing Default or Breach, except as may be otherwise specifically
stated in writing by Lessor at the time of such consent.
(b) All conditions to Lessor's consent authorized by this Lease are
acknowledged by Lessee as being reasonable. The failure to specify herein any
particular condition to Lessor's consent shall not preclude the imposition by
Lessor at the time of consent of such further or other conditions as are then
reasonable with reference to the particular matter for which consent is being
given.
37. EXHIBITS AND ATTACHMENTS. All exhibits and attachments to this Lease shall
be incorporated by reference as though set forth in full.
38. QUIET POSSESSION. Upon payment by Lessee of the rent for the Premises and
the observance and performance of all of the covenants, conditions and
provisions on Lessee's part to be observed and performed under this Lease,
Lessee shall have quiet possession of the Premises for the entire term hereof
subject to all of the provisions of this Lease.
39. OPTIONS.
39.1 DEFINITION. As used in this Paragraph 39 the word "Option" means the
right to extend the term of this Lease or to renew this Lease pursuant to
Paragraph 1.12.
39.2 OPTION PERSONAL TO ORIGINAL LESSEE. The Option granted to Lessee in
this Lease is personal to the Lessee and cannot be voluntarily or involuntarily
assigned or exercised by any person or entity other than Lessee. The Option
herein granted to Lessee is not assignable, either as a part of an assignment of
this Lease or separately or apart therefrom, and the Option may not be separated
from this Lease in any manner, by reservation or otherwise.
39.3 EXERCISE OF OPTION. Lessee's renewal Option must be exercised, if at
all, by written notice from Lessee to Lessor no earlier than 365 days prior to
and no later than 180 days prior to the expiration of the Original Term as set
forth in Paragraph 1.3. The three year renewal term ("RENEWAL TERM") shall be on
the same terms and conditions as the Original Term, including the Base Rent
adjustment. If Lessee fails to exercise the Option in a timely manner as
provided above, the Option shall be void.
39.4 EFFECT OF DEFAULT ON OPTION.
(a) Lessee shall have no right to exercise the Option,
notwithstanding any provision in the grant of Option to the contrary: (i) during
the period commencing with the giving of any notice of Default under Paragraph
13.1 and continuing until the noticed Default is cured, or (ii) during the
period of time any monetary obligation due Lessor from Lessee is unpaid (without
regard to whether notice thereof is given Lessee), or (iii) during the time
Lessee is in Breach of this Lease, or (iv) in the event that Lessor has given to
Lessee three (3) or more notices of Default under Paragraph 13.1, whether or not
the Defaults are cured, during the twelve (12) month period immediately
preceding the exercise of the Option.
(b) The period of time within which the Option may be exercised
shall not be extended or enlarged by reason of Lessee's inability to exercise
the Option because of the provisions of Paragraph 39.4(a).
28
(c) All rights of Lessee under the provisions of the Option shall
terminate and be of no further force or effect, notwithstanding Lessee's due and
timely exercise of the Option, if, after such exercise and during the term of
this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee
for a period of thirty (30) days after such obligation becomes due (without any
necessity of Lessor to give notice thereof to Lessee), or (ii) Lessor gives to
Lessee three (3) or more notices of Default under Paragraph 13.1 during any
twelve (12) month period, whether or not the Defaults are cured, or (iii) if
Lessee commits a Breach of this Lease.
40. GENERAL INTERPRETATION. The terms of this Lease have been negotiated by the
Parties and the language used in this Lease shall be deemed to be the language
chosen by the Parties to express their mutual intent. This Lease shall be
construed without regard to any presumption or rule requiring construction
against the Party causing the Lease or any portion of it to be drafted, or in
favor of the Party receiving a particular benefit under the Lease. No rule of
strict construction will be applied against any person.
41. SECURITY MEASURES. Lessee hereby acknowledges that the rent to Lessor
hereunder does not include the cost of any security measures, and that Lessor
shall have no obligation whatsoever to provide same. Lessee assumes all
responsibility for the protection of the Premises, Lessee, its agents, employees
and invitees and their property from the acts of third parties.
42. RESERVATIONS. Lessor reserves to itself the right, from time to time, to
grant, without the consent or joinder of Lessee, such easements, rights and
dedications that Lessor deems necessary, and to cause the recordation of parcel
maps and restrictions, so long as such easements, rights, dedications, maps and
restrictions do not unreasonably interfere with the use of the Premises by
Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to
effectuate any such easement rights, dedication, map or restrictions.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one Party to the other under the provisions
hereof, the Party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment and there shall survive the right on the part of
said Party to institute suit for recovery of such sum. If it shall be adjudged
that there was no legal obligation on the part of said Party to pay such sum or
any part thereof, said Party shall be entitled to recover such sum or so much
thereof as it was not legally required to pay under the provisions of this
Lease.
