[LETTERHEAD]
June 13, 1996
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇. 90077-1525
Dear ▇▇▇▇▇▇,
This notice is given pursuant to section 50 of the lease Agreement dated
August 24, 1994, between Future Media Productions, Inc. as ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustees, etc., as Lessors.
Future Media does hereby exercise its option to extend the original term of
the Lease for a period of five (5) years commencing March 1, 1997 and ending
February 28, 2002.
Pursuant to the terms of paragraph 50(a) and ▇▇▇▇▇▇ ▇▇▇▇▇'▇ letter of
June 5, 1996, this option is exercised early. Please acknowledge your
acceptance.
Very truly yours,
/s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Future Media Productions, Inc.
Accepted:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ 8/20/96
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
[LOGO] AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE--NET
(DO NOT USE THIS FORM FOR MULTI-TENANT PROPERTY)
1. BASIC PROVISIONS ("BASIC PROVISIONS")
1.1 PARTIES: This Lease ("LEASE"), dated for reference purposes
only, August 24, 1994 is made by and between ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Trustees of the ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Family Trust Dated
December 21, 1988 and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇,* ("LESSOR") and
Future Media Productions, Inc., a California corporation ("LESSEE"),
(collectively the "PARTIES," or individually a "PARTY").
1.2 PREMISES: That certain real property, including all
improvements therein or to be provided by Lessor under the terms of this
Lease, and commonly known by the street address of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ and generally
described as (describe briefly the nature of the property) an industrial
tilt-up building of approximately 44,460 square feet (including mezzanine)
situated on approximately 84,506 square feet of land. See attached Exhibit
"A". ("PREMISES"). (See Paragraph 2 for further provisions.)
1.3 TERM: 2 years and 6+ months ("ORIGINAL TERM") commencing
August 29, 1994 ("COMMENCEMENT DATE") and ending February 28, 1997
("EXPIRATION DATE"). (See Paragraph 3 for further provisions.)
1.4 EARLY POSSESSION: [OMITTED]
1.5 BASE RENT: $20,451.60 per month ("BASE RENT"), payable on the
1st day of each month commencing August 29, 1994. See Addendum attached
hereto. (See Paragraph 4 for further provisions.)
/ / If this box is checked, there are provisions in this Lease for the Base
Rent to be adjusted.
1.6 BASE RENT PAID UPON EXECUTION: $22,430.79 as Base Rent for
the period August 29-31, 1994 and November 1994
1.7 SECURITY DEPOSIT: $20,451.60 ("SECURITY DEPOSIT"). (See
Paragraph 5 for further provisions.)
1.8 PERMITTED USE: corporate offices, assembly, manufacturing,
distribution and warehousing of electronic and computer products. (See
Paragraph 6 for further provisions.)
1.9 INSURING PARTY: Lessee is the "INSURING PARTY" unless
otherwise stated herein. (See Paragraph 8 for further provisions.)
1.10 REAL ESTATE BROKERS: The following real estate brokers
(collectively, the "BROKERS") and brokerage relationships exist in this
transaction and are consented to by the Parties (check applicable boxes):
CB Commercial Real Estate Group, Inc. represents
/X/ Lessor exclusively ("LESSOR'S BROKER"); / / both Lessor and Lessee, and
CB Commercial Real Estate Group, Inc. represents
/X/ Lessee exclusively ("LESSEE'S BROKER"); / / both Lessee and Lessor. (See
Paragraph 15 for further provisions.)
1.11 GUARANTOR. The obligations of the Lessee under this Lease are
to be guaranteed by ▇▇▇▇ ▇▇▇▇▇▇ pursuant to separate Guaranty of Lease dated
concurrently herewith ("GUARANTOR"). (See Paragraph 37 for further
provisions.)
1.12 ADDENDA. Attached hereto is an Addendum or Addenda consisting
of Paragraphs 1.5, 2.3, 6.2(b), 6.2(c), 6.3, 6.4, 7.2, 8.3(a), 9.1(b) and
9.4, 10.1(a), 12.4, 15, 30.5, and 49 through 56 and Exhibits A, B and C, all
of which constitute a part of this Lease.
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. Unless
otherwise provided herein, any statement of square footage set forth in this
Lease, or that may have been used in calculating rental, is an approximation
which Lessor and Lessee agree is reasonable and the rental based thereon is
not subject to revision whether or not the actual square footage is more or
less.
2.2 CONDITION: Lessor shall deliver the Premises to Lessee clean
and free of debris on the Commencement Date and warrants to Lessee that the
existing plumbing, fire sprinkler system, lighting, air conditioning,
heating, and loading doors, if any, in the Premises, other than those
constructed by Lessee, shall be in good operating condition on the
Commencement Date. If a non-compliance with said warranty exists as of the
Commencement Date, Lessor shall, except as otherwise provided in this Lease,
promptly after receipt of written notice from Lessee setting forth with
specificity the nature and extent of such non-compliance, rectify same at
Lessor's expense. If Lessee does not give Lessor written notice of a
non-compliance with this warranty within fifteen (15) days after the
Commencement Date, correction of that non-compliance shall be the obligation
of Lessee at Lessee's sole cost and expense.
2.3 COMPLIANCE WITH COVENANTS, RESTRICTIONS AND BUILDING CODE. See
Addendum attached hereto. Lessor warrants to Lessee that the improvements on
the Premises comply with all applicable covenants or restrictions of record
and applicable building codes, regulations and ordinances in effect on the
Commencement Date. Said warranty does not apply to the use to which Lessee
will put the Premises or 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, except as otherwise provided
in this Lease, promptly after receipt of written notice from Lessee setting
forth with specificity the nature and extent of such non-compliance, rectify
the same at Lessor's expense. If Lessee does not give Lessor written notice
of a non-compliance with this warranty within three (3) months following the
Commencement Date, corrections of that non-compliance 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 the Brokers 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 ▇▇▇▇▇▇'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 LESSEE PRIOR OWNER/OCCUPANT. [OMITTED]
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. [OMITTED]
*Trustees of the ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ Trust Dated April 8, 1975.
Initials [ILLEGIBLE]
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3.3 DELAY IN POSSESSION. [OMITTED]
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
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.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution
hereof the Security Deposit set forth in Paragraph 1.7 as security for
▇▇▇▇▇▇'s faithful performance of ▇▇▇▇▇▇'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 ▇▇▇▇▇▇ has vacated the
Premises, return to Lessee (or, at Lessor's option, to the last assignee, if
any, of ▇▇▇▇▇▇'s interest herein), that portion of the Security Deposit not
used or applied by Lessor. Unless otherwise expressly agreed in writing by
▇▇▇▇▇▇, 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.
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, or that disturbs
owners and/or occupants of, or causes damage to, neighboring premises or
properties. Lessor hereby agrees to not unreasonably withhold or delay its
consent to any written request by Lessee, Lessees assignees or subtenants,
and by prospective assignees and subtenants of the Lessee, its assignees and
subtenants, for a modification of said permitted purpose for which the
premises may be used or occupied, so long as the same will not impair the
structural integrity of the improvements on the Premises, the mechanical or
electrical systems therein, is not significantly more burdensome to the
Premises and the improvements thereon, and is otherwise permissible pursuant
to this Paragraph 6. If Lessor elects to withhold such consent, Lessor shall
within five (5) business days give a written notification of same, which
notice shall include an explanation of Lessor's reasonable objections to the
change in use.
6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS
SUBSTANCE" as used in this Lease shall mean any product, substance, chemical,
material or waste whose presence, nature, quantity and/or intensity of
existence, use, manufacture, disposal, transportation, spill, release or
effect, either by itself or in combination with other materials expected to
be on the Premises, is either: (i) potentially injurious to the public
health, safety or welfare, the environment or the Premises, (ii) regulated or
monitored by any governmental authority, or (iii) a basis for 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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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. See Addendum attached hereto. 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
▇▇▇▇▇▇, ▇▇▇▇▇▇ 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 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, included but not
limited to all such documents as may be involved in any Reportable Uses
involving the Premises.
(c) INDEMNIFICATION. See Addendum attached hereto. Lessee shall
indemnify, protect, defend and hold Lessor, its agents, employees, lenders
and ground lessor, if any, and the Premises, harmless from and against any
and all 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 ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇'S COMPLIANCE WITH LAW. See Addendum attached hereto.
Except as otherwise provided in this Lease, Lessee, shall, at ▇▇▇▇▇▇'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. See Addendum attached hereto. 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 ▇▇▇▇▇▇'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, ▇▇▇▇▇▇ shall upon request reimburse Lessor or ▇▇▇▇▇▇'s Lender,
as the case may be, for the costs and expenses of such inspections.
7. MAINTENANCE; REPAIRS; UTILITY INSTALLATIONS; TRADE FIXTURES AND
ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS.
(a) Subject to the provisions of Paragraphs 2.2 (Lessor's warranty as
to condition), 2.3 (Lessor's warranty as to compliance with covenants, etc.,
Initials [ILLEGIBLE]
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7.2 (Lessor's obligations to repair), 9 (damage and destruction), 14
(condemnation), and 7.2 (Lessor's Obligations) Lessee shall, at Lessee's sole
cost and expense and at all times, keep the Premises and every part thereof
in good order, condition and repair, structural and non-structural (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 or 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, boilers, fired or unfired
pressure vessels, 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, walls (interior and
exterior), foundations, ceilings, roofs, floors, window, doors, plate glass,
skylights, landscaping, driveways, parking lots, fences, retaining walls,
signs, sidewalks and parkways located in, on, about, or adjacent to the
Premises. 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 and/or storage tank brought onto the
Premises by or for Lessee or under its control. 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. If Lessee occupies the Premises for seven (7) years or more, Lessor
may require Lessee to repaint the exterior of the buildings on the Premises
as reasonably required, but not more frequently than once every seven (7)
years.
(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) boiler, fired or unfired pressure vessels, (iii) fire sprinkler
and/or standpipe and hose or other automatic fire extinguishing systems,
including fire alarm and/or smoke detection, (iv) landscaping and irrigation
systems, (v) roof covering and drain maintenance and (vi) asphalt, and parking
lot maintenance.
7.2 LESSOR'S OBLIGATIONS. Except as provided in the Addendum attached
hereto and except for the warranties and agreements of Lessor contained in
Paragraphs 2.2 (relating to condition of the Premises), 2.3 (relating to
compliance with covenants, restrictions and 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, whether structural or non structural, 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.
7.3 UTILITY INSTALLATIONS; TRADE FIXTURES; ALTERATIONS.
(a) DEFINITIONS; CONSENT REQUIRED. The term "UTILITY INSTALLATIONS"
is used in this Lease to refer 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, plumbing, and fencing in, 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 ▇▇▇▇▇▇'s prior written
consent. Lessee may, however, make non-structural 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 or
any existing walls, and the cumulative costs thereof during the term of this
Lease as extended does not exceed $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 of said permits
in a prompt and expeditious manner. Any Alterations or Utility Installations by
▇▇▇▇▇▇ 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 therefor. Lessor may (but without
obligation to do so) condition its consent to any requested Alteration or
Utility Installation that costs $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 ▇▇▇▇▇▇'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 mechanics' 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 non-responsibility in or on the
Premises as provided by law. If ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'s attorney's fees and costs in participating in such
action if Lessor shall decide it is to its best interest to do so.
7.4 OWNERSHIP; REMOVAL; SURRENDER; AND RESTORATION.
(a) OWNERSHIP. Subject to Lessor's right to require their removal 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 ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇, the Premises,
as surrendered, shall include the Utility Installations. The obligation of
Lessee shall include the repair of any damage occasioned by installation,
maintenance or removal of Lessee's Trade Fixtures, furnishing, equipment, and
Alterations and/or Utility Installations, as well as the removal of any
storage tank installed by or for Lessee, and the removal, replacement, or
remediation of any soil, material or ground water contaminated by Lessee, all
as may then be required by Applicable Law and/or good service practice.
Lessee's Trade Fixtures shall remain the property of ▇▇▇▇▇▇ 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. Regardless of whether the Lessor or Lessee is
the Insuring Party, Lessee shall pay for all insurance required under this
Paragraph 8. Premiums for policy periods commencing prior to or extending
beyond the Lease term shall be prorated to correspond to the Lease term.
Payment shall be made by Lessee to Lessor within ten (10) days following receipt
of an invoice for any amount due.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall obtain and keep in force during
the term of this Lease a Commercial General Liability policy of insurance
protecting ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (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 $3,000,000 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 "insured contract" for the performance of ▇▇▇▇▇▇'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
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇. In the event Lessor is the Insuring Party,
Lessor shall also maintain liability insurance described in Paragraph 8.2(a),
above, in addition to, and not in lieu of, the insurance required to be
maintained by Lessee. Lessee shall not be named as an additional insured
therein.
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8.3 PROPERTY INSURANCE--BUILDING, IMPROVEMENTS AND RENTAL VALUE.
See Addendum attached hereto
(a) BUILDING AND IMPROVEMENTS.* The Insuring Party shall
obtain and keep in force during the term of this Lease a policy or policies
in the name of Lessor, with loss payable to Lessor and to the holders of any
mortgages, deeds of trust or ground leases on the Premises ("LENDER(S)"),
insuring 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 and available insurable value thereof
if, by reason of the unique nature or age of the improvements involved, such
latter amount is less than full replacement cost. If Lessor is the Insuring
Party, 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 city
nearest to where the Premises are located. 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. The Insuring Party shall, in addition,
obtain and keep in force during the term of this Lease a policy or policies
in the name of Lessor, with loss payable to Lessor and Lender(s), insuring
the loss of the full rental and other charges payable by Lessee to Lessor
under this Lease for one (1) year (including all real estate taxes, insurance
costs, and any scheduled rental increases). Said insurance shall provide
that in the event the Lease is terminated by reason of an insured loss, the
period of indemnity for such coverage shall be extended beyond the date of
the completion of repairs or replacement of the Premises, to provide for one
full year's loss of rental revenues from the date of any such loss. Said
insurance shall contain an agreed valuation provision in lieu of any
coinsurance clause, and the amount of coverage shall be adjusted annually to
reflect the projected rental 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) ADJACENT PREMISES. If the Premises are part of a
larger building, or if the Premises are part of a group of buildings owned by
Lessor which are adjacent to the Premises, the Lessee shall pay for any
increase in the premiums for the property insurance of such building or
buildings if said increase is caused by ▇▇▇▇▇▇'s acts, omissions, use or
occupancy of the Premises.
(d) TENANT'S IMPROVEMENTS. If the Lessor is the Insuring
Party, the 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. If Lessee is the Insuring Party,
the policy carried by Lessee under this Paragraph 8.3 shall insure Lessee
Owned Alterations and Utility Installations.
