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EXHIBIT 10.28
STANDARD INDUSTRIAL LEASE - NET
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. PARTIES. This Lease dated for reference purposes only September 11 , 1990 is
made by and between Don Mosco, an individual (herein called "Lessor") and Xcel
Corporation, a New Jersey corporation (herein called "Lessee").
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from Lessor for
the term at the rental and upon all of the conditions set forth herein that
certain real property situated in the County of Los Angeles State of California
commonly known as 720 E. Huntington Drive, Monrovia, California and described as
one free-standing industrial building situated thereon, as shown cross-hatched
on Exhibit "A" attached hereto and incorporated herein by this reference. Said
real property including the land and all improvements therein is herein called
"the Premises".
3. TERM.
3.1 TERM. The term of this Lease shall be for thirty-seven (37) months
commencing on October 1, 1990 and ending on October 31, 1993 unless sooner
terminated pursuant to any provision hereof.
3.2 DELAY IN POSSESSION. Notwithstanding said commencement date if for any
reason Lessor cannot deliver possession of the Premises to Lessee on said date
Lessor shall not be subject to any liability therefor, nor shall such failure
affect the validity of this Lease or the obligations of Lessee hereunder or
extend the term hereof, but in such case Lessee shall not be obligated to pay
rent until possession of the Premises is tendered to Lessee provided however
that if Lessor shall not have delivered possession of the Premises on or before
November 1, 1990 (the "Outside Date").
3.3 EARLY POSSESSION.
(SEE RIDER PROVISION 48)
4. RENT.
Lessee shall pay to Lessor as rent to the Premises monthly payments of
$5,325 in advance on the 1st of each month of the term hereof Lessee shall pay
Lessor upon the execution hereof $ 5,325 as rent for the second full calendar
month of the term hereof. Rent for any period during the term hereof which is
for less than one month shall be a pro rata portion of the monthly installment.
Rent shall be payable in lawful money of the United States to Lessor at the
address stated herein or to such other persons or at such other places as
Lessor may designate in writing.
(SEE RIDER PROVISION 49)
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
$5,325 as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder or
otherwise defaults with respect to any provision of this Lease Lessor may use,
apply or retain all or any portion of said deposit for the payment of any rent
or other charge in default or for the payment of any other sum to which Lessor
may become obligated by reason of Lessee's default or to compensate Lessor for
any loss or damage which Lessor may suffer thereby. If Lessor so uses or applies
all or any portion of said deposit, Lessee shall within ten (10) days after
written demand therefor deposit cash with Lessor in an amount sufficient to
restore said deposit to the full amount hereinabove stated and Lessee's failure
to do so shall be a material breach of this Lease. If the monthly rent shall
from time to time increase during the term of this Lease, Lessee shall thereupon
deposit with Lessor additional security deposit so that the amount of security
deposit held by Lessor shall at all times bear the same proportion to current
rent as the original security deposit bears to the original monthly rent set
forth in paragraph 4 hereof. Lessor shall not be required to keep said deposit
separate from its general accounts. If Lessee performs all of Lessee's
obligations hereunder said deposit or so much thereof as has not theretofore
been applied by Lessor shall be returned without payment of interest or other
increment for its use to Lessee (or at Lessor's option to the last assignee if
any of Lessee's interest hereunder) at the expiration of the term hereof and
after Lessee has vacated the Premises. No trust relationship is created herein
between Lessor and Lessee with respect to said Security Deposit.
6. USE.
6.1 USE. The Premises shall be used and occupied only for design,
manufacturing and distribution or any other use which is reasonably comparable
and for no other purpose.
6.2 COMPLIANCE WITH LAW.
(a) Lessor warrants to Lessee that the Premises in its state existing on
the date that the Lease term commences but without regard to the use for which
Lessee will use the Premises or to any work which Lessee may thereafter perform
in the Premises does not violate any covenants or restrictions of record or any
applicable building code, regulation or obligation of the Lessor after written
notice from Lessee to promptly, at Lessor's sole cost and expense, rectify any
such violation.
(b) Except as provided in paragraph 6.2(a) Lessee shall at Lessee's
expense, comply promptly with all applicable statutes, ordinances, regulations,
orders, covenants and restrictions of record and requirements in effect during
the term or any part of the term hereof regulating the use by Lessee of the
Premises. Lessee shall not use nor permit the use of the Premises in any manner
that will tend to create waste or a nuisance or, if there shall be more than one
tenant in the building containing the Premises, shall tend to disturb such other
tenants.
(SEE RIDER PROVISION 50)
6.3 CONDITION OF PREMISES.
(a) Lessor shall deliver the Premises to Lessee clean and free of debris
on Lease commencement date (unless Lessee is already in possession) and Lessor
further warrants to Lessee that the structural portions of the Premises are, to
Lessor's actual knowledge, sound and the plumbing, lighting, air conditioning,
heating and loading doors in the Premises shall be in good operating condition
on the Lease commencement date. In the event that it is determined that this
warranty has been violated, then it shall be the obligation of Lessor, after
receipt of written notice from Lessee setting forth with specificity the nature
of the violation to, promptly, at Lessor's cost, rectify such violation.
Lessee's failure to give such notice to Lessor within sixty (60) days after the
Lease commencement date shall cause the conclusive presumption that Lessor has
complied with all of Lessor's obligations hereunder.
(SEE RIDER PROVISION 51)
(b) Except as otherwise provided in this Lease, Lessee hereby accepts
the Premises in their condition existing as of the Lease commencement date or
the date that Lessee takes possession of the Premises, whichever is earlier,
subject to all applicable zoning, municipal, county and state laws, ordinances
and regulations governing and regulating the use of the Premises, and any
covenants or restrictions of record and accepts this Lease subject thereto and
to all matters disclosed thereby and by any exhibits attached hereto Lessee
acknowledges that neither Lessor nor Lessor's agent has made any representation
or warranty as to the present or future suitability of the Premises for the
conduct of Lessee's business.
(SEE RIDER PROVISION 52)
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS. Lessee shall keep in good order, condition and
repair the Premises and every part thereof (provided however, that Lessor shall
be responsible for any structural repairs except by any act or omission of
Lessee) (whether or not such portion of the Premises requiring repair, or the
means of repairing the same are reasonably or readily accessible to Lessee or
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 plumbing, heating, air
conditioning. (Lessee shall procure and maintain at Lessee's expense, an air
conditioning system maintenance contract) ventilating, electrical, lighting
facilities and equipment within the Premises, fixtures, walls (interior), doors,
plate glass and skylights located within the Premises, and all landscaping,
driveways, parking lots, fences and signs located on the Premises and sidewalks
and parkways adjacent to the Premises.
(SEE RIDER PROVISION 46A)
7.2 SURRENDER. On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same condition
as when received, ordinary wear and tear excepted, clean and free of debris.
Lessee shall repair any damage to the Premises occasioned
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by the installation or removal of Lessee's trade fixtures, furnishings and
equipment. Notwithstanding anything to the contrary otherwise stated in this
lease, Lessee shall leave the air lines, power panels, electrical distribution
systems, lighting fixtures, space heaters, air conditioning, plumbing and
fencing on the premises in good operating condition.
7.3 LESSOR'S RIGHTS. If Lessee fails to perform Lessee's obligations under
this Paragraph 7, or under any other paragraph of this Lease, Lessor may, at its
option (but shall not be required to) enter upon the Premises after ten (10)
days' prior written notice to Lessee (except in the case of an emergency, in
which case no notice shall be required) perform such obligations on Lessee's
behalf and put the same in good order, condition and repair and the cost thereof
together with interest thereon at the Interest Rate (as such term is defined in
Rider Provision 59) shall become due and payable as additional rental to Lessor
together with Lessee's next rental installment.
7.4 LESSOR'S OBLIGATIONS. Except for the obligations of Lessor under
Paragraph 6.2(a) and 6.3(a) (relating to Lessor's warranty) Paragraph 9
(relating to destruction of the Premises), Paragraph 14 (relating to
condemnation of the Premises) add Paragraph 7.1 (relating to structural repairs)
it is intended by the parties hereto that Lessor have no obligation in any
manner whatsoever to repair and maintain the Premises nor the building located
thereon nor 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.
7.5 ALTERATIONS AND ADDITIONS.
(a) Lessee shall not without Lessor's prior written consent make any
alterations, improvements, additions or Utility Installations in, on or about
the Premises, except for nonstructural alterations or alterations which will not
have an effect on the Building Systems (as defined in Rider Provision 58), which
in either case do not exceed $25,000 in cumulative costs during the term of this
Lease. In any event, whether or not in excess of $25,000 in cumulative cost,
Lessee shall make no change or alteration to the exterior of the Premises nor
the exterior of the building(s) on the Premises without Lessor's prior written
consent. As used in this Paragraph 7.5 the term "Utility Installation" shall
mean carpeting, window coverings, air lines, power panels, electrical
distribution systems, lighting fixtures, space heaters, air conditioning,
plumbing, and fencing. Lessor may require that Lessee remove any or all of said
alterations, improvements, additions or Utility Installations at the expiration
of the term and restore the Premises to their prior condition. Lessor may
require Lessee to provide Lessor, at Lessee's sole cost and expense, a lien and
completion bond in an amount equal to one and one-half times the estimated cost
of such improvements, to insure Lessor against any liability for mechanic's and
materialmen's liens and to insure completion of the work. Should Lessee make
any alterations, improvements, additions or Utility Installations without the
prior approval of Lessor, Lessor may require that Lessee remove any or all of
the same.
