STANDARD INDUSTRIAL GROSS LEASE
CENTER NAME: KEARNY VILLA CENTER EAST
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LANDLORD: KEARNY VILLA CENTER EAST
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TENANT: SCRIPPS BANK
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STANDARD INDUSTRIAL GROSS LEASE
TABLE OF CONTENTS
1. BASIC LEASE TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Address for Notice. . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Description of Premises . . . . . . . . . . . . . . . . . . . . . 1
1.3 Commencement Date . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 Lease Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.5 Minimum Monthly Rent. . . . . . . . . . . . . . . . . . . . . . . 1
1.6 Security Deposit. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.7 Base Years. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.8 Permitted Use . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.9 Tenant's Guarantor. . . . . . . . . . . . . . . . . . . . . . . . 1
1.10 Tenant's Parking Spaces . . . . . . . . . . . . . . . . . . . . . 1
1.11 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.12 Additional Provisions . . . . . . . . . . . . . . . . . . . . . . 1
1.13 Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. LEASE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. LEASE TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2 Delay in Commencement . . . . . . . . . . . . . . . . . . . . . . 2
3.3 Early Occupancy . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4.1 Minimum Monthly Rent. . . . . . . . . . . . . . . . . . . . . . . 2
4.2 Lease Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4.3 Cost-of-Living Increase . . . . . . . . . . . . . . . . . . . . . 2
4.4. Additional Rent . . . . . . . . . . . . . . . . . . . . . . . . . 2
4.5 Impounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5. SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6. COMMON FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7. MAINTENANCE AND REPAIRS . . . . . . . . . . . . . . . . . . . . . . . . 3
7.1 Tenant's Obligations. . . . . . . . . . . . . . . . . . . . . . . 3
7.2 Landlord's Obligations. . . . . . . . . . . . . . . . . . . . . . 3
7.3 Performance By Landlord . . . . . . . . . . . . . . . . . . . . . 3
8. REAL PROPERTY TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . 3
8.1 Payment of Excess Real Property Taxes by Tenant . . . . . . . . . 3
8.2 Real Property Taxes Defined . . . . . . . . . . . . . . . . . . . 3
8.3 Personal Property Taxes . . . . . . . . . . . . . . . . . . . . . 3
9. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
9.1 All Risk Coverage . . . . . . . . . . . . . . . . . . . . . . . . 3
9.2 Tenant's Personal Property and Fixtures . . . . . . . . . . . . . 4
9.3 Tenant's Liability Insurance. . . . . . . . . . . . . . . . . . . 4
9.4 Payment of Insurance Premium Increases and Deductibles. . . . . . 4
9.5 Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . 4
9.6 Tenant's Use Not to Increase Premium. . . . . . . . . . . . . . . 4
9.7 Boiler and Machinery Insurance. . . . . . . . . . . . . . . . . . 4
10. UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
11. USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
11.1 Permitted Use . . . . . . . . . . . . . . . . . . . . . . . . . . 4
11.2 Compliance with Law and Other Requirements. . . . . . . . . . . . 5
11.3 Waste, Quiet Conduct. . . . . . . . . . . . . . . . . . . . . . . 5
11.4 Rules and Regulations . . . . . . . . . . . . . . . . . . . . . . 5
11.5 Signs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
11.6 Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
11.7 Entry by Landlord . . . . . . . . . . . . . . . . . . . . . . . . 5
12. ACCEPTANCE OF PREMISES; NON-LIABILITY OF LANDLORD; DISCLAIMER . . . . . 5
12.1 Acceptance of Premises. . . . . . . . . . . . . . . . . . . . . . 5
12.2 Landlord's Exemption From Liability . . . . . . . . . . . . . . . 5
12.3 No Warranties or Representations. . . . . . . . . . . . . . . . . 5
13. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
14. HAZARDOUS MATERIALS . . . . . . . . . . . . . . . . . . . . . . . . . . 6
14.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
14.2 Use of Hazardous Materials. . . . . . . . . . . . . . . . . . . . 6
14.3 Compliance with Laws; Handling Hazardous Materials. . . . . . . . 6
14.4 Notice; Reporting . . . . . . . . . . . . . . . . . . . . . . . . 6
14.5 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
14.6 Entry and Inspection; Cure. . . . . . . . . . . . . . . . . . . . 7
14.7 Termination/Expiration. . . . . . . . . . . . . . . . . . . . . . 7
14.8 Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . 7
15. ALTERATIONS; LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
15.1 Alterations by Tenant . . . . . . . . . . . . . . . . . . . . . . 7
15.2 Permits and Governmental Requirements . . . . . . . . . . . . . . 7
15.3 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
16. DAMAGE AND DESTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . 7
16.1 Partial Insured Damage. . . . . . . . . . . . . . . . . . . . . . 7
16.2 Insurance Deductible. . . . . . . . . . . . . . . . . . . . . . . 8
16.3 Uninsured Damage. . . . . . . . . . . . . . . . . . . . . . . . . 8
16.4 Total Destruction . . . . . . . . . . . . . . . . . . . . . . . . 8
16.5 Partial Destruction of Center . . . . . . . . . . . . . . . . . . 8
16.6 Tenant's Obligations. . . . . . . . . . . . . . . . . . . . . . . 8
16.7 Rent Abatement. . . . . . . . . . . . . . . . . . . . . . . . . . 8
16.8 Waiver of Inconsistent Statutes . . . . . . . . . . . . . . . . . 8
17. CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
17.1 Condemnation of Premises. . . . . . . . . . . . . . . . . . . . . 8
17.2 Condemnation of Parking Area. . . . . . . . . . . . . . . . . . . 8
17.3 Condemnation Award. . . . . . . . . . . . . . . . . . . . . . . . 8
18. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . 8
18.1 Landlord's Consent Required . . . . . . . . . . . . . . . . . . . 8
18.2 Landlord's Election . . . . . . . . . . . . . . . . . . . . . . . 8
18.3 Transfer Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18.4 Assumption; No Release of Tenant. . . . . . . . . . . . . . . . . 9
18.5 No Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18.6 Reasonable Restriction. . . . . . . . . . . . . . . . . . . . . . 9
19. SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE . . . . . . . . . . . . 9
19.1 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . 9
19.2 Attornment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
19.3 Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . 9
20. SURRENDER OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . 9
20.1 Condition of Premises . . . . . . . . . . . . . . . . . . . . . . 9
20.2 Removal of Certain Alterations,
Fixtures and Equipment Prohibited . . . . . . . . . . . . . . 9
20.3 Holding Over. . . . . . . . . . . . . . . . . . . . . . . . . . .10
21. DEFAULT BY TENANT . . . . . . . . . . . . . . . . . . . . . . . . . . .10
22. REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
22.1 Termination of Lease. . . . . . . . . . . . . . . . . . . . . . .10
22.2 Continuation of Lease . . . . . . . . . . . . . . . . . . . . . .10
22.3 Performance By Landlord . . . . . . . . . . . . . . . . . . . . .11
22.4 Late Charge; Interest on Overdue Payments . . . . . . . . . . . .11
22.5 Landlord's Right to Require Advance Payment of Rent;
Cashier's Checks. . . . . . . . . . . . . . . . . . . . . . .11
23. DEFAULT BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . .11
23.1 Notice to Landlord. . . . . . . . . . . . . . . . . . . . . . . .11
23.2 Notice to Mortgages . . . . . . . . . . . . . . . . . . . . . . .11
23.3 Limitations on Remedies Against Landlord. . . . . . . . . . . . .11
24. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .11
24.1 Action or Defense by Tenant . . . . . . . . . . . . . . . . . . .11
24.2 Arbitration and Mediation Waiver of Jury Trial. . . . . . . . . .11
24.3 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . .11
24.4 Authority of Tenant . . . . . . . . . . . . . . . . . . . . . . .12
24.5 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . .12
24.6 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
24.7 Construction. . . . . . . . . . . . . . . . . . . . . . . . . . .12
24.8 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . .12
24.9 Covenants and Conditions. . . . . . . . . . . . . . . . . . . . .12
24.10 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . .12
24.11 Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
24.12 Financial Statements. . . . . . . . . . . . . . . . . . . . . . .12
24.13 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . .12
24.14 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . .12
24.15 Joint and Several Liability . . . . . . . . . . . . . . . . . . .12
24.16 Modification. . . . . . . . . . . . . . . . . . . . . . . . . . .12
24.17 Modification for Lender . . . . . . . . . . . . . . . . . . . . .12
24.18 Nondiscrimination . . . . . . . . . . . . . . . . . . . . . . . .12
24.19 Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
24.20 Partial Invalidity. . . . . . . . . . . . . . . . . . . . . . . .12
24.21 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . .12
24.22 Recording . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
24.23 Relationship of the Parties . . . . . . . . . . . . . . . . . . .13
24.24 Relocation of Tenant. . . . . . . . . . . . . . . . . . . . . . .13
24.25 Rights of Redemption Waived . . . . . . . . . . . . . . . . . . .13
24.26 Time of Essence . . . . . . . . . . . . . . . . . . . . . . . . .13
24.27 Transfer of Landlord's Interest . . . . . . . . . . . . . . . . .13
24.28 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Exhibit "A" - Description of Premises
Exhibit "B" - Rules and Regulations
Exhibit "C" - Sign Criteria
STANDARD INDUSTRIAL GROSS LEASE
This STANDARD INDUSTRIAL GROSS LEASE ("Lease") is entered into as of April 25,
1995, by and between KEARNY VILLA CENTER EAST, A California limited partnership
("Landlord"), and SCRIPPS BANK, a State-Chartered bank ("Tenant").
1. BASIC LEASE TERMS.
The basic terms of the Lease set forth in this Article 1 shall be read in
conjunction with the other Articles of this Lease, which define and explain the
basic terms.
1.1 ADDRESS FOR NOTICE (see Section 24.19):
Landlord: 11750 Sorrento Valley Road, Suite 200
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San Diego, CA 92121
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Tenant: At the Premises, or
Address for Tenant other than at the Premises (required):
7817 Ivanhoe Avenue
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La Jolla, CA 92037
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1.2 DESCRIPTION OF PREMISES:
Center Name: KEARNY VILLA CENTER EAST
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Address: 9265 Chesapeake Drive
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San Diego, CA 92123
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Suite/Unit: Suites B, C, and D
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Approximate Rentable Square Footage (see Exhibit "A"): 9,345
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1.3 COMMENCEMENT DATE: August 1, 1995
1.4 LEASE TERM (SEE ARTICLE 3): Approximately Seven (7) years and no
(0) months, beginning on the Commencement Date and ending on the last
day of the calendar month of July, 2002 (the "Expiration Date").