8.4 LESSEE'S PROPERTY INSURANCE. Subject to the requirements of
Paragraph 8.5, Lessee at its cost shall either by separate policy or, at
Lessor's option, by endorsement to a policy already carried, maintain
insurance coverage on all of Lessee's personal property, Lessee Owned
Alterations and Utility Installations in, on, or about the Premises similar
in coverage to that carried by the Insuring Party under Paragraph 8.3. Such
insurance shall be full replacement cost coverage with a deductible of not to
exceed $10,000 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 cancellable 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 to 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 ▇▇▇▇▇▇'s expense.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or
remedies, ▇▇▇▇▇▇ 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 agents, Lessor's master or ground lessor,
partners and Lenders, from and against any and all claims, loss of rents
and/or damages, costs, liens, judgments, penalties, 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 ▇▇▇▇▇▇, the conduct of
▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇
shall defend the same at ▇▇▇▇▇▇'s expense by counsel reasonably satisfactory
to Lessor and ▇▇▇▇▇▇ shall cooperate with Lessee in such defense. Lessor
need not have first paid any such claim in order to be so indemnified.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable
for injury or damage to the person or goods, wares, merchandise or other
property of Lessee, Lessee's employees, contractors, invitees, customers, or
any other person in or about the Premises, whether such damage or injury is
caused by or results from fire, steam, electricity, gas, water or rain, or
from the breakage, leakage, obstruction or other defects of pipes, fire
sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, or from any other cause, whether the said injury or damage results
from conditions arising upon the Premises or upon other portions of the
building of which the Premises are a part, 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. Lessor shall not be liable for any
damages arising from any act or neglect of any other tenant of Lessor.
Notwithstanding Lessor's negligence or breach of this Lease, Lessor shall
under no circumstances be liable for injury to ▇▇▇▇▇▇'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 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. See Addendum attached
hereto.
(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 $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
▇▇▇▇▇▇'s responsibility) as and when required to complete said repairs. In
the event, however, the shortage in proceeds was due to the fact that, by
reason of the unique nature of the improvements, full replacement cost
insurance coverage was not commercially reasonable and available, Lessor
shall have no obligation to pay for the shortage in insurance proceeds or to
fully restore the unique aspects of the Premises unless Lessee provides
Lessor with the funds to cover same, or adequate assurance thereof, within
ten (10) days following receipt of written notice of such shortage and
request therefor. If ▇▇▇▇▇▇ receives said funds or adequate assurance
thereof within said (10) day period, the party responsible for making the
repairs shall complete them as soon as reasonably possible and this Lease
shall remain in full force and effect. If Lessor does not receive such funds
or assurance within said period, Lessor may nevertheless elect by written
notice to Lessee within ten (10) days thereafter to make such restoration and
repair as is commercially reasonable with Lessor paying any shortage in
proceeds, in which case this Lease shall remain in full force and effect. If
in such case Lessor does not so elect, then this Lease shall terminate sixty
(60) days following the occurrence of the damage or destruction. Unless
otherwise agreed, Lessee shall in no event have any right to reimbursement
from Lessor for
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any funds contributed by Lessee to repair any such damage or destruction.
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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'s commitment to pay for the repair of such damage totally at
▇▇▇▇▇▇'s expense and without reimbursement from Lessor. Lessee shall provide
Lessor with the required funds or satisfactory assurance thereof within
thirty (30) days following ▇▇▇▇▇▇'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 ▇▇▇▇▇▇, Lessor shall have the right to recover ▇▇▇▇▇▇'s damages
from ▇▇▇▇▇▇ except as released and waived in Paragraph 8.6. See Addendum
attached hereto.
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 or to purchase the Premises,
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) 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; ▇▇▇▇▇▇'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 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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇, and ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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 to Lessee so much of ▇▇▇▇▇▇'s
Security Deposit as has not been, or is not then required to be, used by
Lessor under the terms of this Lease.
9.9 WAIVE STATUTES. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ 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. See Addendum attached hereto. 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, ▇▇▇▇▇▇'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
▇▇▇▇▇▇, Lessor shall have the right to pay the same, and ▇▇▇▇▇▇ 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 bill 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 ▇▇▇▇▇▇ and shall not bear interest. In the
event of a Breach by ▇▇▇▇▇▇ 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 or in the real property
of which the Premises are a part, Lessor's right to rent or other income
therefrom, and/or ▇▇▇▇▇▇'s business of leasing the Premises. The term "REAL
PROPERTY TAXES" shall also include any tax, fee, levy, assessment or charge,
or any increase therein, imposed by reason of events occurring, or changes in
applicable law taking effect, during the term of this Lease, including but
not limited to a change in the ownership of the 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.
10.3 JOINT ASSESSMENT. If the Premises are not separately
assessed, ▇▇▇▇▇▇'s liability shall be an equitable proportion of the Real
Property Taxes for all of the land and improvements included within the tax
parcel assessed, such proportion to be determined by Lessor from the
respective valuations
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assigned in the assessor's work sheets or such other information as may be
reasonably available. Lessor's reasonable determination thereof, in good
faith, shall be conclusive.
10.4 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 ▇▇▇▇▇▇'s said personal property shall be assessed with
▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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. If any such services are not
separately metered to Lessee, Lessee shall pay a reasonable proportion, to
be determined by Lessor, of all charges jointly metered with other premises.
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED.
(a) Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage or otherwise transfer or encumber (collectively,
"ASSIGNMENT") or sublet all or any part of ▇▇▇▇▇▇'s interest in this Lease or
in the Premises without ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'s consent. The transfer, on a cumulative basis,
of twenty-five percent (25%) or more of the voting control of Lessee shall
constitute a change in control for this purpose.
(c) The involvement of Lessee or its assets in any transaction, or
series of transactions (by way of merger, sale, acquisition, financing,
refinancing, transfer, leveraged buy-out or otherwise), whether or not a
formal assignment or hypothecation of this Lease or Lessee's assets occurs,
which results or will result in a reduction of the Net Worth of Lessee, as
hereinafter defined, by an amount equal to or greater than twenty-five
percent (25%) of such Net Worth of Lessee as it was represented to Lessor at
the time of 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 (excluding any guarantors) established
under generally accepted accounting principles consistently applied.
(d) An assignment or subletting of ▇▇▇▇▇▇'s interest in this Lease
without ▇▇▇▇▇▇'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 by ▇▇▇▇▇▇, 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) the purchase price of any option
to purchase the Premises held by Lessee shall be subject to similar
adjustment to the then fair market value (without the Lease being considered
an encumbrance or any deduction for depreciation or obsolescence, and
considering the Premises at its highest and best use and in good condition),
or one hundred ten percent (110%) of the price previously in effect,
whichever is greater, (ii) any index-oriented rental or price adjustment
formulas contained in this Lease shall be adjusted to require that the base
index be determined with reference to the index applicable to the time of
such adjustment, and (iii) any fixed rental adjustments scheduled during the
remainder of the Lease term shall be increased in the same ratio as the new
market rental bears to the Base Rent in effect immediately prior to the
market value adjustment.
(e) ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
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 or sublease.
(d) In the event of any Default or Breach of Lessee's obligations
under this Lease, Lessor may proceed directly against Lessee, any Guarantors
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
non-refundable 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. ▇▇▇▇▇▇ agrees to provide
Lessor with such other or additional information and/or documentation as may
be reasonably requested by ▇▇▇▇▇▇.
(f) Any assignee of, or sublessee under, this Lease shall, by
reason of accepting such assignment or entering into such sublease, be
deemed, for the benefit of Lessor, to have assumed and agreed to conform and
comply with each and every term, covenant, condition and obligation herein to
be observed or performed by Lessee during the term of said assignment or
sublease, other than such obligations as are contrary to or inconsistent with
provisions of an assignment or sublease to which Lessor has specifically
consented in writing.
(g) The occurrence of a transaction described in Paragraph 12.1(c)
shall give Lessor the right (but not the obligation) to require that the
Security Deposit be increased to an amount equal to six (6) times the then
monthly Base Rent, and Lessor may make the actual receipt by Lessor of the
amount required to establish such Security Deposit a condition to Lessor's
consent to such transaction.
(h) Lessor, as a condition to giving its consent to any assignment
or subletting, may require that the amount and adjustment structure of the
rent payable under this Lease be adjusted to what is then the market value
and/or adjustment structure for property similar to the Premises as then
constituted.
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 sublease, 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 ▇▇▇▇▇▇ stating that a Breach exists in the performance of
▇▇▇▇▇▇'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.
(c) Any matter or thing requiring the consent of the sublessor
under a sublease shall also require the consent of Lessor herein.
(d) No sublessee shall further assign or sublet all or any part of
the Premises without Lessor's prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or Breach
by ▇▇▇▇▇▇ to the sublessee, who shall have the right to cure the Default of
Lessee within the grace period, if any, specified in such notice. The
sublessee shall have a right of reimbursement and offset from and against
▇▇▇▇▇▇ for any such Defaults cured by the sublessee.
12.4 ADDITIONAL PROVISIONS REGARDING SUBLETTING AND ASSIGNMENT. See
Addendum attached hereto
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. 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"
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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, 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 ▇▇▇▇▇▇.
(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 recission of an unauthorized
assignment or subletting per Paragraph 12.1(b), (iv) a Tenancy Statement per
Paragraphs 16 or 37, (v) the subordination or non-subordination of this Lease
per Paragraph 30, (vi) the guaranty of the performance of Lessee's
obligations under this Lease if required under Paragraphs 1.11 and 37, (vii)
the execution of any document requested under Paragraph 42 (easements), or
(viii) any other documentation or information which Lessor may reasonably
require of Lessee under the terms of this Lease, where any such failure
continues for a period of ten (10) days following written notice by or on
behalf of Lessor to ▇▇▇▇▇▇.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40 hereof,
that are to be observed, complied with or performed by ▇▇▇▇▇▇, 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
▇▇▇▇▇▇'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
▇▇▇▇▇▇ of any general arrangement or assignment for the benefit of creditors;
(ii) ▇▇▇▇▇▇'s becoming a "debtor" as defined in 11 U.S.C. Section 101 or any
successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days); (iii) the appointment
of a trustee or receiver to take possession of substantially all of ▇▇▇▇▇▇'s
assets located at the Premises or of ▇▇▇▇▇▇'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 or any Guarantor of ▇▇▇▇▇▇'s obligations hereunder was
materially false.
(g) If the performance of ▇▇▇▇▇▇'s obligations under this Lease is
guaranteed: (i) the death of a guarantor, (ii) the termination of a
guarantor's liability with respect to this Lease other than in accordance
with the terms of such guaranty, (iii) a guarantor's becoming insolvent or
the subject of a bankruptcy filing, (iv) a guarantor's refusal to honor the
guaranty, or (v) a guarantor's breach of its guaranty obligation on an
anticipatory breach basis, and ▇▇▇▇▇▇'s failure, within sixty (60) days
following written notice by or on behalf of Lessor to Lessee of any such
event, to provide Lessor with written alternative assurance or security,
which, when coupled with the then existing resources of Lessee, equals or
exceeds the combined financial resources of Lessee and the guarantors that
existed at the time of execution of this Lease.
13.2 REMEDIES. If Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after written
notice to Lessee (or in case of an emergency, without notice), Lessor may at
its option (but without obligation to do so), perform such duty or obligation
on Lessee's behalf, including but not limited to the obtaining of reasonably
required bonds, insurance policies, or governmental licenses, permits or
approvals. The costs and expenses of any such performance by Lessor shall be
due and payable by Lessee to Lessor upon invoice therefor. If any check given
to Lessor by Lessee shall not be honored by the bank upon which it is drawn,
Lessor, at its 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 ▇▇▇▇▇▇, as defined in Paragraph 13.1, with or without
further notice or demand, and without limiting Lessor in the exercise of any
right or remedy which Lessor may have by reason of such Breach, Lessor may:
(a) Terminate ▇▇▇▇▇▇'s right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate
and ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'s right to possession in effect (in
California under California Civil Code Section 1951.4) after ▇▇▇▇▇▇'s Breach
and abandonment and recover the rent as it becomes due, provided ▇▇▇▇▇▇ has
the right to sublet or assign, subject only to reasonable limitations. 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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'s
occupancy of the Premises.
13.3 INDUCEMENT RECAPTURE IN EVENT OF BREACH. Any agreement by
Lessor for free or abated rent or other charges applicable to the Premises,
or for the giving or paying by Lessor to or for Lessee of any cash or other
bonus, inducement or consideration for ▇▇▇▇▇▇'s entering into this Lease, all
of which concessions are hereinafter referred to as "INDUCEMENT PROVISIONS,"
shall be deemed conditioned upon ▇▇▇▇▇▇'s full and faithful performance of
all of the terms, covenants and conditions of this Lease to be performed or
observed by ▇▇▇▇▇▇ during the term hereof as the same may be extended. Upon
the occurrence of a Breach of this Lease by ▇▇▇▇▇▇, as defined in Paragraph
13.1, any such inducement Provision shall automatically be deemed deleted from
this Lease and of no further force or effect, and any rent, other charge,
bonus, inducement or consideration theretofore abated, given or paid by Lessor
under such an Inducement Provision shall be immediately due and payable by
Lessee to Lessor, and recoverable by Lessor as additional rent due under this
Lease, notwithstanding any subsequent cure of said Breach by Lessee. The
acceptance by Lessor of rent or the cure of the Breach which initiated the
operation of this Paragraph shall not be deemed a waiver by Lessor of the
provisions of this Paragraph unless specifically so stated in writing by
Lessor at the time of such acceptance.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
▇▇▇▇▇▇ to Lessor of rent and other sums due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Lessor by the terms of any ground lease, mortgage or 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 ▇▇▇▇▇▇. Acceptance of such late charge by Lessor
shall in no event constitute a waiver of ▇▇▇▇▇▇'s Default or Breach with
respect to such overdue amount, nor prevent ▇▇▇▇▇▇ 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 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 ▇▇▇▇▇▇. 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 ground lease, 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
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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 ▇▇▇▇▇▇ 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, Lessor shall to the
extent of its net severance damages received, over and above the legal and other
expenses incurred by ▇▇▇▇▇▇ in the condemnation matter, repair any damage to the
Premises caused by such condemnation, except to the extent that ▇▇▇▇▇▇ 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.
15.1 The Brokers named in Paragraph 1.10 are the procuring causes of
this Lease.
15.2 Upon execution of this Lease by both Parties, Lessor shall
pay to said Brokers jointly, or in such separate shares as they may mutually
designate in writing, a fee as set forth in See Addendum attached hereto for
brokerage services rendered by said Brokers to Lessor in this transaction.
15.3
15.4 Any buyer or transferee of ▇▇▇▇▇▇'s interest in this Lease,
whether such transfer is by agreement or by operation of law, shall be deemed to
have assumed ▇▇▇▇▇▇'s obligation under this Paragraph 15. Each Broker shall be a
third party beneficiary of the provisions of this Paragraph 15 to the extent of
its interest in any commission arising from this Lease and may enforce that
right directly against ▇▇▇▇▇▇ and its successors.
15.5 Lessee and Lessor each represent and warrant to the other that
it has had no dealings with any person, firm, broker or finder (other than the
Brokers, if any named in Paragraph 1.10) in connection with the negotiation of
this Lease and/or the consummation of the transaction contemplated hereby, and
that no broker or other person, firm or entity other than said named Brokers is
entitled to any commission or finder's fee in connection with said transaction.
