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EXHIBIT 10.13
STANDARD FORM OF INDUSTRIAL LEASE
(NET)
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS.
1.1 Address of Landlord.......................................................1
1.2 Address of Tenant.........................................................1
1.3 Base Rent.................................................................1
1.4 Base Year.................................................................1
1.5 Building/s................................................................1
1.6 Center....................................................................1
1.7 Common Area...............................................................1
1.8 Lease Term................................................................1
1.9 Permitted Use of the Premises.............................................2
1.10 Premises.................................................................2
1.11 Rent.....................................................................2
1.12 Additional Rent..........................................................2
1.13 Security Deposit.........................................................2
1.14 Tenant's Allocated Share.................................................2
1.15 Tenant's Proportionate Share.............................................3
1.16 Tenant's Prorata Share...................................................3
ARTICLE II. THE DEMISED PREMISES.
2.1 Lease of the Premises.....................................................3
2.2 Use of Common Area........................................................3
2.3 Quiet Enjoyment...........................................................3
2.4 Reservations by Landlord..................................................3
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ARTICLE III. TERM OF THE LEASE.
3.1 Term......................................................................4
3.2 Tender of Possession......................................................4
3.3 Holding Over..............................................................4
ARTICLE IV. RENT.
4.1 Base Rent.................................................................4
4.2 Additional Rent...........................................................4
4.2(a) Utilities and Services.............................................5
4.2(b) Insurance..........................................................5
4.2(c) Real Estate Taxes..................................................5
4.2(d) HVAC Maintenance...................................................6
4.2(e) Common Area Expenses...............................................6
4.2(f) Rent on Sales Taxes................................................7
4.3 Late Payment..............................................................7
4.4 Security Deposit..........................................................7
ARTICLE V. LANDLORD'S RIGHTS AND OBLIGATIONS.
5.1 Maintenance by Landlord...................................................7
5.2 Mortgage and Transfer; Estoppel Certificates..............................8
5.3 Landlord's Inability to Perform...........................................8
5.4 Rights of Landlord........................................................9
5.4(a) Name of Center.....................................................9
5.4(b) Redecorate.........................................................9
5.4(c) Re-Lease...........................................................9
5.4(d) Vehicles...........................................................9
5.4(e) Preservation of Center.............................................9
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ARTICLE VI. TENANT'S RIGHTS AND OBLIGATIONS.
6.1 Acceptance of Premises....................................................9
6.2 Alterations and Additions................................................10
6.3 Assignment and Subletting................................................10
6.4 Locks....................................................................11
6.5 Maintenance by Tenant....................................................11
6.6 Mechanic's Liens.........................................................11
6.7 Redelivery of Premises...................................................11
6.8 Signs and Advertisements.................................................11
6.9 Use of Common Areas......................................................11
6.10 Use of Premises.........................................................12
6.11 Hazardous Substances....................................................12
ARTICLE VII. INSURANCE.
7.1 Liability Insurance......................................................13
7.2 Fire and Extended Coverage Insurance.....................................13
7.3 Indemnification of Landlord..............................................13
7.4 Waiver of Subrogation....................................................14
ARTICLE VIII. EMINENT DOMAIN AND DAMAGE OR DESTRUCTION.
8.1 Eminent Domain...........................................................14
8.2 Damage or Destruction....................................................14
ARTICLE IX. DEFAULT AND REMEDIES.
9.1 Events of Default........................................................15
9.1(a) Nonpayment........................................................15
9.1(b) Noncompliance.....................................................15
9.1(c) Insolvency or Transfer............................................15
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9.1(d) Bankruptcy........................................................15
9.1(e) Receiver..........................................................15
9.2 Remedies.................................................................16
9.2(a) Repossession and Sale.............................................16
9.2(b) Releasing.........................................................16
9.2(c) Cancellation......................................................16
9.2(e) Attorney's Fees...................................................16
9.3 Remedies Cumulative......................................................16
9.4 No Waiver................................................................16
ARTICLE X. MISCELLANEOUS.
10.1 Bankruptcy or Assignment to Trustee.....................................16
10.2 Brokers.................................................................17
10.3 Captions................................................................17
10.4 Certificates of Occupancy...............................................17
10.5 Entire Agreement........................................................17
10.6 Joint and Several Liability of Multiple Tenants.........................17
10.7 Notices.................................................................17
10.8 Partial Invalidity......................................................17
10.9 Recording...............................................................17
10.10 Successors.............................................................18
10.11 Use of the Singular; Gender............................................18
10.12 Rider..................................................................18
EXHIBIT A. RULES AND REGULATIONS.
EXHIBIT B. THE CENTER AND PREMISES.
EXHIBIT C. LANDLORD'S IMPROVEMENTS TO PREMISES (if any).
EXHIBIT D. PRELIMINARY FACILITY PLANS AND SPECIFICATIONS.
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STANDARD FORM OF INDUSTRIAL LEASE
(NET)
THIS LEASE, made this 12th day of OCTOBER, 1992, and between GENERAL
AMERICAN LIFE INSURANCE COMPANY, a Missouri corporation, (hereinafter
"Landlord"), and ▇▇▇▇▇▇▇▇ MICRO SCIENCE, INC. a wholly owned subsidiary of
▇▇▇▇▇▇▇▇ LABORATORIES WORLDWIDE, INC. (hereinafter "Tenant").
ARTICLE I. DEFINITIONS.
1.1 ADDRESS OF LANDLORD: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., #▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1.2 ADDRESS OF TENANT: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
1.3 BASE RENT: $ 16,670.00 per month. The monthly Base Rent payable during the
Lease Term shall be adjusted as follows:
August 1, 1993 through June 30, 1996 $16,670.00
July 1, 1996 through December 31, 1998 $18,450.00
January 1, 1999 through June 30, 2001 $26,540.00
July 1, 2001 through December 31, 2003 $28,240.00
January 1, 2004 through December 31, 2005 $30,740.00
1.4 BASE YEAR: The calendar year in which this Lease commences.
1.5 BUILDING/S: The Building/s in which the Premises is located. The specific
Building in which the Premises is located contains 66,290 square feet. The
total square footage of all the Buildings in the Center is 451,279 square feet.
1.6 CENTER: The land, improvements and appurtenances depicted on Exhibit B
attached hereto and commonly referred to as: (Name of Center:) GENERAL AMERICAN
PACIFIC GATE and located at (Street Address:) AIRPORT DRIVE & ▇▇▇▇▇▇▇▇▇ AVENUE
(City:) ONTARIO (State:) CALIFORNIA.
1.7 COMMON AREA:: The term "Common Area" means all the areas of the Center
designed for the common use and benefit of the Landlord and all of their
tenants, their employees, agents, customers and invitees. The Common Area
includes, but not by way of limitation, parking lots, truck courts, landscaped
areas, driveways, walks and curbs with facilities appurtenant to each as such
areas may exist from time to time.
1.8 LEASE TERM: The Lease Term shall commence on the later of AUGUST 1, 1993 or
upon the date of Substantial Completion (hereinafter defined) and shall expire
TWELVE (12) years and FIVE (5) months after the Commencement Date.
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The Commencement Date shall be defined as the later of AUGUST 1, 1993 or the
date of Substantial Completion.
The date of Substantial Completion shall be defined as 1) the date at which
Landlord, Tenant, architect and general contractor have completed an inspection
of the Premises and architect has provided notification that the "punchlist"
(hereinafter defined) has been substantially completed and one or more of the
following has occurred: a) Tenant has been provided unobstructed access to the
Premises, b) Tenant has taken initial occupancy of the Premises for the purpose
of installing furniture, fixtures and equipment or c) the Premises has passed
final inspection as evidenced by the signing off of the building permit card by
the city of Ontario, thereby approving the Premises for occupancy.
Punchlist shall be defined as the "written list of unfinished work" as
discovered at the initial post construction walk-thru between Landlord, Tenant
and general contractor and architect. The date of Substantial Completion will
not be delayed due to the repair of damage caused by Tenant's subcontractors.