1.5 MINIMUM MONTHLY RENT: $6,542.00 per month for the first Lease Year, as
provided in Article 4. The Minimum Monthly Rent shall be increased on
the first day of the second Lease Year and each Lease Year thereafter
to reflect changes in the cost of living pursuant to Section 4.3.
1.6 SECURITY DEPOSIT: $6,542.00 (see Article 5).
1.7 BASE YEARS:
(a) Base Year for Real Property Taxes (paid by Landlord): Tax Year
1994 - 1995 (see Article 8).
(b) Base Year for Insurance Premiums (paid by Landlord): 1995 (see
Article 9).
1.8 PERMITTED USE (SEE ARTICLE 11): Data processing facility for
financial institution and related office uses, including without
limitation deposit gathering, note department, central operations
support, and couriers, and for no other use.
1.9 TENANT'S GUARANTOR (If none, so state): none
1.10 TENANT'S PARKING SPACES (see Section 11.6): 14 unassigned and 13
exclusive spaces per Addendum.
1.11 LANDLORD'S BROKER (If none, so state): CB Commercial and Asset
Management Group
TENANT'S BROKER (If none, so state): Colliers Iliff thorne
1.12 ADDITIONAL PROVISIONS: The following additional provisions are
attached to and made a part of this Lease (if none, so state):
Addendum to Standard Industrial Gross Lease.
1.13 EXHIBITS: The following Exhibits are attached to and made a part of
this Lease:
Exhibit "A" - Description of Premises
Exhibit "B" - Rules and Regulations
Exhibit "C" - Sign Criteria
Exhibit "D" - Tenant's Exclusive Spaces
2. LEASE OF PREMISES.
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord,
the premises (the "Premises") described in Section 1.2, which are indicated on
the site/floor plan attached as Exhibit "A". The Premises are part of the
office or industrial center identified in Section 1.2 (the "Center"). The
approximate Rentable Square Footage identified in Section 1.2 is a
1
measurement of the net leasable floor area of the Premises as determined by
Landlord and applied on a consistent basis throughout the Center.
3. LEASE TERM.
3:1 COMMENCEMENT. The term of this Lease (the "Lease Term") shall
Commence on the Commencement Date stated in Section 1.3 and shall continue for
the period stated in Section 1.4, unless sooner terminated pursuant to any
provision of this Lease.
3.2 DELAY IN COMMENCEMENT. If Landlord cannot deliver possession of
the Premises to Tenant on the Commencement Date specified in Section 1.3 for
any reason, Landlord shall not be subject to any liability therefor. Such
non-delivery shall not affect the validity of this Lease nor the obligations
of Tenant hereunder. However: (a) Tenant shall not be obligated to pay rent
until possession of the Premises is delivered to Tenant, (b) if possession of
the Premises is not delivered to Tenant within thirty (30) days of the
Commencement Date, the last day of the Lease Term shall be extended by the
total number of days that possession is so delayed, plus the minimum number
of additional days necessary to make the Expiration Date the last day of a
calendar month, and (c) if Landlord has not delivered possession of the
Premises within ninety (90) days after the Commencement Date, Tenant may
elect to terminate this Lease by delivering written notice to Landlord within
ten (10) days thereafter, in which event the parties shall be discharged from
all further obligations hereunder.
3.3 EARLY OCCUPANCY. If Tenant occupies the Premises prior to the
Commencement Date, such occupancy shall be subject to all provisions of this
Lease. Such occupancy shall not advance the Expiration Date. Tenant shall pay
Minimum Monthly Rent at the rate in effect for the first Lease Year, Additional
Rent and all other charges required hereunder for such early occupancy period.
4. RENT.
4.1 MINIMUM MONTHLY RENT. Tenant shall pay minimum monthly rent
("Minimum Monthly Rent") in the initial amount stated in Section 1.5, which
amount shall be subject to increase as provided in Sections 1.5 and 4.3. Tenant
shall pay the Minimum Monthly Rent on or before the first day of each calendar
month, in advance, at the office of Landlord or at such other place designated
by Landlord, without deduction, offset or prior demand. If the Commencement Date
is not the first day of a calendar month, the rent for the partial month at the
beginning of the Lease Term shall be prorated on a per diem basis and shall be
due on the first day of such partial month.
4.2 LEASE YEAR. As used in this Lease, the term "Lease Year" means (i)
the first period of twelve full calendar months following the Commencement Date
(including, if the Commencement Date is not the first day of a calendar month,
the period between the Commencement Date and the next first day of the month),
(ii) each period of twelve full calendar months thereafter, and (iii) any
remaining period at the end of the Lease Term of less than twelve full calendar
months.
4.3 COST-OF-LIVING INCREASE. The Minimum Monthly Rent provided in
Section 4.1 shall be increased, effective on the first day of each Lease Year
("Adjustment Date"), beginning with the first day of the second (2nd) Lease
Year, to reflect increases in the cost of living. The base for computing the
adjustment is the Consumer Price Index for All Urban Consumers (1982-84 =
100) for the Los Angeles - Anaheim - Riverside Area (the "Index"), as
published by the U.S. Department of Labor, Bureau of Labor Statistics. The
Index published for the month three (3) months prior to the Adjustment Date
shall be compared with the Index published for the same month in the
preceding year, and the Minimum Monthly Rent shall be increased in accordance
with the percentage increase (if any) between such Indexes. No adjustment
shall decrease the Minimum Monthly Rent below the amount in effect
immediately prior to the adjustment. Landlord may calculate and give notice
of the adjustment after the effective date of the increase, since the
appropriate Index may not be available as of the Adjustment Date. In such
event, Tenant shall continue to pay Minimum Monthly Rent at the rate in
effect prior to the Adjustment Date until Landlord gives notice of the
adjustment. Within fifteen (15) days after receipt of such notice, Tenant
shall pay in one lump sum the increase due from the Adjustment Date to the
date of the notice. If the Index is discontinued or materially revised during
the Lease Term, Landlord shall adopt a substitute governmental index or
computation that reasonably reflects consumer prices for purposes of
computing the cost-of-living adjustment.
4.4 ADDITIONAL RENT. All charges payable by Tenant in addition to
Minimum Monthly Rent shall constitute Additional Rent to Landlord. All remedies
available to Landlord for nonpayment of rent shall be available for nonpayment
of any such Additional Rent. Unless this Lease provides otherwise, all
Additional Rent shall be paid by Tenant, without limitation or offset, within
fifteen (15) days after Tenant's receipt of a statement from Landlord.
Additional Rent includes, without limitation, Maintenance and Repairs (see
Article 7), excess Real Property Taxes (see Article 8), excess insurance costs
(see Article 9), Utilities (see Article 10), and attorneys' fees and costs (see
Article 24). If any Minimum Monthly Rent is abated or waived pursuant to another
specific term of this Lease or in any separate agreement, it is understood that
such abatement or waiver shall apply only to the Minimum Monthly Rent, and
Tenant shall be obligated to pay all components of Additional Rent (including
the applicable impounds thereof) during the periods of abatement or waiver of
Minimum Monthly Rent and throughout the Lease Term. All Minimum Monthly Rent,
Additional Rent, and all other charges and monetary amounts due Landlord from
Tenant hereunder shall constitute rent.
4.5 IMPOUNDS. Landlord shall have the right, but not the obligation,
to collect and impound, in advance, any or all components of Real Property Taxes
and insurance costs based upon Landlord's reasonable estimate of Tenant's future
liability for such amounts under this Lease. Landlord shall initially establish
the monthly amount of such impound ("Monthly Impound Payments"), based upon its
estimate of one-twelfth of Tenant's annual liability therefor. Landlord shall
have the right, at any time during the Lease Term, to adjust the amount of the
Monthly Impound Payment upon notice to Tenant. The Monthly Impound Payment shall
be due and payable on the first day of each month throughout the Lease Term. Any
failure to pay the Monthly Impound Payment when due shall be an Event of Default
under this Lease and shall entitle Landlord to exercise any or all of its
remedies available in the same manner as the failure to pay rent, including the
imposition of late charges and interest, and the right of Landlord to require
that future payment of the Monthly Impound Payments be made by cashier's check.
Upon the occurrence of any Event of Default by Tenant hereunder, Landlord shall
have the right to apply all unapplied amounts of Monthly Impound Payments to
Tenant's default. Within ninety (90) days after the end of each calendar year,
Landlord shall deliver to Tenant an accounting of Tenant's actual liability for
Real Property Taxes and insurance costs and the estimated amounts paid by
Tenant. Any overpayment by Tenant shall be credited against next Monthly Impound
Payments due hereunder, or, at Landlord's option, shall be remitted to Tenant.
Tenant shall pay the amount of any underpayment within fifteen 115) days after
receipt of the accounting. Tenant acknowledges that the Monthly Impound Payments
are estimates only and not a representation or the amount of Tenant's ultimate
liability for Real Property Taxes and insurance costs.
5. SECURITY DEPOSIT.
Upon execution of this Lease, Tenant shall deposit with Landlord the
amount specified in Section 1.6 (the "Security Deposit"), to be held by
Landlord, without liability for interest, as security for Tenant's performance
of its obligations under this Lease. Landlord shall not be required to keep the
Security Deposit separate from its other accounts. Landlord may apply all or a
part of the Security Deposit to any unpaid rent or other monetary payments due
from Tenant (including unpaid Additional Rent or Monthly Impound Payments) or to
cure any other default of Tenant hereunder and to compensate Landlord for all
damage and expense sustained as a result of such default. If all or any portion
of the Security Deposit is so applied, Tenant shall deposit cash sufficient to
restore the Security Deposit to its original amount within fifteen (15) days
after receipt of Landlord's written demand. If Tenant fully and faithfully
performs each of its obligations under this Lease, the Security Deposit or any
balance thereof shall be returned to Tenant within 30 days of the later of the
expiration or earlier termination of this Lease or the vacation of the
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premises by Tenant. At Landlord's request, Tenant shall accompany Landlord,
Landlord's representative on a "walk-through" of the Premises prior to
Landlord's return of the Security Deposit.
6. COMMON FACILITIES.
"Common Facilities" means all areas, facilities, utilities, equipment and
services provided by Landlord for the common use or benefit of the occupants of
the Center, and their employees, agents, customers and other invites, including
without limitation: building lobbies, common corridors and hallways, restrooms,
pedestrian walkways, driveways and access roads, access facilities for disabled
persons (including elevators), truck serviceways, loading docks, garages,
driveways, parking lots, landscaped areas, stairways, elevators, retaining
walls, all areas required to be maintained under the conditions of governmental
approvals for the Center, and other generally understood public or common areas.
Landlord reserves the right to relocate, alter, improve, or adjust the size and
location of any Common Facilities from time to time without liability to Tenant.