▇▇▇▇▇▇ and ▇▇▇▇▇▇ 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, attorney's fees reasonably incurred with respect thereto.
15.6 Lessor and Lessee hereby consent to and approve all agency
relationships, including any dual agencies, indicated in Paragraph 1.10.
16. TENANCY STATEMENT.
16.1 Each Party (as "RESPONDING PARTY") shall within ten (10) days
after written notice from the other Party (the "REQUESTING PARTY") execute,
acknowledge and deliver to the Requesting Party a statement in writing in form
similar to the then most current "TENANCY STATEMENT" form published by the
American Industrial Real Estate Association, plus such additional information,
confirmation and/or statements as may be reasonably requested by the Requesting
Party.
16.2 If Lessor desires to finance, refinance, or sell the
Premises, any part thereof, or the building of which the Premises are a part,
Lessee and all Guarantors of ▇▇▇▇▇▇'s performance hereunder shall deliver to
any potential lender or purchaser designated by Lessor such financial
statements of Lessee and such Guarantors as may be reasonably required by
such lender or purchaser, including but not limited to Lessee's financial
statements for the past three (3) years or for such lesser period during
which Lessee has been in business. All such financial statements shall be
received by Lessor and such lender or purchaser in confidence and shall be
used only for the purposes herein set forth.
17. LESSOR'S LIABILITY. The term "LESSOR" as used herein shall mean the
owner or owners at the time in question of the fee title to the Premises, or,
if this is a sublease, of the Lessee's interest in the prior lease. In the
event of a transfer of ▇▇▇▇▇▇'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 ▇▇▇▇▇▇ at the time of such
transfer or assignment. Except as provided in Paragraph 15, 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 provided that the new Lessor assumes the Lessor's obligations
under this Lease. 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 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.
22. NO PRIOR OR OTHER AGREEMENTS; BROKER DISCLAIMER. This Lease contains
all agreements between the Parties with respect to any matter mentioned
herein, and no other prior or contemporaneous agreement or understanding
shall be effective. Lessor and Lessee each represents and warrants to the
Brokers that it has made, and is relying solely upon, its own investigation
as to the nature, quality, character and financial responsibility of the
other Party to this Lease and as to the nature, quality and character of the
Premises. Brokers have no responsibility with respect thereto or with
respect to any default or breach hereof by either Party.
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 ▇▇▇▇▇▇'s taking
possession of the Premises, the Premises shall constitute ▇▇▇▇▇▇'s address
for the purpose of mailing or delivering notices to Lessee. A copy of all
notices required or permitted to be given to Lessor hereunder shall be
concurrently transmitted to such party or parties at such addresses as Lessor
may from time to time hereafter designate by written notice to ▇▇▇▇▇▇.
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 ▇▇▇▇▇▇'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.
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27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. COVENANTS AND CONDITIONS. All provisions of this Lease to be observed
or performed by Lessee are both covenants and conditions.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the
parties, their personal representatives, successors and assigns and be governed
by the laws of the State in which the Premises are located. Any litigation
between the Parties hereto concerning this Lease shall be initiated in the
county in which the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. This Lease and any Option granted hereby shall
be subject and subordinate to any ground lease, mortgage, deed of trust, or
other hypothecation or security device (collectively, "SECURITY DEVICE"), now or
hereafter placed by Lessor upon the real property of which the Premises are a
part, to any and all advances made on the security thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof. ▇▇▇▇▇▇
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 any Option granted hereby
superior to the lien of its Security Device and shall give written notice
thereof to Lessee, this Lease and such Options shall be deemed prior to such
Security Device, notwithstanding the relative dates of the documentation or
recordation thereof.
30.2 ATTORNMENT. Subject to the non-disturbance provisions of
Paragraph 30.3, ▇▇▇▇▇▇ 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 NON-DISTURBANCE. With respect to Security Devices entered into
by Lessor after the execution of this Lease, ▇▇▇▇▇▇'s subordination of this
Lease shall be subject to receiving assurance (a "NON-DISTURBANCE AGREEMENT")
from the Lender that ▇▇▇▇▇▇'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 non-subordination, attornment and/or non-disturbance
agreement as is provided for herein. 30.5 See Addendum attached hereto
31. ATTORNEY'S FEES. If any Party or Broker brings an action or
proceeding to enforce the terms hereof or declare rights hereunder, the
Prevailing Party (as hereafter defined) or Broker 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 judgment.
The term, "PREVAILING PARTY" shall include, without limitation, a Party or
Broker who substantially obtains or defeats the relief sought, as the case
may be, whether by compromise, settlement, judgment, or the abandonment by
the other Party or Broker of its claim or defense. The 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 ▇▇▇▇▇▇'s agents
shall have the right to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times for the purpose of showing the same
to prospective purchasers, lenders, or lessees, and making such alterations,
repairs, improvements or additions to the Premises or to the building of which
they are a part, as Lessor may reasonably deem necessary. Lessor may at any
time place on or about the Premises or building any ordinary "For Sale" signs
and Lessor may at any time during the last one hundred twenty (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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'s prior written consent, install (but not on the roof)
such signs as are reasonably required to advertise ▇▇▇▇▇▇'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). Unless otherwise expressly agreed herein,
Lessor reserves all rights to the use of the roof and the right to install, and
all revenues from the installation of, such advertising signs on the Premises,
including the roof, as do not unreasonably interfere with the conduct of
▇▇▇▇▇▇'s business.
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by ▇▇▇▇▇▇, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by ▇▇▇▇▇▇, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, Lessor shall, in the event of any such surrender,
termination or cancellation, have the option to continue any one or all of any
existing subtenancies. Lessor's failure within ten (10) days following any such
event to make a written election to the contrary by written notice to the holder
of any such lesser interest, shall constitute Lessor's election to have such
event constitute the termination of such interest.
36. CONSENTS.
(a) Except for Paragraph 33 hereof (Auctions) or as
otherwise provided herein, wherever in this Lease the consent of a Party is
required to an act by or for the other Party, such consent shall not be
unreasonably withheld or delayed. Lessor's actual reasonable costs and
expenses (including but not limited to architects', attorneys', engineers' 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 ▇▇▇▇▇▇'s request. Except as
otherwise provided, any unused portion of said deposit shall be refunded to
Lessee without interest. ▇▇▇▇▇▇'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 ▇▇▇▇▇▇ as being reasonable. The failure to specify herein
any particular condition to ▇▇▇▇▇▇'s consent shall not preclude the imposition
by ▇▇▇▇▇▇ at the time of consent of such further or other conditions as are then
reasonable with reference to the particular matter for which consent is being
given.
37. GUARANTOR.
37.1 If there are to be any Guarantors of this Lease per Paragraph
1.11, the form of the guaranty to be executed by each such Guarantor shall be in
the form most recently published by the American Industrial Real Estate
Association, and each said Guarantor shall have the same obligations as Lessee
under this Lease, including but not limited to the obligation to provide the
Tenancy Statement and information called for by Paragraph 16.
37.2 It shall constitute a Default of the Lessee under this Lease
if any such Guarantor fails or refuses, upon reasonable request by Lessor to
give: (a) evidence of the due execution of the guaranty called for by this
Lease, including the authority of the Guarantor (and of the party signing on
Guarantor's behalf) to obligate such Guarantor on said guaranty, and
including in the case of a corporate Guarantor, a certified copy of a
resolution of its board of directors authorizing the making of such guaranty,
together with a certificate of incumbency showing the signature of the
persons authorized to sign on its behalf, (b) current financial statements of
Guarantor as may from time to time be requested by Lessor, (c) a Tenancy
Statement, or (d) written confirmation that the guaranty is still in effect.
38. QUIET POSSESSION. Upon payment by ▇▇▇▇▇▇ of the rent for the Premises
and the observance and performance of all of the covenants, conditions and
provisions on ▇▇▇▇▇▇'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"
has the following meaning: (a) the right to extend the term of this Lease or
to renew this Lease or to extend or renew any lease that Lessee has on other
property of Lessor; (b) the right of first refusal to leave the Premises or
the right of first offer to lease the Premises or the right of first refusal
to lease other property of Lessor or the right of first offer to lease other
property of Lessor; (c) the right to purchase the Premises, or the right of
first refusal to purchase the Premises, or the right of first offer to
purchase the Premises, or the right to purchase other property of Lessor, or
the right of first refusal to purchase other property of Lessor, or the right
of first offer to purchase other property of Lessor.
39.2 OPTIONS PERSONAL TO ORIGINAL LESSEE. Each Option granted to
Lessee in this Lease is personal to the original Lessee named in Paragraph 1.1
hereof, and cannot be voluntarily or involuntarily assigned or exercised by any
person or entity other than said original Lessee while the original Lessee is in
full and actual possession of the Premises and without the intention of
thereafter assigning or subletting. The Options, if any, herein granted to
Lessee are not assignable, either as a part of an assignment of this Lease or
separately or apart therefrom, and no Option may be separated from this Lease in
any manner, by reservation or otherwise.
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39.3 MULTIPLE OPTIONS. In the event that Lessee has any Multiple
Options to extend or renew this Lease, a later Option cannot be exercised
unless the prior Options to extend or renew this Lease have been validly
exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary: (i)
during the period commencing with the giving of any notice of Default under
Paragraph 13.1 and continuing until the noticed Default is cured, or (ii)
during the period of time any monetary obligation due Lessor from Lessee is
unpaid (without regard to whether notice thereof is given Lessee), or (iii)
during the time Lessee is in Breach of this Lease, or (iv) in the event that
Lessor has given to Lessee three (3) or more notices of 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 an Option may be exercised
shall not be extended or enlarged by reason of ▇▇▇▇▇▇'s inability to exercise an
Option because of the provisions of Paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option
shall terminate and be of no further force or effect, notwithstanding Lessee's
due and timely exercise of the Option, if, after such exercise and during the
term of this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of
Lessee for a period of thirty (30) days after such obligation becomes due
(without any necessity of Lessor to give notice thereof to Lessee), or (ii)
Lessor gives to Lessee three (3) or more notices of 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. MULTIPLE BUILDINGS.
41. SECURITY MEASURES. Lessee hereby acknowledges that the rental payable
to Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of the Premises, Lessee,
its agents and invitees and their property from the acts of third parties.
42. RESERVATIONS. Lessor reserves 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
▇▇▇▇▇▇. ▇▇▇▇▇▇ agrees to sign any documents reasonably requested by Lessor to
effectuate any such easement rights, dedication, map or restrictions.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to
any amount or sum of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such payment
shall not be regarded as a voluntary payment and there shall survive the right
on the part of said Party to institute suit for recovery of such sum. If it
shall be adjudged that there was no legal obligation on the part of said Party
to pay such sum or any part thereof, said Party shall be entitled to recover
such sum or so much thereof as it was not legally required to pay under the
provisions of this Lease.
44. AUTHORITY. If either Party hereto is a corporation, trust, or
general or limited partnership, each individual executing this Lease on
behalf of such entity represents and warrants that he or she is duly
authorized to execute and deliver this Lease on its behalf. If Lessee is a
corporation, trust or partnership, Lessee shall, within thirty (30) days
after request by ▇▇▇▇▇▇, deliver to Lessor evidence satisfactory to Lessor of
such authority.
45. CONFLICT. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisions shall be controlled by the typewritten
or handwritten provisions.
46. OFFER. Preparation of this Lease by Lessor or ▇▇▇▇▇▇'s agent and
submission of same to Lessee shall not be deemed an offer to lease to Lessee.
This Lease is not intended to be binding until executed by all Parties hereto.
47. AMENDMENTS. This Lease may be modified only in writing, signed by
the Parties in interest at the time of the modification. The parties shall
amend this Lease from time to time to reflect any adjustments that are made
to the Base Rent or other rent payable under this Lease. As long as they do
not materially change ▇▇▇▇▇▇'s obligations hereunder, ▇▇▇▇▇▇ agrees to make
such reasonable non-monetary modifications to this Lease as may be reasonably
required by an institutional, insurance company, or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the
property of which the Premises are a part.
48. MULTIPLE PARTIES. Except as otherwise expressly provided herein, if
more than one person or entity is named herein as either Lessor or Lessee, the
obligations of such Multiple Parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee.
▇▇▇▇▇▇ AND ▇▇▇▇▇▇ HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR SUBMISSION TO
YOUR ATTORNEY FOR HIS APPROVAL. FURTHER, EXPERTS SHOULD BE CONSULTED TO
EVALUATE THE CONDITION OF THE PROPERTY AS TO THE POSSIBLE PRESENCE OF
ASBESTOS, STORAGE TANKS OR HAZARDOUS SUBSTANCES. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE
ASSOCIATION OR BY THE REAL ESTATE BROKER(S) OR THEIR AGENTS OR EMPLOYEES
AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS
LEASE OR THE TRANSACTION TO WHICH IT RELATES; THE PARTIES SHALL RELY
SOLELY UPON THE ADVICE OF THEIR OWN COUNSEL AS TO THE LEGAL AND TAX
CONSEQUENCES OF THIS LEASE. IF THE SUBJECT PROPERTY IS LOCATED IN A
STATE OTHER THAN CALIFORNIA, AN ATTORNEY FROM THE STATE WHERE THE
PROPERTY IS LOCATED SHOULD BE CONSULTED.
The parties hereto have executed this Lease at the place on the dates specified
above to their respective signatures.
Executed at Los Angeles Executed at 8/25/84
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on 8/25/94 on
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By LESSOR: By LESSEE:
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Family Trust Future Media Productions, Inc.
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Dated December 21, 1988 and the ▇▇▇▇▇▇ and a California corporation
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▇▇▇▇▇ ▇▇▇▇▇ Trust Dated April 8, 1975
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name Printed: ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. Name Printed: ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇
-----------------------------
Title: Trustees Title: President
------------------------------------ -----------------------------
By By
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Name Printed: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name Printed:
----------------------------- -------------------------------
and ▇▇▇▇▇ ▇. ▇▇▇▇▇ Title:
----------------------------- -----------------------------
Title: Trustees
------------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Address:
---------------------------------- ---------------------------
Los Angeles, CA 90077
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Tel. No.(▇▇▇)▇▇▇-▇▇▇▇ Fax No.(▇▇▇)▇▇▇-▇▇▇▇ Tel. No.(▇▇▇)▇▇▇-▇▇▇▇ Fax No.
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ADDENDUM TO
STANDARD INDUSTRIAL/COMMERCIAL SINGLE TENANT LEASE - NET
DATED AS OF AUGUST 24, 1994 ("LEASE")
BY AND AMONG
▇▇▇▇▇▇ ▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, TRUSTEES OF THE
▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ FAMILY TRUST DATED DECEMBER 21, 1998
AND
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇, TRUSTEES OF
THE ▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇ TRUST DATED APRIL 8, 1975
AS THE "LESSOR"
AND
FUTURE MEDIA PRODUCTIONS, INC., A CALIFORNIA CORPORATION
AS THE "LESSEE"
This Addendum is attached to and made a part of the Lease between Lessor
and Lessee (all as described in the above title) for the Premises therein
described. In the event there is any conflict between the provisions of this
Addendum and the provisions of the Lease to which it is attached, the
provisions of this Addendum shall control.