Should the date of Substantial Completion be used as the Commencement Date of
the Lease, and the new Commencement Date occurs other than on the first day of
a calendar month, 1) the Base Rent payable by Tenant for the initial month of
the Lease shall be the prorated amount determined on a per diem basis and 2)
the Commencement Date specified in this Rider shall be adjusted to reflect the
new Commencement Date via the mutual execution of a Lease Start Date Agreement
as supplied by Landlord.
1.9 PERMITTED USE OF THE PREMISES: STERILIZATION OF MEDICAL EQUIPMENT AND
SUPPLIES AS LEGALLY PERMITTED
1.10 PREMISES: 66,290 square feet of space encompassing the entire Building,
together with 178,901 square feet of land which includes 53 parking spaces,
driveways and truck areas in the Center located as outlined on Exhibit B
attached hereto, and addressed as: (Street Address/Suite Number of Premises:)
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1.11 RENT: All sums, moneys or payments required to be paid by Tenant to
Landlord pursuant to this Lease, including Base Rent and Additional Rent.
1.12 ADDITIONAL RENT: All sums, moneys or payments required to be paid by
Tenant to Landlord pursuant to this Lease other than Base Rent.
1.13 SECURITY DEPOSIT: $35,840.00.
1.14 TENANT'S ALLOCATED SHARE: The percentage figure determined by dividing the
number of square feet in the Premises by the number of square feet in the
Building that is then leased to Tenant and to other tenants.
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1.15 TENANT'S PROPORTIONATE SHARE: The percentage figure determined by dividing
the number of square feet in the Premises by the total number of square feet in
all the Buildings (this paragraph is applicable when the Center contains more
than one Building), which percentage figure is 14.68%. In the event that
additional square footage is added to the Center, ▇▇▇▇▇▇'s Proportionate Share
shall be adjusted to reflect the increased total square footage of all
buildings in the Center, as defined in Article 1.5.
1.16 TENANT'S PRORATA SHARE: The percentage figure determined by dividing the
number of square feet in the Premises by the number of square feet in a
specific Building in which the Premises is located, which percentage figure is:
100%.
ARTICLE II. THE DEMISED PREMISES.
2.1 LEASE OF THE PREMISES. In consideration of the Rents, covenants, agreements
and conditions hereinafter provided to be paid, kept, performed and observed,
the Landlord leases to the Tenant and the Tenant hereby hires for the Landlord
the Premises, upon all the terms and conditions set forth in the Lease.
2.2 USE OF COMMON AREA. Landlord grants the Tenant the nonexclusive use of the
Common Area by Tenant, Tenant's employees, agents, customers and invitees,
under all the terms and conditions hereof, which shall be subject at all times
to such reasonable, uniform and non-discriminatory rules and regulations as may
from time to time be established by Landlord.
2.3 QUIET ENJOYMENT. Landlord covenants that the Tenant, on paying Rent herein
provided and keeping, performing and observing the covenant agreements and
conditions herein required of the Tenant, shall peaceably and quietly hold and
enjoy the Premises for the Lease Term, subject, however, to the terms and
conditions of this Lease.
2.4 RESERVATIONS BY LANDLORD. Landlord excepts and reserves from the Premises
the roof and exterior walls of the Building/s, and further reserves the right
to place, install, maintain, carry through, repair and replace such utility
lines, air ducts, pipes, wires, appliances, tunneling and the like in, over,
through and upon the Premises as may be reasonably necessary and advisable for
the servicing of the Premises or any other portions of the Center. Landlord
further reserves the right, at any time, and from time to time to: (i) make
alterations, changes and additions to the Building/s and other improvements in
the Center; (ii) add additional areas to the Center and/or to exclude areas
therefrom; (iii) construct additional buildings and other improvements in the
Center; (iv) remove or relocate the whole or any part of any building or other
improvement in the Center; and (v) relocate any other tenant in the Center. It
is further understood that the existing layout of the buildings, walks,
roadways, parking areas, entrances, exits, and other improvements shall not be
deemed to be a warranty, representation or agreement on the part of the
Landlord that the Center will remain exactly as presently built, it being
understood and agreed that Landlord may change the number dimensions and
locations of the walks, buildings and parking spaces as Landlord shall deem
proper. Notwithstanding anything to the contrary, Landlord shall have no right
to make alterations, changes or additions to the Premises without ▇▇▇▇▇▇'s
consent. (See Rider Paragraph 48.) Further, Landlord shall not be
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permitted to exercise its rights under this Paragraph in a manner that
adversely affects Tenant's use of the Premises.
ARTICLE III. TERM OF THE LEASE.
3.1 TERM. Tenant shall have and hold the Premises for and during the Lease Term
subject to the payment of the Rent and the full and timely performance by
Tenant of all the covenants and conditions set forth in this Lease.
3.2 TENDER OF POSSESSION. Landlord shall use its best efforts to tender
possession of the Premises to Tenant of the commencement of the Lease Term.
Landlord shall not be subject to any liability for any failure to tender
possession of the Premises to Tenant, provided that such failure occurred as a
consequence of any circumstance or cause beyond Landlord's reasonable control
including but not limited to any Act of God. Should Landlord fail to deliver
the Premises within nine (9) months after securing all regulatory and building
permits where such failure is a result of Landlord's negligent actions and not
a result of changes as requested by Tenant or ▇▇▇▇▇▇'s negligent actions,
Tenant will be granted the right to terminate this Lease without penalty to
Landlord.
3.3 HOLDING OVER. In the event of a holding over by ▇▇▇▇▇▇ or any other
successors in interest after expiration or termination of this Lease with the
consent in writing of the Landlord, Tenant shall be deemed a Tenant sufferance
and shall pay as liquidated damages, 125% of the Base Rent then currently in
effect for the entire holdover period and all reasonable attorney's fees and
expenses incurred by Landlord enforcing its rights hereunder. Any holding over
with the consent of Landlord shall constitute Tenant a month-to-month tenant
upon and subject to all terms, covenants and conditions of this Lease.
ARTICLE IV. RENT.
4.1 BASE RENT. Tenant covenants to pay without notice, deduct, set-off or
abatement to Landlord the Base Rent in lawful money of the United States in
equal consecutive monthly installments in advance on the first day of each
month during the Lease Term. Base Rent for any partial month shall be prorated
on a per diem basis. Base Rent shall be payable to Landlord at Landlord's
Address or such other place as Landlord may designate from time to time in
writing. Tenant shall pay the first full month's Base Rent by execution of
this Lease.
4.2 ADDITIONAL RENT. Beginning on the Commencement Date and continuing for the
calendar year 1993, Tenant shall pay $5,100.00 per month to Landlord as
Additional Rent. Additional Rent is subject to periodic adjustment as stated
herein. Additional Rent is due during all months of Abated Base Rent. Tenant
covenants to pay without notice, deduct, set-off or abatement to Landlord the
Additional Rent in lawful money of the United States in equal consecutive
monthly installments in advance on the first day of each month during the Lease
Term. Additional Rent for a partial month shall be prorated on a per diem
basis. Additional Rent shall be payable to Landlord at Landlord's Address or
such other place as Landlord may designate in writing. In order to provide for
current payments of Additional Rent, ▇▇▇▇▇▇ agrees to pay an amount of
Additional Rent reasonably estimated by Landlord from time to time
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commencing on the first day of the month following the month in which Landlord
notifies Tenant of the amount of such Additional Rent. If, as finally
determined, the amount of Additional Rent owing by Tenant shall be greater than
or less than the aggregate of installments so paid to Landlord for each calendar
year, the Tenant shall pay to Landlord the amount of such underpayment, or
Landlord shall credit Tenant for the amount of such overpayment, as the case may
be. Upon the expiration of any separate bond assessments levied against the
Premises, the real estate tax portion of the monthly Additional Rent payment
shall be immediately decreased by the amount of such reduction in bond
assessment. It is the intent hereunder to estimate the amount of Additional
Rent for each calendar year then to adjust such estimate in the following year
based on the actual amount of Additional Rent owing. The obligation of Tenant
with respect to payment of Additional Rent shall survive the termination of this
Lease. A payment, refund or credit made pursuant to this paragraph shall be
made without prejudice to any right of Tenant to dispute the amount of
Additional Rent owing, or the right of Landlord to correct any items as billed
pursuant to the provisions hereof. Within 30 days of the date Landlord notifies
Tenant of the amount of Additional Rent owing, Tenant or its authorized agent
shall have the right to inspect the books of Landlord during the business hours
of Landlord at such location that Landlord during the business hours Landlord at
such location that Landlord may specify, for the purpose of verifying such
amount. Unless Tenant asserts specific errors within such days, such
notification by Landlord shall be deemed to be correct. A decrease in
Additional Rent shall reduce Tenant's liability hereunder below the amount of
Base Rent payable hereunder.