7. MAINTENANCE AND REPAIRS.
7.1 TENANT'S OBLIGATIONS. Except as provided in Section 7.2, Tenant
shall keep the Premises in good order, condition and repair during the Lease
Term, including without limitation: all nonstructural, interior, exterior,
areas; all heating, ventilation and air conditioning systems and equipment;
all glass, glazing, windows, window moldings, partitions, doors and door
hardware; all interior painting; all fixtures and appurtenances in the
Premises or exclusively serving the Premises including electrical, lighting
and plumbing fixtures; and all other portions of the Premises seen or unseen.
Tenant shall replace at its sole cost and expense any of the systems and
other portions of the Premises for which it is responsible hereunder during
the Lease Term, if necessary. Tenant shall promptly replace any portion of
the Premises or system or equipment in the Premises which cannot be fully
repaired, regardless of whether the benefit of such replacement extends
beyond the Lease Term. It is the intention of Landlord and Tenant that Tenant
shall maintain the Premises, at all times during the Lease Term, in an
attractive, first-class and fully operative condition, at Tenant's expense.
If any heating and air conditioning system or equipment exclusively serves
the Premises, Tenant shall additionally obtain and keep in force a preventive
maintenance contract providing for the regular (at least quarterly)
inspection and maintenance of the heating and air conditioning system
(including leaks around ducts, pipes, vents, and other parts of the air
conditioning) by a reputable licensed heating and air conditioning contractor
acceptable to Landlord. Prior to April 1 of each calendar year, Tenant shall
deliver Landlord written confirmation from such contractor verifying that
such a contract has been entered into and that the required service will be
provided. Notwithstanding the foregoing, Landlord shall have the right, upon
written notice to Tenant, to undertake the responsibility for preventive
maintenance and repair of the heating and air conditioning system, at
Tenant's sole cost and expense. See Addendum.
7.2 LANDLORD'S OBLIGATIONS. Landlord shall repair and maintain the
facilities, and the roof, the foundations and structural portions of the
Premises and any building of which the Premises are a part. Provided, however,
that Tenant shall pay the (a) the full amount of any maintenance and repairs
necessitated by any act, omission, conduct or activity of, or beach of this
lease by, Tenant or any of Tenant's officers, agents, customers or invitees
(plus ten percent (10%) of the cost thereof to reimburse Landlord for
overhead), and (b) any maintenance and repairs necessitated by breaking and
entering of the Premises. Tenant shall pay the cost of such required repairs,
as Additional Rent, within fifteen (15) days after receipt of a statement
from Landlord. There shall be no abatement of rent, and no liability of
Landlord, by reason of any injury to or interference with Tenant's business
arising from the making of any repairs, alterations, or improvements to any
portion of the Premises or the Center. Except as provided in Article 16
(Damage and Destruction) and Article 17 (Condemnation), Landlord shall have
absolutely no other responsibility to repair, maintain or replace any portion
of the Premises at any time. Tenant waives the right to make repairs at
Landlord's expense under California Civil Code Section 1942, or under any
other law, statute or ordinance now or hereafter in effect. Landlord's
obligations under this Section are not intended to alter or modify in any way
the provisions of Article 12. See Addendum.
7.3 PERFORMANCE BY LANDLORD. If Tenant refuses or neglects to perform
its maintenance obligations hereunder to the reasonable satisfaction of
Landlord, Landlord shall have the right (but not the obligation), upon ten (10)
days' prior notice to Tenant, to enter the Premises and perform such repairs and
maintenance on behalf of Tenant. Landlord shall also have the right (but not the
obligation), without prior notice to Tenant, to correct or remove any dangerous
or hazardous condition or to repair the heating, ventilation, air-conditioning
and plumbing systems and broken glass or glazing if Tenant fails to correct or
repair the same within 24 hours after the need arises. Landlord shall not be
liable to Tenant for any loss or damage to Tenant's merchandise, fixtures, or
other property or to Tenant's business in connection with Landlord's performance
hereunder, and Tenant shall pay Landlord's costs plus ten percent (10%) of such
amount for overhead, upon presentation of a statement therefor, as Additional
Rent. Tenant shall also pay interest at the rate provided in Section 22.4 from
the date of completion of repairs by Landlord to the date paid by Tenant.
8. REAL PROPERTY TAXES.
8.1 PAYMENT OF EXCESS REAL PROPERTY TAXES BY TENANT. Tenant shall pay
all Real Property Taxes applicable to the Premises during the Lease Term that
exceed, during any tax year the Real Property Taxes for the Base Year identified
in Section 1.7. If the Premises are not separately assessed, a share of the tax
bill that includes the Premises shall be allocated to the Premises. Such share
shall be equitably determined by Landlord based upon the Rentable Square Footage
of the Premises compared to the total Rentable Square Footage covered by the tax
bill, the respective valuations assigned in the assessor's worksheet, or other
reasonably available information. Tenant shall pay such obligation for excess
Real Property Taxes to Landlord, to the extent such obligation exceeds any
amount thereof impounded under Section 4.5, within fifteen (15) days after
receipt of a statement from Landlord.
8.2 REAL PROPERTY TAXES DEFINED. "Real Property Taxes" means all
taxes, assessments, levies, fees and other governmental charges levied on or
attributable to the Premises or any part thereof, including without limitation:
(a) real property taxes and assessments levied with respect to all or a portion
of the Premises, (b) assessments, charges and fees charged by governmental
agencies or districts for services or facilities provided to the Premises,
(c) transfer, transaction, rental, gross receipts, license or similar taxes or
charges measured by rent received by Landlord, excluding any federal or state
income, franchise, estate or inheritance taxes of Landlord, (d) taxes based upon
a reassessment of the Premises due to a transfer or change of ownership, and (e)
any assessment, charge or fee that is a substitute in whole or in part for any
tax now or previously included within the definition of Real Property Taxes. If
Landlord elects to contest an assessment of any Real Property Taxes, Landlord
shall have the right to recover its actual costs of such contest (including
attorneys' fees and costs) as part of Real Property Taxes, but only to the
extent such contest has resulted in a reduction of Real Property Taxes. Tenant
shall not be entitled to the benefit of any reduction, refund, rebate or credit
accruing or payable to Landlord prior to the commencement of or after the
expiration or other termination of the Lease Term.
8.3 PERSONAL PROPERTY TAXES. Tenant shall pay-prior to delinquency all
taxes charged against trade fixtures, furnishings, equipment or any other
personal property belonging to Tenant. Tenant shall attempt to have such
personal property taxed separately from the Premises. If any such taxes on
Tenant's personal property are levied against Landlord or the Premises, or if
the assessed value of the Premises is increased by inclusion of a value placed
upon such personal property of Tenant, then: a) after written notice to Tenant,
shall have the right to pay the taxes levied against Landlord, or the taxes
based upon such increased valuation, but under protest if so requested by Tenant
in writing, and (b) Tenant shall pay to Landlord the taxes levied against
Landlord, or the taxes resulting from such increased valuation, within fifteen
(15) days after Tenant's receipt of a written statement from Landlord.
9. INSURANCE.
9.1 ALL RISK COVERAGE. During the Lease Term, Landlord shall maintain
insurance covering loss or damage to the Premises (excluding Tenant's
Alterations, fixtures, equipment and personal property), insuring against any or
all risks of physical loss (and including, at Landlord's option, flood and
earthquake coverage), with the scope and amounts of such coverage as determined
by Landlord. Said insurance shall provide for payment of loss thereunder to
Landlord or to the holder of a first
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mortgage or deed or trust on Premises. Landlord may also maintain during the
Lease Term, at Tenant's expense, a policy of rental income insurance covering
a period of one year, with loss payable to Landlord.
9.2 TENANT'S PERSONAL PROPERTY AND FIXTURES. Tenant shall at all
times maintain insurance against any or all risks of physical loss in an
amount adequate to cover the cost of replacement of all of Tenant's
Alterations, trade fixtures, equipment and personal property. Such policy
shall be issued by an insurance company approved by Landlord, shall name
Landlord and Landlord's lender as additional insureds, and shall provide that
no cancellation or reduction in coverage shall be effective until thirty (30)
days after written notice to Landlord and Landlord's lender. Tenant shall
deliver a certificate evidencing such insurance to Landlord and a renewal or
binder at least twenty (20) days prior to expiration. Tenant acknowledges
that Landlord's insurance is not intended to cover Tenant's Alterations,
trade fixtures, equipment, and personal property. Provided, however, that at
Landlord's sole election, Landlord may obtain at Tenant's expense any or all
of the insurance described in this Section.
9.3 TENANT'S LIABILITY INSURANCE. Tenant shall, at Tenant's sole
cost and expense, provide comprehensive general liability insurance, fully
covering and indemnifying Landlord and Landlord's officers, directors,
shareholders, partners, principals, employees, agents, representatives, and
other related entities and individuals (together with, at Landlord's
election, Landlord's lender), as additional insureds, against any and all
claims arising from personal injury, death, and/or property damage occurring
in or about the Premises or the Center during the period of Tenant's
possession (actual and/or constructive) at the Premises. The initial limits
of such insurance shall be at least $2,000,000 combined single liability
limit if the Rentable Square Footage of the Premises (as indicated in Section
1.2) exceeds 3,000 square feet, or $1,000,000 combined single liability limit
if such Rentable Square Footage is 3,000 square feet or less. Such limits
shall be subject to periodic increase, at Landlord's option, based upon
inflation, increased liability awards, lender requirements, the
recommendations of Landlord's professional insurance advisors, and other
relevant factors. Such liability insurance limits shall be subject to
periodic increase, at Landlord's election, based upon inflation, increased
liability awards, lender requirements, the recommendations of Landlord's
professional insurance advisors, and other relevant factors. Tenant shall
also, at its sole cost and expense, obtain workers' compensation insurance
for the protection of its employees such as will relieve Landlord of all
liability to such employees for any and all accidents that may arise on or
about the Premises or the Center. All insurance required to be carried by
Tenant shall be primary and noncontributory to any insurance carried by
Landlord, regardless of the absence of negligence or other fault of Tenant
for alleged injury, death and/or property damage. Each policy of insurance
required to be carried by Tenant hereunder shall: (a) contain cross-liability
and contractual liability endorsements, (b) provide that no cancellation or
reduction in coverage shall be effective until thirty (30) days after written
notice to Landlord and Landlord's lender, (c) be issued by an insurer
licensed in California and reasonably approved by Landlord, and (d) shall
insure Tenant's performance of the indemnity provisions of Article 13, but
the amount of such insurance shall not limit Tenant's liability nor relieve
Tenant of any obligation hereunder. Prior to the Commencement Date, Tenant
shall deliver a certificate evidencing all such insurance to Landlord. Tenant
shall deliver a renewal or binder of such policy at least thirty (30) days
prior to expiration thereof. Tenant shall, at Tenant's expense, maintain such
other liability insurance as Tenant deems necessary to protect Tenant. Tenant
shall be in material breach of this Lease if Tenant fails to obtain the
insurance required under this Section, or if Tenant obtains insurance with
terms, conditions and/or exclusions that are inconsistent with the
requirements and terms of this Lease.