44. AUTHORITY. Each individual executing this Lease represents and warrants that
it has been duly and validly authorized, executed and delivered and that no
other action is requisite to the execution and delivery of this Agreement by the
executing Party.
45. AMENDMENTS. This Lease may be modified only in writing, signed by the
Parties. The Parties shall amend this Lease from time to time to reflect any
adjustments that are made to the Base Rent or other rent payable under this
Lease. As long as they do not materially change Lessee's obligations hereunder,
Lessee agrees to make such reasonable nonmonetary modifications to this Lease as
may be reasonably required by an institutional, insurance company, pension plan
or private lender in connection with the obtaining of normal financing or
refinancing of the Premises.
29
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
The parties hereto have executed this Lease at the place on the dates specified
above to their respective signatures.
Executed at: Santa Barbara, California Executed at: Santa Barbara, California
on February 22, 1996 on February 22, 1996
by LESSOR: by LESSEE:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.▇▇▇, INC., a California
corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------- ----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
Address for Notices: Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇ Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
30
CHICAGO TITLE 96-012635 Rec Fee 35.00
AU2 2.00
RECORDING REQUESTED BY Check 37.00
AND WHEN RECORDED MAIL TO: Recorded
Official Records
525 ANACAPA, LLC County of
C/o ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Santa ▇▇▇▇▇▇▇
▇▇▇▇▇ & PARENT ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 12:00pm 29-Feb-96 PUBL MB 11
THIS SPACE RESERVED FOR RECORDER ONLY
[Gov. Code ss. 27361.6]
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ASSUMPTION AND ASSIGNMENT AGREEMENT
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THIS ASSUMPTION AND ASSIGNMENT AGREEMENT ("Agreement"), dated
February 21, 1996, for reference purposes only, is entered into by and between
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a married man, as his sole and separate property
("Assignor"), and 525 ANACAPA, LLC, a California limited liability company
("Assignee").
A. Assignor is presently the owner of that certain real property
commonly known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, which property
is more particularly described in attached Exhibit A ("Property").
B. Assignor's fee title interest in the Property is subject the
encumbrance of a loan from SOUTHERN CALIFORNIA FEDERAL SAVINGS AND LOAN
ASSOCIATION, a federally chartered savings and loan association ("SoCal"), to
TAB ENTERPRISES, a California general partnership ("TAB"), evidenced by a
promissory note ("Promissory Note") dated August 24, 1988, in the principal
amount of One Million, and Fifty Thousand Dollars (S1,050,000), which Promissory
Note is secured by a deed of trust, assignment of rents, and fixture filing
dated August 24, 1988, and recorded on August 26, 1988, as Instrument No.
88-053715 of the Official Records of Santa ▇▇▇▇▇▇▇ County, California
(collectively, "Deed of Trust"). As of the date of this Agreement, the unpaid
principal balance of the Promissory Note is Nine Hundred Seventy Nine Thousand
Four Hundred and Ninety Four Dollars and Seventy Cents ($979,494.70).
C. Assignor, as "Lessor," and' SOFTWARE. COM INC., a California
corporation, as "Lessee," executed a Commercial Lease Agreement dated as of
February 21, 1996 ("Lease"), pursuant to which Assignor leased to Lessee and
Lessee leased from Assignor, the Property for a term of three (3) years,
commencing on March 1, 1996, and ending on February 28, 1999, unless terminated
earlier. The Lease contains one (1) option
to extend the term for three (3) years. A Memorandum of the Lease is recorded
concurrently herewith and is incorporated herein by this reference.
D. Assignor desires to assign all of his right, title and interest
in the Property and Lease to Assignee, and Assignee desires to accept the
assignment of the Property and Lease from Assignor, and assume all of Assignor's
obligations under the Promissory Note, Deed of Trust, related loan documents and
Lease pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
adequacy of which are hereby acknowledged, Assignor and Assignee agree as
follows:
1. TRANSFER AND ASSIGNMENT. Assignor hereby transfers and assigns to
-----------------------
Assignee all of Assignor's right, title and interest in the Property and Lease,
and Assignee hereby accepts from Assignor all of Assignor's right, title and
interest therein, subject to the terms and conditions set forth in this
Agreement.
2. ASSUMPTION OF LOAN OBLIGATIONS. Assignee assumes and agrees to
------------------------------
perform and fulfill at all times, the terms, covenants, conditions and
obligations relating to the Promissory Note, Deed of Trust and related loan
documents required to be performed and fulfilled by Assignor under that certain
Assumption and Modification Agreement dated February 6, 1996 ("Assumption
Agreement"), by and among TAB, as the "Original Borrower", Assignor, as the
"Borrower", and SoCal as the "Lender", including the making of all payments due
or to be payable to Lender on behalf of the Borrower under the terms of the
Assumption Agreement, a memorandum of which is recorded concurrently herewith.