4.2(a) UTILITIES AND SERVICES. Landlord shall not be liable for any
interruption or failure whatsoever in utility services. Tenant
shall contract in its own name and pay for all charges for
electricity, gas, fuel, telephone, and any other services or
utilities used in, servicing or assessed against the Premises,
unless otherwise herein expressly provided.
4.2(b) INSURANCE. Tenant shall pay to Landlord as Additional Rent
Tenant's Prorata Share (or, ▇▇▇▇▇▇'s Proportionate Share in the
event there is more than one Building in the Center) of the cost of
the premiums for the All Risk insurance that Landlord maintains for
the Center.
4.2(c) REAL ESTATE TAXES. Tenant shall pay to Landlord as
Additional Rent Tenant's Prorata Share (or, ▇▇▇▇▇▇'s Proportionate
Share in the event there is more than one Building in the Center)
of Real Estate Taxes levied against the Center. "Real Estate
Taxes" shall mean: (a) all ad valorem Real Estate Taxes on the
Center (adjusted after protest or litigation, if any) for any part
of the term of this Lease, exclusive of penalties; (b) any taxes
which shall be levied in lieu of any such ad valorem Real Estate
Taxes; (c) any special assessments for benefits on or to the Center
paid in annual installments by Landlord; (d) occupational taxes or
excise taxes levied on rentals derived from the operation of the
property or the privilege of leasing property; (e) any private
subdivision assessment made against the Center; and (f) the
reasonable expense of protesting, negotiating or contesting the
amount or validity of any such taxes, charges or assessments, such
expense to be applicable to the period of the item contested,
protested or negotiated. Tenant,
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at ▇▇▇▇▇▇'s sole cost and expense, shall have the right to
challenge the real estate taxes levied against the Premises.
If the Lease Term shall end during a tax year ("tax year" shall
mean the annual period for which Real Estate Taxes are assessed and
levied) of which only part is included in the Lease Term, the
amount of such Additional Rent shall be prorated on a per diem
basis and shall be paid on or before the last day of the Lease
Term. If the Lease Term ends in any tax year before the amount to
be payable by ▇▇▇▇▇▇ has been determined under the provisions of
this Section, an amount payable for the portion of the Lease Term
during the tax year shall be reasonably estimated by Landlord and
the estimated amount shall be promptly paid by ▇▇▇▇▇▇. As soon as
the amount properly payable by Tenant for the partial period has
finally been determined, the amount shall be adjusted between
Landlord and Tenant. Tenant shall be liable for all taxes levied
against personal property and trade fixtures placed by Tenant in
the Premises.
4.2(d) HVAC MAINTENANCE. Tenant shall pay all expenses incurred to
repair the heating, ventilating and air conditioning equipment
servicing the Premises. Landlord shall assign to Tenant all
warranties with respect to the HVAC system.
4.2(e) COMMON AREA EXPENSES. Tenant will pay to Landlord as
Additional Rent Tenant's Prorata Share (or, ▇▇▇▇▇▇'s Proportionate
Share in the event there is more than one Building in the Center)
of the Common Area Operating Cost.
"Common Area Operating Cost" means the Landlord's total cost and
expense incurred in owning, operating, maintaining and repairing
the Premises, the Building and Tenant's Proportionate Share of the
Center's common areas only. In no event will Tenant be responsible
for the payment of any costs and expenses associated with the
administration, management, operation, maintenance and repair of
any other building in the Center or service provided to any other
tenant within the Center, including but without limitation by
enumeration, costs for the total charges of any independent
contractors employed in the care, operation, repair, maintenance,
cleaning, and landscaping of the Common Area; the amount paid for
all supplies, tools, replacement parts of components, equipment and
necessities which are occasioned by everyday wear and tear of the
Common Area; the costs of machinery and equipment purchased or
leased by Landlord to perform its Common Area maintenance
obligations; and reasonable property management fees not to exceed
five percent (5%) of the gross income of the Center. Common Area
Operating Cost shall not, however, include interest on debt,
capital retirement of debt, depreciation, costs properly chargeable
to the capital account, except for capital expenditures which
reduce other operating expenses or such capital expenditures that
are required by changes in any governmental law or regulation in
which case such expenditures, plus interest on the unamortized
principal investment at ten (10%) percent per annum, shall be
amortized over the life of the improvements, and such costs shall
be directly chargeable by the
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Landlord to Tenant in the Tenant's Prorata Share (or, ▇▇▇▇▇▇'s
Proportionate Share in the event there is more than one Building in
the Center).
4.2(f) RENT ON SALES TAXES. Tenant shall pay to Landlord as
Additional Rent any Sales or Rent Taxes, however named or
designated, levied on any form of Rent or Additional Rent.
4.3 LATE PAYMENT. Tenant's failure to make any rental payment or other payment
required of Tenant hereunder within three (3) days of the due date therefor
shall automatically result in the imposition of a service charge on such late
payment in the amount of ten (10%) percent of such payment, without notice.
However, should Tenant provide evidence that the payment was delayed through
the acts or negligence of a third party postal delivery service, Tenant shall
not be responsible for the payment of late fees. Should such a delay occur,
the postal service "postmark date" shall be used as the date of reference.
4.4 SECURITY DEPOSIT. Tenant herewith deposits with Landlord the Security
Deposit as security for the performance by Tenant of every covenant and
condition of this Lease. Said Security Deposit may be mingled with other funds
of Landlord and shall bear no interest. If Tenant shall default with respect
to any covenant or condition of this Lease, Landlord may apply the whole or any
part of such Security Deposit to the payment of any sum or default, including
Rent and Additional Rent, or any sum which Landlord may be required to spend by
reason of Tenant's default. This includes, but is not limited to, applying the
Security Deposit first to any restoration, relamping, repairs and/or cleanup
costs necessary over and above normal wear and tear to the vacated space.
Should Landlord so apply the Security Deposit or a portion thereof during the
Lease Term, Tenant shall promptly reimburse Landlord for same. It is
understood that the Security Deposit is not to be considered as the last
month's rent. Should Tenant comply with all of the covenants and conditions of
this Lease, the Security Deposit or any balance thereof shall be returned to
Tenant within 30 days of the expiration of the Lease Term.
ARTICLE V. LANDLORD'S RIGHTS AND OBLIGATIONS.
5.1 MAINTENANCE BY LANDLORD. During the Lease Term, Landlord shall operate and
maintain the Common Area and shall keep and maintain the exterior walls
(excluding doors, glass or plate glass), gutters and downspouts of the
Building/s in good condition and repair. Landlord shall be under obligation
and shall not be liable for any failure to make repairs that are Landlord's
responsibility herein until and unless Tenant notifies Landlord of the
necessity therefor, in which event Landlord shall have reasonable time
thereafter to make such repairs. Landlord reserves the right to the
non-exclusive use of the roof and exterior walls of the Building/s that
Landlord is so obligated to maintain and repair. If a portion of the Center
which Landlord is obligated to maintain or repair is damaged by the negligence
of Tenant, its agents, employees or invitees, the repairs necessitated by such
damage shall be paid for by Tenant, provided such damage is not covered by
Landlord's insurance. In the event the damage is caused by ▇▇▇▇▇▇'s negligence
and is covered by Landlord's insurance, Tenant shall pay the deductible on
Landlord's insurance. If the maintenance or repair is not made necessary by
the negligence of
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Tenant, its agents, employees or invitees, then Tenant shall
pay to Landlord, ▇▇▇▇▇▇'s Prorata Share (or Proportionate Share) of such cost
and expense.