9.4 PAYMENT OF INSURANCE PREMIUM INCREASES AND DEDUCTIBLES. Tenant
shall pay directly all premiums for its liability insurance required under
Section 9.3, for its personal property insurance to be carried by Tenant as
required under this Article, and for all other insurance Tenant elects to
carry. Tenant shall pay the premiums for the insurance to be carried or
obtained by Landlord as required under this Article in excess of the premiums
payable during the Base Year described in Section 1.7(b), whether such
increase is the result of lender requirements, increased valuation of the
Premises, or general rate increases. If the Lease Term expires before the
expiration of any such insurance policy, Tenant's liability for premiums
shall be prorated on an annual basis. Tenant shall pay such obligation for
excess insurance premiums to Landlord, to the extent such obligation exceeds
any amount thereof impounded under Section 4.5, within fifteen (15) days
after receipt of a statement from Landlord. If any insurance policy
maintained by Landlord covers improvements or real property other than the
Premises, Landlord shall reasonably determine the portion of the premiums
applicable to the Premises, and Tenant shall pay such its share thereof of
the excess thereof as provided in this Section. In addition, Tenant shall pay
the full amount of any deductible amount under Landlord's insurance policies,
or where applicable its share thereof as equitably determined by Landlord,
within fifteen (15) days after receipt of a statement from Landlord.
9.5 WAIVER OF SUBROGATION. Each party waives all rights of recovery
against the other party, and its officers, employees, agents and representatives
for any claims for loss or damage to person or property caused by or resulting
from fire or any other risks insured against under any insurance policy in force
at the time of such loss or damage. Each party shall cause each insurance policy
obtained by it to provide that the insurer waives all rights of recovery by way
of subrogation against the other party in connection with any damage covered by
such policy.
9.6 TENANT'S USE NOT TO INCREASE PREMIUM. Tenant shall not keep, use,
manufacture, assemble, sell or offer for sale in or upon the Premises any
article that may be prohibited by, or that might invalidate, in whole or in
part, the coverage afforded by, a standard form of fire or all risk insurance
policy. Tenant shall pay the entire amount of any increase in premiums that may
be charged during the Lease Term for the insurance that may be maintained by
Landlord on the Premises or the Center resulting from the type of materials or
products stored, manufactured, assembled or sold by Tenant in the Premises,
whether or not Landlord has consented to the same. In determining whether
increased premiums are the result of Tenant's use of the Premises, a schedule
issued by the entity making the insurance rate on the Premises showing the
various components of such rate shall be conclusive evidence of the items and
charges that make up the fire insurance rate on the Premises.
9.7 BOILER AND MACHINERY COVERAGE. At Landlord's option, Landlord may
maintain, at Tenant's expense, boiler broad form insurance, if applicable, in
the amount of One Hundred Fifty Thousand Dollars ($150,000) in the name of
Landlord. Tenant shall pay the premium therefor, or its share thereof equitably
determined by Landlord it the Premises are a part of a multi-tenant building.
10. UTILITIES.
Tenant shall pay the cost of all water, gas, heat, light, power, sewer,
telephone, refuse disposal, and all other utilities and services supplied to the
Premises. Tenant shall make payments for all separately metered utilities, when
due, directly to the appropriate supplier. Landlord shall have the right to
require Tenant to install, at Tenant's sole expense, separate meters for any
utility for which a separate meter is not installed as of the Commencement Date.
If any utilities or services are not separately metered to the Premises,
Landlord shall determine Tenant's equitable share thereof, based on rentable
square footage, intensity of use of any Utility, hours of operation, and such
other factors as Landlord deems relevant. Tenant shall pay its equitable share
of such utilities to Landlord, to the extent such obligation exceeds any amount
thereof impounded under Section 4.5, within fifteen (15) days after receipt of a
statement from Landlord. Landlord shall not be liable in damages or otherwise
for any failure or interruption of any utility service, and no such failure or
interruption shall entitle Tenant to terminate this Lease or abate the rent due
hereunder.
11. USE.
11.1 PERMITTED USE. The Premises shelf be used and occupied only for
the permitted uses specified in Section 1.8. The Premises shall not be used or
occupied for any other purposes without the prior written consent of Landlord.
Tenant shall provide such information about such proposed use as may be
reasonably requested by Landlord. Landlord shall not unreasonably withhold its
consent to any requested change of use, and shall have the right to impose
reasonable restrictions on such other use. Factors that Landlord may take into
account in granting or withholding its consent shall include, without
limitation, whether the proposed use is compatible with the character and tenant
mix of the Center, whether the proposed use poses any increased risk to Landlord
or any other occupant of the Center, whether any proposed Alterations to
accommodate such proposed use
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might decrease the rental or sale value of the Premises or the Center, and
whether Tenant has the requisite expertise and financial ability to successfully
operate in the Premises with the proposed use.
11.2 COMPLIANCE WITH LAW AND OTHER REQUIREMENTS. Tenant shall not do or
permit anything to be done in or about the Premises in conflict with all laws,
ordinances, rules, regulations, orders, requirements, and recorded covenants and
restrictions applicable to the Premises, whether now in force or hereafter in
effect, including any requirement to make alterations or to install additional
facilities required by Tenant's occupancy or the conduct of Tenant's business,
and Tenant shall promptly comply with the same at its sole expense.
11.3 WASTE, QUIET CONDUCT. Tenant shall not use or permit the use of
the Premises in any manner that tends to create waste or a nuisance, that will
cause objectionable noise or odors, or that may disturb the quiet enjoyment of
any other tenant in the Center.
11.4 RULES AND REGULATIONS. Tenant shall comply with the Rules and
Regulations for the Center attached as Exhibit "B", as the same may be amended
by Landlord from time to time, upon notice to Tenant.
11.5 SIGNS. Tenant agrees, at Tenant's sole cost, to install a sign in
strict conformance with Landlord's sign criteria, attached hereto as Exhibit
"C", within fifteen (15) days after first occupying the Premises. Tenant shall
maintain all approved signs and other items described herein in good condition
and repair at all times. All signs must be fabricated by a contractor selected
by Landlord. Prior to construction of any such sign, a detailed drawing of the
proposed sign shall be prepared by the Landlord's contractor, at the sole
expense of Tenant, and submitted to Landlord and Tenant for written approval. No
sign, placard, pennant, flag, awning, canopy, or advertising matter of any kind
shall be placed or maintained on any exterior door, wall or window of the
Premises or in any area outside the Premises, and no decoration, lettering or
advertising matter shall be placed or maintained on the glass of any window or
door, or that can be seen through the glass, of the Premises without first
obtaining Landlord's written approval. All signs and sign cases shall be
considered fixtures and improvements and shall become the property of Landlord
upon expiration or termination of the Lease. If Tenant fails to comply with this
Section and Landlord serves upon Tenant a Notice to Perform Covenant or Quit (or
similar notice), any breach of the covenants of this Section occurring
thereafter shall be deemed to be non-curable. Landlord shall have the right from
time to time to revise the sign criteria, and within sixty (60) days after
Tenant's receipt of written notice of any new sign criteria, Tenant shall, at
Tenant's expense, remove all existing exterior signs and replace the same with
new signs conforming to the new sign criteria.
11.6 PARKING. Tenant shall have the nonexclusive right, in common with
others, to use the parking areas of the Center; provided, however, that Tenant
shall not use more than the number of parking spaces designated in Section 1.
bb, or if no number of such spaces is so indicated, Tenant shall not use more
than its reasonable share of parking spaces, as Landlord shall determine.
Landlord reserves the right, without liability to Tenant, to modify the parking
areas, to designate the specific location of the parking for Tenant and Tenant's
customers and employees, and to adopt reasonable rules and regulations for use
of the parking areas.
11.7 ENTRY BY LANDLORD. Tenant shall permit Landlord and Landlord's
agents to enter the Premises at all reasonable times for any of the following
purposes: (a) to inspect the Premises, (b) to supply any services or to
perform any maintenance obligations of Landlord, including the erection and
maintenance of such scaffolding, canopies, fences, and props as may be
required, (c) to make such improvements, replacements or additions to the
Premises or the Center as Landlord deems necessary or desirable, (d) to post
notices of non-responsibility, (e) to place any usual or ordinary "for sale"
signs, or (e) within six (6) months prior to the expiration of this Lease, to
place any usual or ordinary "for lease" signs. No such entry shall result in
any rebate of rent or any liability to Tenant for any loss of occupation or
quiet enjoyment of the Premises. Landlord shall give reasonable notice to
Tenant prior to any entry except in an emergency or unless Tenant consents at
the time of entry. If Tenant is not personally present to open and permit an
entry into the Premises, at any time when for any reason an entry therein
shall be necessary or permissible, Landlord or Landlord's agents may enter
the same by a master key, or may forcibly enter the same without rendering
Landlord or such agents liable therefor, and without in any manner affecting
the obligations and covenants of this Lease. Nothing herein contained,
however, shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever for the care, maintenance or repair of
the Premises or any part thereof, except as otherwise specifically provided
herein.
12. ACCEPTANCE OF PREMISES; NON-LIABILITY OF LANDLORD; DISCLAIMER.
12.1 ACCEPTANCE OF PREMISES. By taking possession hereunder, Tenant
acknowledges that it has examined the Premises and accepts the condition
thereof. Tenant acknowledges and agrees that Landlord has no obligation to
improve the Premises other than as set forth specifically in this Lease, if at
all. In particular, Tenant acknowledges that any additional improvements or
alterations needed to accommodate Tenant's intended use shall be made solely at
Tenant's sole cost and expense, and strictly in accordance with the requirements
of this Lease (including the requirement to obtain Landlord's consent thereto),
unless such improvements and alterations are specifically required of Landlord.
Landlord shall have no responsibility to do any work required under any building
codes or other governmental requirements not in effect or applicable at the time
the Premises were constructed, including without limitation any requirements
related to sprinkler retrofitting, seismic structural requirements,
accommodation of disabled persons, or hazardous materials. Landlord shall be
under no obligation to provide utility, telephone or other service or access
beyond that which exists at the Premises as of the date of this Lease, unless
Landlord specifically agrees in writing to provide the same. If it is
anticipated that Tenant will be doing any Alterations or installations prior to
taking occupancy, any delays encountered by Tenant in accomplishing such work or
obtaining any required permits therefor shall not delay the Commencement Date or
the date that Tenant becomes liable to pay rent, or the date that Landlord may
effectively deliver possession of the Premises to Tenant. By taking possession
hereunder, Tenant acknowledges that it accepts the square footage of the
Premises as delivered and as stated in this Lease. No discovery or alleged
discovery after such acceptance of any variance in such square footage as set
forth in this Lease (or in any proposal, advertisement or other description
thereof) shall be grounds for any adjustment in any element of the rent payable
hereunder, unless such adjustment is initiated by and implemented by Landlord in
writing.