3. ASSUMPTION OF LEASE OBLIGATIONS. Assignee hereby assumes and
-------------------------------
agrees to perform and fulfill all the terms, covenants, conditions, and
obligations required to be performed and fulfilled by Assignor as Lessor under
the Lease, including the making of all payments due to or payable on behalf of
Lessee under the Lease as they become due and payable.
4. ASSIGNOR'S COVENANTS.
--------------------
(a) Assignor covenants, that to the best of Assignor's knowledge,
there are no defaults under the Promissory Note and Deed of Trust, and that
SoCal, without in any way releasing Assignor from any of its indebtedness,
liabilities or obligations to SoCal, has consented to the transfers and
assignments contemplated by this Agreement.
(b) Assignor further covenants that the Memorandum of Lease
recorded concurrently herewith is an accurate summary of the terms and
conditions of the
-2-
Lease as currently in effect and that no other agreement affecting Lessee's
tenancy under the Lease exists.
(c) Assignor further covenants that the Lease is in full force
and effect in accordance with its terms and conditions and that no defaults
exist under the Lease, nor have any acts or events occurred which, with the
passage of time or the giving of notice or both, could become defaults.
5. ATTORNEYS' FEES. If any action at law or equity, including an
---------------
action for declaratory relief, is brought to enforce the provisions of this
Agreement, the prevailing party shall be entitled to recover actual attorneys'
fees incurred in bringing such action and/or enforcing any judgment granted
therein, all of which shall be deemed to have accrued upon the commencement of
the action and shall be paid whether or not such action is prosecuted to
judgment. The attorneys' fees to be awarded the prevailing party may be
determined by the court in the same action or in a separate action brought for
that purpose. Any judgment or order entered in such action shall contain a
specific provision providing for the recovery of actual attorneys' fees and
costs incurred in enforcing such judgment. The award of attorneys' fees shall
not be computed in accordance with any court schedule, but shall be made so as
to fully reimburse the prevailing party for all attorneys' fees, paralegal fees,
costs and expenses, it being the intention of the parties to fully compensate
the prevailing party for all attorneys' fees, paralegal fees, costs and expenses
paid or incurred in good faith. For purposes of this section, attorneys' fees
shall include, without limitation, attorneys' fees, paralegal fees, costs and
expenses incurred in relation to any of the following: post-judgment motions,
contempt proceedings, garnishment, levy and debtor or third-party examinations,
discovery, and bankruptcy litigation.
6. INDEMNIFICATION. Assignee hereby agrees to indemnify Assignor
---------------
from and against any loss, cost or expense, including attorneys' fees and court
costs, relating to any failure to fulfill Assignor's obligations under the
Promissory Note, Deed of Trust, Assumption Agreement and/or related loan
documents at all times after the date of this Agreement. Assignee hereby agrees
to indemnify Assignor from and against any loss, cost, or expense, including
attorneys' fees and court costs relating to the failure of Assignor to fulfill
Assignor's obligations under the Lease at all times after the date of this
Agreement. Assignee hereby indemnifies Assignor from and against any loss, cost,
or expense, including attorneys' fees and court costs relating to the failure of
Assignee to fulfill obligations under the Lease at all times after the date of
this Agreement. The indemnification obligations of this Section 6 shall survive
expiration of the Lease and/or reconveyance of the Deed of Trust.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and
----------------------
inure to the benefit of the parties to this Agreement, their heirs, executors,
administrators, successors in interest, and assigns.
-3-
8. GOVERNING LAW. This Agreement shall be governed by and construed
-------------
in accordance with California law, with venue for any legal action being in
Santa ▇▇▇▇▇▇▇ County, California.
9. CAPTIONS, HEADINGS AND EXHIBITS. The captions and headings of
-------------------------------
this Agreement are for convenience only and have no force and effect in the
interpretation or construction of this Agreement. All exhibits attached hereto
are by this reference incorporated herein as though fully set forth in this
Agreement.
10. RECITALS. The recitals set forth at the beginning of this
--------
Agreement of any matters or facts shall be conclusive proof of the truthfulness
thereof and the terms and conditions set forth in the recitals, if any, shall be
deemed a part of the Agreement.
11. SIGNATURES - COUNTERPARTS. This Agreement may be executed in two
-------------------------
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement
shall not be effective until the execution and delivery between each of the
parties of at least one set of counterparts. The parties authorize each other to
detach and combine original signature pages and consolidate them into a single
identical original. Any of such completely executed counterparts shall be
sufficient proof of this instrument.