5.2 MORTGAGE AND TRANSFER; ESTOPPEL CERTIFICATES. Landlord shall have the
right to transfer, mortgage, pledge or otherwise encumber, assign or convey, in
whole or in part, the Center, the Building/s, this Lease, and all or any part
of the rights now or thereafter existing therein and all Rents and amounts
payable to Landlord under the provisions hereof. In the event of any such
transfer or transfers, Landlord herein named (and in case of subsequent
transfer, the then transferor) shall be automatically freed and relieved from
and after the date of such transfer of all personal liability respects the
performance of any covenants or agreements on the part of Landlord contained in
this Lease thereafter to be performed. Nothing herein contained shall limit or
restrict any such rights, and the rights of Tenant under this Lease shall be
subject and subordinate to all instrument, executed and to be executed in
connection with the exercise of any such rights, including, but not limited to,
the lien of any mortgage, deed of trust, or security agreement now or hereafter
placed upon Landlord's interest in the Premises. This paragraph shall be
self-operative. However, ▇▇▇▇▇▇'s covenants and agrees to execute and deliver
upon demand such further instruments subordinating this Lease to the lien, of
any such mortgage, deed of trust or security agreement as shall be requested by
▇▇▇▇▇▇▇▇ and mortgagee or proposed mortgagee or holder of any security
agreement. In the event of any such transfer, mortgage or pledge, ▇▇▇▇▇▇'s
obligations to subordinate this Lease to the lien of any proposed Mortgage,
Deed of Trust or Security Agreement is conditioned upon the delivery to Tenant
and mutual execution by such proposed mortgagee or holder of such security
agreement, within a reasonable time thereafter, of an agreement not to disturb
Tenant's possession ("Non-Disturbance Agreement") so long as Tenant complies
with all of the obligations contained in this Lease. Tenant shall, within ten
(10) days after written request of ▇▇▇▇▇▇▇▇, execute, acknowledge and deliver
to Landlord or to Landlord's mortgagee, proposed mortgagee, [▇▇▇▇▇▇▇▇'s] Lessor
or proposed purchaser of the Center or any part thereof, any estoppel
certificates requested by Landlord from time to time, which estoppel
certificates shall show whether the lease is in full force and effect and
whether any changes may have been made to the original lease; whether the term
of the lease has commenced and full rental is accruing; whether there are any
defaults by Landlord and, if so, the nature of such defaults; whether
possession has been assumed and all improvements to be provided by Landlord
have been completed; and whether rent has been paid more than thirty (30) days
in advance and that there are no liens, charges, or offsets against rental due
or to become due and that the address shown on such estoppel is accurate.
Should Tenant fail to deliver the proposed estoppel certificate as requested
herein, such failure will be deemed as Tenant's approval of all the terms
within such estoppel certificate.
5.3 LANDLORD'S INABILITY TO PERFORM. If, by reason of: inability to obtain and
utilize labor, materials or supplies; circumstances directly or indirectly the
results of a state of war or national or local emergency; any laws, rules,
orders, regulations or requirements of any governmental authority now or
hereafter in force; strikes or riots; accident in, damage to or the making of
repairs, replacements, or improvements to, the Premises or any of the equipment
thereof; or by reason of any other cause beyond the reasonable control of the
Landlord including "Acts of God," Landlord shall be unable to perform or shall
be delayed in the performance of any covenant to supply and service, such
nonperformance or delay in performance shall not render
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Landlord liable in any respect for damages to either person or property,
constituting total or partial eviction, constructive or otherwise, work an
abatement of rent or relieve Tenant from the fulfillment of any covenant or
agreement contained in this Lease. The failure of the Landlord to perform its
obligations shall not allow the extension of the delivery of the Premises beyond
nine (9) months after securing all regulatory and building permits. Further,
should Landlord be negligent in it performance of any covenant to supply any
service, where such negligent performance results in the Premises becoming
untenantable, all rentals payable by Tenant shall be abated for the periods of
untenantability.
5.4 RIGHTS OF LANDLORD. After providing reasonable notice to ▇▇▇▇▇▇, Landlord
may enter upon the Premises for the purpose of exercising any or all of the
rights hereby reserved without being deemed guilty of an eviction or
disturbance of Tenant's use or possession and without being liable in any
manner to Tenant. The reservation of these rights by Landlord shall not render
Landlord liable for not performing any of the matters specified herein.
Further, Landlord, in exercising it rights under this Paragraph, will not
interfere with the use of the Premises by the Tenant.
5.4(a) NAME OF CENTER. To change the name of the Building/s or the
Center without notice or liability of the Landlord to Tenant;
5.4(b) REDECORATE. During the last thirty (30) days of the Lease
Term or any renewal or extension thereof, if prior to that time the
Tenant has vacated the Premises, to decorate, remodel, repair,
alter or otherwise prepare the Premises for reoccupancy;
5.4(c) RE-LEASE. To exhibit the Premises to others and to display
"For Lease" signs on the Premises during the last one hundred
eighty (180) days of the Lease Term or any renewal or extension
thereof;
5.4(d) VEHICLES. To remove abandoned or unlicensed vehicles and
vehicles that are unreasonably interfering with the use of the
parking lot by others, and to charge the responsible tenant for the
expense of removing said vehicles;
5.4(e) PRESERVATION OF CENTER. To take any and all measures,
including making inspection, repairs, alterations, additions and
improvements to the Premises or to the Center as may be necessary
or desirable for the safety, protection or preservation of the
Premises or the Center or the Landlord's interests, or as may be
necessary or desirable in the operation of the Premises or the
Center.
ARTICLE VI. TENANT'S RIGHTS AND OBLIGATIONS.
6.1 ACCEPTANCE OF PREMISES. Landlord will complete the Premises in accordance
with Exhibit C, if attached hereto and the construction drawings as approved by
Landlord and Tenant. Tenant acknowledges that it will examine the Premises
before taking possession hereunder. Unless Tenant furnishes Landlord with a
notice in writing specifying any defect in the
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construction or condition of the Premises within thirty (30) days after taking
possession, such taking of possession shall be conclusive evidence as against
Tenant that at the time thereof the Premises were in good order and in
satisfactory condition. All defects discovered by the Punchlist will be cured
by the Landlord within a reasonable time thereafter.
6.2 ALTERATIONS AND ADDITIONS. Tenant shall not make any alterations,
improvements, or additions to the Premises without the prior written consent
and approval of plans therefor by Landlord. Alterations, improvements or
additions made by either of the parties upon the Premises, except moveable
furniture and equipment placed in the Premises at the expense of Tenant, shall
be the property of Landlord and shall remain upon and be surrendered with the
Premises as a part thereof at the termination of this Lease, without
disturbance, molestation, injury or damage unless Landlord elects to require
Tenant to remove such alterations or improvements from the Premises at the
expiration of this Lease. However, at the time of ▇▇▇▇▇▇▇▇'s consent to such
alteration, Landlord is required to provide notice to Tenant as to whether such
alteration must be removed at the termination of this Lease. Should Landlord
fail to provide such notice, Tenant shall not be required to remove the
alteration. Further, in no event shall Tenant be required to remove the
initial work as described in the mutually accepted construction drawings. In
the event damage shall be caused by moving said furniture and equipment in or
out of the Premises, said damage shall be repaired at the cost of Tenant.