(b) Any alterations, improvements, additions or Utility Installations
in, or about the Premises that Lessee shall desire to make and which requires
the consent of the Lessor shall be presented to Lessor in written form, with
proposed detailed plans. If Lessor shall give its consent, the consent shall be
deemed conditioned upon Lessee acquiring a permit to do so from appropriate
governmental agencies, the furnishing of a copy thereof to Lessor prior to the
commencement of the work and the compliance by Lessee of all conditions of said
permit in a prompt and expeditious manner.
(c) 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 in
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 the Premises and Lessor shall have the right to post notices of
non-responsibility in or on the Premises as provided by law. If Lessee shall, in
good faith, contest the validity of any such lien, claim or demand, then Lessee
shall, at its sole expense defend itself and Lessor 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, upon the condition
that if Lessor shall require, Lessee shall furnish to Lessor a surety bond
satisfactory to Lessor in an amount equal to such contested lien claim or demand
indemnifying Lessor against liability for the same and holding the Premises free
from the effect of such lien or claim. In addition, Lessor may require Lessee to
pay Lessor's attorneys fees and costs in participating in such action if Lessor
shall decide it is to its best interest to do so.
(d) Unless Lessor requires their removal, as set forth in Paragraph
7.5(a) all alterations, improvements, additions and Utility Installations
(whether or not such Utility Installations constitute trade fixture of Lessee)
which may be made on the Premises, shall become the property of Lessor and
remain upon and be surrendered with the Premises at the expiration of the term.
Notwithstanding the provisions of this Paragraph Lessee's machinery and
equipment, other than that which is affixed to the Premises so that it cannot be
removed without material damage to the Premises, shall remain the property of
Lessee and may be removed by Lessee subject to the provisions of Paragraph 7.2.
8. INSURANCE INDEMNITY.
8.1 INSURING PARTY. As used in this Paragraph 8, the term"insuring party"
shall mean the party who has the obligation to obtain the Property Insurance
required hereunder. The insuring party shall be designated in paragraph 46
hereof. In the event Lessor is the insuring party, Lessor shall also maintain
the liability insurance described in paragraph 8.2 hereof, in addition to, and
not in lieu of, the insurance required to be maintained by Lessee under said
paragraph 8.2 but Lessor shall not be required to name Lessee as an additional
insured on such policy. Whether the insuring party is the Lessor or the Lessee,
Lessee shall, as additional rent for the Premises, pay the cost of all insurance
required hereunder, except for that portion of the cost attributable to Lessor's
liability insurance coverage in excess of $1,000,000 per occurrence. If Lessor
is the insuring party Lessee shall, within ten (10) days following demand by
Lessor, reimburse Lessor for the cost of the insurance so obtained.
8.2 LIABILITY INSURANCE. Lessee shall at Lessee's expense obtain and keep in
force during the term of this Lease a policy of Combined Single Limit Bodily
Injury and Property Damage insurance insuring Lessor and Lessee against any
liability arising out of the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be a combined
single limit policy in an amount not less than $500,000 per occurrence. The
policy shall insure performance by Lessee of the indemnity provisions of this
Paragraph 8. The limits of said insurance shall not, however, limit the
liability of Lessee hereunder.
8.3 PROPERTY INSURANCE.
(a) The insuring party shall obtain and keep in force during the term of
this Lease a policy or policies of insurance covering loss or damage to the
Premises. In the amount of the full replacement value thereof, as the same may
exist from time to time against all perils included within the classification of
fire, extended coverage, vandalism, malicious mischief, flood (in the event same
is required by a lender having a lien on the Premises) and special extended
perils ("all risk" as such term is used in the insurance industry). Said
insurance shall provide for payment of loss thereunder to Lessor or to the
holders of mortgages or deeds of trust in the insurance industry). Said
insurance shall provide for payment of loss thereunder to Lessor or to the
holders of mortgages or deeds of trust on the Premises. The insuring party
shall, in addition, obtain and keep in force during the term of this Lease a
policy of rental value insurance covering a period of one year, with loss
payable to Lessor, which insurance shall also cover all real estate taxes and
insurance costs for said period. A stipulated value or agreed amount endorsement
deleting the coinsurance provision of the policy shall be procured with said
insurance as well as an automatic increase in insurance endorsement causing the
increase in annual property insurance coverage by 2% per quarter. If the
insuring party shall fail to procure and maintain said insurance the other party
may, but shall not be required to, procure and maintain the same, but at the
expense of Lessee. 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.
(b) 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,
then Lessee shall pay for any increase in the property insurance of such other
building or buildings if said increase is caused by Lessee's acts, omissions,
use or occupancy of the Premises.
(c) If the Lessor is the insuring party the Lessor will not insure
Lessee's fixtures, equipment or tenant improvements unless the tenant
improvements have become a part of the Premises under paragraph 7, hereof. But
if Lessee is the insuring party the Lessee shall insure the fixtures, equipment
and tenant improvements.
8.4 INSURANCE POLICIES. Insurance required hereunder shall be in companies
holding a "General Policyholders Rating" of at least B plus, or such other
rating as may be required by a lender having a lien on the Premises as set forth
in the most current issues of "Best's Insurance Guide". The insuring party shall
deliver to the other party copies of policies of such insurance or certificates
evidencing the existence and amounts of such insurance with loss payable clauses
as required by this paragraph 8. No such policy shall be cancellable or subject
to reduction of coverage or other modification except after thirty (30) days'
prior written notice to Lessor. If Lessee is the insuring party Lessee shall, at
least thirty (30) days prior to the expiration of such policies, furnish Lessor
with renewals or "binders" thereof, or Lessor may order such insurance and
charge the cost thereof to lessee which amount shall be payable by Lessee upon
demand. Lessee shall not do or permit to be done anything which shall invalidate
the insurance policies referred to in Paragraph 8.3. If Lessee does or permits
to be done anything which shall increase the cost of the insurance policies
referred to in Paragraph 8.3 then Lessee shall forthwith upon Lessor's demand
reimburse Lessor for any additional premiums attributable to any act or omission
of operation of Lessee causing such increase in the cost of insurance. If Lessor
is the insuring party, and if the insurance policies maintained hereunder cover
other improvements in addition to the Premises, Lessor shall deliver to Lessee a
written statement setting forth the amount of any such insurance cost increase
and showing in reasonable detail the manner in which it has been computed.
8.5 WAIVER OF SUBROGATION. Lessee and Lessor each hereby release and relieve
the other and waive their entire right of recovery against the other for loss or
damage arising out of or incident to the perils insured against under paragraph
8.3 which perils occur in, on or about the Premises, whether due to the
negligence of Lessor or Lessee or their agents, employees, contractors and/or
invitees. Lessee and Lessor shall, upon obtaining the policies of insurance
required hereunder, give notice to the insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.
8.6 INDEMNITY. Lessee shall indemnify and hold harmless Lessor from and
against any and all claims arising from Lessee's use of the Premises or from the
conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere and shall
further indemnify and hold harmless Lessor from and against any and all claims
arising from any negligence of the Lessee or of Lessee's agents, contractors, or
employees, and from and against all costs, attorney's fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon and in case any action or proceeding be brought
against Lessor by reason of any such claim. Lessee upon notice from Lessor shall
defend the same Lessee's expense by counsel satisfactory to Lessor. Except to
the extent the loss, damage or injury, as the case may be, is (i) caused by
Lessor's failure to make structural repairs as required hereunder or (ii) is
caused by Lessor's willful acts or negligence, Lessee, as a material part of the
consideration to Lessor, hereby assumes all risk of damage to property or injury
to persons, in, upon or about the Premises arising from any cause and Lessee
hereby waives all claims in respect thereof against Lessor.
8.7 EXEMPTIONS OF LESSOR FROM LIABILITY. Except to the extent the loss,
damage or injury, as the case may be, is (i) caused by Lessor's failure to make
structural repairs as required hereunder or (ii) is caused by Lessor's willful
acts or negligence, Lessee hereby agrees that Lessor shall not be liable for
injury to Lessee's business or any loss of income therefrom or for damage to the
goods, wares, merchandise or other property of Lessee. Lessee's employees,
invitees, customers, or any other person in or about the Premises, nor shall
Lessor be liable for injury to the person of Lessee, Lessee's employees, agents
or contractors, 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, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures, or from any other cause, whether the said
damage or injury 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 inaccessible to Lessee, Lessor shall not be
liable for any damages arising from any act or neglect of any other tenant, if
any, of the building in which the Premises are located.