A. CONTINUED PROVISIONS. The following provisions are a continuation of
certain of the provisions of the Lease as indicated by the applicable
paragraph number set forth below:
1.5 BASE RENT - ABATEMENT. Base Rent payable for the first two (2) full
months of the Original Term (i.e., for September, 1994 and October, 1994) at
the rate of Twenty Thousand Four Hundred Fifty-One and 60/100ths Dollars
($20,451.60) per month shall be fully abated and waived.
2.3 COMPLIANCE WITH COVENANTS, ETC.. Notwithstanding the foregoing
provisions of this Paragraph 2.3, no warranty or representation is made by
Lessor related to the compliance of the improvements of the Premises with the
provisions of the Americans with Disabilities Act, a federal law codified at
42 USC Section 12101 et. seq. ("ADA") and accordingly the provisions of
Paragraph 2.3 shall not extend to any ADA compliance matters.
6.2(b) DUTY TO INFORM LANDLORD. Lessee hereby represents, warrants and
covenants that, except as (i) permitted under Paragraph 6.2(a), (ii) provided
in the Paragraph 6.2(b), and (iii) disclosed on Exhibit "C" attached hereto,
Lessee's business operations in or about the Premises do not and will not
involve the use, manufacture, storage, handling, generation, transportation
or other release of Hazardous Substances (individually and collectively,
"Permitted Uses"). The reporting requirements of Paragraph 6.2(b) shall not
apply to any Permitted Uses described on Exhibit "C", provided the same do
not constitute a Reportable Use. Permitted Uses shall also include Hazardous
Substances which are proposed to be used by Lessee and which are
substantially similar to those described on Exhibit "C" related to ▇▇▇▇▇▇'s
business operations, provided Lessee submits to Lessor a list of the same,
and certifies to Lessor that such proposed Permitted Uses are consistent with
the existing Permitted Uses and do not constitute a Reportable Use.
6.2(c) ▇▇▇▇▇▇'S INDEMNIFICATION. Lessor shall indemnify, protect, defend
and hold Lessee, its agents, employees, and lenders, if any, and the
Premises, harmless from and against any and all 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 Lessor or under Lessor's
control prior to the Commencement Date. Lessor's obligations under this
Paragraph 6.2(c) shall include, but not be limited to, the effects of any
contamination or inquiry to person, property or the environment created or
suffered by Lessor, 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 the Lessor and Lessee shall
release Lessor from its obligations under this Lease with respect to
Hazardous Substances or storage tanks, unless specifically so agreed by
▇▇▇▇▇▇ in writing at the time of such agreement.
6.3 COMPLIANCE WITH LAW. In connection with the definition of
Applicable Law under this Paragraph 6.3 (and without in any way limiting the
definition of Applicable Law), Lessee acknowledges that the Premises and this
Lease are subject to all of the provisions contained in the Valencia
Industrial
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Center Declaration of Covenants, Conditions and Restrictions dated July 11,
1985, as may be amended from time to time, a copy of which is attached to
this Lease as Exhibit "B".
6.4 INSPECTION. Except in the case of an emergency, Lessor shall give
Lessee at least 24-hours advance notice (written or oral) prior to
undertaking any such inspections. Lessor shall use commercially reasonable
efforts to minimize any interference with ▇▇▇▇▇▇'s business operations during
any such inspections.
7.2 LESSOR'S OBLIGATIONS -- STRUCTURAL REPAIRS. Subject to the
provisions of Paragraphs 9 (damage and destruction) and 14 (condemnation),
Lessor shall, at Lessor's expense, keep the foundations, structural membranes
of the exterior roof and other structural aspects of the Premises in good
order, condition and repair (collectively, "Structural Repair"). Lessor
shall not, however, be obligated to (i) paint the exterior surface of the
exterior walls, (ii) maintain or repair any other aspect of the roof, (iii)
maintain or repair the windows, doors or plate glass or the interior surface
of exterior walls, or (iv) undertake the Structural Repairs to the extent any
such Structural Repairs are required to be done by reason of the acts,
omissions or negligence of Lessee and/or its officers, directors, employees,
agents, contractors or invitees not otherwise an Insured Loss (as defined in
Paragraph 9.1(c) below) for which insurance proceeds and deductible amounts
are actually received by Lessor, all of which maintenance and repair shall be
the obligation of Lessee under Paragraph 7.1(a) of the Lease. Lessor shall
not, in any event, have any obligation to make any Structural Repairs until
Lessor receives written notice from Lessee of the need for such Structural
Repairs and thereafter shall commence to make and complete the Structural
Repairs in a commercially reasonable manner.
8.3(a) PROPERTY INSURANCE -- ALL RISKS. The Insuring Party shall insure
against all perils and risks of direct physical loss or damage, including
flood and earthquake insurance. The deductible amount of any insurance policy
maintained pursuant to this Paragraph 8.3(a) shall not exceed $10,000, except
that the deductible amount of a flood and/or earthquake policy shall not
exceed five percent (5%) of the policy coverage amount. In the event
of any Insured Loss (as defined in Paragraph 9.1(c) of the Lease), Lessee
shall pay to Lessor the full deductible amount under the insurance applicable
to the Insured Loss within ten (10) days after the date of the Insured Loss.
▇▇▇▇▇▇'s obligation to undertake any repairs under Paragraph 9 of the Lease
and ▇▇▇▇▇▇'s right to receive any abatement of rent under Paragraph 9.6 of
the Lease are specifically conditioned upon ▇▇▇▇▇▇'s prompt payment of the
said deductible amount to Lessor.
9.1(b) AND 9.4 DEFINITION AND EFFECT OF "PREMISES TOTAL DESTRUCTION".
"Premises Total Destruction" shall also mean damage or destruction to the
Premises to such an extent that (i) as to an Insured Loss, Lessee is unable
to conduct its business operations in at least fifty percent (50%) of the
Premises for a consecutive period following the damage of more than one
hundred and eighty (180) days or (ii) as to damage which is not an Insured
Loss, Lessee is unable to conduct its business operations in at least fifty
percent (50%) of the Premises for a consecutive period following the damage
of more than one hundred twenty (120) days (individually and collectively, an
"Impaired Use"). In the event of Premises Total Destruction by reason of an
Impaired Use, and notwithstanding anything in Paragraph 9.4 of the Lease to
the contrary, this Lease shall terminate the next day following the last day
of the Impaired Use period; provided, however, Lessee may elect by written
notice to Lessor given within thirty (30) days after the date of damage which
otherwise might give rise to an Impaired Use to elect not to terminate this
Lease if an Impaired Use were to arise respecting such damage (in which event
this Lease shall not terminate even if such damage gives rise to an Impaired
Use).
10.1(a) PAYMENT OF TAXES. During the Original Term, Lessee shall not be
obligated to pay any portion of the Real Property Taxes applicable to the
Premises which arises by reason of an increase in the Real Property Taxes as
a result of a sale or exchange of the Premises by ▇▇▇▇▇▇.
12.4 ADDITIONAL PROVISIONS REGARDING SUBLETTING AND ASSIGNMENT.
(a) ADDITIONAL CONDITIONS TO ASSIGNMENT. Notwithstanding any
contrary provision of the Lease (including any contrary provision of
Paragraphs 12 or 36), Lessor may withhold its consent to any proposed
sublease or assignment of the Lease (as used in this Addendum, an
"Assignment") if the following conditions have not been met:
(i) In connection with Paragraph 12.2(e) of the Lease,
Lessee shall notify Lessor of its desire to enter into the Assignment and of
all relevant facts in connection therewith, including (1) the name of the
sublessee or assignee, (2) the nature of the sublessee's or assignee's
business to be carried on in the Premises, (3) the terms of the sublease or
assignment and all other
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contracts, instruments and agreements relating to the Assignment, and (iv)
such other information as Lessor may reasonably request concerning the
Assignment.
(ii) The use to be made of the Premises by the proposed
assignee or sublessee is generally consistent with the character and nature
of the Premises and the permitted use under Paragraphs 1.8 and 6 of the Lease.
(iii) The character, moral stability, reputation and financial
condition of the proposed assignee or sublessee are satisfactory to Lessor in
its sole discretion and, as to an assignment, the proposed assignee's net
worth is acceptable to Lessor in its sole discretion.
(iv) As to any Assignment other than a sublease of less than
twenty percent (20%) of the improvements of the Premises, Lessee shall have
agreed to assign and pay to Lessor as additional rent hereunder fifty percent
(50%) of all Transfer Consideration (as defined in Paragraph 12.4(v) below).
(v) "Transfer Consideration" shall mean and include all
consideration paid or given, directly or indirectly, by the sublessee or
assignee to Lessee in exchange for entering into the Assignment other than
reimbursement for the security deposit, reimbursement of the depreciated
value of any improvements, fixtures or furnishings installed in the Premises
by ▇▇▇▇▇▇ and payment for merchandise or inventory of Lessee not in excess of
Lessee's cost thereof and, if the Assignment is a sublease, all consideration
paid or given, directly or indirectly, by the sublessee to Lessee over and
above monthly rent and all additional rent payable by Lessee to Lessor
allocable to the portion of the Premises subject to such sublease as
determined by Lessor in any reasonable manner. Transfer Consideration shall
include consideration in any form, including money, property, assumption of
liabilities and any other item or thing of value. Notwithstanding the form of
the Transfer Consideration, Lessee shall pay the same to Lessor in cash in an
amount equal to the sum of the cash portion of the Transfer Consideration
plus the fair market value of any non-cash Transfer Consideration; provided,
however, that Lessee may pay any Transfer Consideration which is payable in
cash installments to Lessor as it receives each such installment.
(b) PERMITTED ASSIGNMENT. Lessor's consent shall not be required,
and the provisions of Paragraph 12.4(a) above shall not apply, to any
Assignment of the Lease to an entity (a "Permitted Assignee") which meets one
of the following requirements as of the date of Assignment and provided that
the use to be made of the Premises by the assignee is generally consistent
with the character and nature of the Premises and the permitted use under
Paragraphs 1.8 and 6 of the Lease: (i) the entity owns or controls at least
fifty percent (50%) of the assets, stock and/or voting rights of Lessee; (ii)
at least fifty percent (50%) of the assets, stock and/or voting rights of
such entity is owned or controlled by Lessee; or (iii) the entity is under
common control with Lessee such that the controlling party owns at least
fifty percent (50%) of the assets, stock and/or voting rights of both Lessee
and such entity. In the event of any Assignment to a Permitted Assignee,
Lessee shall promptly provide Lessor with notice thereof and reasonable
evidence of compliance with the above requirements.
15. BROKER'S FEES. The total brokerage commissions payable under
Paragraph 15 of the Lease by reason of the execution and performance under
this Lease shall be Thirty Four Thousand Six Hundred Sixty-Four and 05/100
Dollars ($34,664.05), payable as follows:
(i) $17,529.94 upon the later of (i) ▇▇▇▇▇▇ taking possession
of the Premises, (ii) the date the cash portion of the Security
Deposit is received by Lessor in good funds, or (iii) the date
of compliance with the conditions of Paragraph 52 below.
(ii) $571.14 per month for thirty (30) months commencing on
October 1, 1994 and continuing thereafter on the first day of
each month through February 1, 1997.
30.5 LANDLORD WAIVER. Within thirty (30) days after written request by
▇▇▇▇▇▇, Lessor will execute any commercially reasonable form of a so-called
"Landlord Waiver" requested by a lender of Lessee with respect to ▇▇▇▇▇▇'s
financing of its equipment, inventory and other items of personal property.
Lessor shall have the right to negotiate directly with the Lessee's lender
with respect to any objections to the proposed form of Landlord Waiver.
Lessee shall reimburse Lessor for its reasonable attorneys fees and costs
incurred with respect to the review and negotiation of each requested
Landlord Waiver prior to the date Lessor is required to execute the same.
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B. NEW PROVISIONS. The following provisions are additional provisions of the
Lease as indicated by the applicable paragraph number set forth below:
49. "AS IS". Except as otherwise specifically provided in the Lease,
▇▇▇▇▇▇ acknowledges and agrees that no additional work shall be required with
respect to the Premises by Lessor as a result of this Lease, that it has
inspected the Premises as of the date of the Lease and is fully satisfied with
the physical condition thereof, including all Utility Installations, and that
it hereby accepts possession of the Premises as of the commencement of the
Original Term strictly in its "as is" condition and hereby waives all rights
and remedies it may at any time have against Lessor under this Lease or
otherwise as a result of any latent or patent deficiency in the Premises as
of such date. Notwithstanding the foregoing, Lessee is hereby advised that
(i) certain damages were caused to the Premises as a result of the January 17,
1994 Northridge earthquake and subsequent after shocks (the "Earthquake
Damages") and (ii) to the knowledge of Lessor, Lessor and/or its existing
tenant of the Premises, BE Aerospace ("Exiting Tenant"), have repaired all
Earthquake Damages of which the Lessor has been made aware.
50. OPTION. Lessee shall have one (1) option (each such option is
herein referred to as an "Option") to extend the Original Term of the Lease
for a period of five (5) years commencing March 1, 1997 and ending February
28, 2002 (herein referred to as the "Option Period").
(a) MANNER OF EXERCISE. Lessee shall exercise the Option only by
delivering written notice to the Lessor identifying the Option being
exercised, provided that the Option may not be exercised any earlier than
eight (8) months nor later than six (6) months prior to the expiration of the
Original Term of the Lease, time being of the strictest essence. If ▇▇▇▇▇▇
fails to timely exercise the Option in the manner herein specified, then all
of the terms contained in this Paragraph 50 as to the Option shall
immediately and automatically terminate and be of no further force or effect.
(b) LEASE TERMS. Except as otherwise provided in this Addendum,
all provisions of the Lease shall continue in full force and effect during
the Option Period and the Option Period shall be considered part of the Term
of this Lease.
(c) CONDITIONS. The provisions of Paragraph 39 of the Lease,
including those relating to a Default of Lessee as set forth in Paragraph
39.4 of the Lease, are all conditions to the exercise of the Option.
(d) ADJUSTMENTS TO BASE RENT DURING OPTION PERIOD.
(i) The amount of Base Rent payable commencing on March 1,
1997, on March 1, 1999 and on March 1, 2001 shall be adjusted as of said
dates (the "Rent Adjustment Date") in accordance with this Paragraph 50(d).
As of each Rent Adjustment Date, the Base Rent shall be equal the greater of
(1) the Base Rent in effect immediately preceding the Rent Adjustment Date,
or (2) the product of the Base Rent in effect immediately preceding the Rent
Adjustment Date multiplied by the percentage obtained by dividing the Index
(defined below) for the third month preceding the Rent Adjustment Date by the
Index for the third month preceding the Comparison Month. The "Comparison
Month" for each Rent Adjustment Date is as follows: For March 1, 1997, the
Comparison Month is August 1994; for March 1, 1999, the Comparison Month is
March 1997; for March 2001, the Comparison Month is March 1999.