6.3 ASSIGNMENT AND SUBLETTING. Tenant shall not assign or hypothecate this
Lease or sublet all or any part of the Premises to a non-related entity without
the prior written consent of Landlord. If Tenant wishes to assign or sublet
the Premises, Tenant shall give notice in writing (by certified mail or by
personal delivery of such intention to Landlord and, thereupon, Landlord shall,
within thirty (30) days of receipt of such notice, have the right to
unilaterally terminate the Lease or to approve said subletting by written
notice to Tenant. If no notice is given by Landlord, Landlord will be deemed
to have elected to approve assignment or subletting. If the assignment or
subletting is approved, rents under the sublease are greater than the rents
provided for herein, and Landlord shall have the further option either (a) to
convert the sublease into a prime Lease and receive all of the rents, in which
case Tenant will be relieved of further liability hereunder and under the
proposed sublease; and (b) to require Tenant to remain liable under this Lease,
in which event Tenant shall be entitled to retain fifty percent (50%) of such
excess rents. If the assignment or subletting is approved and rents under the
sublease are less than the rents provided for herein, Tenant shall remain
liable under all the covenants and conditions of this Lease. Landlord may
withhold its consent to any proposed assignee or subtenant which in Landlord's
judgment (a) would conflict with tenancy, use or business of any other tenant
or the tenant mix of the Center; and (b) has a net worth and/or credit history
inferior to that of Tenant, or is currently a tenant or negotiating for space
in the Center. Tenant shall have the right to assign this Lease or sublet all
or any part of the Premises to an affiliate of Tenant without Landlord's
consent, so long as the entity shall have equal net worth to that of the
Tenant. Affiliate shall mean any person, corporation, partnership or other
entity controlled by or that controls Tenant and any subsidiary, division or
affiliate of any controlled or controlling entity. This shall include
intra-corporate transfers of the Lease, and transfers in connection with
mergers and sales of all or substantially all of the assets of Tenant.
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6.4 LOCKS. No additional locks or similar devices shall be attached to any
door or window without Landlord's prior written consent. No keys for any door
other than those provided by the Landlord shall be made. If more than two keys
for one lock are desired, the Landlord will provide the same _______ payment by
the Tenant. All keys must be returned to Landlord at time of expiration or
termination of the lease.
6.5 MAINTENANCE BY TENANT. Tenant shall be responsible for maintenance and
repair to the Premises of whatsoever kind or nature that is not herein set
forth specifically as the obligation of Landlord. Tenant shall take good care
of the Premises and fixtures, and keep them in good repair form from filth,
overloading, danger of fire or any pest or nuisance, repair of damage or
breakage done by Tenant or Tenant's agents, employees or invitees, including
damage done to the Building/s by Tenant's equipment and installations. Tenant
shall be responsible for the repair and replacement of all glass and plate
glass on the Premises. In the event Tenant fails to maintain the Premises as
provided for herein Landlord shall have the right, but not the obligation, to
perform such maintenance as is required of Tenant in which event Tenant shall
reimburse Landlord for its costs in providing such maintenance or repairs
together with a ten (10%) percent charge for Landlord's overhead and Tenant
shall promptly reimburse Landlord for the amount so billed to Tenant by
Landlord.
6.6 MECHANIC'S LIENS. Tenant will not cause any mechanic's liens, or other
liens, to be placed upon the Premises, the Building/s or the Center during the
Lease Term or any extension or renewal thereof, and in case of the filing of
any such lien, Tenant will promptly pay same. ▇▇▇▇▇▇ agrees to pay all legal
fees that might be incurred by Landlord because of any mechanic's liens being
placed upon the Premises, as a result of Tenant's actions.
6.7 REDELIVERY OF PREMISES. No later than the last day of the Lease Term (or
any renewals or extensions thereof), Tenant will remove all Tenant's personal
property and repair all injury done by or in connection with installation or
removal of such property and surrender the Premises broom-clean (together with
all keys to the Premises) in as good a condition as they were in at the
beginning of the Lease Term, reasonable wear and tear excepted and loss by fire
and other casualty and matter that are Landlord's obligation to maintain,
replace or repair.
6.8 SIGNS AND ADVERTISEMENTS. Tenant shall not put upon nor permit to be put
upon any part of the Premises, the Building/s or the Center, any signs,
billboards or advertisements whatever in any location or any form without the
prior written consent of Landlord. A charge of $50.00 per day per sign,
billboard or advertisement will be assessed against Tenant if ▇▇▇▇▇▇ fails to
obtain the written consent of Landlord prior to placing any such signs.
6.9 USE OF COMMON AREAS. Tenant shall not use any part of the Center exterior
to the Premises for outside storage except for chemical and gas storage in
designated areas as approved by the city of Ontario. No trash, crates, pallets
or refuse shall be permitted anywhere on the Center outside of the Building/s
by Tenant except in enclosed metal containers to be located as directed by
Landlord. Tenant shall not park any trucks or trailers, loaded or empty,
except in front of the loading areas and in the chemical and gas storage
loading areas.
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6.10 USE OF PREMISES. The Premises hereby leased shall be used by Tenant only
for the Permitted Use of the Premises and for no other purpose. Tenant shall,
at Tenant's expense, comply promptly with all applicable statutes, ordinances,
rules, regulations, orders and requirements in effect during the term or any
part of the term hereof regulating the use by Tenant of the Premises except for
structural changes to the Premises and Building as required to comply with any
statute, ordinance, rule, regulation, order or requirement imposed by any
governing municipality, unless such structural change is required as a result
of Tenant's specific use of the Premises. Tenant shall not use or permit the
use of the Premises in a manner that will tend to create waste or a nuisance,
or will tend to unreasonably disturb such other tenants in the Center. Tenant,
its employees and all persons visiting or doing business with the Tenant in the
Premises shall be bound by and shall observe the Rules and Regulations attached
to the Lease, as Exhibit A, and such further and other reasonable rules and
regulations made hereafter by the Landlord relating to the Center or the
Premises of which notice in writing shall be given to the Tenant and where such
additional rules and regulations will not adversely affect Tenant's use of the
Premises, and all such rules and regulations shall be deemed to be incorporated
into and form a part of this Lease.
6.11 HAZARDOUS SUBSTANCES. Tenant shall not cause or permit to be released
(whether by way of uncapping, pouring, spilling, spraying, spreading,
attaching, or otherwise) into or onto the Premises, or the Building/s, or the
Center, or the Common Areas (including the ground and ground water thereunder
and the sewer and drainage systems therein) any hazardous substances (as
defined or established from time to time by applicable local, state or federal
law). Tenant shall immediately notify Landlord if any such release occurs and,
as to any such release that has been caused or permitted by Tenant: (i) Tenant
shall immediately and entirely remove such released hazardous substance, and in
a manner fully in compliance with all laws pertaining to the removal and
storage or deposit thereof; and (ii) Tenant hereby agrees to hold Landlord
harmless of and from any liability, public or private, resulting to Landlord as
a result of such release. Further, should Landlord discover facts which cause
Landlord to reasonably believe that Tenant has caused a release of any
hazardous substances, then Tenant shall, upon Landlord's demand and at Tenant's
sole expense, demonstrate to Landlord (through such tests, professional
inspections, sampling or otherwise as is, in Landlord's sole judgment,
sufficient for the purpose) that Tenant has not caused or permitted any such
release of hazardous substances. Landlord warrants that, to the best of its
knowledge as of the date of execution, there are no hazardous environmental
conditions in, on or about the Premises which would constitute a violation of
any applicable law, code or ordinance. Further, it is agreed that Tenant shall
not be responsible for the removal of any hazardous environmental condition
deemed to have originated prior to Tenant's occupancy.
Landlord shall indemnify Tenant against all liabilities arising from the
detection of a hazardous environmental condition that is 1) proven to have
originated prior to Tenant's occupancy of the Premises, 2) proven to have
migrated to the Premises from sources outside of the Premises and 3) proven to
not have been caused or permitted by Tenant.
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ARTICLE VII. INSURANCE.
7.1 LIABILITY INSURANCE. Tenant covenants and agrees to maintain on the
Premises at all times during the Lease Term, or any extension or renewal
thereof, a policy or policies of comprehensive public liability and property
damage insurance with not less than $1,000,000.00 combined single limit for
both bodily injury and property damage.