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9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "Premises Partial Damage" shall herein mean damage or destruction to
the Premises to the extent that the cost of repair is less than 50% of the then
replacement cost of the Premises. "Premises Building Partial Damage" shall
herein mean damage or destruction to the building of which the Premises are a
part to the extent that the cost of repair is less than 50% of the then
replacement cost of such building as a whole.
(b) "Premises Total Destruction" shall herein mean damage or destruction
to the Premises to the extent that the cost of repair is 50% or more of the then
replacement cost of the Premises. "Premises Building Total Destruction" shall
herein mean damage or destruction to the building of which the Premises are a
part to the extent that the cost of repair is 50% or more of the then
replacement cost of such building as a whole.
(c) "Insured Loss" shall herein mean damage or destruction which was
caused by an event required to be covered by the insurance described in
paragraph 8.
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9.2 PARTIAL DAMAGE - INSURED LOSS. Subject to the provision of
paragraph 9.4, 9.5 and 9.6, if at any time during the term of this Lease there
is damage which is an Insured Loss and which falls into the classification of
Premises Partial Damage or Premises Building Partial Damage, then Lessor shall,
at Lessor's expense, repair such damage, but not Lessee's fixtures, equipment
or tenant improvements unless the same have become a part of the Premises
pursuant to Paragraph 7.5 hereof as soon as reasonably possible and this Lease
shall continue in full force and effect. Notwithstanding the above only in
that Lessee is the insuring party and if the insurance proceeds received by
Lessor are not sufficient to effect such repair, Lessor shall give notice to
Lessee of the amount required in addition to the insurance proceeds to effect
such repair, Lessee shall contribute the required amount to Lessor within
twenty (20) days after Lessee has received notice from Lessor of the shortage
in the insurance. When Lessee shall contribute such amount to Lessor, Lessor
shall make such repairs as soon as reasonably possible and this Lease shall
continue in full force and effect. Lessee shall in no event have any right to
reimbursement for any such amounts so contributed.
9.3 PARTIAL DAMAGE - UNINSURED LOSS. Subject to the provisions of
Paragraph 9.4, 9.5 and 9.6, if at any time during the term of this Lease there
is damage which is not insured loss and which falls within the classification
of Premises Partial Damage or Premises Building Partial Damage, unless caused
by a negligent or willful act of Lessee (in which event Lessee shall make the
repairs at Lessee's expense), 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 the date of the occurrence of such
damage of Lessor's intention to cancel and terminate this Lease. Lessee shall
have the right within twenty (20) days after the receipt of such notice to give
written notice to Lessor of Lessee's intention to repair such damage at
Lessee's expense, without reimbursement from Lessor, in which event this Lease
shall continue in full force and effect, and Lessee shall proceed to make such
repairs as soon as reasonably possible. If Lessee does not give such notice
within such twenty (20) day period this Lease shall automatically terminate as
of the date of such total destruction.
9.4 TOTAL DESTRUCTION. If at any time during the term of this Lease
there is damage, whether or not an insured loss (including destruction required
by any authorized public authority) which falls into the classification of
Premises Total Destruction or Premises Building Total Destruction, this Lease
shall automatically terminate as of the date of such total destruction.
9.5 DAMAGE NEAR END OF TERM.
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(a) If at any time during the last six months of the term of
this Lease there is damage, whether or not an insured loss, which falls within
the classification of Premises Partial Damage, either party may cancel and
terminate this Lease as of the date of occurrence of such damage by giving
written notice to the other within 30 days after the date of occurrence of such
damage.
(b) Notwithstanding paragraph 9.5(a), in the event that
Lessee has an option to extend or renew this Lease, and the time within which
said option may be exercised has not yet expired, Lessee shall exercise such
option, if it is to be exercised at all, no later than 20 days after the
occurrence of an insured loss falling within the classification of Premises
Partial Damage during the last six months of the term of this Lease. If Lessee
duly exercises such option during said 20 day period, 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
during said 20 day period, then Lessor may at Lessor's option terminate and
cancel this Lease as of the expiration of said 20 day period by giving written
notice to Lessee of Lessor's election to do so within 10 days after the
expiration of said 20 day period by giving written notice to Lessee of Lessor's
election to do so within 10 days after the expiration of said 20 day period,
notwithstanding any term or provision in the grant of option to the contrary.
9.6 ABATEMENT OF RENT LESSEE'S REMEDIES.
(a) In the even of damage described in paragraphs 9.2 or 9.3
and Lessor or Lessee repairs or restores the Premises pursuant to the
provisions of this Paragraph 9, the rent payable hereunder for the period
during which such damage, repair or restoration continues shall be abated
to the degree to which Lessee's use of the Premises is impaired. Except for
abatement of rent, if any, Lessee shall have no claim against Lessor for any
damage suffered by reason of any such damage, destruction, repair or
restoration except to the extent any such damage resulted from Lessor's failure
to make structural repairs to the Premises as required hereunder.
(b) If Lessor shall be obligated to repair or restore the
Premises under the provision of this Paragraph 9 and shall not commence such
repair or restoration within 90 days after such obligations shall accrue,
Lessee may at Lessee's option cancel and terminate this Lease by giving Lessor
written notice of Lessee's election to do so at any time prior to the
commencement of such repair or restoration. In such event this Lease shall
terminate as of the date of such notice.
9.7 TERMINATION - ADVANCE PAYMENT. Upon termination of this Lease
pursuant to this Paragraph 9, an equitable adjustment shall be made concerning
advance rent and any advance payments made by Lessee to Lessor. Lessor shall,
in addition, return to Lessee so much of Lessee's security deposit as has not
theretofore been applied by Lessor.
9.8 WAIVER. Lessor and Lessee waive the provision of any statutes
which relate to termination of leases when leased property is destroyed and
agree that such event shall be governed by the terms of this Lease.
(SEE RIDER PROVISION 61)
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Lessee shall pay the real property
tax, as defined in paragraph 10.2, applicable to the Premises during the term
of this Lease. All such payments shall be made at least ten (10) days prior to
the
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delinquency date of such payment. Lessee shall promptly furnish Lessor with
satisfactory evidence that such taxes have been paid. If any such taxes or
assessments paid by Lessee shall cover any period of time prior to or after the
expiration of the term hereof, Lessee's share of such taxes shall be equitably
prorated to cover only the period of time prior to or after the expiration of
the term hereof. Lessee's share of such taxes shall be equitably prorated to
cover only the period of time within the tax fiscal year during which this
Lease shall be in effect and Lessor shall reimburse Lessee to the extent
required. If Lessee shall fail to pay any such taxes, Lessor, upon reasonable
prior notice to Lessee, shall have the right to pay the same, in which case
Lessee shall repay such amount to Lessor with Lessee's next rent installment
together with interest at the Interest Rate.
(SEE RIDER PROVISION 46B)
10.2 DEFINITION OF "REAL PROPERTY TAX". As used herein, the
term "real property tax" 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) impose don 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, as against legal or equitable
interest of Lessor in the Premises or in the real property of which the
Premises are a part, as against Lessor's right to rent or other income
therefrom, and as against Lessor's business of leasing the Premises. The term
"real property tax" shall also include any tax, fee, levy, assessment or charge
(i) in substitution of partially or totally, any tax, fee, levy, assessment or
charge hereinabove included within the definition of service or right not
charged prior to June 1, 1978, or, if previously charged, has been increased
since June 1, 1978, or (iv) which is imposed as a result of a transfer either
partial or total, of Lessor's interest in the Premises or which is added to a
tax or charge hereinbefore included within the definition of real property tax
by reason of such transfer, or (v) which is imposed by reason of this
transaction, any modifications or changes hereto, or any transfers hereof.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within tax parcel assessed, such
proportion to be determined by Lessor from the respective valuations 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.
(a) Lessee shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises or elsewhere, when
possible, Lessee shall cause said trade fixtures, furnishings, equipment and
all other personal property to be assessed and billed separately from the real
property of Lessor.
(b) If any of Lessee's said personal property shall be
assessed with Lessor's real property, Lessee shall pay Lessor the taxes
attributable to Lessee within 10 days after receipt of a written statement
setting forth the taxes applicable to Lessee's property.
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11. UTILITIES. Lessee shall pay for all water, gas, heat, light,
power, telephone 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. Lessee shall not voluntarily
or by operation of assign, transfer, mortgage, sublet, or otherwise
transfer or encumber all or any part of Lessee's interest in this Lease or in
the Premises, without lessor's prior written consent, which Lessor shall not
unreasonably withhold. Lessor shall respond to Lessee's request for consent
hereunder in a timely manner and any attempted assignment, transfer, mortgage,
encumbrance or subletting without such consent shall be void, and shall
constitute a breach of this Lease.