12.2 LANDLORD'S EXEMPTION FROM LIABILITY. Landlord shall not be liable
for injury to Tenant's business or loss of income therefrom, or for personal
injury or property damage that may be sustained by Tenant or any subtenant of
Tenant, or their respective employees, invitees, customers, agents or
contractors or any other person in or about the Premises, caused by or resulting
from fire, flood, earthquake or other natural disaster, or from steam,
electricity, gas, water or rain, that may leak or flow from or into any part of
the Premises, or from the breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air-conditioning or lighting
fixtures, whether such 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, and regardless of whether the cause of such damage
or injury or the means of repairing the same is inaccessible to Tenant. Landlord
shall not be liable for any damages to property or for personal injury or loss
of life arising from any use, act or failure to act of any third parties
(including other occupants of the Center) occurring in, or about the Premises or
in or about the Center (including without limitation the criminal acts of any
third parties). Landlord shall not be liable for any latent defect in the
Premises or in the building of which the Premises are a part. All property of
Tenant kept or stored on the Premises shall be so kept or stored at the risk of
Tenant only, and Tenant shall indemnify, defend and hold Landlord harmless from
and against any claims arising out of damage to the same, including subrogation
claims by Tenant's insurance carriers. Provided, however, that the
indemnifications and waivers of Tenant set forth in this Section shall not apply
to damage and liability caused (i) by the gross negligence or wilful misconduct
of Landlord, and (ii) through no fault of Tenant, its assignees or subtenants,
or their respective agents, contractors, employees, customers, invitees or
licensees.
12.3 NO WARRANTIES OR REPRESENTATIONS.
(a) Neither Landlord nor Landlord's agents make any warranty or
representation with respect to the suitability or fitness of the space for the
conduct of Tenant's business, or for any other purpose.
5
(b) Neither Landlord nor Landlord's agents make any warranty or
representation with respect to any other tenants or users that may or may not
construct improvements, occupy space or conduct business within the Center, and
Tenant hereby acknowledges and agrees that it is not relying on any warranty or
representation relating thereto in entering into this Lease.
(c) Landlord specifically disavows any oral representations
made by or on behalf of its employees, agents and independent contractors, and
Tenant hereby acknowledges and agrees that it is not relying and has not relied
on any oral representations in entering into this Lease.
(d) Landlord has not made any promises or representations,
expressed or implied, that it will renew, extend or modify this Lease in favor
of Tenant or any permitted transferee of Tenant, except as may be specifically
set forth herein or in except in a written instrument signed by both parties
amending this Lease in the future.
(e) Notwithstanding that the rent payable to Landlord hereunder
may at times include the cost of guard service or other security measures, it is
specifically understood that Landlord does not represent, guarantee or assume
responsibility that Tenant will be secure from any damage, injury or loss of
life because of such guard service. Landlord shall have no obligation to hire,
maintain or provide such services, which may be withdrawn or changed at any time
with or without notice to Tenant or any other person and without liability to
Landlord. To induce Landlord to provide such service if Landlord elects in its
sole discretion to do so, Tenant agrees that (i) Landlord shall not be liable
for any damage, injury or loss of life related to the provision or non-provision
of such service, and (ii) Landlord shall have no responsibility to protect
Tenant, or its employees, agents, from the acts of any third parties (including
other occupants of the Center) occurring in, or about the Premises or in or
about the Center (including without limitation the criminal acts of any third
parties), whether or not the same could have been prevented by any such guard
service or other security measures.
13. INDEMNIFICATION.
Tenant shall indemnify, hold harmless and defend Landlord and
Landlord's officers, directors, shareholders, partners, principals,
employees, agents, representatives (collectively, "Landlord's Related
Entities"), from and against any and all claims, actions, damages, liability,
costs, and expenses, including attorneys' fees and costs, arising from
personal injury, death, and/or property damage and arising from: (a) Tenant's
use or occupation of the Premises or any work or activity allowed or
permitted by Tenant in or about the Premises, (b) any activity, condition or
occurrence in the Premises or other area under the control of Tenant, (c) any
breach or failure to perform any obligation imposed on Tenant under this
Lease; or (d) any other act or omission of Tenant or its assignees or
subtenants or their respective agents, contractors, employees, customers,
invitees or licensees. Tenant's obligation to defend and indemnify shall
include, but not be limited to, claims based on duties, obligations, or
liabilities imposed on Landlord or Landlord's Related Entities by statute,
ordinance, regulation, or other law, such as claims based on theories of
peculiar risk and non-delegable duty, and to any and all other claims based
on the negligent act or omission of candford or Landlord's Related Entities.
The parties intend that this provision be interpreted as the broadest
indemnity allowed by law between a landlord and a tenant. Upon notice from
Landlord, Tenant shall, at Tenant's sole expense and by counsel satisfactory
to Landlord, defend any action or proceeding brought against Landlord or
Landlord's Related Entities by reason of any such claim. If Landlord or any
of Landlord's Related Entities is made a party to any litigation commenced by
or against Tenant, then Tenant shall hold harmless and defend Landlord and
Landlord's Related Entities and pay all costs, expenses and attorneys' fees
and costs incurred or paid in connection with such litigation. Tenant, as a
material part of the consideration to Landlord hereunder, assumes all risk
of, and waives all claims against Landlord for, personal injury or property
damage in, upon or about the Premises, from any cause whatsoever. Provided,
however, that the indemnifications and waivers of Tenant set forth in this
Section shall not apply to damage and liability caused (i) by the gross
negligence or wilful misconduct of Landlord, and (ii) through no fault of
Tenant, its assignees or subtenants, or their respective agents, contractors,
employees, customers, invitees or licensees. See Addendum.
14. HAZARDOUS MATERIALS.
14.1 DEFINITIONS. "Hazardous Materials Laws" means any and all
federal, state or local laws, ordinances, rules, decrees, orders, regulations
or court decisions relating to hazardous substances, hazardous materials,
hazardous waste, toxic substances, environmental conditions on, under or
about the Premises, or soil and ground water conditions, including, but not
limited to, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), as amended, 42 U.S.C. Section 9601, ET
SEQ., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section
6901, ET SEQ., the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, ET SEQ. the California Hazardous Waste Control Act, Cal. Health and
Safety Code Section 25100, ET SEQ., the Carpenter-Presley-Tanner Hazardous
Substances Account Act, Cal. Health and Safety Code Section 25300, ET SEQ.,
the Safe Drinking Water and Toxic Enforcement Act, Cal. Health and Safety
Code 125249.5, et seq., the Porter-Cologne Water Quality Control Act, Cal.
Water Code Section 13000, ET SEQ., any amendments to the foregoing, and any
similar federal, state or local laws, ordinances, rules, decrees, orders or
regulations. "Hazardous Materials" means any chemical, compound, material,
substance or other matter that: (a) is defined as a hazardous substance,
hazardous material, hazardous waste or toxic substance under any Hazardous
Materials Law, (b) is controlled or governed by any Hazardous Materials Law
or gives rise to any reporting, notice or publication requirements hereunder,
or gives rise to any liability, responsibility or duty on the part of Tenant
or Landlord with respect to any third person hereunder; or (c) is flammable
or explosive material, oil, asbestos, urea formaldehyde, radioactive
material, nuclear medicine material, drug, vaccine, bacteria, virus,
hazardous waste, toxic substance, or related injurious or potentially
injurious material (by itself or in combination with other materials).
14.2 USE OF HAZARDOUS MATERIALS. Tenant shall not allow any Hazardous
Material to be used, generated, manufactured, released, stored or disposed of
on, under or about, or transported from, the Premises, unless: (a) such use is
specifically disclosed to and approved by Landlord in writing prior to such use,
and (b) such use is conducted in compliance with the provisions of this Article.
Landlord's consent may be withheld in Landlord's sole discretion and, if
granted, may be revoked at any time. Landlord may approve such use subject to
reasonable conditions to protect the Premises and Landlord's interests. Landlord
may withhold approval if Landlord determines that such proposed use involves a
material risk of a release or discharge of Hazardous Materials or a violation of
any Hazardous Materials Laws or that Tenant has not provided reasonably
sufficient assurances of its ability to remedy such a violation and fulfill its
obligations under this Article. Notwithstanding the foregoing, Landlord hereby
consents to Tenant's use, storage or disposal of products containing small
quantities of Hazardous Materials, which products are of a type customarily
found in offices and households (such as aerosol cans containing insecticides,
toner for copies, paints, paint remover and the like), provided that Tenant
shall handle, use, store and dispose of such Hazardous Materials in a safe and
lawful manner and shall not allow such Hazardous Materials to contaminate the
Premises.
14.3 COMPLIANCE WITH LAWS; HANDLING HAZARDOUS MATERIALS. Tenant shall
strictly comply with, and shall maintain the Premises in compliance with, all
Hazardous Materials Laws. Tenant shall obtain, maintain in effect and comply
with the conditions of all permits, licenses and other governmental approvals
required for Tenant's operations on the Premises under any Hazardous Materials
Laws, including, but not limited to, the discharge of appropriately treated
Hazardous Materials into or through any sanitary sewer serving the Premises. At
Landlord's request, Tenant shall deliver copies of, or allow Landlord to
inspect, all such permits, licenses and approvals. All Hazardous Materials
removed from the Premises shall be removed and transported by duly licensed
haulers to duly licensed disposal facilities, in compliance with all Hazardous
Materials Laws. Tenant shall perform any monitoring, testing, investigation,
clean-up, removal, detoxification, preparation of closure or other required
plans and any other remedial work required by any governmental agency or lender,
or recommended by Landlord's environmental consultants, as a result of any
release or discharge or potential release or discharge of Hazardous Materials
affecting the Premises or the Center or any violation or potential violation of
Hazardous Materials Laws by Tenant or any assignee or subtenant of Tenant or
their respective agents, contractors, employees, licensees or invitees
(collectively, "Remedial Work"). Landlord shall have the right to intervene in
any governmental action or proceeding involving any Remedial Work, and to
approve performance of the
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work, in order to protect Landlord's interests. Tenant shall not enter into any
settlement agreement, consent decree or other compromise with respect to any
claims relating to Hazardous Materials without notifying Landlord and providing
ample opportunity for Landlord to intervene. Tenant shall additionally comply
with the recommendations of Landlord's and Tenant's insurers based upon National
Fire Protection Association standards or other applicable guidelines regarding
the management and handling of Hazardous Materials.