(ii) When the Base Rent for a Rent Adjustment Date is
determined, Lessor shall give Lessee notice setting forth that figure and
describing how it was computed; provided, however that Lessor's failure to
timely determine such adjustments or to notify Lessee of the same shall not
relieve Lessee of its obligation to pay such adjusted Base Rent. Within five
(5) days after Lessor has notified Lessee of any such adjustment, Lessee
shall pay to Lessor the excess of (1) the aggregate Base Rent due hereunder
from and after such Rent Adjustment Date computed at such adjusted amount,
over (2) the actual payments of Base Rent which have been previously made by
Lessee for the period from and after such Rent Adjustment Date.
(iii) The "Index" shall be the United States Department of
Labor, Bureau of Labor Statistics, Consumer Price Index for all Urban
Consumers, Los Angeles-Anaheim-Riverside, California, All Items, 1982-84=100.
In the event the base of the Index is changed, the new base shall be
converted to the base of the Index in accordance with the tables issued by
the Bureau of Labor Statistics and the base so converted shall continue to be
used. In the event the Index otherwise ceases to exist in its current format,
the parties shall substitute any official index published by the Bureau of
Labor Statistics or successor or similar governmental agency as may then be
in existence which is most nearly
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equivalent to the Index. If the parties are unable to agree upon a successor
Index, either party may refer the determination thereof to arbitration in
accordance with the then applicable rules of the American Arbitration
Association.
51. ARBITRATION. In the event any dispute (other than an Excluded
Matter as defined in Paragraph 51 (a) below) should hereafter arise between
Lessor and Lessee regarding the duties, rights and obligations of each with
respect to the matters covered by this Lease or regarding the validity,
construction, enforceability or performance of this Lease or any of its
provisions, then such dispute shall be settled by arbitration in accordance
with the Rules of the American Arbitration Association, except to the extent
modified below, and judgment upon the award rendered by the arbitrators may
be entered in any court having jurisdiction thereof. Arbitration between the
parties shall be conducted in Los Angeles, California and shall be guided by
the following principles:
(a) EXCLUDED MATTERS. The provisions of this Paragraph 51 shall
not apply to the following matters, which may be brought in a court of
competent jurisdiction (the "Excluded Matters"): (i) any summary proceeding
brought by Lessor under any of California's unlawful detainer, eviction or
any similar statutes which give a landlord the right to obtain possession of
premises and/or to remove parties and/or property from premises or (ii) any
immediate remedy of a temporary restraining order, preliminary injunction or
such other form of injunctive or equitable relief as may be issued by any
court of competent jurisdiction to (1) restrain or enjoin any of the parties
hereto from breaching any covenant, representation, warranty or provision of
this Lease or from frustrating the attainment of any of the purposes of this
Lease, (2) specifically enforce the provisions hereof, and/or (3) mandate and
require a party to this Lease to perform the obligations of such party
hereunder (including the obligation to execute, acknowledge and deliver such
instructions, documents and instruments as may be required pursuant to the
provisions of this Lease) or (iii) any provisional relief contemplated under
Paragraph 50(c) below.
(b) SELECTION OF ARBITRATOR. The arbitration proceedings shall be
conducted before a panel of three neutral arbitrators, all of whom shall be
members of the Bar of the State of California, actively engaged in the
practice of law for at least ten years, with expertise in deciding disputes
and interpreting contracts relating to industrial and/or commercial leases.
Each of the parties shall have the right to appoint one arbitrator. The two
arbitrators appointed by the parties shall appoint a third arbitrator, who
shall serve as the chairperson of the tribunal. The written decision of any
two of the three appointed arbitrators shall be binding and conclusive on
both parties to this Agreement. In lieu thereof, the parties may agree upon
one arbitrator to serve as the sole arbitrator.
(c) PROVISIONAL RELIEF PENDING COMPLETION OF ARBITRATION. Any
party may seek from a court of competent jurisdiction any interim or
provisional relief that may be necessary to protect the rights or property of
that party, pending the arbitration tribunal's determination of the merits of
the controversy.
(d) DISCOVERY. The parties shall allow and participate in
discovery in accordance with the Federal Rules of Civil Procedure for a
period of ninety (90) days after the filing of the answer or other responsive
pleading. Unresolved discovery disputes may be brought to the attention of
the chairperson of the arbitration panel and may be disposed of by such
chairperson.
(e) ATTORNEYS FEES. The unsuccessful party to such arbitration
shall pay to the successful party all costs and expenses, including
arbitration filing fees and actual fees and costs of attorneys', accountants,
experts and consultants incurred with respect to the arbitration proceedings
by such successful party. Regardless of the outcome of the arbitration, there
shall be but one successful party as determined by the arbitrators.
(f) DETERMINATION OF ARBITRATOR. In rendering the award the
arbitrator shall determine the rights and obligations of the parties
according to the substantive and procedural laws of the State of California.
The award may be limited to a statement that one party pay the other a sum of
money. However, upon the request of a party, the arbitrators' award shall
include findings of fact and conclusions of law. The arbitrators do not
exceed their powers (per California Code of Civil Procedure Section 1286.2 or
1286.6) by committing an error of law or legal reasoning. The decision of the
arbitrators shall be final and unreviewable for errors of law or legal
reasoning of any kind. The arbitrators shall have the power to grant all
legal and equitable remedies and award compensatory damages provided by
California law, including punitive damages, with respect to the disputes
covered by these arbitration provisions.
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NOTICE: BY INITIALLING IN THE SPACE BELOW EACH PARTY IS AGREEING TO HAVE
ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND IS GIVING UP ANY RIGHTS SUCH PARTY MIGHT POSSESS TO
HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALLING IN
THE SPACE BELOW EACH PARTY IS GIVING UP ITS JUDICIAL RIGHTS TO DISCOVERY
AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE
"ARBITRATION OF DISPUTES" PROVISION. IF A PARTY REFUSES TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, SUCH PARTY MAY BE COMPELLED
TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE. EACH PARTY'S AGREEMENT TO THE ARBITRATION PROVISION IS
VOLUNTARY.
THE UNDERSIGNED PARTIES HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE
TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE
"ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION.
Lessor: [ILLEGIBLE] Lessee: [ILLEGIBLE]
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52. CONDITIONS OF LEASE. In addition to any other conditions contained
in this Lease, ▇▇▇▇▇▇'s obligations under this Lease are specifically
conditioned upon (i) its ability to enter into an agreement with the Existing
Tenant, in a form acceptable to Lessor in its sole discretion, to terminate
the Existing Tenant's lease (the Existing Tenant has previously vacated the
Premises), (ii) Lessor's approval of the financial condition, including a
recent financial statement, of ▇▇▇▇ ▇▇▇▇▇▇ (who will be executing a Guaranty
of this Lease covering damages not to exceed $120,000.00), (iii) the
execution by ▇▇▇▇ ▇▇▇▇▇▇ of such Guaranty of Lease, and (iv) Lessee providing
Lessor with a Certificate of Secretary and Incumbency Certificate indicating
the authorization by the Board of Directors of Lessee to enter into this
Lease and the authority of the person executing the same.
53. ADA DISCLOSURE. Lessor hereby advises Lessee that a tenant of real
property may be subject to the ADA. Among other requirements of the ADA that
could apply to the Premises, Title III of the ADA requires tenants of "public
accommodations" to remove barriers to access by disabled persons and provide
auxiliary aids and services for hearing, vision or speech impaired persons.
The regulations under Title III of the ADA are codified at 28 CFR Part 36.
The Brokers have recommended that ▇▇▇▇▇▇ and ▇▇▇▇▇▇'s attorneys, engineers
and/or architects review the ADA and the regulations, to determine if and how
the ADA may apply to Lessee after the Commencement Date, and the nature of
the requirements.
54. DRIVEWAY EASEMENT. Lessee acknowledges and agrees that (i) its right
to use the western driveway is nonexclusive and occupants of the contiguous
building thereto have the same nonexclusive rights and (ii) the easement for
said driveway prohibits Lessee from constructing any fence or wall, or
otherwise doing any act, which in any way may restrict or block the use of
said driveway by the neighboring property occupants.
55. FLOOR WEIGHT LIMITS. Lessee hereby acknowledges and agrees that (i)
the designed weight limit of the main and mezzanine floors are eight hundred
(800) pounds per square foot and one hundred twenty-five (125) pounds per
square foot, respectively and (ii) Lessee shall not use the Premises in any
way which would allow these limits to be exceeded.
56. FAX SIGNATURE OF ▇▇▇▇▇▇ ▇▇▇▇▇. The parties acknowledge that ▇▇▇▇▇▇
▇▇▇▇▇, the signator for one of the trusts composing Lessor, is currently in
Alaska and will not return to Los Angeles until about September 1, 1994.
Accordingly, this Lease shall be effective as to ▇▇▇▇▇▇ ▇▇▇▇▇'▇ execution if
he signs the signature page only by facsimile transmission. However, ▇▇▇▇▇▇
agrees that upon his return, ▇▇▇▇▇▇ ▇▇▇▇▇ will initial where required and
sign all signature copies of this Lease.
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INDUSTRIAL REAL ESTATE LEASE - EXHIBIT "A"
DESCRIPTION OF PROPERTY
Property Address: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Legal Description: Parcel A: Parcel 18 in the County of Los Angeles,
State of California, as shown upon Parcel Map No.
12009 filed in Book 182 Pages 47 to 54 inclusive of
Parcel Maps, in the office of the County Recorder of
said County.
Parcel B: A non-exclusive easement for purposes of
ingress and egress over the easterly 13 feet of
Parcel 17 of said Parcel Map No. 12009, filed in Book
182 pages 47 to 54 inclusive of Parcel Maps,
extending from the most northerly terminus of the
easterly line of said Parcel 17 a distance of 356.00
feet in a southerly direction.
[GRAPHIC]
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[STAMP]
VALENCIA INDUSTRIAL CENTER
--------------------------
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
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PREAMBLE
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This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS is made and
entered into as of this 11 day of July, 1985, by VALENCIA COMPANY, a division
of The Newhall Land and Farming Company (a California Limited Partnership),
as owner of that certain real property located in the County of Los Angeles,
State of California, as more particularly described in Exhibit "A" attached
hereto and incorporated herein by this reference.
The real property described in Exhibit "A" is a part of a larger
land area owned by VALENCIA COMPANY, which is being developed as a
planned community, named Valencia. The real property which is the subject
of this DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS is known
as VALENCIA INDUSTRIAL CENTER.
VALENCIA INDUSTRIAL CENTER is being developed as a planned
industrial complex which will provide employment opportunities for the
residents of Los Angeles County and the surrounding areas. VALENCIA
COMPANY intends that the design and development as well as the continuing
use and operation of the
EXHIBIT "B"
real property subject to this DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS shall be consistent with the aims and ideals of Valencia. It is
the purpose of this DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS to
provide the means for maintaining and controlling such development and use so
that the design and integrity and amicable environment of Valencia will be
maintained. This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, is
designed to compliment local government and municipal regulations and where
conflicts occur, it is intended that the most rigid requirements shall
prevail. It is assumed that the owners and users of industrial sites in the
VALENCIA INDUSTRIAL CENTER will be motivated to preserve these qualities
through mutual cooperation and by enforcing not only the letter but the
spirit of this DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS.
IN WITNESS WHEREOF, VALENCIA COMPANY, has executed this DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS the day and year first above written.
VALENCIA COMPANY, A division of
The Newhall Land and Farming Company
(a California Limited Partnership),
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Authorized Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Authorized Agent
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
On this 11th Day of July, 1985, before the undersigned a notrary public
in and for the State of California personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the authorized agents, respectively, of VALENCIA
COMPANY a Division of THE NEWHALL LAND AND FARMING COMPANY (a California
Limited Partnership), personally known to be (or proved to me on the basis of
satisfactory evidence) to be the persons who executed the within instrument
on behalf of VALENCIA COMPANY, the division that executed the within
instrument on behalf of said partnership, and acknowledged to me that
VALENCIA COMPANY executed the same on behalf of said partnership and
acknowledged to me that said VALENCIA COMPANY and said partnership executed
the same pursuant to the Limited Partnership Agreement of said partnership.
WITNESS MY HAND AND OFFICIAL SEAL
[STAMP] /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
NOTARY PUBLIC IN AND FOR SAID STATE
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ARTICLE I
DEFINITIONS
-----------
Unless the context otherwise specifies or requires, the terms defined in
this Article I shall, for all purposes of this DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS have the meanings herein specified.
ARCHITECT The term "Architect" shall mean a person holding a
certificate to practice architecture in the State of California under
authority of Division 3, Chapter 3 of the Business and Professions Code of
the State of California, or under such other sections as may hereafter
regulate the practice of architecture in the State of California.
BENEFICIARY The term "Beneficiary" shall mean a mortgagee under a
mortgage, as well as a beneficiary under a deed of trust.
DECLARANT The term "Declarant" shall mean VALENCIA COMPANY, a division
of The Newhall Land and Farming Company (a California Limited Partnership),
and all of its successors, assigns, or designees who shall assume the
obligations provided for herein, and to whom Declarant shall specifically
assign in writing the right to enforce these restrictions provided for herein.
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DECLARATION The term "Declaration" shall mean this DECLARATION OF
COVENANTS, CONDITIONS, AND RESTRICTIONS.
DEED OF TRUST The term "Deed of Trust" or "Trust Deed" shall mean a
mortgage as well as a deed of trust.
FILE The term "File" shall mean, with reference to any subdivision map,
the filing of said map in the Office of the Recorder of the County of Los
Angeles, State of California.
IMPROVEMENTS The term "Improvements" shall include buildings,
outbuildings, roads, driveways, parking areas, fences, screening walls and
barriers, retaining walls, stairs, decks, ▇▇▇▇▇▇, windbreaks, plantings,
planted trees and shrubs, poles, signs, loading areas and all other
structures or landscaping improvements of every type and kind, and any
replacements, additions, repairs or alterations thereto of any kind
whatsoever.
OWNER The term owner shall mean each and every owner of the real
property or any portion thereof or interest therein during the term of its
ownership and each lessee or other occupant in possession thereof as may be
appropriate under the context.
MORTGAGEE The term "Mortgagee" shall mean a beneficiary under, or a
holder of a deed of trust as well as a mortgage.
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OFFICE BUILDING(S) AND HIGH-TECH BUILDING(S) The Term "Office
Building(s) and High-Tech Buildings(s)" shall mean buildings improved with a
high percentage of offices and/or suites, used primarily for non-warehousing
types of purposes and requiring a substantially greater amount of parking
than building(s) used primarily for warehousing types of purposes.
REAL PROPERTY The Term "Real Property" shall mean all or any portion of
the property subject to the terms and provisions of the Declaration,
including the real property described in Exhibit "A" attached hereto and such
additional property that shall from time to time hereafter become subject to
the Declaration, in accordance with the provisions contained in Section 2.2
hereafter.
RECORD; RECORDED The term "Record" shall mean, with respect to any
document, the recordation of said document in the Office of the County
Recorder of the County of Los Angeles, State of California.