12.2 LESSEE AFFILIATE. Notwithstanding the provisions of
Paragraph 12.1 hereof, Lessee may assign or sublet the Premises, or any portion
thereof, without Lessor's consent to any corporation which controls, is
controlled by or is under common control with Lessee, or to any corporation
resulting from the merger or consolidation with Lessee, or to any person or
entity which acquires all the assets of Lessee as a going concern of the
business that is being conducted on the Premises, provided that said assignee
assumes, in full, the obligations of Lessee under this Lease. Any such
assignment shall not, in any way, affect or limit the liability of Lessee under
the terms of this Lease even if after such assignment or subletting the terms
of this Lease are materially changed or altered without the consent of the
Lessee, the consent of whom shall be necessary.
12.3 NO RELEASE OF LESSEE. Regardless of Lessor's consent to
subletting or assignment shall release Lessee of Lessee's obligation or alter
the primary liability of Lessee to pay the rent and to perform all other
obligations to be performed by lessee hereunder. The acceptance of rent by
Lessor from any other person shall not be deemed to be a waiver by Lessor of
any provision hereof. consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. in the event of
default by any assignee of Lessee or any successor of Lessee in the performance
of any of the terms hereof, Lessor may proceed directly against Lessee without
the necessity of exhausting remedies against said assignee. Lessor may consent
to subsequent assignments of subletting of this Lease or amendments or
modifications to this Lease with assignment of Lessee, without notifying Lessee
or any successor of Lessee and without obtaining its or their consent thereto
and such action shall not relieve Lessee of liability under this Lease.
12.4 ATTORNEY'S FEES. In the event Lessee shall assign or
sublet the Premises or request the consent of Lessor of any assignment or
subletting or if Lessee shall request the consent of Lessor for any act Lessee
proposes to do then Lessee shall pay Lessor's reasonable attorneys fees
incurred in connection therewith, such attorneys fees not to exceed $350.00 for
each such request.
(SEE RIDER PROVISION 53)
13. DEFAULTS: REMEDIES.
13.1 DEFAULTS. The occurrence of any one or more of the
following events shall constitute a material default and breach of this Lease
by Lessee.
(a) The vacating or abandonment of the Premises by Lessee.
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(b) The failure by Lessee to make any payment of rent or any
other payment required to be made by Lessee hereunder, as and when due, where
such failure shall continue for a period of ten (10) days after written notice
thereof from Lessor to Lessee. In the event that Lessor serves Lessee with the
notice required by this paragraph, than such notice shall also constitute the
Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed
by Lessee, other than described in paragraph (b) above, where such failure
shall continue for a period of 30 days after written notice thereof from Lessor
to Lessee provided, however, that if the nature of Lessee's default is such
that more than 30 days are reasonably required for its cure, then Lessee shall
not be deemed to be in default if Lessee commenced such cure within said 30
days period and thereafter diligently prosecutes such cure to completion.
(d) (i) the making of Lessee of any general arrangement or
assignment for the benefit of creditors (ii) Lessee becomes a "debtor" as
defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, the
case of a petition filed against Lessee, the same is dismissed within 60 days)
(iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee assets located at the Premises of Lessee's interest
in this Lease, where possession is not restored to Lessee within 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 30 days. Provided, however,
in the event that any provision of this paragraph 13.1(d) is contrary to any
applicable law, such provision shall be of no force or effect.
13.2 Remedies. In the event of such material default or
breach by Lessee, Lessor may at any time thereafter, with or without notice or
demand and without limiting Lessor in the exercise of any right or remedy
which Lessor may have by reason of such default or breach:
(e) The discovery by Lessor that any financial statement
given to Lessor by Lessee, any assignment of Lessee, any subtenant of Lessee,
any successor in interest of Lessee or any guarantor of Lessee's obligation
hereunder, and any of them, was materially false.
(a) Terminate Lessee's right to possession of the Premises by
any lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event
Lessor shall be entitled to recover from Lessee all damages incurred by Lessor
by reason of Lessee's default including, but not limited to, the cost of
recovering possession of the Premises, expenses of reletting, including
necessary renovation and alteration o the Premises, reasonable attorneys fees
and any real estate commission actually paid, the worth at the time of aware by
the court having jurisdiction thereof of the amount by which the unpaid rent
for the balance of the term after the time of such award exceeds the amount of
such rental loss for the same period that Lessee proves could be reasonably
avoided that portion of the leasing commission paid by Lessor pursuant to
Paragraph 15 applicable to the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case this
Lease shall continue in effect whether or not Lessee shall have abandoned the
Premises. In such event Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the rent
as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to
Lessor under the laws of judicial decisions of the state wherein the Premises
are
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located. Unpaid installments of rent and other unpaid monetary obligations of
Lessee under the terms of this Lease shall bear interest from the date the
Interest Rate.
(SEE RIDER PROVISION 54)
13.3 DEFAULT BY LESSOR. Lessor shall not be in default unless
Lessor fails to perform obligations required of Lessor within a reasonable
time. no event later than thirty (30) days after written notice by Lessee to
Lessor and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished to Lessee
in writing specifying wherein Lessor has failed to perform such obligation
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance then Lessor shall not be in
default if Lessor commences performance within such 30-day period and
thereafter diligently prosecutes the same to completion.
13.4 LATE CHARGES. Lessee hereby acknowledges that late
payment by Lessee to Lessor of rent and other sums due hereunder will cause
Lessor to incur costs not contemplated by this Lease the exact amount of which
will be extremely difficult to ascertain. Such costs include but are not
limited to processing and accounting charges, and late charges which may be
imposed on Lessor by the terms of any mortgage or trust deed covering the
Premises. Accordingly, if any installment of rent or any other sum due from
Lessee shall not be received by Lessor or Lessor's designee within ten (10)
days after such amount shall be due, then, without any requirement for notice
to Lessee, Lessee shall pay to Lessor a later charge equal to two and one-half
percent (2 1/2%) of such overdue amount. The parties hereby agree that such
late charge represents a fair and reasonable estimate of the costs Lessor will
incur by reason of late payment by Lessee. Acceptance of such late charge by
Lessor shall in no event constitute a waiver of Lessee's default with respect
to such overdue amount, nor prevent Lessor from exercising any of the other
rights and remedies granted hereunder.
13.5 IMPOUNDS. In the event that a late charge is payable
hereunder, whether or not collected, for three (3) installments of rent or any
other monetary obligation of Lessee under the terms of this Lease. Lessee
shall pay to Lessor, if Lessor shall so request, in addition to any other
payments required under this Lease, a monthly advance installment, payable at
the same time as the monthly rent, as estimated by Lessor, for real property
tax and insurance expenses o the Premises which are payable by Lessee under the
terms of this Lease. Such fund shall be established to insure payment when
due, before delinquency of any or al such real property taxes and insurance
premiums. 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 and insurance premiums as the same become due, Lessee shall
pay to Lessor, upon Lessor's demand, such additional sums necessary to pay such
obligations. All moneys paid to Lessor under this paragraph may be
intermingled with other moneys of Lessor and shall not bear interest. In the
event of a default in the obligations of Lessee to perform under this Lease,
then any balance remaining from funds paid to Lessor under the provisions of
this paragraph may, at the option of the Lessor, be applied to the payment of
any monetary default of Lessee in lieu of being applied to the payment of real
property tax and insurance premiums.
14. CONDEMNATION. If the Premises or any portion thereof are taken under
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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 of the condemning authority
takes tile or possession, whichever first occurs. If more than 10% of the floor
area of the building on the Premises, or more than 25% of the land area of the
Premises which is not occupied by any building, is taken by condemnation, Lessee
may, at Lessee's option, to be exercised in writing only within ten (10) days
after Lessor shall have given Lessee written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
shall have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Premises remaining, except that the rent shall be
reduced in the proportion that the floor area of the building taken bears to the
total floor area of the building situated on the Premises. No reduction of rent
shall occur if the only area taken is that which does not have a building
located thereon. 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 or 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 for the taking
of the fee, or as severance damages provided, however, that Lessee shall be
entitled to any award for loss of or damage to Lessee's fixtures and removable
personal property. In the event that this Lease is not terminated by reason of
such condemnation, Lessor shall to the of severance damages received by Lessor
in connection with such condemnation, repair any damage to the Premises caused
by such condemnation except to the extent that Lessee has been reimbursed
therefor by the condemning authority, Lessee shall pay any amount in excess of
such severance damages required to complete such repair.
15. BROKER (SEE RIDER PROVISION 55)
16. ESTOPPEL CERTIFICATE.
(a) Lessee shall at any time upon not less than ten (10) days
prior written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and
the date to which the rent and other charges are paid in advance, if any, and
(ii) acknowledging that there are not, to Lessee's knowledge, any uncured
defaults on the part of Lessor hereunder, or specifying such defaults if any
are claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Premises.
(b) At Lessor's option, Lessee's failure to deliver such
statement within such time shall be a material breach of this Lease or shall be
conclusive upon Lessee (i) that this Lease is in full force and effect, without
modification except as may be represented by Lessor, (ii) that there are no
uncured defaults in Lessor's performance, and (iii) that not more than one
month's rent has been paid in advance or such failure may be considered by
Lessor as a default by Lessee under this Lease.