14.4 NOTICE; REPORTING. Tenant shall notify Landlord, in writing,
within three (3) days after any of the following: (a) Tenant has knowledge, or
has reasonable cause to believe, that any Hazardous Material has been released,
discharged or is located on, under or about the Premises, whether or not the
release or discharge is in quantities that would otherwise be reportable to a
public agency, (b) Tenant receives any order of a governmental agency requiring
any Remedial Work pursuant to any Hazardous Materials Laws, (c) Tenant receives
any warning, notice of inspection, notice of violation or alleged violation or
Tenant receives notice or knowledge of any proceeding, investigation or
enforcement action, pursuant to any Hazardous Materials Laws; or (d) Tenant
receives notice or knowledge of any claims made or threatened by any third party
against Tenant or the Premises relating to any loss or injury resulting from
Hazardous Materials. If the potential risk of any of the foregoing events is
material, Tenant shall deliver immediate verbal notice to Landlord, in addition
to written notice as set forth above. Tenant shall deliver to Landlord copies of
all test results, reports and business or management plans required to be filed
with any governmental agency pursuant to any Hazardous Materials Laws.
14.5 INDEMNITY. Tenant shall indemnify, protect, defend and hold
Landlord (and its partners and their respective officers, directors, employees
and agents) harmless from and against any and all liabilities, claims, suits,
judgments, actions, investigations, proceedings, costs and expenses (including
attorneys' fees and costs) arising out of or in connection with any breach of
any provisions of this Article or directly or indirectly arising out of the use,
generation, storage, release, disposal or transportation of Hazardous Materials
by Tenant, or any assignee or subtenant of Tenant, or their respective agents,
contractors, employees, licensees, or invitees, on, under or about the Premises
during the Lease Term or any other period of Tenant's actual or constructive
occupancy of the Premises, including, but not limited to, all foreseeable and
unforeseeable consequential damages and the cost of any Remedial Work. Any
defense of Tenant pursuant to this Section shall be by counsel acceptable to
Landlord. Neither the consent by Landlord to the use, generation, storage,
release disposal or transportation of Hazardous Materials nor the strict
compliance with all Hazardous Materials Laws shall excuse Tenant from Tenant's
indemnification obligations pursuant to this Article. The foregoing indemnity
shall be in addition to and not a limitation of the indemnification provisions
of Article 13 of this Lease. Tenant's obligations pursuant to this Article shall
survive the termination or expiration of this Lease.
14.6 ENTRY AND INSPECTION; CURE. Landlord, and its agents, employees
and contractors, shall have the right, but not the obligation, to enter the
Premises at all reasonable times to inspect the Premises and Tenant's compliance
with the terms and conditions of this Article, or to conduct investigations and
tests. No prior notice to Tenant shall be required in the event of an emergency,
or if Landlord has reasonable cause to believe that violations of this Article
have occurred, or if Tenant consents at the time of entry. In all other cases,
Landlord shall give at least 24 hours' prior notice to Tenant. Landlord shall
have the right, but not the obligation, to remedy any violation by Tenant of the
provisions of this Article pursuant to Section 22.3 of this Lease or to perform
any Remedial Work. Tenant shall pay, upon demand, all costs incurred by Landlord
in investigating any such violations or potential violations or performing
Remedial Work, plus interest thereon at the rate specified in this Lease from
the date of demand until the date paid by Tenant.
14.7 TERMINATION/EXPIRATION. Upon termination or expiration of this
Lease, Tenant shall, at Tenant's cost, remove any equipment, improvements or
storage facilities utilized in connection with any Hazardous Materials and shall
clean up, detoxify, repair and otherwise restore the Premises to a condition
free of Hazardous Materials, to the extent such condition is caused by Tenant or
any assignee or subtenant of Tenant or their respective agents, contractors,
employees, licensees or invitees.
14.8 EVENT OF DEFAULT. The release or discharge of any Hazardous
Material or the violation of any Hazardous Materials Law by Tenant or any
assignee or subtenant of Tenant shall be a material Event of Default by Tenant
under this Lease. In addition to or in lieu of the remedies available under this
Lease as a result of such Event of Default, Landlord shall have the right,
without terminating this Lease, to require Tenant to suspend its operations and
activities on the Premises until Landlord is satisfied that appropriate Remedial
Work has been or is being adequately performed; Landlord's election of this
remedy shall not constitute a waiver of Landlord's right thereafter to declare
an Event of Default and pursue other remedies set forth in this Lease.
15. ALTERATIONS; LIENS.
15.1 ALTERATIONS BY TENANT. Tenant shall not make any alterations,
additions or improvements ("Alterations") to the Premises without Landlord's
prior written consent, except for nonstructural Alterations that cost $5,000 or
less and are not visible from the exterior of the Premises. All Alterations
installed by Tenant shall be new or completely reconditioned. Landlord shall
have the right to approve the contractor, the method of payment of the
contractor, and the plans and specifications for all proposed Alterations.
Tenant shall obtain Landlord's consent to all proposed alterations requiring
Landlord's consent prior to the commencement of any such Alterations. Tenant's
request for consent shall be accompanied by information identifying the
contractor and method of payment and two (2) copies of the proposed plans and
specifications. All Alterations of whatever kind and nature shall become at once
a part of the realty and shall be surrendered with the Premises upon expiration
or earlier termination of the Lease Term, unless Landlord requires Tenant to
remove the same as provided in Article 20. During the Lease Term, Tenant agrees
to provide, at Tenant's expense, a policy of insurance covering loss or damage
to Alterations made by Tenant, in an amount adequate to repair or replace the
same, naming Landlord as an additional insured. Provided, however, Tenant may
install movable furniture, trade fixtures, machinery or equipment in conformance
with applicable governmental rules or ordinances and remove the same upon
expiration or earlier termination of this Lease as provided in Article 20.
15.2 PERMITS AND GOVERNMENTAL REQUIREMENTS. Tenant shall obtain, at
Tenant's sole cost and expense, all building permits and other permits of every
kind and nature required by any governmental agency having jurisdiction in
connection with the Alterations. Tenant shall indemnify, hold harmless and
defend Landlord and Landlord's officers, directors, shareholders, partners,
principals, employees and agents, and their respective successors and assigns,
from and against any and all claims, actions, damages, liability, costs, and
expenses, including attorneys' fees and costs, arising out of any failure by
Tenant or Tenant's contractor or agents to obtain all required permits,
regardless of when such failure is discovered. Tenant shall do any and all
additional construction, alterations, improvements and retrofittings required to
be made to the Premises and/or the Center, or any other property of Landlord as
a result of, or as may be may be triggered by, Tenant's Alterations. Landlord
shall have the right to do such construction itself; but in all instances Tenant
shall pay all costs directly or indirectly related to such work and shall
indemnify, defend and hold Landlord and Landlord's officers, directors,
shareholders, partners, principals, employees and agents, and their respective
successors and assigns, harmless from and against any and all claims, actions,
damages, liability, costs, and expenses, including attorneys' fees and costs,
arising out of any such additionally required work. All payment and
indemnification obligations under this Section shall survive the expiration or
earlier termination of the Lease Term.
15.3 LIENS. Tenant shall pay when due all claims for any work
performed, materials furnished or obligations incurred by or for Tenant, and
Tenant shall keep the Premises free from any liens arising with respect thereto.
If Tenant fails to cause any such lien to be released within fifteen (15) days
after imposition, by payment or posting of a proper bond, Landlord shall have
the right (but not the obligation) to cause such release by such means as
Landlord deems proper. Tenant shall reimburse Landlord upon demand for all costs
incurred by Landlord in connection therewith (including attorneys' fees and
costs), with interest at the rate specified in Section 22.4 from the date of
payment by Landlord to the date of payment by Tenant. Tenant will notify
Landlord in writing thirty (30) days prior to commencing any alterations,
additions, improvements or repairs in order to allow Landlord timely to file a
notice of non-responsibility.
16. DAMAGE AND DESTRUCTION.
16.1 PARTIAL INSURED DAMAGE. If the Premises or any building in which
the Premises are located are partially damaged or destroyed during the Lease
Term, Landlord shall make the necessary repairs, provided such repairs can
reasonably be
7
completed within sixty (60) days after the date of the damage or destruction in
accordance with applicable laws and regulations and provided that Landlord
receives sufficient insurance proceeds to pay the cost of such repairs. In such
event, this Lease shall continue in full force and effect. If such repairs
cannot reasonably be completed within sixty (60) days after the date of the
damage or destruction or if Landlord does not receive sufficient insurance
proceeds, then Landlord may, at its option, elect within 45 days of the date of
the damage or destruction to proceed with the necessary repairs, in which event
this Lease shall continue in full force and effect and Landlord shall complete
the same within a reasonable time. If Landlord does not so elect to make such
repairs or if such repairs cannot be made under applicable laws and regulations,
this Lease may be terminated at the option of either party within 90 days of the
occurrence of such damage or destruction.
16.2 INSURANCE DEDUCTIBLE. If Landlord elects to repair any damage
caused by an insured casualty as provided in Section 16.1, Tenant shall,
within fifteen (15) days after receipt of written notice from Landlord, pay
the amount of any deductible (or its share thereof) under any insurance
policy covering such damage or destruction, in accordance with Section 9.4
above.
16.3 UNINSURED DAMAGE. In the event of any damage or destruction of the
Premises or any building in which the Premises are located by an uninsured
casualty, Landlord shall have the right to elect either to repair such damage or
to terminate this Lease. Such election shall be exercised by written notice to
Tenant within forty-five (45) days of such damage or destruction.
16.4 TOTAL DESTRUCTION. A total destruction (including any destruction
required by any authorized public authority) of either the Premises or any
building in which the Premises are located shall terminate this Lease.
16.5 PARTIAL DESTRUCTION OF CENTER. If fifty percent (50%) or more of the
rentable area of the Center is damaged or destroyed by fire or other cause,
notwithstanding that the Premises may be unaffected, Landlord shall have the
right, to be exercised by notice in writing delivered to Tenant within ninety
(90) days after said occurrence, to elect to terminate this Lease.
16.6 TENANT'S OBLIGATIONS. Landlord shall not be required to repair any
injury or damage by fire or other cause, or to make any restoration or
replacement of any Alterations, trade fixtures, equipment or personal property
placed or installed in the Premises by or on behalf of Tenant. Unless this Lease
is terminated pursuant to this Article, Tenant shall promptly repair, restore or
replace the same in the event of damage. Nothing contained in this Article shall
be construed as a limitation on Tenant's liability for any damage or destruction
if such liability otherwise exists.