SITE The term "Site" shall mean an area of land shown as one lot on a
recorded subdivision map or so designated in a deed or lease in which
Declarant is the grantor or lessor included within the real property
described in Exhibit A or added thereto pursuant to Article II hereafter. If
an easement or easements over any portion or portions of a Site established
by recorded plan or recorded instrument is or are reserved by
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Declarant for any purpose whatsoever, the area of such portion or portions
shall be included in computing the area of that Site. If subsequent to the
establishment of a Site by recorded plan or recorded instrument, any portion
or portions thereof are, for railroad, street, highway, utility or public
purpose, taken by right of eminent domain, or deed in lieu thereof, or
dedicated or conveyed pursuant to reservation by Declarant, the area of such
portion or portions shall continue to be included thereafter in computing the
area of that Site.
SUBDIVISION The term "Subdivision" shall mean the division of any Site
or Sites of improved or unimproved property, or any portion thereof, shown on
the latest equalized county assessment roll as a unit or as contiguous units,
for the purpose of sale, lease, or financing whether immediate or future, in
accordance with the terms and provisions of the Subdivision Map Act contained
in Section 66410 et seq of the California Government Code, and the Los
Angeles County Subdivision Ordinance enacted pursuant thereto.
VISIBLE FROM NEIGHBORING SITES The term "Visible from Neighboring Sites"
shall mean, with respect to any given object, that such object is or would be
visible to a person six feet tall, standing on any part of such neighboring
Sites at an elevation no greater than the elevation of the base of the object
being viewed.
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VALENCIA INDUSTRIAL CENTER The term "Valencia Industrial Center" shall
mean all of the real property now or hereafter made subject to the
DECLARATION.
VALENCIA INDUSTRIAL CENTER RESTRICTIONS The term "Valencia Industrial
Center Restrictions" shall mean the covenants, conditions, and restrictions
set forth in this DECLARATION, as it may from time to time be amended and
supplemented.
ARTICLE II
PROPERTY SUBJECT TO THE VALENCIA INDUSTRIAL CENTER RESTRICTIONS
SECTION 2.1 GENERAL DECLARATION CREATING VALENCIA
INDUSTRIAL CENTER
DECLARANT hereby declares that all of the real property located in the
County of Los Angeles, State of California, described in Exhibit A, which is
attached hereto and incorporated herein by this reference, is and shall be,
conveyed, hypothecated, encumbered, leased, occupied, built upon or otherwise
used, improved or transferred in whole or in part subject to the VALENCIA
INDUSTRIAL CENTER RESTRICTIONS, meaning the covenants conditions and
restrictions set forth in this DECLARATION. All of said covenants, conditions
and restrictions are declared and agreed to be in furtherance of a general
plan
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for the subdivision, improvement and sale of said real property and are
established for the purpose of enhancing and perfecting the value,
desirability and attractiveness of said real property and every part thereof.
ALL OF THE VALENCIA INDUSTRIAL CENTER RESTRICTIONS SHALL RUN WITH ALL OF SAID
REAL PROPERTY FOR ALL PURPOSES AND SHALL BE BINDING UPON AND INURE TO THE
BENEFIT OF DECLARANT AND ALL OWNERS, LESSEES, LICENSEES, OCCUPANTS AND THEIR
SUCCESSORS IN INTEREST AS SET FORTH IN THIS DECLARATION.
SECTION 2.2 ADDITION OF OTHER PROPERTY OWNED BY DECLARANT
A. DECLARANT'S POWER Declarant may at any time during the pendency of
this DECLARATION add all or any portion of any property now or hereafter
owned by DECLARANT to the real property which is covered by this DECLARATION,
AND UPON RECORDING OF A NOTICE OF ADDITION OF PROPERTY CONTAINING AT LEAST
THE PROVISIONS SET FORTH IN SECTION 2.2B OF THIS ARTICLE II, THE PROVISIONS
OF THIS DECLARATION specified in said notice shall apply to such added
property in the same manner as if it were originally covered by this
DECLARATION. Thereafter, to the extent this DECLARATION is made applicable
thereto, the rights, powers and responsibilities of DECLARANT and the owners,
lessees, licensees and occupants of Sites within such added property shall be
the same as in the case of the real property described in Exhibit "A".
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B NOTICE OF ADDITION OF PROPERTY The notice of addition of real
property referred to in Section 2.2A above shall contain at least the
following provisions:
1. A reference to this DECLARATION stating the date of recording
hereof and the book or books of the records of Los Angeles County,
California, and the page numbers where this DECLARATION is recorded;
2. A statement that the provisions of this DECLARATION, or some
specified part thereof, shall apply to such added property;
3. An exact description of such added property; and
4. Such other or different covenants, conditions and
restrictions as DECLARANT shall, in its discretion, specify to regulate and
control the use, occupancy and improvement of such added property.
SECTION 2.3 SUBDIVISION OF SITES
There shall be no subdivision of any Site subject to the Valencia
Industrial Center Restrictions without the prior written consent of Declarant
which consent Declarant may withhold for any reason Declarant in its sole
discretion deems reasonable. In addition, further subdivision or division of
any Site shall not
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serve to make the parts into which such Site is subdivided themselves Sites
for the purpose hereof in such instances where the prior written approval of
the DECLARANT has not been received. The restrictions contained in the
Valencia Industrial Center Restrictions shall, in such events, remain
applicable to the entire Site as originally defined for the duration hereof.
ARTICLE III
REGULATION OF IMPROVEMENTS
--------------------------
SECTION 3.1 APPROVAL OF PLANS
-----------------
No Improvements of any nature whatsoever (including but not limited to
any alteration or addition to any Improvements existing from time to time)
shall be constructed, erected, placed, altered, maintained or permitted to
remain on any Site subject to this DECLARATION until final plans and
specifications showing the plot layout, all ingress and egress for persons
and vehicles, all vehicle parking, all exterior elevations with materials and
colors therefor, exterior signs; exterior hardscape, landscape, and
irrigation, walls and fences, shall have first been submitted to and approved
in writing by DECLARANT. Such final plans and specifications shall be
submitted in writing in duplicate over the authorized signature of the owner,
lessee, licensee or other occupant of the Site or
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his authorized agent. Under no circumstances shall the DECLARANT approve
metal-clad buildings of any type or design. All roof equipment including but
not limited to heating, air-conditioning and ventilation equipment, antennas
and communication equipment shall be so located or screened so as not to be
visible from neighboring sites and or adjacent streets. Changes in approved
plans which materially affect building size, placement or external appearance
shall similarly be submitted to and approved by DECLARANT.
SECTION 3.2 BASIS FOR APPROVAL
------------------
Architectual Guidelines as may be amended from time to time to
assist in the design and development of an individual Site within Valencia
Industrial Center shall be made available from Declarant. Approval by
Declarant of Plans and Specifications shall be based, among other things on
Site plot plan dimensions, landscaped areas, and building design in
conformity and harmony of external design with neighboring structures; effect
of location and use of proposed improvements on neighboring Sites; the nature
of improvements on neighboring Sites and the types of operations and uses
thereof; relation of topography, grade and finish ground elevation of the
Site being approved to that of neighboring Sites; proper facing of main
elevation with respect to nearby streets and conformity of the plans and
specifications to the purpose and general plan and
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intent of this DECLARANTION. DECLARANT shall not arbitrarily or unreasonably
withhold its approval of such plans and specifications.
SECTION 3.3 RESULT OF INACTION
If DECLARANT fails either to approve or disapprove such plans and
specifications within thirty (30) days after the same have been submitted to
it, it shall be conclusively presumed that DECLARANT has approved said plans
and specifications; provided, however, that if within said thirty (30) day
period, DECLARANT gives written notice of the fact that a reasonable
additional period is required for the approval of such plans and
specifications, there shall be no presumption that the same are approved
until the expiration of the extended period set forth in said notice.
SECTION 3.4 PROCEEDING WITH WORK
Upon receipt of approval of plans and specifications from DECLARANT
pursuant to this section, the owner or lessee to whom the same is given
shall, as soon as practicable, satisfy all conditions thereof and diligently
proceed with the commencement and completion of all approved construction,
refinishing, alterations and excavations. In all cases work shall be
commenced within one year from the date of such approval. If there is a
failure to comply with this paragraph, then the approval given
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pursuant to this section shall be deemed revoked unless DECLARANT upon
request made prior to the expiration of said one year period extends the time
for commencing work.
SECTION 3.5 COMPLETION OF WORK
In any event completion, reconstruction, refinishing or alteration of
any such improvement shall be within two years after the commencement thereof
except for so long as such completion is rendered impossible or would result
in great hardship due to strikes, fires, national emergencies, natural
calamities or other supervening forces beyond the control of the owner,
lessee, licensee or occupant or his agents and of a non-financial nature.
Failure to comply with this paragraph shall constitute a breach of the
VALENCIA INDUSTRIAL CENTER RESTRICTIONS and subject the defaulting party or
parties to all enforcement procedures set forth in this DECLARATION and any
other remedies provided by law or in equity.
SECTION 3.6 ESTOPPEL CERTIFICATE
Within thirty (30) days after written demand is delivered to the
DECLARANT and upon payment of a reasonable fee established
by DECLARANT, there shall be recorded an estoppel certificate executed by
DECLARANT and certifying that as of the date thereof either (a) all
improvements made or other work done on or within a Site complies with the
VALENCIA INDUSTRIAL CENTER
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RESTRICTIONS or (b) such improvements or work do not so comply in which event
the certificate shall identify the non-complying improvements or work and set
forth with particularity the cause or causes for such non-compliance. Any
lessee, purchaser or encumbrancer in good faith for value shall be entitled
to rely on said certificate with respect to the matters set forth therein,
such matters being conclusive as between the DECLARANT and all such
subsequent parties in interest.
SECTION 3.7 LIABILITY
DECLARANT shall not be liable for any damage, loss or prejudice
suffered or claimed on account of (a) the approval or disapproval of any
plans, drawings and specifications whether or not defective; (b) the
construction or performance of any work whether or not pursuant to approved
plans, drawings and specifications; (c) the development of any Site within
the VALENCIA INDUSTRIAL CENTER; or (d) the execution and filing of an
estoppel certificate pursuant to the preceding paragraph whether or not the
facts therein are correct, provided that DECLARANT has acted in good faith.
In addition to the foregoing, Declarant makes no representation, warranty or
guarantee of any kind whatsoever as to the propriety, feasibility or
integrity of any plans, drawings and specifications approved by Declarant
pursuant to the provisions contained herein.
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SECTION 3.8 REVIEW FEE
A reasonable architectural review fee shall be paid to DECLARANT at
such time as plans and specifications are submitted to it for approval. The
determination of the exact amount of such fee shall be made from time to time
by Declarant.
ARTICLE IV
LIMITATIONS ON IMPROVEMENTS
SECTION 4.1 MINIMUM SETBACK LINES AND BUILDING TYPES
No building or parking (except as expressly provided for in Sections
4.2 and 4.3 below) shall be maintained upon any Site within forty (40) feet
of any street, and no building shall be maintained within fifteen (15) feet
of the property line of any other Site, nor have exterior walls constructed
of other than substantial construction including concrete and masonry, nor
shall more than fifty percent (50%) of the area of any Site be built upon;
nor shall any building be constructed upon any Site with a roof having a
difference in elevation of more than two (2) feet unless approved in the
manner hereinafter provided.
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SECTION 4.2 OFFICE BUILDING(S) AND "HIGH TECH" BUILDING(S)
Notwithstanding anything to the contrary contained in Section 4.1 above,
any office building(s) and "high-tech" building(s) requiring a greater
parking ratio than standard industrial buildings and whose location on the
Site has a substantial setback from the street, may request a variance of the
parking restriction within the forty (40') feet setback area from any street,
provided a minimum of twenty-five (25') feet from the street curb is mounded
or bermed to a height of not less than four (4') feet and landscaped so as to
assure that all automobile parking within the forty (40') feet setback area
is hidden from view from the street. Similarly, owners of Sites bordering
dedicated streets on two sides may likewise request a variance of the forty
(40') feet setback area on one street frontage (that being the street away
from the building(s) or improvement(s) front) provided a minimum of
twenty-five (25') feet from the street curb is mounded or bermed to a height
of not less than four (4') feet and landscaped so as to assure that all
automobile parking within the forty (40') feet setback area is hidden from
view from the street. Nothing indicated herein shall be construed so to
permit the granting of a variance providing for a landscaped setback area of
less than twenty-five (25') feet within the Valencia Industrial Center.
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SECTION 4.3 USE OF SETBACK AREAS
Within the required setback area from streets there shall be maintained
on each Site only paved walkways, paved driveways (hardscape), and lawns and
landscaping, with the surface of each Site not covered by improvements being
at all times maintained so as to be dust free. At least two-thirds (2/3) of
the surface of the required setback area from streets shall be maintained in
landscaping.
SECTION 4.4 LANDSCAPING
Every Site on which a building shall have been placed shall have
landscape and exterior hardscape constructed in accordance with plans and
specifications submitted to and approved by DECLARANT pursuant to Section 3.1
above. With the exception of those areas planted in shrubs or trees, the
landscaped areas shall be maintained in grass lawn or approved ground cover.
Landscaping and hardscape as approved by DECLARANT shall be installed within
thirty (30) days of occupancy or completion of the building, whichever occurs
first, unless DECLARANT approved in writing another completion date. After
completion such landscaping and hardscape shall at all times be maintained in
an attractive and well-kept condition.
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SECTION 4.5 DRAINAGE
No water shall be drained or discharged from any Site or Improvements
thereon, and no Owner shall interfere with the drainage established as of the
date of this Declaration, in or over the remainder of the real property or
any other property adjacent to such Site, except in accordance with plans
therefor approved by all public agencies having jurisdiction; provided that
no water shall be drained or discharged at any time onto or diverted from any
adjacent properties owned by Declarant.
SECTION 4.6 SIGNS
A. No signs projecting above the highest point on the roof line of
any building or employing letters exceeding four (4) feet in height shall be
used. No more than two business identification signs shall be used on any
Site and no signs shall be painted on any structure. No flashing or moving
lights shall be used.
B. No signs shall be permitted other than those identifying the
name, business and products of the person or firm occupying the premises
constructed on any Site and those offering the premises for sale or for
lease. The size and style of sale or lease signs shall first be approved by
DECLARANT in writing. No more than one sign relating to the sale or leasing
of the Site
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may be used, and such sign shall not exceed fifteen (15) square feet.
Monument signs identifying each building shall be encouraged however, the
design, colors, materials and size shall first be approved by DECLARANT.
C. Notwithstanding anything to the contrary contained in this
Section 4.6, multi-tenant buildings shall be permitted one Tenant Directory
Sign for each building. Said sign shall not exceed twelve (12) square feet
and shall be approved by DECLARANT in writing as to design, color, and
location of the sign on each Site.
D. The location of all signs shall first be approved by DECLARANT.
E. Signs and identifying markings on buildings or building Sites
shall only be of such size, design and color as is first specifically
approved by DECLARANT in writing.
SECTION 4.7 PARKING AREAS
Adequate off-street parking shall at all times be provided to
accommodate all parking needs for employee, visitor and company vehicles on
the Site. The intent of this provision is to eliminate the need for any
on-street parking. No use shall be made of any Site at anytime which will
attract parking in excess of the parking spaces then available thereon.