7.2 FIRE AND EXTENDED COVERAGE INSURANCE. Landlord shall, throughout the Lease
Term, or any extension or renewal thereof, maintain All Risk insurance on the
property owned by Landlord located on the Center in such amounts and with such
deductibles as Landlord shall determine. Landlord's All Risk policy currently
provides property damage protection totalling $5,000,000.00 with a $10,000.00
deductible. This policy covers all physical property damage caused by fire,
wind, hail, flood, theft, vandalism and Landlord's boiler/machinery explosions.
Earthquake damage is excluded. A General liability policy is also included
which provides "trip and fall" protection of $1,000,000.00. Landlord reserves
the right to modify the terms of Landlord's All Risk policy without notice or
approval by ▇▇▇▇▇▇. Landlord shall not in any way or manner insure any
property of Tenant or any property that may be in the Premises not owned by
Landlord. Tenant shall comply with all insurance regulations so that the
lowest fire, lightning, explosion, extended coverage and liability insurance
rates may be obtained; and nothing shall be done or kept in or on the Premises
by Tenant which will cause an increase in the premium for any such insurance on
the Premises or on any Building/s of which the Premises are a part or on any
contents located therein, over the rate usually obtained for the proper use of
the Premises permitted by this Lease or which will cause cancellation of any
such insurance.
7.3 INDEMNIFICATION OF LANDLORD. Other than for the loss or injury resulting
from the negligent actions or willful misconduct of Landlord, its agents,
employees or contractors, Tenant shall indemnify Landlord and save Landlord
harmless from and against any and all loss (including lost rentals payable by
Tenant or other tenants) and against all claims, actions, damages, liability
and expenses in connection with loss of life, bodily and personal injury or
damage to property arising from any occurrence in, upon or at the Premises or
any part thereof, or occasioned wholly or in part by any act or omission of
Tenant, or by anyone permitted to be on the Premises by Tenant. Other than for
the loss or injury resulting from the negligent actions or willful misconduct
of Landlord, its agents, employees or contractors, Tenant assumes all risk of
and Landlord shall not be liable for injury to person or damage to property
resulting from the conditions of the Premises or from the bursting or leaking
of any and all pipes, utility line connections, or air conditioning or heating
equipment in, on or about the Premises, or from water, rain or snow which may
leak into, issue or flow to any part of the Building/s. Other than for the
loss or injury resulting from the negligent actions or willful misconduct of
Landlord, its agents, employees or contractors, ▇▇▇▇▇▇ agrees, at all times, to
indemnify and hold Landlord harmless against all actions, claims, demands,
costs, damages and expenses of any kind which may be brought or made against
Landlord or which Landlord may pay or incur by reason of Tenant's occupancy of
the Premises or its negligent performance of or failure to perform any of its
obligations under this Lease. In case Landlord shall, without fault on its
part, be made a party to any litigation commenced by or against Tenant, then
Tenant shall protect and hold Landlord
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harmless and shall pay all costs, expenses and reasonable attorney's
fees incurred or paid by Landlord in connection with such litigation.
7.4 WAIVER OF SUBROGATION. Landlord and Tenant and all parties claiming under
them hereby mutually release and discharge each other from any and all
liability or responsibility or claims arising from or caused by any hazard
covered by insurance on the Premises, or covered by insurance in connection
with property or activities conducted on the Premises, regardless of the cause
of the damage or loss. The parties hereto shall give notice to their
respective insurance carriers of this waiver of subrogation.
ARTICLE VIII. EMINENT DOMAIN AND DAMAGE OR DESTRUCTION.
8.1 EMINENT DOMAIN. In the event that title to the whole or a substantial part
of the Premises shall be lawfully condemned or taken in a manner for any public
or quasi-public use, this lease and the term and estate hereby granted shall
forthwith cease and terminate as of the date of vesting of title and Landlord
shall be entitled to receive the entire award, Tenant hereby assigning to
Landlord the Tenant's interest therein, if any. However, nothing herein shall
be deemed to give Landlord any interest in or to require Tenant to assign to
Landlord any award made to Tenant for the taking of personal property or
fixtures belonging to Tenant, ▇▇▇▇▇▇ paid improvements made to the Premises or
for the interruption or damage to ▇▇▇▇▇▇'s business or for Tenant's moving
expenses. A sale to public or quasi-public authority under threat of
condemnation shall constitute a taking by eminent domain. In the event of any
condemnation or taking of any portion of the parking area of the Center, which
does not result in a reduction of the parking area by more than thirty-five
percent (35%) the terms of this lease shall continue in full force and effect.
If more than thirty-five percent (35%) of the parking area is taken, either
party shall have the right to terminate this lease upon giving written notice
to the other party within thirty (30) days of such taking.
8.2 DAMAGE OR DESTRUCTION. If the Premises, the Building/s or the Center or a
substantial part thereof is damaged by fire or other casualty, cause or
condition whatsoever and Landlord shall determine not to restore said Premises,
Building/s or Center and where such damage cannot be restored within one
hundred twenty (120) days, Landlord may, by written notice to Tenant given
within forty-five (45) days after such damage, terminate this Lease. Such
termination shall become effective as of the date of the damage. If this Lease
is not terminated as above provided and if the Premises are made partially or
wholly untenantable, Landlord, at its expense, shall restore the same with
reasonable promptness to the condition in which Landlord furnished the Premises
to Tenant at the commencement of the Lease Term as to those items that were
provided to the Premises at Landlord's expense without any reimbursement by
Tenant. Landlord shall be under no obligation to restore any alteration,
improvements or additions to the Premises made by Tenant or paid for by Tenant,
including, but not limited to, any of the initial tenant finish done or paid
for by Tenant or any subsequent changes, alterations or additions made by
▇▇▇▇▇▇ or reimbursed by ▇▇▇▇▇▇.
If, as a result of fire or other casualty, cause or condition whatsoever the
Premises are made partially or wholly untenantable and, if Landlord has not
given the forty-five (45) day notice
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above provided for and fails within one hundred twenty (120) days after such
damage occurs to eliminate substantial interference with ▇▇▇▇▇▇'s use of
said Premises or substantially to restore said ▇▇▇▇▇▇▇▇, Tenant may terminate
this Lease after the end of said one hundred twenty (120) days, effective as of
the date such damage occurs, and notice to Landlord given not later than ten
(10) days after expiration of said one hundred twenty (120) day period. If the
Premises are rendered totally untenantable but this Lease is not terminated,
all rent shall ▇▇▇▇▇ from the date of the fire or other relevant cause or
condition until the Premises are ready for occupancy and reasonably accessible
to Tenant. If a portion of the Premises is untenantable, rent shall be
prorated on a per diem basis and apportioned in accordance with the portion of
the Premises which is usable by the Tenant until the damaged part is ready for
Tenant's occupancy. In above cases, due allowance shall be made for reasonable
delay caused by adjustment of insurance loss, strikes, labor difficulties or
any cause beyond Landlord's reasonable control. For the purposes of this
Lease, said Premises shall be considered tenantable so long as and to the
extent that the Premises are occupied. In any event, Tenant shall be
responsible for the removal, or restoration, when applicable, of all its
damaged property and debris from the Premises, upon request by Landlord or else
Tenant must reimburse Landlord for the cost of removal.
ARTICLE IX. DEFAULT AND REMEDIES.