(c) If Lessor desire to finance, refinance, or sell the
Premises, or any part thereof, Lessee hereby agrees to deliver to any lender or
purchaser designated by Lessor such financial statements of Lessee as may be
reasonably
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required by such lender or purchaser. Such statements shall include the past
three years financial statements of Lessee. 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
only the owner or owners at the time in question of the fee title or a lessee's
interest in a ground lease of the Premises, and except as expressly provided in
Paragraph 15 and Rider Provision 60, in the event of any transfer of such title
or interest. Lessor herein named (and in case of any subsequent transfers then
the grantor) shall be relieved from and after the date of such transfer of all
liability as respects Lessor's obligations thereafter to be performed, provided
that any funds in the hands of Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest, shall be delivered to the grantee.
The obligations contained in this Lease to be performed by Lessor shall,
subject as aforesaid, be binding on Lessor's successor and assigns, only during
their respective periods of ownership.
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. Except as expressly herein
provided, any amount due to Lessor not paid when due shall bear interest at the
maximum rate then allowable by law form the date due. Payment of such interest
shall not excuse or cure any default by Lessee under this Lease, provided,
however, that interest shall not be payable on late charges incurred by Lessee
nor on any amounts upon which late charges are paid by Lessee.
20. TIME OF ESSENCE. Time is of the essence.
21. ADDITIONAL RENT. Any monetary obligations of Lessee to Lessor
under the terms of this Lease shall be deemed to be rent.
22. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease
contains all agreements of the parties with respect to any matter mentioned
herein. No prior agreement or understanding pertaining to any such matter
shall be effective. This Lease may be modified in writing only, signed by the
parties in interest at the time of the modification. Except as otherwise
stated in this Lease, Lessee hereby acknowledges that neither the real estate
broker listed in Paragraph 15 hereof nor any cooperating broker on this
transaction nor the Lessor or any employees or agents of any of said persons
has made any oral or written warranties or representations to Lessee relative
to the condition or use by Lessee of said Premises and Lessee acknowledges that
Lessee assumes all responsibility regarding the Occupational Safety Health Act,
the legal use and adaptability of the Premises and the compliance thereof with
all applicable laws and regulations in effect during the term of this Lease
except as otherwise specifically stated in this Lease.
23. NOTICES. Any notice required or permitted to be given hereunder
shall be in writing and may be given by personal delivery or by certified mail,
and if given personally or by mail, shall be deemed sufficiently given if
addressed to Lessee or to Lessor at the address noted below the signature of
the respective parties, as the case may be. Either party may by notice to the
other specify a different address for notice purposes except that upon Lessee's
taking possession
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as expressly herein provided, any amount due to Lessor not paid when due shall
bear interest at the maximum rate then allowable by law form the date due.
Payment of such interest shall not excuse or cure any default by Lessee under
this Lease, provided, however, that interest shall not be payable on late
charges incurred by Lessee nor on any amounts upon which late charges are paid
by Lessee.
20. TIME OF ESSENCE. Time is of the essence.
21. ADDITIONAL RENT. Any monetary obligations of Lessee to Lessor under the
terms of this Lease shall be deemed to be rent.
22. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
agreement or understanding pertaining to any such matter shall be effective.
This Lease may be modified in writing only, signed by the parties in interest at
the time of the modification. Except as otherwise stated in this Lease, Lessee
hereby acknowledges that neither the real estate broker listed in Paragraph 15
hereof nor any cooperating broker on this transaction nor the Lessor or any
employees or agents of any of said persons has made any oral or written
warranties or representations to Lessee relative to the condition or use by
Lessee of said Premises and Lessee acknowledges that Lessee assumes all
responsibility regarding the Occupational Safety Health Act, the legal use and
adaptability of the Premises and the compliance thereof with all applicable laws
and regulations in effect during the term of this Lease except as otherwise
specifically stated in this Lease.
23. NOTICES. Any notice required or permitted to be given hereunder shall be in
writing and may be given by personal delivery or by certified mail, and if given
personally or by mail, shall be deemed sufficiently given if addressed to Lessee
or to Lessor at the address noted below the signature of the respective parties,
as the case may be. Either party may by notice to the other specify a different
address for notice purposes except that upon Lessee's taking possession of the
Premises, the Premises shall constitute Lessee's address for notice purposes. 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 notice to Lessee.
24. WAIVERS. No waiver by Lessor or any provision hereof shall be deemed a
waiver of any other provision hereof or any subsequent breach by Lessee of the
same or any other provision. 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 act by Lessee. The acceptance of rent hereunder by
Lessor shall not be a waiver of any preceding breach by Lessee of any provision
hereof, other than the failure of Lessee to pay the particular rent so accepted,
regardless of Lessor's knowledge of such preceding breach at the time of
acceptance of such rent.
25. [DELETED]
26. HOLDING OVER. If Lessee, with Lessor's consent, remains in possession of the
Premises or any part thereof after the expiration of the term hereof, such
occupancy shall be a tenancy from month to month upon all the provisions of this
Lease pertaining to the obligations of Lessee, but all options and rights of
first refusal, if any, granted under the terms of this Lease shall be deemed
terminated and be of no further affect during said month to month tenancy.
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. Each provision of this Lease performable by Lessee
shall be deemed both a covenant and a condition.
29. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof restricting
assignment or subletting by Lessee and subject to the provisions of Paragraph
17, this Lease shall bind the parties, their personal representatives,
successors and assigns. This lease shall be governed by the laws of the State
wherein the Premises are located.
(SEE RIDER PROVISION 56)
30. SUBORDINATION.
(a) This Lease, at Lessor's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation or security now or
hereafter placed upon the real property of which the Premises are a part and to
any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Lessee, this Lease shall be deemed prior to such mortgage,
deed of trust, or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
recording thereof.
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be. Lessee's failure to
execute such documents within 10 days after written demand shall constitute a
material default by Lessee hereunder, or at Lessor's option, Lessor shall
execute such documents on behalf of Lessee as Lessee's attorney-in-fact. Lessee
does hereby make, constitute and irrevocably appoint Lessor as Lessee's
attorney-in-fact and in Lessee's name, place and stead, to execute such
documents in accordance with this paragraph 30(b).
31. ATTORNEY'S FEES. If either party or the broker named herein brings an action
to enforce the terms hereof or declare rights hereunder, the prevailing party in
any such action, on trial or appeal, shall be entitled to his reasonable
attorney's fees to be paid by the losing party as fixed by the court. The
provisions of this paragraph shall inure to the benefit of the broker named
herein who seeks to enforce a right hereunder.
32. LESSOR'S ACCESS. Lessor and Lessor's agents shall, upon reasonable prior
notice (except in cases of emergency, in which event no such notice shall be
required), have the right to enter the Premises at reasonable times for the
purpose of inspecting the same, showing the same to prospective purchasers,
lenders, or lessees, and making such alterations, repairs, improvements or
additions to the Premises or the building of which they are a part as Lessor may
deem necessary or desirable. Lessor may at any time place on or about the
Premises any ordinary "For Sale" signs and Lessor may at any time during the
last 120 days of the terms hereof place on or about the Premises any ordinary
"For Lease" signs, all without rebate of rent or liability to Lessee.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
34. SIGNS. Lessee shall not place any sign upon the Premises without Lessor's
prior written consent except that Lessee shall have the right, without the prior
permission of Lessor to place ordinary and usual for rent or sublet signs
thereon.
(SEE RIDER PROVISION 57)
35. MERGER. The voluntary or other surrender of this Lease by Lessee, or a
mutual cancellation thereof, or a termination by Lessor, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to Lessor
of any or all of such subtenancies.
36. CONSENTS. Except for paragraph 33 hereof, wherever in this Lease the consent
of one party is required to an act of the other party such consent shall not be
unreasonably withheld.
(SEE RIDER PROVISION 58)
37. GUARANTOR. In the event that there is a guarantor of this Lease, said
guarantor shall have the same obligations as Lessee under this Lease.
38. QUIET POSSESSION. Upon Lessee paying the rent for the Premises and observing
and performing all of the covenants, conditions and provisions on Lessee's part
to be observed and performed hereunder, Lessee shall have quiet possession of
the Premises for the entire term hereof fully authorized and legally capable of
executing this Lease on behalf of Lessor and that such execution is binding upon
all parties holding an ownership interest in the Premises.
39. OPTIONS.
39.1 DEFINITION. As used in this paragraph the word "Options" has the
following meaning: (1) the right or option 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, (2) the option or right of first refusal to lease 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, (3) the right or option 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 or option to purchase other property of
Lessor, or the right of first refusal to purchase other property of Lessor.
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39.2 OPTIONS PERSONAL. Each Option granted to Lessee in this Lease are
personal to Lessee and may not be exercised or be assigned, voluntarily or
involuntarily, by or to any person or entity other than Lessee, provided,
however, the Option may be exercised by or assigned to any Lessee Affiliate as
defined in paragraph 12.2 of this Lease. The Options herein granted to Lessee
are not assignable separate and apart from this Lease.