16.7 RENT ABATEMENT. If Landlord repairs the Premises or the building after
damage or destruction as described in this Article, Minimum Monthly Rent payable
by Tenant hereunder from the date of damage until the repairs are completed
shall be equitably reduced, based upon the extent to which such repairs
interfere with the business carried on by Tenant in the Premises, but only to
the extent Landlord receives proceeds from rental income insurance paid for by
Tenant. Landlord agrees to take reasonable steps to make a claim for and collect
any rental income insurance proceeds that might be available.
16.8 WAIVER OF INCONSISTENT STATUTES. The parties' rights and obligations
in the event of damage or destruction shall be governed by the provisions of
this Lease; accordingly, Tenant waives the provisions of California Civil Code
Sections 1932(2) and 1933(4), and any other statute, code or judicial decisions
that grants a tenant a right to terminate a lease in the event of damage or
destruction of a leased premises.
17. CONDEMNATION. See Addendum.
17.1 CONDEMNATION OF PREMISES. If any portion of the Premises is taken or
condemned for a public or quasi-public use ("Condemnation"), and a portion
remains that is susceptible of occupation, then this Lease shall terminate as to
the portion so taken as of the date title vests in the condemnor, but shall
remain in full force and effect as to the remaining Premises. Landlord shall,
within a reasonable period of time, restore the remaining Premises as nearly as
practicable to the condition existing prior to the condemnation; provided,
however, if Landlord receives insufficient funds from the condemnor for such
purpose, Landlord may elect to terminate this Lease. If this Lease continues in
effect, the Minimum Monthly Rent shall be equitably adjusted, based upon the
value of the Premises remaining after the Condemnation compared to the value of
the Premises prior to Condemnation. Provided, however, in the event of any such
partial condemnation, Landlord shall have the option to terminate this Lease
entirely as of the date title vests in the condemnor. If all the Premises are
condemned, or such portion so that there does not remain a portion that is
susceptible of occupation, or if such a substantial portion of the Center is
condemned that it is no longer economically appropriate to lease the Premises on
the terms and conditions of this Lease, as reasonably determined by Landlord,
then at the election of Landlord this Lease shall terminate as of the date title
vests in the condemnor.
17.2 CONDEMNATION OF PARKING AREA. If all or any portion of the parking
area in the Center is condemned such that the ratio of the total square footage
of parking and other Common Facilities compared to the total rentable building
square footage of the Center is reduced to a ratio below two to one, then at the
election of Landlord this Lease shall terminate as of the date title vests in
the condemnor.
17.3 CONDEMNATION AWARD. All compensation awarded upon any such partial or
total Condemnation shall be paid to Landlord and Tenant shall have no claim
thereto, and Tenant hereby irrevocably assigns and transfers to Landlord any
right to compensation or damages by reason of any such Condemnation. Provided,
however, that Tenant shall have the right to claim and recover from the
condemning authority, but not from Landlord, such compensation as may be
separately awarded or recoverable by Tenant in Tenant's own right on account of
any damage to Tenant's business by reason of the Condemnation and on account of
any cost that Tenant may incur in removing Tenant's merchandise, furniture,
fixtures, leasehold improvements and equipment. If this Lease is terminated, in
whole or in part, in accordance with this Article as a result of a Condemnation,
Tenant shall have no claim for the value of any unexpired term of this Lease.
18. ASSIGNMENT AND SUBLETTING.
18.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not voluntarily or
involuntarily assign, sublease, mortgage, encumber, or otherwise transfer all or
any portion of the Premises or its interest in this Lease (collectively,
"Transfer") without Landlord's prior written consent, which consent Landlord
shall not unreasonably withhold. Landlord may withhold its consent until Tenant
has complied with the provisions of Sections 18.2 and 18.3. Any attempted
Transfer without Landlord's written consent shall be void and shall constitute a
non-curable Event of Default under this Lease. If Tenant is a corporation, any
cumulative Transfer of more than twenty percent (20%) of the voting stock of
such corporation shall constitute a Transfer requiring Landlord's consent
hereunder; provided, however that this sentence shall not apply to any
corporation whose stock is publicly traded. If Tenant is a partnership, limited
liability company, trust or other entity, any cumulative Transfer of more than
twenty percent (20%) of the partnership, membership, beneficial or other
ownership interests therein shall constitute a Transfer requiring Landlord's
consent hereunder. Tenant shall not have the right to consummate a Transfer or
to request Landlord's consent to any Transfer if any Event of Default has
occurred and is continuing or if Tenant or any affiliate of Tenant is in default
under any lease of any other real property owned or managed (in whole or in
part) by Landlord or any affiliate of Landlord.
18.2 LANDLORD'S ELECTION. Tenant's request for consent to any Transfer
shall be accompanied by a written statement setting forth the details of the
proposed Transfer, including the name, business and financial condition of the
prospective Transferee, financial details of the proposed Transfer (e.g., the
term and the rent and security deposit payable), and any other related
information that Landlord may reasonably require. Landlord shall have the right:
(a) to withhold consent to the Transfer, if reasonable, (b) to grant consent,
(c) to terminate this Lease as to the portion of the Premises affected by any
proposed Transfer, in which event Landlord may enter into a lease directly with
the proposed Transferee, or (d) to consent on the condition that Landlord be
paid, as Additional Rent hereunder, 50% of all subrent or other consideration to
be paid to Tenant under the terms of the Transfer in excess of the total rent
due hereunder (including, if such Transfer is an assignment or if such Transfer
is to occur directly or indirectly in connection with the sale of any assets of
Tenant, 50% of the amount of the consideration attributable to the Transfer of
the Lease, as reasonably determined by Landlord). The grounds on which Landlord
may reasonably withhold its consent to any requested Transfer include, without
limitation, that: (i) the proposed Transferee's contemplated use of the Premises
following the proposed Transfer is not reasonably similar to the use of the
Premises permitted hereunder, (ii) in Landlord's reasonable business judgment,
the proposed Transferee lacks sufficient business reputation or experience to
operate
8
a successful business of the type and quality permitted under this Lease,
(iii) Landlord's reasonable business judgment, the proposed Transferee lacks
sufficient net worth, working capital, anticipated cash flow and other
indications of financial strength to meet all of its obligations under this
Lease, (iv) the proposed Transfer would breach any covenant of Landlord
respecting a radius restriction, location, use or exclusivity in any other
lease, financing agreement, or other agreement relating to the Center, and
(v) in Landlord's reasonable business judgment, the possibility of a release
of Hazardous Materials is materially increased as a result of the Transfer or
if Landlord does not receive sufficient assurances that the proposed
Transferee has the experience and financial ability to remedy a violation of
Hazardous Materials and to fulfill its obligations under Articles 13 and 14.
Landlord need only respond to any request by Tenant hereunder within a
reasonable time of not less that ten (10) business days after receipt of all
information and other submission required in connection with such request.
18.3 TRANSFER FEE. Tenant shall pay all attorneys' fees and costs incurred
by Landlord and a fee of $350 to reimburse Landlord for costs and expenses
incurred in connection with any request by Tenant for Landlord's consent to a
Transfer. Such fee shall be delivered to Landlord concurrently with Tenant's
request for consent.
18.4 ASSUMPTION; NO RELEASE OF TENANT. Any permitted transferee shall
assume in writing all obligations of Tenant under this Lease, utilizing a form
of assumption agreement provided or approved by Landlord, and an executed copy
of such assumption agreement shall be delivered to Landlord within fifteen (15)
days after the effective date of the Transfer. The taking of possession of all
or any part of the Premises by any such permitted assignee or subtenant shall
constitute an agreement by such person or entity to assume without limitation or
qualification all of the obligations of Tenant under this Lease, notwithstanding
any failure by such person to execute the assumption agreement required in the
immediately preceding sentence. No permitted Transfer shall release or change
Tenant's primary liability to pay the rent and to perform all other obligations
of Tenant under this Lease. Landlord's acceptance of rent from any other person
is not a waiver of any provision of this Article or a consent to Transfer.
Consent to one Transfer shall not constitute a consent to any subsequent
Transfer. If any transferee defaults under this Lease, Landlord may proceed
directly against Tenant without pursuing remedies against the transferee.
Landlord may consent to subsequent Transfers or modifications of this Lease by
Tenant's transferee, without notifying Tenant or obtaining its consent, and such
action shall not relieve Tenant of its liability under this Lease.
18.5 NO MERGER. No merger shall result from any Transfer pursuant to this
Article, any surrender by Tenant of its interest under this Lease, or any
termination hereof in any other manner. In any such event, Landlord may either
terminate any or all subleases or succeed to the interest of Tenant thereunder.
18.6 REASONABLE RESTRICTION. Tenant acknowledges that the restrictions on
Transfer contained herein are reasonable restrictions for purposes of Section
22.2 of this Lease and California Civil Code Section 1951.4.
19. SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE.
19.1 SUBORDINATION. This Lease is junior and subordinate to all ground
leases, mortgages, deeds of trust, and other security instruments now or
hereafter affecting the real property of which the Premises are a part, and to
all advances made on the security thereof, and to all renewals, modifications,
consolidations, replacements and extensions thereof. If any mortgagee,
beneficiary under deed of trust or ground lessor shall elect to have this Lease
prior to the lien of its mortgage, deed of trust or ground lease, and gives
written notice thereof to Tenant, this Lease shall be deemed prior thereto.
Tenant agrees to execute any documents required to effectuate such subordination
or to make this Lease prior to the lien of any such mortgage, deed of trust or
ground lease, as the case may be, and if Tenant fails to do so within fifteen
(15) days after written demand, Tenant does hereby make, constitute and
irrevocably appoint Landlord as Tenant's attorney-in-fact and in Tenant's name,
place and stead, to do so.
19.2 ATTORNMENT. If Landlord sells, transfers, or conveys its interest in
the Premises or this Lease, or if the same is foreclosed judicially or
nonjudicially, or is otherwise acquired, by a mortgagee, beneficiary under deed
of trust or ground lessor, upon the request and at the sole election of
Landlord's lawful successor, Tenant shall attorn to said successor, provided
said successor accepts the Premises subject to this Lease. Tenant shall, upon
request of Landlord or any such mortgagee, beneficiary under deed of trust or
ground lessor, execute an attornment agreement confirming the same, in form and
substance acceptable to Landlord. Such agreement shall provide, among other
things, that said successor shall not be bound by (a) any prepayment of more
than one (1) month's rent (except any Security Deposit) or (b) any material
amendment of this Lease made after the later of the initial effective date of
this Lease, or the date that such successor's lien or interest first arose,
unless said successor shall have consented to such amendment.