9.1 EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute a Default and a material breach of this Lease by
Tenant:
9.1(A) NONPAYMENT. Failure of Tenant to pay any installment of
Rent or other sum payable to Landlord hereunder on the date that
same is due and such failure shall continue for a period of five
(5) days. However, should Tenant provide evidence that the failure
of payment was a result of the acts or negligence of a third party
postal delivery service, Tenant shall not be in default. Should
such a failure occur, the postal service "postmark date" shall be
used as the date of reference.; or
9.1(B) NONCOMPLIANCE. Failure of Tenant to comply with any term,
condition or covenant of this Lease, other than the payment of Rent
or other sum of money, and such failure shall not be cured within
ten (10) days after written notice thereof has been delivered by
Landlord to Tenant; or
9.1(C) INSOLVENCY OR TRANSFER. Insolvency, the making of a
transfer in fraud of creditors or the making of an assignment for
the benefit of creditors by ▇▇▇▇▇▇ or any guarantor of Tenant's
obligation; or
9.1(D) BANKRUPTCY. The filing by or against Tenant or any
guarantor of Tenant's obligations hereunder of a petition in
bankruptcy or for liquidation, or adjudication as a bankrupt or
insolvent in proceedings filed by or against Tenant or such
guarantor and such action is not dismissed within sixty (60) days;
or
9.1(E) RECEIVER. Appointment of receiver or trustee for all or
substantially all of the assets of Tenant or any guarantor of
Tenant's obligations hereunder; or
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9.2 REMEDIES. In the event of the occurrence of any Default, Landlord shall
have the right, without further notice to or demand upon Tenant and without
being liable to Tenant for any damages or to any prosecution therefor, to do
any and all of the following:
9.2(A) REPOSSESSION AND SALE. Re-enter and take exclusive
possession of the Premises with legal process, refuse to allow
Tenant to enter the same or have possession thereof, change the
locks on the doors to the Premises, take possession of any
furniture or fixtures or other property in or upon the Premises
(Tenant hereby waiving the benefit of all exemptions by law), sell
the same at public or private sale without notice and apply the
proceeds thereof to the costs of sale, payment of damages and
payment of all sums owing under this Lease; and/or
9.2(B) RELEASING. Relet the Premises as agent of Tenant for the
balance of the term of this Lease or for a shorter or longer term
and receive the rents therefor, applying them first to the payment
of the expense of such reletting and, second, to the payment of
damages suffered to the Premises, and third to all sums due and to
become due under this Lease, Tenant remaining liable for and hereby
agreeing to pay Landlord any deficiency; and/or
9.2(C) CANCELLATION. Cancel and terminate the remaining term of
this Lease, and re-enter and take possession of the Premises free
of this Lease. Thereafter this Lease shall be null and void and
the Rent in such case shall be apportioned and paid on and up to
the date of such entry. Thereafter both parties shall be released
and relieved from and of any and all obligations thereafter to
accrue hereunder. Tenant shall be liable for all loss and damage
resulting from such breach or default; and/or
9.2(E) ATTORNEY'S FEES. Recover from Tenant, ▇▇▇▇▇▇▇▇'s attorney's
fees incurred in enforcing its rights hereunder.
9.3 REMEDIES CUMULATIVE. All rights and remedies expressly provided in this
Lease for Landlord's protection shall be cumulative as to each other and of any
other rights and remedies provided hereunder or by law.
9.4 NO WAIVER. A waiver by Landlord of a breach or default by Tenant under the
terms and conditions of this Lease shall not be construed to be a waiver of any
subsequent breach or default or of any other or the same term or condition of
this Lease, and the failure of Landlord to assert any breach or to declare a
default by Tenant shall not be construed to constitute a waiver thereof so long
as such breach or default continues unremedied.
ARTICLE X. MISCELLANEOUS.
10.1 BANKRUPTCY OR ASSIGNMENT TO TRUSTEE. Neither this Lease nor any interest
therein nor any estate hereby created shall pass to any trustee or receiver in
bankruptcy or to any other receiver or assignee for the benefit of creditors or
otherwise by operation of law during the term of this Lease or any renewal
thereof.
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10.2 BROKERS. Except as may be expressly set forth to the contrary in the
Rider, each party represents to the other that no person, firm, corporation or
other entity is entitled to any brokerage commission or finder's fee on account
of the execution, delivery, and consummation of this Lease. Tenant hereby
agrees to indemnify Landlord and to hold Landlord free and harmless of and from
any and all claims, losses, damages, costs and expenses of whatsoever nature,
including attorneys' fees and costs of litigation arising from or relating to
any brokerage commissions or finder's fees incurred by Tenant in connection
with this Lease. Tenant shall not be responsible for claims of brokers
alleging a contract with Landlord.
10.3 CAPTIONS. The captions used throughout this Lease are for convenience and
reference only and shall in no way be held to explain, modify, amplify, or aid
in the interpretation, construction or meaning of the provisions in this Lease.
10.4 CERTIFICATES OF OCCUPANCY. Tenant may, prior to the commencement of the
Lease Term, apply for a certificate of occupancy to be issued by municipality
in which the Premises are located, but this Lease shall not be contingent on
issuance thereof.
10.5 ENTIRE AGREEMENT. This Lease including its Exhibits and Rider, if any,
contains the entire agreement between the parties and no modification of this
Lease shall be binding upon the parties unless evidenced by an agreement in
writing signed by ▇▇▇▇▇▇▇▇ and Tenant after the date hereof.
10.6 JOINT AND SEVERAL LIABILITY OF MULTIPLE TENANTS. If there be more than
one Tenant named herein, the provisions of this Lease shall be applicable to
and binding upon such Tenants jointly and severally.
10.7 NOTICES. Except as otherwise herein provided, whenever by the terms of
this Lease notice shall or may be given either to Landlord or to Tenant such
notice shall be in writing and shall be deemed to have been properly delivered
if sent by certified mail, return receipt requested, postage prepaid, to
Landlord at Landlord's Address and to Tenant at the Premises, or to such other
place as Landlord or Tenant may designate in writing. The date of mailing
shall be deemed the date of delivery.
10.8 PARTIAL INVALIDITY. If any term, covenant, condition or provision of this
Lease or the application thereof to any person or circumstances shall, to any
extent be invalid, unenforceable or violate a party's legal rights, then such
term, covenant, condition or provision shall be deemed to be null and void and
unenforceable, however, all other provisions of this Lease, or the application
of such term or provision to persons or circumstances other than those which
are held invalid, unenforceable or violative of legal rights shall not be
affected thereby, and each and every other term, condition, covenant and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
10.9 RECORDING. This lease shall not be recorded by either party without the
written consent of the other.
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10.10 SUCCESSORS. The agreements, covenants and conditions of this Lease shall
be binding upon and inure to the benefit of the heirs, legal representatives,
successors and assigns of each of the parties hereto, except that no
assignment, encumbrance or subletting by ▇▇▇▇▇▇, unless permitted by the
provisions of tease, without the written consent of Landlord shall vest any
right in the assignee, encumbrancee or sublessee of Tenant.
10.11 USE OF THE SINGULAR; GENDER. The terms "Landlord" and "Tenant," and
pronouns representing the same, wherever used herein shall include the plural
as well as the singular, the feminine as well as the masculine.
10.12 RIDER. A Rider consisting of 6 pages, with paragraphs numbered 1 through
58 consecutively, is attached hereto and made a part hereof. [Riders have been
incorporated into the main body of the lease.]
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
hereinabove stated.
LANDLORD:
GENERAL AMERICAN LIFE INSURANCE COMPANY
a Missouri Corporation
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
TENANT:
▇▇▇▇▇▇▇▇ MICRO SCIENCE, INC.,
a wholly owned subsidiary of
▇▇▇▇▇▇▇▇ LABORATORIES WORLDWIDE, INC.
-----------------------------------------
BY:
--------------------------------------
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
BY:
--------------------------------------
18
23
EXHIBIT A
RULES AND REGULATIONS
1. Signs. Tenant shall not inscribe any inscription or post, place, or in
any manner display any sign, notice, picture, placard or advertisement
matter whatsoever anywhere in or about Premises at places visible (either
directly or indirectly as an outline or shadow on a glass part from
anywhere outside of the Premises or from public and common areas within
Premises without first obtaining Landlord's written consent thereto and
Landlord shall specify the color, size, style and material to be used.
2. Showcases. No showcase shall be placed in front of or in the lobbies or
corridors of the Premises and Landlord reserves the right to remove any
showcases so placed and all signs other than those above provided for
without notice and at the expense of the tenant responsible.
3. Installation of Signs. All exterior and interior signs must be installed
by Landlord or someone designated by Landlord and the actual cost thereof
shall be paid by Tenant and all such signs are so placed at the risk of
Tenant.
4. Telephone Connections. If Tenant desires telegraphic, cable television
or telephone connections, Landlord will direct electricians where the
wires are to be introduced and without such direction no boring or cutting
for wires shall be permitted.