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
option to extend or renew this Lease has been so 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 time
commencing from the date Lessor gives to Lessee a notice of default pursuant to
paragraph 13.1(b) or 13.1(c) and continuing until the default alleged in said
notice of default is cured, or (ii) during the period of time commencing on the
date after a monetary obligation to Lessor is due from Lessee and unpaid
(without any necessity for notice thereof to Lessee) continuing until the
obligation is paid, or (iii) at any time after an event of default described in
paragraphs 13.1(a), 13.1(d), or 13.1(e) (without any necessity of Lessor to give
notice to Lessee of such default and/or Lessee fails thereafter to diligently
prosecute said cure to completion, or (iii) Lessee commits a default described
in paragraph 13.1(a), 13.1(d) or 13.1(e) (without any necessity of Lessor to
give notice of such default to Lessee), or (iv) Lessor gives to Lessee three or
more notices of default under paragraph 13.1(b), where a late charge becomes
payable under paragraph 13.4 for each such default, or paragraph 13.1(c) whether
or not the defaults are cured during the 12 month period prior to the time the
lesser intend, to exercise the subject option.
(b) The period of time within which an Option may be exercised shall
not be extended or enlarged by reason of Lessee'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, it 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 30 days after such obligation becomes due (without any
necessity of Lessor to give notice therof to Lessee). or (ii) Lessee fails to
commence to cure a lawsuit specilized in paragraph 131(c) within 30 days after
the date that Lessor gives notice to Lessee of such default and/or Lessee fails
thereafter is deligently prosecute said cure to completion, or (iii) Lessee
commits a default described in paragraph 13.1(a) 13.1(b) or 13.1(c) (without
any necessity of Lessor to give notice of such default to Lessee). or (iv)
Lessor gives to Lessee three or more notices of default under paragraph
13.1(b).where a latge charge becomes payable under paragraph 13.4 for each such
default or paragraph 13.1(c) whether or not the defaults are cured.
40. MULTIPLE TENANT BUILDING. In the event that the Premises are part of a
larger building or group of buildings then Lessee agrees that it will abide by,
keep and observe all reasonable rules and regulations which Lessor may make from
time to time for the management, safety, care, and cleanliness of the building
and grounds, the parking of vehicles and the preservation of good order therein
as well as for the convenience of other occupants and tenants of the building.
The violations of any such rules and regulations shall be deemed a material
breach of this Lease by Lessee.
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 obligations whatsoever to provide same.
Lessee assumes all responsibility for the protection of Lessee, its agents and
invitees from acts of third parties.
42. EASEMENTS. Lessor reserves to itself the right, from time to time, to grant
such assessments, rights and dedications that Lessor deems necessary or
desirable, and to cause the recordation of parcel Maps and restrictions, so long
as such assessments, rights, dedications, Maps and restrictions do not
unreasonably interfere with the use of the Premises by Lessee. Lessee shall sign
any of the aforementioned documents upon request of Lessor and failure to do so
shall constitute a material breach of this Lease.
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 Lessee 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 behalf of said entity. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after execution of this
Lease, deliver to Lessor evidence of such authority satisfactory to lessor.
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. INSURING PARTY. The insuring party under this Lease shall be the Lessor .
(SEE RIDER ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE)
46A. The terms "structural portions" or "structural repairs" or the
terms "structural" shall refer to exterior walls, foundations,
ceilings, roofs (interior and exterior), the structural
components of all floors (including the concrete aspects
thereof) and all window structures exclusive of plate glass
contained within or affixed to the Premises.
46B. Notwithstanding any provisions to the contrary contained
herein, Lessee shall not be responsible for any assessments
for improvements to real property, the useful life of which
extends beyond the expiration of the lease term; instead
Lessee shall be responsible for its pro rata share based upon
the unexpired term of the lease as of the date of completion
of an improvement divided by the useful life of the
improvements.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED
AND VOLUNTARY CONSENT THEREOF. 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. NO REPRESENTATION OR RECOMMENDATION IS MADE BY
THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATE OR BY THE REAL ESTATE BROKER
OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX
CONSEQUENCES OF THIS LEASE OR THE TRANSACTION RELATING THERETO: THE PARTIES
SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL
AND TAX CONSEQUENCES OF THIS LEASE.
The parties hereto have executed this Lease at the place on the dates specified
immediately adjacent to their respective signatures.
Executed at /s/ Don Mosco
----------------------------------- ------------------------------------------
Don Mosco
on By
-------------------------------------------- ----------------------------------------
Address By
--------------------------------------- ----------------------------------------
- ---------------------------------------------- "LESSOR" (Corporate seal)
Executed at Xcel Corporation, a New Jersey corporation
----------------------------------- ------------------------------------------
on By /s/ Carmine T. Oliva
-------------------------------------------- ----------------------------------------
Address By President & CEO
--------------------------------------- ----------------------------------------
- ---------------------------------------------- "LESSEE" (Corporate seal)
NOTE: These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are
utilizing the most current form: AMERICAN INDUSTRIAL REAL ESTATE
ASSOCIATION, 345 So. Figueroa St., M-1, Los Angeles, CA 90071. (213)
687-8777.
14
RIDER TO LEASE
This Rider is attached to and forms a part of that certain Standard
Industrial Lease-Net, dated for reference purposes as of September 11, 1990,
between Don Mosco, an individual, as Lessor, and Xcel Corporation, a New
Jersey corporation, as Lessee.
This Rider is made and entered into by and between Lessor and Lessee
and is dated as of the reference date set forth above. The promises, covenants,
agreements and declarations made and set forth herein are intended to and shall
have the same force and effect as if set forth in the Lease. To the extent that
the provisions of the Rider are inconsistent with the terms and conditions of
the Lease, the provisions hereof shall control.
47. In Paragraph 3.2, the phrase beginning with the words "Lessee may"
in line 5 and continuing until the end of the sentence is deemed deleted and the
following is deemed inserted in place thereof:
"then the sole remedy of Lessee shall be the right to deliver a notice
to Lessor (the "Termination Notice") electing to terminate this Lease
effective upon receipt of the Termination Notice by Landlord (the
"Effective Date"). The Termination Notice must be delivered by Lessee
to Lessor, if at all, not earlier than the Outside Date and not later
than ten (10) days after the Outside Date. If Lessee delivers the
Termination Notice to Lessor, then Lessor shall have the right to
suspend the Effective Date for a period ending November 30, 1990. In
order to suspend the Effective Date, Lessor must notify Lessee, within
five (5) days after receipt of the Termination Notice, that it is
Lessor's best good faith judgment that the commencement date will occur
on or before December 1, 1990. If the commencement date occurs on or
before December 1, 1990, then the Termination Notice shall be of no
further force and effect. If the Lease is so terminated pursuant to the
provisions of this Paragraph 3.2, Lessor shall refund the Security
Deposit, as described in Paragraph 5 of the Lease, to
15
Lessee within ten (10) days after the date this Lease is so
terminated."
48. Paragraph 3.3 (Early Possession) is deemed deleted and replaced
with the following:
"Upon the execution and delivery of this Lease by Lessor and
Lessee, Lessee may enter into the Premises, upon receipt of Lessor's
consent, which consent shall not be unreasonably withheld provided that such
early entry does not interfere with the performance of Lessor's Work (as
such term is described in Rider Provision 52), for the purpose of inspecting
the Premises and installing any furniture, fixtures or equipment therein.
Such early entry shall be subject to all of the provisions of the Lease
except rent, and will not advance the commencement date provided Lessee does
not commence business operations from any part of the Premises. In the event
of any such early entry, Lessor shall not be responsible for, and Lessee is
required to obtain insurance covering, any loss, including theft, damage or
destruction to any work or material installed or stored by Lessee or Lessor
or any contractor or individual involved in the completion of Lessor's Work
or work to be performed by Lessee, or for any injury to Lessor or Lessee or
Lessor's employees or Lessee's employees or to any other persons."
49. Supplementing the provisions of Paragraph 4 of the Lease and
notwithstanding anything to the contrary set forth therein, provided that Lessee
is not in default hereunder, Lessee shall not be required to pay the monthly
rent of $5,325 applicable to the first full calendar month of the term hereof.