12. ENTIRE AGREEMENT. In conjunction with the matters considered
----------------
herein, this Agreement contains the entire understanding and agreement of the
parties and there have been no promises, representations, agreements, warranties
or undertakings by any of the parties, either oral or written, of any character
or nature hereafter binding except as set forth herein. This Agreement may be
altered, amended or modified only by an instrument in writing, executed by the
parties to this Agreement and by no other means. Each party waives their right
to claim, contest or assert that this Agreement was modified, canceled,
superseded or changed by any oral agreement, course of conduct, waiver or
estoppel.
13. DATE AND DELIVERY OF AGREEMENT. Notwithstanding anything to the
------------------------------
contrary contained in this Agreement, the parties intend that this Agreement
shall be deemed effective, executed and delivered for all purposes under this
Agreement, as of the date set forth below.
-4-
IN WITNESS WHEREOF, the parties have executed this Agreement as of
February 23, 1996.
ASSIGNOR ASSIGNEE
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 525 ANACAPA, LLC, a California
limited liability company
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and/or ▇▇▇▇▇ ▇.
----------------------------- Barels U/D/T Dated January 2, 1996
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ F/B/O/ the Barels Family Trust
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trustee
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trustee
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, as
Joint Tenants with Right of
Survivorship
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Individually and
on behalf of the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ at City National Bank
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
National Financial Associates,
Inc., a California limited
partnership
-----------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Its: President
-5-
IN WITNESS WHEREOF, the parties have executed this Agreement as of February
____, 1996.
ASSIGNOR ASSIGNEE
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 525 ANACAPA, LLC, a California
limited liability company
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and/or ▇▇▇▇▇ ▇.
----------------------------- Barels U/D/T Dated January 2, 1996
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ F/B/O/ the Barels Family Trust
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trustee
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trustee
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, as
Joint Tenants with Right of
Survivorship
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Individually and
on behalf of the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ at City National Bank
-----------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
National Financial Associates,
Inc., a California limited
partnership
/s/ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
-----------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Its: President
-5-
EXHIBIT "A"
-----------
THE REAL PROPERTY REFERRED TO HEREIN IS ALL THAT CERTAIN REAL PROPERTY LOCATED
IN ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ OF CALIFORNIA,
DESCRIBED AS FOLLOWS:
THAT PORTION OF BLOCK 229 IN THE CITY OF SANTA ▇▇▇▇▇▇▇, COUNTY OF SANTA ▇▇▇▇▇▇▇,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL SURVEY THEREOF, DESCRIBED AS
FOLLOWS:
PARCEL ONE:
----------
BEGINNING AT A POINT ON THE SOUTHWESTERLY LINE OF ANACAPA STREET, DISTANT
THEREON 100 FEET SOUTHEASTERLY FROM THE MOST NORTHERLY CORNER OF SAID BLOCK;
THENCE SOUTHWESTERLY AND AT RIGHT ANGLES TO SAID LINE OF ANACAPA STREET 106.5
FEET; THENCE AT RIGHT ANGLES SOUTHEASTERLY 50 FEET; THENCE AT RIGHT ANGLES
NORTHEASTERLY 20 FEET; THENCE AT RIGHT ANGLES SOUTHEASTERLY 13 FEET; THENCE AT
RIGHT ANGLES NORTHEASTERLY 86.5 FEET TO A POINT ON SAID SOUTHWESTERLY LINE OF
ANACAPA STREET; THENCE AT RIGHT ANGLES NORTHWESTERLY ALONG SAID LAST MENTIONED
STREET LINE 63 FEET TO THE POINT OF BEGINNING.
EXCEPT THAT PORTION GRANTED TO THE CITY OF SANTA ▇▇▇▇▇▇▇ IN DEED RECORDED JULY
29, 1987 AS INSTRUMENT NO. 87-057275 OF OFFICIAL RECORDS.
PARCEL TWO:
----------
AN EASEMENT FOR ACCESS, LIGHT AND AIR PURPOSES, OVER A STRIP OF LAND 5 FEET IN
WIDTH, IN ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ OF
CALIFORNIA, LYING SOUTHWESTERLY OF AND MEASURED AT RIGHT ANGLES TO THE FOLLOWING
DESCRIBED LINE:
BEGINNING AT A POINT ON THE SOUTHWESTERLY LINE OF ANACAPA STREET, DISTANT
THEREON 100 FEET SOUTHEASTERLY FROM THE MOST NORTHERLY CORNER OF SAID BLOCK;
THENCE SOUTHWESTERLY AT RIGHT ANGLES TO SAID LINE OF ANACAPA STREET 106.5 FEET
TO THE TRUE POINT OF BEGINNING; THENCE AT RIGHT ANGLES SOUTHWESTERLY 50 FEET.
ASSESSOR'S PARCEL NO.: ▇▇▇-▇▇▇-▇▇.