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SECTION 4.8 STORAGE AND LOADING AREAS
A. Unless specifically approved by DECLARANT in writing, no
materials, supplies or equipment, including company-owned or operated trucks,
mobile homes, boats, trailers, or recreation vehicles, shall at any time be
stored in any area on a Site except inside a closed building, or behind a
visual barrier screening such areas so that they are not visible from the
neighboring Sites or public streets. Visual barrier screening to a height of
not more than eight (8) feet shall be permitted only with the prior written
approval of DECLARANT.
B. Loading areas shall not encroach into setback areas.
C. Loading docks shall be set back and screened to minimize the
effect of their appearance from the street and so as not be visible from
neighboring Sites. Docks shall not be closer than seventy (70) feet to the
street property line, unless specifically approved by DECLARANT in writing.
Loading ▇▇▇▇▇ be permitted to the rear of the setback line from that portion
of a structure not fronting a street.
SECTION 4.9 FENCING AND SCREENING OF STORAGE AREAS
All areas requiring fencing shall be enclosed with a minimum six foot
(6') high and maximum eight foot (8') high masonry wall, such as slumpstone,
split face block wall with cap
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or brick. Chain link fence shall be prohibited throughout the VALENCIA
INDUSTRIAL CENTER. Gate construction shall be of wrought iron or other
materials first approved by DECLARANT.
SECTION 4.10 SCREENING - TRASH AREAS
All trash areas shall be enclosed with a minimum six foot (6') high
masonry wall, such as slumpstone, split face block wall with cap, or brick.
All trash enclosures shall have blinds or gates. Chainlink gates shall only
be permitted if faced with wooden slats so as to obscure view of trash
containers. No trash containers or bins shall be maintained on any Site
unless contained within a masonry trash enclosure.
ARTICLE V
REGULATION OF OPERATIONS AND USES
SECTION 5.1 PERMITTED USES
Each Site shall only be used for manufacturing, processing, storage,
wholesale, office, laboratory, professional, research and development
activities and/or other like uses which are permitted by the applicable
zoning designation; No junk or salvage yard or any other use offensive to the
neighborhood by reason of odor, fumes, dust, smoke, noise, or pollution or
hazardous by reason of danger of fire or explosion, radiation,
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electro-magnetic disturbances, toxic or non-toxic matter shall be permitted
regardless of whether or not permitted by applicable zoning laws or
ordinances.
SECTION 5.2 RESTRICTIONS AND PROHIBITED USES
A. PROHIBITED USES The following are examples of operations and
uses which shall specifically not be permitted on any Site subject to the
Valencia Industrial Center Restrictions
1. Residential
2. Commercial
3. Restaurants of all types
4. Trailer Courts
5. Labor Camps
6. Junk Yards
7. Drilling for and/or the removal of oil, gas or other
hydrocarbon substances (except that this provision shall not be deemed to
prohibit the entry of subject property below a depth of 500 feet for such
purposes)
8. Commercial excavation of building or construction materials
9. Distillation of bones
10. Dumping, disposal, incineration or reduction of garbage,
sewage, offal, dead animals or refuse
11. Fat Rendering
12. Stockyard or ▇▇▇▇▇▇▇▇▇ of Animals
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13. Refining of Petroleum or of its Products
14. Smelting of Iron, Tin, Zinc or other Ores
15. Cemetaries
16. Jail or Honor Farms
17. Any and all operations and uses not compatible or harmonious
with the establishment and maintenance of a high quality industrial park.
B. NUISANCES No rubbish or debris of any kind shall be placed or
permitted to accumulate upon or adjacent to any Site, and no odors shall be
permitted to arise therefrom so as to render any Site or portion thereof
unsanitary, unsightly, offensive or detrimental to any Site or property in
the vicinity thereof or to the occupants thereof. No nuisance shall be
permitted to exist or operate upon any Site so as to be offensive or
detrimental to any property in the vicinity thereof or to its occupants.
C. MAINTENANCE AND REPAIRS OF IMPROVEMENTS Each Site and all
Improvements thereon shall at all times be constructed, kept and maintained
in first class condition, repair and appearance similar to that maintained by
DECLARANT and other owners of high-class properties of similar class and
construction in Los Angeles County, ordinary wear and tear excepted. All
repairs, alterations, replacements, or additions to Improvements shall be at
least equal to the original work in class and quality. The
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necessity and adequacy of such repairs shall be measured by the same standard
as set forth above for the original construction and maintenance. Each owner
shall also be responsible at all times for determining that all Improvements
and the plans and specifications therefor shall conform and comply in all
respects with the VALENCIA INDUSTRIAL CENTER RESTRICTIONS, all other
restrictions of record, all applicable governmental regulations, and all
exterior architectural design, location and color specifications as may be
approved by DECLARANT. Each Owner shall also adopt and maintain such
standards of property space maintenance, appearance, and housekeeping as
shall be reasonable and customary for similar operations or enterprises and
shall enforce compliance with such standards by all tenants, occupants, or
users of space. On request, DECLARANT shall be entitled receive copies of all
such standards or similar rules or regulations in effect from time to time.
Notwithstanding anything to the contrary contained in the foregoing all
exterior surfaces shall be maintained in first-class condition and shall be
repainted at least once in every four (4) years.
D. MAINTENANCE OF UNIMPROVED SITES. Each and every Site shall be
maintained at all times in a weed-free, clean, and presentable condition
prior to such Site being improved with buildings and landscaping.
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E. RIGHT OF ENTRY During reasonable hours, and subject to
reasonable security requirements, DECLARANT, or its authorized
representatives, shall have the right to enter upon and inspect any Site and
the improvements thereon embraced for the purpose of ascertaining whether or
not the provisions of the VALENCIA INDUSTRIAL CENTER RESTRICTIONS have been
or are presently being complied with and shall not be deemed guilty of
trespass by reason of such entry.
SECTION 5.3 OTHER OPERATIONS AND USES
Operations and uses which are neither specifically prohibited nor
specifically authorized by the VALENCIA INDUSTRIAL CENTER RESTRICTIONS shall
be permitted in a specific case only if operational plans and specifications
are first submitted to and approved in writing by DECLARANT. Approval or
disapproval of such operational plans and specifications shall be based upon
the effect of such operations or uses on other Sites subject to these
restrictions or upon the occupants thereof, but shall be in the sole
discretion of DECLARANT.
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ARTICLE VI
DURATION, MODIFICATION AND REPEAL
SECTION 6.1 DURATION OF RESTRICTIONS
The VALENCIA INDUSTRIAL CENTER RESTRICTIONS shall continue and
remain in full force and effect at all times with respect to all Sites
included in the VALENCIA INDUSTRIAL CENTER and each part thereof, now or
hereafter made subject thereto (subject, however, to the right to amend and
repeal as provided for herein) until January 1, 2015. However, unless within
one year prior to January 1, 2015, there shall be recorded an instrument
directing the termination of the VALENCIA INDUSTRIAL CENTER RESTRICTIONS
signed by owners of not less than two-thirds of the area of the real property
then subject to the VALENCIA INDUSTRIAL CENTER RESTRICTIONS, (based on the
number of square feet of real property subject to the VALENCIA INDUSTRIAL
CENTER RESTRICTIONS), the VALENCIA INDUSTRIAL CENTER RESTRICTIONS, as in
effect immediately prior to the expiration date shall be continued
automatically without any further notice for an additional period of ten (10)
years and thereafter for successive periods of ten (10) years unless within
one (1) year prior to the expiration of any such period the VALENCIA
INDUSTRIAL CENTER RESTRICTIONS are terminated as set forth above in this
Section.
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SECTION 6.2 TERMINATION AND MODIFICATION
This DECLARATION, or any provision hereof, or any covenant, condition or
restriction contained herein, may be terminated, extended, modified or
amended, as to the whole of the real property or any portion thereof, with
the written consent of the owners of seventy-five percent (75%) of the area
of the real property subject to the VALENCIA INDUSTRIAL CENTER RESTRICTIONS,
based on the number of square feet of real property owned as compared to the
total number of square feet of real property subject to the VALENCIA
INDUSTRIAL CENTER RESTRICTIONS, provided, however, that so long as DECLARANT
owns at least twenty-five percent (25%) of the real property subject to the
VALENCIA INDUSTRIAL CENTER RESTRICTIONS, or for a period of fifteen (15)
years from the effective date hereof, whichever period is longer, no such
termination, extension, modification or amendment shall be effective without
the written approval of DECLARANT thereto. No such termination, extension,
modification or amendment shall be effective until a proper instrument in
writing has been executed and acknowledged and recorded in the County where
the real property affected thereby is situated.
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ARTICLE VII
ENFORCEMENT
SECTION 7.1 ABATEMENT AND SUIT
The conditions, convenants, restrictions and reservations
herein contained shall run with the real property, and shall be binding
upon and inure to the benefit of the DECLARANT, and the Owners of every Site
on the real property. These conditions, convenants, reservations and
restrictions may be enforced as provided hereinafter by DECLARANT acting for
itself or as DECLARANT acting as trustee, on behalf of all of the Owners of
Sites. Each Owner by acquiring an interest in a Site shall appoint
irrevocably the DECLARANT as its attorney-in-fact for such purposes;
provided, however that if an Owner of a Site notifies DECLARANT of a claimed
violation of these conditions, convenants, restrictions and reservations in
writing and DECLARANT fails to act within sixty (60) days after receipt of
such notification, then, and in that event only, an Owner may separately, at
its own cost and expense, enforce the conditions, covenants, restrictions and
reservations herein contained and have all of the remedies provided for in
Section 7.2 hereafter.
SECTION 7.2 DEFAULT AND REMEDIES
In the event of any breach, violation of failure to perform or
satisfy any of the VALENCIA INDISTRIAL CENTER
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RESTRICTIONS which has not been cured within thirty (30) days after written
notice from DECLARANT to do so, DECLARANT in its sole option and discretion
may enforce any one or more of the following remedies or any other rights or
remedies to which DECLARANT may be entitled by law or equity, whether or not
set forth herein. All remedies provided for herein or by law or in equity
shall be cumulative and not mutually exclusive.
A. DAMAGES DECLARANT may bring a suit for damages for any
compensable breach of or noncompliance with any of the VALENCIA INDUSTRIAL
CENTER RESTRICTIONS, or declaratory relief to determine the enforceability of
any of the VALENCIA INDUSTRIAL CENTER RESTRICTIONS.
B. EQUITY It is recognized that a violation by an Owner of one or
more of the foregoing restrictions may cause DECLARANT to suffer material
injury or damage not compensable in money and that DECLARANT shall be
entitled to bring an action in equity or otherwise for specific performance
to enforce compliance with the VALENCIA INDUSTRIAL CENTER RESTRICTIONS or an
injunction to enjoin the continuance of any such breach or violation thereof.
C. ABATEMENT AND LIEN RIGHTS Any such breach or violation of the
VALENCIA INDUSTRIAL CENTER RESTRICTIONS or any provision hereof is hereby
declared to be a nuisance, and DECLARANT shall be entitled to enter the Site
or any portion
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thereof as to which the breach or violation exists and summarily ▇▇▇▇▇ and
remove, without further legal process to the maximum extent permitted by law,
any structure, thing or condition that may exist in violation of any of the
VALENCIA INDUSTRIAL CENTER RESTRICTIONS, or to prosecute any remedy allowed
by law or equity for the abatement of such nuisance against any person or
entity acting or failing to act in violation of the VALENCIA INDUSTRIAL
CENTER RESTRICTIONS, all at the sole cost and expense of Owner or any person
having possession under Owner. Any costs or expenses paid or incurred by
DECLARANT in abating such nuisance or prosecuting any such remedy (including
all reasonable attorneys' fees and costs of collection), together with
interest thereon at the maximum rate permitted by law shall be a charge
against the Site or any portion thereof as to which the breach or violation
exists, shall be a continuing lien thereon until paid, and shall also be the
personal obligation of that person or entity who was Owner when such charges
became due and committed such breach or violation. In addition to any other
rights or remedies hereunder, DECLARANT may deliver to Owner and record with
the Los Angeles County Recorder a certificate or notice of claim of lien
(which, among other things, may but need not recite the nature of the
violation, the legal description of the Site or portion thereof affected by
such violation, the record or reputed Owner thereof, DECLARANT'S name and
address, and the remedies being pursued or the amount of any such claim being
changed). If the
-31-
violation recited in such lien claim has not been cured to DECLARANT'S
satisfaction and any recited amounts so charged have not been paid within 30
days thereafter, DECLARANT or DECLARANT'S authorized representatives may
foreclose such lien by a sale conducted pursuant to Sections 2924, 2924b, and
2924c of the California Civil Code, as amended from time to time, or such
other statutes applicable to the exercise of powers of sale in mortgages or
deeds of trust, or in any other manner permitted by law. DECLARANT, through
its authorized representatives, may bid on and acquire any Site or portion
thereof subject to such lien at any such foreclosure sale. If the violations
recited in such lien claim are timely cured and any recited amounts timely
paid as provided above, an appropriate release of such lien shall be recorded
by DECLARANT at Owner's sole cost and expense.
SECTION 7.3 WAIVER
No waiver by DECLARANT of a breach of any of the VALENCIA INDUSTRIAL
CENTER RESTRICTIONS and no delay or failure to enforce any of the VALENCIA
INDUSTRIAL CENTER RESTRICTIONS shall be construed or held to be a waiver of
any succeeding or preceding breach of the same or any other of the VALENCIA
INDUSTRIAL CENTER RESTRICTIONS by that Owner or any other Owner of the Site,
or any other Site. No waiver by DECLARANT of and breach or default hereunder
shall be implied from any omission by DECLARANT to take any action on account
of such breach or default
-32-
if such breach or default persists or is repeated, and no express waiver
shall affect a breach or default other than as specified in said waiver. The
consent or approval by DECLARANT to or of any act by an Owner requiring
DECLARANT'S consent or approval shall not be deemed to waive or render
unnecessary DECLARANT'S consent or approval to or of any subsequent similar
acts by Owner.
SECTION 7.4 COSTS OF ENFORCEMENT
In the event any legal or equitable action or proceeding shall be
instituted to enforce any provision of the VALENCIA INDUSTRIAL CENTER
RESTRICTIONS, the party prevailing in such action shall be entitled to
recover from the losing party all of its costs, including court costs and
reasonable attorney's fees.