50. The following is deemed added as Paragraph 6.2(c):
"(c) Hazardous Materials. (i) Lessee agrees that it and its
employees, agents, or contractors will not place, hold, or dispose of any
Hazardous Materials (defined hereinafter) on, under or at the Premises, and
that they will not use the Premises as a treatment, storage, or disposal
(whether permanent or temporary) site for any Hazardous Material and will
not erect, emplace or maintain any tank, vessel, or container designed or
suitable for holding Hazardous Materials on or about the Premises without
first obtaining the written consent of Lessor which consent may be subject
to conditions imposed by Lessor. In connection with any request for consent,
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16
Lessee shall submit to Lessor all plans, specifications, technical data,
applications to governmental agencies, and other information concerning
Hazardous Materials as Lessor deems necessary to inform Lessor of all
factors connected with Lessee's proposed activity concerning Hazardous
Materials. Lessor shall act reasonably in granting such consent, provided
the Hazardous Materials requested to be stored on the Premises are normally
used in connection with sound industry practices for Lessee's use of the
Premises set forth in Paragraph 6.1 hereof, Lessee obtains all required
permits and other governmental approvals, Lessee handles such Hazardous
Materials in compliance with sound industry standards and practices, and
Lessee agrees to remove and properly dispose of such Hazardous Materials.
Lessor shall not be liable to Lessee or any third party due to any consent
granted to Lessee or any third party due to any consent granted to Lessee
with regard to Hazardous Materials. If Lessee permits or suffers any
activity concerning Hazardous Materials on or about the Premises, or erects,
emplaces or maintains tanks, vessels or containers suitable for holding
Hazardous Materials on or about the Premises, then, whether or not Lessor's
required consent has been obtained, Lessee shall at all times comply with
all governmental laws, statutes, ordinances, codes, rules, regulations,
permits, orders and decrees regulating or relating to Hazardous Materials.
Lessee shall obtain and maintain at its sole cost and expense any required
permit, license or governmental approval pertaining to Hazardous Materials
including without limitation approvals pertaining to discharge of Hazardous
Materials or substances through sanitary sewers. Upon removal of Hazardous
Materials from the Premises or upon expiration or earlier termination of
this Lease, Lessee shall cause any Hazardous Materials at any time located
on the Premises by Lessee or its agents, employees or contractors to be
removed, transported, stored off-site, neutralized or disposed of at
Lessee's cost and expense in strict conformity with prudent and sound
industry practices and all present and future governmental laws, statutes,
ordinances, codes, rules, regulations, permits, orders and decrees. Lessee
shall promptly deliver to Lessor copies of hazardous waste manifests
reflecting the legal and proper disposal of all Hazardous Materials removed
from the Premises. Lessee shall not take any remedial action related to
Hazardous Materials located in or about the Premises, and shall not enter
into any settlement, consent decree or compromise in response to any claim
related to Hazardous Materials which shall be in any way connected with the
Premises, without first notifying Lessor of Lessee's proposed action and
affording
- 3 -
17
Lessor a reasonable opportunity to appear, intervene, or otherwise
participate in any discussion or proceeding for the purpose of protecting
Lessor's interest in the Premises. Lessee further agrees that it will not
cause or allow any material with asbestos, Polychlorinated Biphenyls (PCBS),
or formaldehyde or other Hazardous Materials to be incorporated into any
improvements of alterations which it makes or causes to be made to the
Premises. Lessee shall comply with the requirements of Section 25359.7(b) of
the California Health and Safety Code to provide Lessor with notice that any
Hazardous Material has come to be located on or beneath the Premises or
adjacent land proximate to the Premises if Lessee discovers or suspects the
presence of such materials. Lessee shall immediately notify Lessor in
writing of (i) any enforcement, cleanup, removal or other governmental or
regulatory action instituted, completed or threatened with regard to
Hazardous Materials involving the Premises; (ii) any claim made or
threatened by any person against Lessee or the Premises related to damage,
contribution, cost recovery, compensation, loss or injury resulting from or
claimed to result from Hazardous Materials; and (iii) any reports made to
any environmental agency arising out of or in connection with any Hazardous
Materials on or removed from the Premises, including any complaints,
notices, warnings or assertions of any violation in connection therewith,
Lessee shall deliver to Lessor, within five (5) days after receipt, a copy
of all claims, reports, complaints, notices, warnings or asserted violations
pertaining to Hazardous Materials related in any way to the Premises, or
Lessee's use thereof.
"(ii) Without limiting the generality of Paragraph 8.6 hereof,
Lessee hereby agrees to defend, indemnify and hold Lessor harmless from and
against any and all losses, liabilities, general, special, consequential
and/or incidental damages, injuries, costs, expenses and claims of any and
every kind whatsoever (including without limitation, court costs, attorney's
fees, damages to any person, the Premises or other property or loss of Rent)
which at any time or from time to time may be paid, incurred or suffered by,
or asserted against Lessor for, with respect to, or as a direct or indirect
result of (i) a breach by Lessee of the covenants set forth in this
Paragraph 6.2(c), or (ii) to the extent caused or allowed by Lessee or by
any agent, employee, contractor, invitee, or licensee of Lessee, the
presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission, or release from, onto, or into the Premises, the real
- 4 -
18
property, the atmosphere, or any watercourse, body of water, or groundwater
of any Hazardous Material (including, without limitation, any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or
arising under the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, any so-called "Superfund" or "Superlien" law, the
Resource Conservation and Recovery Act, as amended, the Clean Water Act as
amended, or any other federal, state, local or other statute, law,
ordinance, code, rule, regulation, permit, order or decree regulating,
relating to or imposing liability or standards of conduct concerning any
Hazardous Material). The provisions of and undertakings and indemnification
set forth in this Paragraph 6.2(c) shall survive the termination of this
Lease, and shall continue to be the liability and obligation of Lessee,
binding upon Lessee, forever; provided, however, that Lessee's officers,
directors or shareholders shall not be personally liable for Lessee's
obligations under the Lease, including, but not limited to, this Paragraph
6.2(c). The provisions of the preceding sentence shall govern and control
over any inconsistent provision of this Lease.
"(iii) For purposes of this Lease, "Hazardous Material" means any
hazardous, harmful, odorous, radioactive, toxic, dangerous, or waste,
substance or material including, without limitation, any hazardous substance
or any pollutant or contaminant defined as such in (or for purposes of) the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, any so-called "Superfund" or "Superlien" law, the Toxic Substances
Control Act, the Resource Conservation and Recovery Act, as amended, the
Clean Water Act, as amended, or any other federal, state or local statute,
law, ordinance, code, rule, regulation, permit, order or decree regulating,
relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, as is now or at
any time hereafter may be, in effect. Lessee's liability under this
Paragraph shall extend to any and all of such Hazardous Materials whether or
not such substance was defined, recognized, known or suspected of being
toxic, dangerous or wasteful at the time of any act or omission giving rise
to Lessee's liability.
"(iv) In the event Lessee or its agents, employees or contractors
cause Hazardous Materials to be located on or about the Premises, then
Lessor may, in connection with giving any consent, require Lessee to obtain
- 5 -
19
insurance or other means of financial capability satisfactory to Lessor to
assure compliance with the obligations of Lessee related to Hazardous
Materials as set forth in this Lease or otherwise now or in the future
required by law. Such assurance shall be on forms, in amounts and with
persons as from time to time are commercially available and reasonably
requested by Lessor."
51. The following is deemed added before the word "Except" in line one
of Paragraph 6.3(b):
"Except for structural defects, and"
52. The following is deemed added as Paragraphs 6.3(c) and 6.3(d) of
the Lease:
"(c) Lessor's Representations. Except as otherwise expressly set
forth below with respect to the ongoing investigation of groundwater
contamination in the San Gabriel Valley, Lessor has no actual knowledge that
there exists at the Premises on the date of this Lease any Environmental
Contamination or Health and Safety Condition. As used in this Paragraph,
"Environmental Contamination" shall mean friable asbestos or the presence
on, in, under, or emanating from the Premises, of any hazardous substance,
pollutant, or contaminant, as those terms are defined under either
California or federal law. "Environmental Contamination", as used in this
Paragraph, also means the release or presence of any other chemical,
biological or radiological substance on, in, under or from the Premises
which is not in compliance with all existing laws or which is at levels or
in quantities which will require cleanup or remediation under either
California or federal law. As used in this Paragraph, "Health and Safety
Condition" shall mean a condition that poses a hazard that may cause death
or serious physical harm or a condition that results, either directly or
indirectly, in noncompliance with a federal Occupational Safety and Health
Administration (OSHA) standard or a California OSHA standard. Lessor further
represents and warrants to lessee that Lessor has no actual knowledge that
the Premises as of the date hereof are not in compliance in all material
respects with the provisions of all local, state and federal environmental,
health, and safety laws, codes and ordinances and all rules and regulations
promulgated thereunder. To Lessor's actual knowledge, there is no civil,
criminal, or administrative action, suit, demand, claim, hearing, notice or
demand letter, notice of violation, investigation, or proceeding pending or
threatened
- 6 -
20
against Lessor or any prior Lessee or owner concerning the Premises relating
in any way to actual, suspected, or alleged Environmental Contamination or
Health and Safety Condition, except for knowledge of an ongoing
investigation of groundwater contamination in the San Gabriel Valley
including the Premises subject to this Agreement by the U.S. Environmental
Protection Agency, Region IX, and the California Regional Water Quality
Board, Los Angeles Region. Lessor hereby indemnifies and holds Lessee
harmless from and against any actions brought by governmental agencies as a
result of the ongoing San Gabriel Valley investigation. Furthermore, Lessee
shall have liability with respect to any Environmental Contamination or
Health and Safety Conditions which existed at the Premises prior to the
commencement date of this Lease."