5. Submission of Plans. Tenant shall submit to Landlord for Landlord's
approval, a copy of its construction and equipment layout plan prior to
commencement of construction. In the event that ▇▇▇▇▇▇ is unable to
obtain Landlord's approval for said plans and layout, this Lease shall at
Tenant's sole option be deemed null and void and any amounts paid by
Tenant to Landlord pursuant to this lease shall be reimbursed to Tenant
without offset.
6. No Nuisances. Tenant shall not do or permit anything to be done in the
Premises which will be dangerous to life, or limb, or which will tend to
create a nuisance or injure the reputation of the Building/s. Tenant
shall not use burning fluid, camphine, alcohol, kerosene, or anything else
in order to light or heat the Premises except steam, gas or electricity.
Tenant shall not bring into the Premises or keep therein any heating or
lighting apparatus other than that provided by Landlord; or install any
air conditioning or air cooling apparatus without the written consent of
Landlord; or in any way injure, modify, or tamper with any of such
apparatus in any manner or in any manner in violation of the regulations
of the Fire Department, or with any insurance policy upon said Building/s
or any part thereof. Tenant shall not do or permit to be done in the
Premises any activity in conflict with any of the laws, rules or
regulations of any governmental agency or municipality having
jurisdiction, or use the Premises for an illegal or immoral purpose. No
beer, wine or intoxicating liquor shall be sold on or about the Premises
without the written consent of the Landlord in each instance.
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7. Passageways. The sidewalk, passages, lobbies, corridors, elevators and
stairways shall not be obstructed by Tenant; or used except for ingress
and egress from and to the Premises. The doors, skylights, windows and
transoms that reflect or admit light into passageways or into any place in
said Building/s, shall not be covered or obstructed by Tenant.
8. Waters Closets. The water closets and other apparatus shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. Any
damage resulting to them from misuse shall be borne by the tenant who
shall cause it.
9. No Defacing of Offensive Business. Tenant and its employees and guests
are not to injure or deface the Building/s nor the woodwork, nor the walls
of the Premises, nor to carry on upon the premises any noisome, noxious,
noisy or offensive business nor conduct an auction therein, or interfere
in any way with other tenants or those having business with them.
10. No Lodging. No room or rooms on or about the Premises shall be occupied
or used as sleeping or lodging apartments.
11. Lock all Doors. Tenant shall, when leaving Premises at close of
business, or unoccupied at any time, lock all doors and windows and for
any default or carelessness in this respect shall make good all injury
sustained by other tenants and by Landlord or by either of them, for
damages resulting from such default or carelessness.
12. No Animals. No animal or bird shall be allowed in any part of the
Premises or Building/s without the consent of Landlord.
13. No Accumulation of Rubbish. Tenant shall not accumulate or store on or
about the Premises any waste paper, discarded records, paper files,
sweeping, rags, rubbish or other combustible matter other than the normal
accumulation needed to conduct the Permitted Use of the Premises. Nothing
shall be thrown by Tenant, its employees or guests out of the windows or
doors or down the passages or skylights or over balcony rails of the
Building/s or in the parking areas.
14. Exclusion of Peace Disturbers. Landlord reserves the right to exclude
from the Premises or Building/s all drunken persons, idlers, diseased
persons, peddlers, solicitors, persons of a general character or conduct
so as to create a disturbance, and persons entering in crowds or in such
unusual numbers as to cause inconvenience to tenants of the Building/s.
15. Changes to Rules. Landlord reserves the right to change these rules and
to make such other and further reasonable rules and regulations either as
it affects one or all tenants as in its judgment may from time to time be
needed for the safety, care and cleanliness of the Center, for the
preservation of good order therein or for any other cause. When such
changes are made such modified or new rules shall be deemed a part hereof
with the same
25
effect as if written herein, when a copy shall have been
delivered to Tenant or left with some person in charge of the Premises.
16. No Live Christmas Trees. No live or fresh cut Christmas Trees are
permitted on or about the Premises.
17. No Picnics. No outside picnics or barbecues are permitted without the
prior written consent of Landlord.
18. No Outside Storage. No outside storage of any material is permitted.
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EXHIBIT B
THE CENTER AND PREMISES
[Site Plan]
27
EXHIBIT C
▇▇▇▇▇▇▇▇'S IMPROVEMENTS TO THE PREMISES
[Site Plan]
28
EXHIBIT D
Preliminary Facility Plans & Specifications
Southern California Facility
Process & Warehouse Area ▇▇,▇▇▇ ▇▇▇▇▇▇ Feet.
Architect & Engineering Landlord will bear all cost for architect
and engineering fees associated with shell
Building construction.
Building Permits Landlord will be responsible for obtaining
all building and construction permits for
the shell building.
Construction Time Landlord will provide a Building that meets
the following requirements within six months
from issuance of building permits
Office & Laboratory Area Approximately 3,500 square feet single story
office and lab area.
Site Area Site area is 178,901 square feet.
Site Location ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇__
Site Dimensions Approximately 515' x 345".
Parking Parking for approximately 53 cars and trucks.
Building Orientation Interior lot with the Building facing west.
Building Design Building to be designed and constructed in
accordance with latest engineering standards
and local codes
Office Construction Tilt up concrete panels. Attached office to
have two common walls with plant but no
direct passage from office to plant.
Office Interior Finishes Standard finish of painted drywall, metal
door frames, stained wood doors, carpet,
recessed fluorescent ceiling-mounted light
fixtures, forced-air, gas-fired HVAC to
combination mechanical to conserve energy,
walls between offices designed to limit
sound transmission through walls, insulation
in perimeter walls,
29
suspended acoustical
tile ceiling and plumbing as per code.
Process & Warehouse Tilt-up concrete panel, painted concrete
Construction exterior and interior walls.
Landscaping Standard landscaping around office and
warehouse/processing areas to meet codes and
park covenants.
Roof System Glu-lam beam and wood panelized roof with
steel column supports 24' clear height.
Roof Cover 4-ply built-up with 10 year guarantee.
Roof Loan Roof shall be designed to accept load of
standard HVAC equipment for office area and
control room including exhaust fans.
Lighting Plat area light levels approximately 25 foot
candles to be provided by ceiling hung
exposed metal-halide fixtures powered by __
volts. Credit will be given for process
areas where no ceiling lighting will be
provided. Tenant to explore use of
skylights with photo cell control of all
lights with SCE.
Energy Conservation Energy conservation to be high priority in
design.
Heating Plant area to be heated by two ceiling hung
gas-fired space heaters.
Cooling Plant area will not be cooled.
Floor Design Reinforced concrete at 3,000 ___ minimum
compressive strength and ___ minimum of 6"
thick slab, designed for single wheel truck
traffic carrying average loads of 1200
pounds. Floor height to be dock high.
Truck Docks Docks to accommodate 9 trucks
simultaneously. One dock to be at front of
Building and one dock at rear of Building.
Docks to include truck seals, automatic
chocks, auto operating dock doors and
manually
30
operating hydraulic levelers.
Electrical connections at Tenant expense.
Truck Apron Minimum truck turning radius of __ feet.
Electrical Service 2000 amps of 277/480 volts, 3 phase, ___ Hz
power. Eight (8) distribution panels of 200
amps and four panels of 100 amps.
Electrical distribution system with
equipment grounding. Tenant will provide
additional 208/___ volt distribution panels
and process equipment connections.
Natural Gas Supply 3,870,000 BTU/hr connected load, plus
heating load for warehouse and office areas.
Plumbing Toilet facilities to meet code for Tenant
work force and ___requirements. Process
will require make up water for 40 BHP
boiler.
One drain for each 5,000 square feet of
warehouse/processing area. Drains for
handling water used to wash floors/equipment
and infrequent use of potable water for
once-through cooling heat exchangers,
clarifier included.
Fire sprinkler in warehouse and office areas
to be built in accordance with NFPA
requirements, local code and insurance
requirements; system to be .60/3000 GPM.