SECTION 7.5 RIGHTS OF LENDERS
No breach or violation of the VALENCIA INDUSTRIAL CENTER RESTRICTIONS
shall defeat or render invalid the lien of any mortgage, deed of trust or
similar instrument securing a loan made in good faith and for value with
respect to the development or permanent financing of and Site or portion
thereof; provided, however, all of the VALENCIA INDUSTRIAL CENTER RESTRICTIONS
shall be binding upon and effective against any subsequent Owner of the Site
or any portion thereof whose title is acquired by foreclosure, trustee's sale,
deed in lieu of foreclosure or
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otherwise pursuant to such lien rights, but such subsequent Owner shall take
title free and clear of any violations of the VALENCIA INDUSTRIAL CENTER
RESTRICTIONS occurring prior to such transfer of title.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 ASSIGNMENT OF RIGHTS AND DUTIES Any and all of the rights,
powers and reservations of DECLARANT herein contained may be assigned to any
person, corporation or association which will assume the duties of DECLARANT
pertaining to the particular rights, powers and reservations assigned, and
upon any such person, corporation or association's evidencing its consent in
writing to accept such assignment and assume such duties, he or it shall, to
the extent of such assignment, have the same rights and powers and be subject
to the same obligations and duties as are given to and assumed by DECLARANT
herein. The term DECLARANT as used herein includes all such assignees and
their heirs, successors and assigns. If at any time DECLARANT ceases to exist
and has not made such an assignment, a successor DECLARANT may be appointed
in the same manner as the VALENCIA INDUSTRIAL CENTER RESTRICTIONS may be
terminated, extended, modified or amended under Section 6.2 of Article VI. Any
assignment or appointment made under this section shall be in record-
-34-
able form and shall be recorded in the County where the real property
affected is situated.
SECTION 8.2 CONSTRUCTIVE NOTICE AND ACCEPTANCE
Every person or other entity who now or hereafter owns or acquires any
right, title or interest in or to any portion of the real property made
subject to the VALENCIA INDUSTRIAL CENTER RESTRICTIONS is and shall be
conclusively deemed to have consented and agreed to every covenant, condition
and restriction contained herein, whether or not any reference to this
DECLARATION is contained in the instrument by which such person or entity
acquired an interest in said real property.
SECTION 8.3 WAIVER
Neither DECLARANT nor its successors or assigns shall be liable to any
owner, lessee, licensee, or occupant of a Site or of any portion of the real
property subject to the VALENCIA INDUSTRIAL CENTER RESTRICTIONS by reason of
any mistake in judgment, negligence, nonfeasance, action or inaction or for
the enforcement or failure to enforce any provision of this DECLARATION.
Every owner, lessee, licensee or occupant of any of Sites or any portion of
the real property by acquiring his interest therein agrees that he will not
bring any action or suit against DECLARANT to recover any such damages or to
seek equitable relief.
-35-
SECTION 8.4 MUTUALITY, RECIPROCITY: RUNS WITH LAND
All covenants, conditions, restrictions and agreements contained herein
are made for the direct, mutual and reciprocal benefit of each and every Site
and portion of the real property now or hereafter made subject to this
DECLARATION; shall create mutual, equitable servitudes upon each Site and
portion of the real property in favor of every other Site and portion of the
real property; shall create reciprocal rights and obligations between the
respective owners of all Sites and portions of the real property and privity
of contract and estate between all grantees of said Sites and portions of the
real property, their heirs, successors and assigns; and shall, as to the
owner of each Site and portions of the real property, his heirs, successors
and assigns, operate as covenants running with the land, for the benefit of
all other Sites and portion of the real property.
SECTION 8.5 NOTICES
All notices, consents, requests, demands and other communications
provided for herein shall be in writing and shall be deemed to have been duly
given if and when personally served or 24 hours after being sent by United
States registered or certified mail, return receipt requested, postage
prepaid, to the intended party at its last known address.
-36-
SECTION 8.6 PARAGRAPH HEADINGS
Paragraph headings, where used herein, are inserted for convenience only
and are not intended to be a part of this DECLARATION or in any way to
define, limit or describe the scope and intent of the particular paragraphs
to which they refer.
SECTION 8.7 EFFECT OF INVALIDATION
If any provision of this DECLARATION is held to be invalid by any court,
the invalidity of such provision shall not affect the validity of the
remaining provisions hereof.
-37-
PERMITTED USES - HAZARDOUS SUBSTANCES
1. Not more than 10 gallons of 9% caustic soda solution.
2. Not more than 5 gallons of 3% hydrochloric acid solution.
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INITIAL INITIAL
HERE EXHIBIT "C" HERE
NR JJ
------- -------
------- -------
GUARANTY OF LEASE
The undersigned, ▇▇▇▇ ▇▇▇▇▇▇ ("Guarantor"), whose address for notice and
other purposes is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Apartment ▇▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ in order to induce ▇▇▇▇▇▇ ▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
TRUSTEES OF THE ▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ FAMILY TRUST DATED DECEMBER 21,
1988, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇, TRUSTEES OF THE ▇▇▇▇▇▇ AND ▇▇▇▇▇
▇▇▇▇▇ TRUST DATED APRIL 8, 1975 (individually and collectively, "Landlord"), to
enter into that certain Standard Industrial/Commercial Single Tenant Lease-Net
of even date herewith (the "Lease Agreement") pursuant to which Landlord has
leased certain premises in the County of Los Angeles, State of California,
located at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ to FUTURE MEDIA
PRODUCTIONS, INC., a California corporation ("Tenant"), does hereby covenant and
agree as follows:
1. Guarantor hereby absolutely and unconditionally guarantees to
Landlord the timely payment of all amounts that Tenant may at any time owe under
the Lease Agreement or any extensions, holdovers, renewals or modifications
thereof (collectively, the "Lease") and further guarantees to Landlord the full,
faithful and timely performance by Tenant of all of the covenants, terms and
conditions of the Lease. In the event Tenant shall default at any time in the
payment of any rent or other sum whatsoever or in the performance of any of
other covenant or obligation of Tenant under the Lease, then Guarantor, at its
expense, shall on demand by Landlord (a) fully and promptly pay all such rent
and sums (including, without limitation, all late charges and interest owing as
a result of past due obligations of Tenant) and perform or cause to be performed
all such covenants and obligations, and (b) pay to Landlord all costs and
expenses reasonably incurred by Landlord (including, without limitation, court
costs and actual attorneys' fees) as a result of or in connection with ▇▇▇▇▇▇'s
default. Notwithstanding the foregoing, the total liability of Guarantor
pursuant to this Guaranty shall not exceed One Hundred Twenty Thousand Dollars
($120,000.00), plus fees and costs (including attorneys fees and court costs)
incurred by Landlord in the enforcement of this Guaranty. ▇▇▇▇▇▇▇▇ agrees that
the provisions of Paragraph 51 of the Lease dealing with arbitration of disputes
shall be applicable to any disputes under this Guaranty.
2. Guarantor hereby authorizes Landlord, without notice or demand
and without affecting Guarantor's liability hereunder, to from time to time (a)
consent to any extension, acceleration or other modification in the time for any
payment required under the Lease or consent to any other alteration of or
otherwise waive the performance of any covenant, term or condition of the Lease
in any respect; (b) consent to any act or event requiring Landlord's approval
under the Lease, including, without limitation, any assignment or sublease
thereof; (c) take and hold security for any payment or the performance of any
covenant, term or condition of the Lease or exchange, waive or release any such
security; and (d) apply such security or direct the order or manner of sale
thereof in any fashion. Notwithstanding any termination of the Lease, this
Guaranty of Lease shall survive and continue until all covenants and obligations
of Tenant have been fully satisfied and Guarantor shall not be released from any
obligation or liability hereunder, nor shall Guarantor have any right of
subrogation against Tenant or any right to participate in any security held on
Tenant's behalf, so long as Landlord shall have any claim against Tenant
(including, without limitation, claims for future rent and other charges under
the Lease) arising out of the Lease that has not been settled or discharged in
full, except to the extent the amount of such security exceeds the amount of all
such claims.
3. Guarantor hereby acknowledges that its obligations under this
Guaranty of Lease are independent of and may exceed the obligations of Tenant
under the Lease. Accordingly, ▇▇▇▇▇▇▇▇▇ agrees that Landlord may bring a
separate action against Guarantor, whether or not any action has been previously
or will be subsequently brought against Tenant or Tenant is joined in such
action, and may join Guarantor in any action or proceeding between Landlord
against Tenant relating to the Lease. In addition, Guarantor waives all rights
it may otherwise have to (a) require Landlord to proceed against Tenant or any
other person or pursue any other remedy whatsoever; (b) complain of any delay in
the enforcement of Landlord's rights under the Lease; or (c) require Landlord to
proceed against or exhaust any security held on Tenant's or Guarantor's behalf.
Guarantor further waives all defenses it may otherwise have arising by reason of
any disability, defense or cessation of liability of Tenant (excluding, however,
the defense of due performance under the Lease). Guarantor further waives the
benefit of any statute of limitations affecting Guarantor's liability under this
Guaranty of Lease.
4. Until all Tenant's obligations to Landlord have been discharged
in full, Guarantor has no right of subrogation against Tenant. Guarantor waives
its right to enforce any remedies that Landlord now has, or later may have,
against Tenant. Guarantor waives all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor,
and notices of acceptance of this Guaranty of Lease, and waives all notices of
the existence, creation, or incurring of new or additional obligations.
5. Guarantor agrees that the term "Tenant" hereunder shall mean and
include all licensees, assignees, subtenants and other persons directly or
indirectly leasing or occupying any part of the premises under the Lease or
operating or conducting any business in or from such premises; excluding,
however, business invitees. If Landlord disposes of its interest in the lease,
"Landlord", as used in this Guaranty of Lease, shall mean Landlord's successors.
Without limiting the generality of the foregoing, Guarantor further
agrees that Landlord, without notice to Guarantor, may assign or transfer the
Lease, the right to receive rents or other sums payable under the Lease and/or
this Guaranty of Lease, and no such assignment or transfer shall extinguish or
diminish the liability of Guarantor, under this Guaranty of Lease.
6. Guarantor hereby assumes full responsibility for monitoring and
making all necessary inquiries regarding all circumstances affecting Tenant's
ability to perform its obligations under the Lease and releases Landlord from
any duty it may otherwise have to make disclosures to Guarantor in this or any
other regard.
7. Guarantor agrees that in the event Tenant, during the term of
this Guaranty of Lease, shall become insolvent or shall be adjudicated a
bankrupt, or shall file a petition for reorganization, arrangement or similar
relief under any present or future provision of any federal or state
bankruptcy laws or act, or if such a petition filed by creditors of Tenant
shall be approved by court, or if Tenant shall seek a judicial readjustment
of the rights of its creditors under any present or future federal or state
law or if a receiver of all or part of its property and assets is appointed
by any federal or state court, and in any such proceeding the lease shall be
terminated or rejected, or the obligations of Tenant thereunder shall be
modified, the liability of the Guarantor hereunder shall not be impaired,
modified, changed or released.
8. If Guarantor is more than one person, Guarantor's obligations
are joint and several and are independent of Tenant's obligations. A separate
action may be brought or prosecuted against any Guarantor whether the action
is brought or prosecuted against any other Guarantor or Tenant, or all, or
whether any other Guarantor or Tenant, or all, are joined in the action. The
release or limitation of liability of any Guarantor hereunder shall not
release or limit the liability of any other Guarantor hereunder.
9. The provisions of the Lease may be changed by agreement between
Landlord and Tenant at any time, or by course of conduct, without the consent of
or without notice to Guarantor. This Guaranty of Lease shall guarantee the
performance of the lease as changed. Assignment of the Lease (as permitted by
the Lease) shall not affect this Guaranty of Lease.
10. This Guaranty of Lease shall not be affected by Landlord's
failure or delay to enforce any of its rights.
11. This Guaranty of Lease shall be binding upon Guarantor and its
successors, heirs, personal representatives and assigns and shall inure to the
benefit of Landlord and its successors, heirs, personal representatives and
assigns.
12. In the event of any action or proceeding between Guarantor and
Landlord arising out of or relating to this Guaranty of Lease, the unsuccessful
party thereto shall pay to the successful party all costs and expenses,
including, without limitation court costs and reasonable attorneys' fees,
incurred by it therein and if such successful party shall recover judgment in
any such action or proceeding, such costs, expenses and attorneys' fees may be
included in and as part of such judgment. The successful party shall be the
party who is entitled to recover its costs of suit, whether or not the suit
proceeds to final judgment.
13. This Guaranty of Lease shall be deemed to be made under and
shall be governed by the laws of the State of California in all respects,
including matters of construction, validity and performance, and the terms and
provisions hereunder may not be waived, altered, modified or amended except in a
writing duly signed by both Landlord and Guarantor.
14. If any of the provisions of this Guaranty of Lease shall
contravene or be held invalid for any reason, this Guaranty of Lease shall be
construed as if it did not contain those provisions and the rights and
obligations of the parties hereof shall be enforced accordingly.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇▇ has executed this Guaranty of
Lease as of August 24, 1994.
/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
2.
FUTURE MEDIA PRODUCTIONS, INC.
SECRETARY'S CERTIFICATE
OF
BOARD OF DIRECTORS RESOLUTIONS
I, ▇▇▇▇ ▇▇▇, do hereby certify that I am the Secretary of Future Media
Productions, Inc. ("Corporation"), a corporation duly organized and existing
under and by virtue of the laws of the State of California and am keeper of the
records and seal thereof; that the following is true, correct and complete copy
of the resolution duly adopted by the unanimous consent of all of the members of
the Board of Directors of said Corporation on August 24, 1994, and that said
resolutions are still in full force and effect.
WHEREAS, the Corporation has negotiated for lease of premises at ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and;
WHEREAS, it has been determined by the Directors that execution of said
lease is in the best interest of the Corporation.
THEREFORE, BE IT RESOLVED that ▇▇▇▇ ▇▇▇▇▇▇, President of the Corporation
and ▇▇▇▇ ▇▇▇, Secretary of the Corporation are hereby authorized to execute on
behalf of the Corporation a lease agreement in accordance with Exhibit "A", a
copy of which is attached hereto, and made a part hereof.
RESOLVED further that the foregoing officers are hereby authorized to take
any and all actions necessary to carry out the purpose of the said lease
agreement.
The foregoing action is taken by the unanimous written consent of the
directors of the Corporation acting without a meeting pursuant to the provisions
of Section 307 (b) of the California Corporation Code, and such action shall be
deemed taken as of the 24th day of August, 1994.
I DO CERTIFY, that the transactions contemplated by this resolution has
been authorized by the unanimous consent of the Board of Directors of the
Corporation, which authorization is still in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of the
Corporation at Woodland Hills, California this 24th day of August 1994.
/s/ ▇▇▇▇ ▇▇▇
-------------------------
▇▇▇▇ ▇▇▇, Secretary
AFFIX CORPORATE SEAL
INDUSTRIAL REAL ESTATE LEASE - EXHIBIT "A"
DESCRIPTION OF PROPERTY
Property Address: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Legal Description: Parcel A: Parcel 18 in the County of Los Angeles,
State of California, as shown upon Parcel Map No. 12009
filed in Book 182 Pages 47 to 54 inclusive of Parcel
Maps, in the office of the County Recorder of said
County.
Parcel B: A non-exclusive easement for purposes of
ingress and egress over the easterly 13 feet of Parcel
17 of said Parcel Map No. 12009, filed in Book 182
pages 47 to 54 inclusive of Parcel Maps, extending from
the most northerly terminus of the easterly line of
said Parcel 17 a distance of 356.00 feet in a southerly
direction.
[SITE AND ROOF PLAN GRAPHIC]
SITE AND ROOF PLAN
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Initials Exhibit "A" Initials:
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