"(d) Lessor's Work. Notwithstanding anything above to the contrary
set forth herein, Lessor, upon the execution and delivery of this Lease by
Lessor and Lessee, shall, at Lessor's sole cost and expense, perform the
work described in Exhibit "B" attached hereto and made a part hereof
("Lessor's Work"). All such Lessor's Work shall be performed by Lessor or by
a general contractor selected by Lessor, and in any events, shall be
performed in Lessor's standard manner, using Lessor's standard materials and
consistent with industry custom and practice. Except for Lessor's Work,
Lessor shall have no obligation to perform any initial tenant improvement
work in the Premises and Lessee shall be responsible, at Lessee's sole cost
and expense, for the full cost of constructing any additional tenant
improvements of any kind in the Premises subject to all the terms and
conditions of this Lease, including without limitation Paragraph 7.5"
53. The following is deemed added as Paragraph 12.5:
"12.5 If for any proposed assignment or sublease, Lessee receives
rent or other consideration, either initially or over the term of the
assignment or sublease, in excess of the rent required by this Lease, or, in
the case of a sublease of a portion of the Premises, in excess of such rent
fairly allocable to such portion, after appropriate adjustments to assure
that all other payments called for hereunder are taken into account, Lessee
shall pay to Lessor as additional rent, all of the excess of each such
payment of rent or other consideration received by Lessee within ten (10)
days of its receipt after deducting from any such excess the following
reasonable, actual and documented costs, if any, incurred by Lessee in
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21
connection with such assignment or sublease: (i) brokers' commission, (ii)
attorneys' fees, (iii) advertising/marketing costs of the space for sublease
or assignment, and (iv) tenant improvement allowance paid to the assignee or
sublessee."
54. The following is deemed added as Paragraph 13.2(d):
"(d) In addition to its other rights under this Lease, Lessor has
the remedy described in California Civil Code Section 1951.4 (Lessor may
continue the Lease in effect after Lessee's breach and abandonment and
recover Rent as it becomes due, if Lessee has the right to sublet or assign,
subject only to reasonable limitations)."
55. Paragraphs 15(a), 15(b) and 15(c) are deemed deleted in their
entirety and replaced with the following:
"Other than Cushman and Wakefield of California, Inc. ('Broker'),
Lessee hereby warrants and represents that it has not employed or dealt with
any other broker or finder in connection with the Lease. Lessee agrees to
defend, indemnify and hold Lessor harmless from any and all liability Lessor
may incur because of a claim by any broker, other than Broker, that claims
to be entitled to a commission or fee because they have represented Lessee
in connection with this Lease. Lessor shall pay the Broker pursuant to the
terms of a separate agreement between Lessor and Broker. Lessor hereby
agrees to indemnify and hold Lessee harmless for any claims for any
commission payable to Broker in connection with this Lease."
56. The following is deemed added as paragraph 30(c):
"Lessor, if requested by Lessee, agrees that it shall use
reasonable efforts to provide Lessee with commercially reasonable
non-disturbance agreements in favor of Lessee from any ground or master
lessors or mortgage holders under any ground or underlying leases or
mortgages affecting the Premises and in existence as of the date of the
execution and delivery of this Lease by Lessor and Lessee; provided,
however, that Lessor shall have absolutely no liability whatsoever to
Lessee in the event that it is not successful in providing same for
Lessee after
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22
using its reasonable efforts to provide same."
57. The following is deemed added as the last sentence of Paragraph 34:
"Notwithstanding anything above to the contrary, Lessee, at
Lessee's sole cost and expense (including the cost of installation,
maintenance, repair, restoration and removal) is hereby granted the right to
install appropriate signage at a location or locations mutually agreed upon
by Lessor and Lessee. All such signage shall be subject to Lessor's
reasonable approval, which approval shall not be unreasonably withheld, and
to all applicable governmental rules and regulations.
58. In Paragraph 36, the following is deemed added after the word
"hereof" in line one:
"and except for matters which would possibly have an adverse effect on
the structure of the Premises, the plumbing, heating, ventilating,
air-conditioning, mechanical or electrical systems of the Premises
(collectively,'Building Systems'), or which could affect the exterior
appearance of the Premises, in which case Lessor may withhold its
consent in its sole and absolute discretion."
59. The term "Interest Rate," as used in the Lease, shall mean the
lesser of (i) the rate announced from time to time, by Bank of America, (or if
Bank of America is no longer in existence or is no longer quoting a prime rate
or reference rate, then the largest (as measured by deposits) chartered bank
operating in California), as its prime rate or its reference rate, plus four
percent (4%), or (ii) the maximum rate permitted by law.
60. Notwithstanding anything to the contrary set forth in Paragraph 17
of the Lease, in the event of any transfer of fee title in the Premises, where
Lessor has expressly retained liability for any of the obligations set forth
herein, then with respect to such retained obligations only, Lessee, after first
exhausting all of its rights and remedies (both at law and in equity, whether
statutory or otherwise) against the transferee for such retained obligations,
may, at its option, pursue such claims against Lessor for such retained
obligations.
61. Notwithstanding anything to the contrary set forth in the Lease,
Lessee shall not be liable to Lessor for
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23
(i) any increase in Real Property Taxes to the extent caused solely by Lessor's
sale of the Premises, (ii) tax increases which are attributable to improvements
other than the Premises which are located on the same tax parcel as the Premises
and (iii) additional rent, interest or principal payments arising from any
mortgage or other indebtedness of Lessor. Furthermore, Lessor hereby warrants
that, to its actual knowledge, there are no pending municipal property tax
assessments with respect to the Premises as of the date of the execution and
delivery of the Lease by Lessor and Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Rider as of
the date of the execution of the Lease.
LESSOR:
/s/ DON MOSCO
-----------------------------------------
Don Mosco
LESSEE:
Xcel Corporation,
a New Jersey corporation
By: /s/ Carmine T. Oliva
--------------------------------------
Its: President and CEO
-------------------------------------
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24
Exhibit "A"
PREMISES
[DIAGRAM OF FLOOR LAYOUT]
25
720 E. Huntington
Exhibit "B"
LESSOR's WORK
A. Lessor's Work
1. Paint interior of Building, including columns, a white
semi-gloss color to be selected by Lessee.
2. Paint and carpet office area per colors to be selected by
Lessee.
3. Put an 8' x 6'8" opening between the offices located at the
east end of the Building.
- All landscaping must be cleaned and repaired,
including the replacement of dead ground covers,
plants, etc.
- All restrooms must be thoroughly cleaned and
repaired.
- All sprinkler systems must be checked and functional.
- All skylights must be uncovered and functional.
- All HVAC systems in both office and warehouse areas
must be repaired and functional.
- Repair all electrical service and replace all damaged
electrical panels.
- Clean and seal warehouse floors (normal seal).
- Clean all light fixtures.
- Make sure all electrical outlets in the ceiling are
in working order.
- Replace missing light fixture covers.
- Slurry coat and restripe front parking lot.
- Slurry coat and restripe rear loading area.
- Paint outside of Building all grey.
- Remove any loose wiring.
26
- Replace any defective strip lighting.
- All exterior lighting must be checked and
operational.
- Install vertical blinds (in color selected by Lessee)
on all windows in office areas of Building.
- Remove numbers 720 from the exterior of the Building
(it will be Lessee's obligation to obtain and install
replacement numbers satisfactory to Lessor).
- Repair roof leaks.
Notes: - all references to paint herein mean semi-gloss paint
- all selections to be made by Lessee hereunder are to be made
promptly after execution of Lease
B. General
1. Punch-List. Lessor shall use its commercially reasonable best
efforts to have Lessor's Work substantially completed on or
before October 1, 1990 or as soon as possible thereafter. Once
Lessor tenders possession of the Premises to Lessee with
Lessor's Work substantially completed therein, Lessee shall
have a period of fifteen (15) days thereafter, within which to
submit to Landlord a punch-list of unfinished items. Landlord
shall use all reasonable efforts to complete such punch-list
no later than sixty (60) days after the date Lessee submits
the punch list to Lessor; provided, however, the said sixty
(60) days period shall be extended one day for each day of
delay encountered by Lessor in the completion of such
punch-list items as a result of delays caused by Lessee or by
either causes beyond the reasonable control of Lessor.
2. Partial Occupancy. In the event that not all of Lessor's Work
is substantially completed by November 1, 1990, Lessee, upon
notice to Lessor, may occupy that portion of the Premises
which, in Lessor's and Lessee's reasonable opinion, is
substantially completed and shall pay to Lessor a pro rata
portion of the rent due for the Premises based on the square
footage which Lessee is occupying. All of the terms,
conditions and provisions of the Lease shall be in full force
and effect notwithstanding that Lessee does not occupy the
entire Premises.