19.3 ESTOPPEL CERTIFICATES. Within fifteen (15) days after written request
from Landlord, Tenant at Tenant's sole cost shall execute, acknowledge and
deliver to Landlord a written statement certifying: (a) that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modifications and certifying that this Lease is in full force and effect as
so modified), (b) the amount of any rent paid in advance, and (c) that, to
Tenant's knowledge, there are no uncured defaults on the part of Landlord, or
specifying the nature of such defaults if any are claimed. Any such statement
may be conclusively relied upon by any prospective purchaser of or lender on the
Premises. If Tenant fails to deliver such statement within said 15-day period,
Tenant shall be liable for the immediate payment of all foreseeable and
unforeseeable damages, penalties and attorneys' fees and costs incurred by
Landlord as a result of such failure. Tenant's failure to deliver such statement
within said 15-day period shall constitute a conclusive acknowledgment by
Tenant: (i), that this Lease is in full force and effect without modification
except as may be represented by Landlord, (ii) that not more than one month's
rent has been paid in advance, and (iii) that there are no uncured defaults in
Landlord's performance.
20. SURRENDER OF PREMISES. See Addendum.
20.1 CONDITION OF PREMISES. Upon the expiration or earlier termination of
this Lease, Tenant shall surrender the Premises to Landlord, broom clean and in
the same condition and state of repair as at the commencement of the Lease Term,
except for ordinary wear and tear that Tenant is not otherwise obligated to
remedy under the provisions of this Lease. Tenant shall deliver all keys to the
Premises and the building of which the Premises are a part to Landlord. Upon
Tenant's vacation of the Premises, Tenant shall remove all portable furniture,
trade fixtures, machinery, equipment, signs and other items of personal property
(unless prohibited from doing the same under Section 20.2), and shall remove any
Alterations (whether or not made with Landlord's consent) that Landlord may
require Tenant to remove. Tenant shall repair all damage to the Premises caused
by such removal, and shall restore the Premises to its prior condition, all at
Tenant's expense. Such repairs shall be performed in a manner satisfactory to
Landlord and shall include, but are not limited to, the following: capping all
plumbing, capping all electrical wiring, repairing all holes in walls, restoring
damaged floor and/or ceiling tiles, and thorough cleaning of the Premises. If
Tenant fails to remove any items that Tenant has an obligation to remove under
this Section when required by Landlord or otherwise, such items shall, at
Landlord's option, become the property of Landlord and Landlord shall have the
right to remove and retain or dispose of the same in any manner, without any
obligation to account to Tenant for the proceeds thereof. Tenant waives all
claims against Landlord for any damages to Tenant resulting from Landlord's
retention or disposition of such Alterations or personal property. Tenant shall
be liable to Landlord for Landlord's costs of removing, storing and disposing of
such items.
20.2 REMOVAL OF CERTAIN ALTERATIONS, FIXTURES AND EQUIPMENT PROHIBITED. All
Alterations, fixtures (whether or not trade fixtures), machinery, equipment,
signs and other items of personal property that Landlord has not required Tenant
to remove under Section 20.1 shall become Landlord's property and shall be
surrendered to Landlord with the Premises, regardless of who paid for the same.
In particular and without limiting the foregoing, Tenant shall not remove any of
the following materials or equipment without Landlord's prior written consent,
regardless of who paid for the same and regardless of whether the same are
permanently attached to the Premises: any power wiring and power panels; any
piping for industrial gasses or liquids; any laboratory benches, sinks, cabinets
and casework; fume hoods or specialized air-handling and evacuation systems; any
drains or other equipment for he handling of waste water or hazardous materials;
computer, telephone, telecommunications wiring, panels and equipment; lighting
and lighting fixtures; wall coverings; drapes, blinds and other window
coverings; carpets and other
9
floor covering; heaters; air conditions and other heating or air conditioning
equipment; fencing; security gates and systems; and other building operating
equipment and decorations.
20.3 HOLDING OVER. Tenant shall vacate the Premises upon the expiration or
earlier termination of this Lease, and Tenant shall indemnify Landlord against
all liabilities, damages and expenses incurred by Landlord as a result of any
delay by Tenant in vacating the Premises. If Tenant remains in possession of the
Premises or any part thereof after the expiration of the Lease Term with
Landlord's written permission, Tenant's occupancy shall be a tenancy from
month-to-month only, and not a renewal or extension hereof. All provisions of
this Lease (other than those relating to the term) shall apply to such
month-to-month tenancy, except that the Minimum Monthly Rent shall be increased
to 150% of the Minimum Monthly Rent in effect during the last month of the Lease
Term. No acceptance of rent, negotiation of rent checks or other act or omission
of Landlord or its agents shall extend the Expiration Date of this Lease other
than a writing executed by Landlord giving Tenant permission to remain in
occupancy beyond the Expiration Date under the terms of the immediately
preceding sentence.
21. DEFAULT BY TENANT.
The occurrence of any of the following shall constitute an "Event of
Default" under this Lease by Tenant:
(a) Failure to pay when due the rent or any other monetary sums
required hereunder.
(b) Failure to perform any other agreement or obligation of Tenant
hereunder, if such failure continues for fifteen (15) days after written notice
by Landlord to Tenant, except as to those Events of Default that are
non-curable, in which case no such grace period shall apply. Landlord's notice
described herein is intended to satisfy, and is not in addition to, any and all
legal notices required prior to commencement of an unlawful detainer action,
including without limitation the notice requirements of California Code of Civil
Procedure Sections 1161 et seq.
(c) Abandonment or vacation of the Premises by Tenant, or failure to
occupy the Premises for a period of ten (10) consecutive days.
(d) If any of the following occurs: (i) A petition is filed for an
order of relief under the federal Bankruptcy Code or for an order or decree of
insolvency or reorganization or rearrangement under any state or federal law,
and such petition is not dismissed within thirty (30) days after the filing
thereof; (ii) Tenant makes a general assignment for the benefit of creditors;
(iii) a receiver or trustee is appointed to take possession of any substantial
part of Tenant's assets, unless such appointment vacated within thirty (30) days
after the date thereof; (d) Tenant consents to or suffers an attachment,
execution or other judicial seizure of any substantial part of its assets or its
interest under this Lease, unless such process is released or satisfied within
thirty (30) days after the occurrence thereof; or (e) Tenant's net worth,
determined in accordance with generally accepted accounting principles
consistently applied, decreases, at any time during the Lease Term, below
Tenant's net worth as of the date of execution of this Lease. If a court of
competent jurisdiction determines that any of the foregoing events is not a
default under this Lease, and a trustee is appointed to take possession (or if
Tenant remains a debtor in possession), and such trustee or Tenant transfers
Tenant's interest hereunder, then Landlord shall receive, as Additional Rent,
the difference between the rent (or other consideration) paid in connection with
such transfer and the rent payable by Tenant hereunder. Any assignee pursuant to
the provisions of any bankruptcy law shall be deemed without further act to have
assumed all of the obligations of the Tenant hereunder arising on or after the
date of such assignment. Any such assignee shall upon demand execute and deliver
to Landlord an instrument confirming such assumption.
(d) The occurrence of any other event that is deemed to be an Event of
Default under any other provision of this Lease.
22. REMEDIES.
Upon the occurrence of any Event of Default by Tenant, Landlord shall have
the following remedies, each of which shall be cumulative and in addition to any
other remedies now or hereafter available at law or in equity.
22.1 TERMINATION OF LEASE. Landlord can terminate this Lease and Tenant's
right to possession of the Premises by giving written notice of termination, and
then re-enter the Premises and take possession thereof. No act by Landlord other
than giving written notice to Tenant of such termination shall terminate this
Lease. Upon termination, Landlord has the right to recover all damages incurred
by Landlord as a result of Tenant's default, including:
(a) The worth at the time of award of any unpaid rent that had been
earned at the time of such termination;
plus
(b) The worth at the time of award of the amount by which the unpaid
rent that would have been earned after the date of termination until the time of
award exceeds the amount of the loss of rent that Tenant proves could have been
reasonably avoided; plus
(c) The worth at the time of award of the amount by which the unpaid
rent for the balance of the Lease Term after the time of award exceeds the
amount of such rental loss that Tenant proves could have been reasonably
avoided; plus
(d) Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's default, including, but not limited to
expenses for cleaning, repairing or restoring the Premises, (ii) expenses for
altering, remodeling or otherwise improving the Premises for the purpose of
reletting, (iii) brokers' fees and commissions, advertising costs and other
expenses of reletting the Premises, (iv) costs of carrying the Premises such as
taxes, insurance premiums, utilities and security precautions, (v) expenses in
retaking possession of the Premises, (vi) attorneys' fees and costs, (vii) any
unearned brokerage commissions paid in connection with this Lease and (viii)
reimbursement of any previously waived or abated Minimum Monthly Rent and/or
Additional Rent; plus
(e) At Landlord's election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time under applicable
California law. As used in paragraphs (a) and (b) above, the "worth at the time
of award" shall be computed by allowing interest at the maximum permissible
legal rate. As used in paragraph (c) above, the "worth at the time of award"
shall be computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one percent (1%).
22.2 CONTINUATION OF LEASE. Landlord has the remedy described in California
Civil Code Section 1951.4 (Landlord may continue the Lease in effect after
Tenant's breach and abandonment and recover rent as it becomes due, if Tenant
has the right to sublet or assign, subject only to reasonable limitations), as
follows:
(a) Landlord can continue this Lease in full force and effect without
terminating Tenant's right of possession, and Landlord shall have the right to
collect rent and other monetary charges when due and to enforce all other
obligations of Tenant hereunder. Landlord shall have the right to enter the
Property to do acts of maintenance and preservation of the Property, to make
alterations and repairs in order to re-let the Property, and/or to undertake
other efforts to re-let the Property. Landlord may also remove personal property
from the Property and store the same in a public warehouse at Tenant's expense
and risk. No act by Landlord permitted under this paragraph shall terminate this
Lease unless a written notice of termination is given by Landlord to Tenant or
unless the termination is decreed by a court of competent jurisdiction.
(b) In furtherance of the remedy set forth in this Section, Landlord
may re-let the Property or any part thereof for Tenant's account, for such term
(which may extend beyond the Lease Term), at such rent, and on such other terms
and conditions as Landlord may deem advisable in its sole discretion. Tenant
shall be liable immediately to Landlord for all costs Landlord incurs in
reletting the Property. Any rents received by Landlord from such reletting shall
be applied to the payment of: (i) any indebtedness other than rent due hereunder
from Tenant to Landlord, (ii) the costs of such reletting, including brokerage
and attorneys' fees and costs, and the cost of any alterations and repairs to
the Property, and (iii) the payment of rent due and unpaid hereunder, including
any previously waived or abated rent. Any remainder shall be held by Landlord
and applied in payment of future amounts as the same become due and payable
hereunder. In no event shall Tenant be entitled to any excess rent received by
Landlord after an Event of Default by Tenant and the exercise of Landlord's
remedies hereunder. If the rent from such reletting during any month is less
than the rent payable hereunder, Tenant shall pay such deficiency to Landlord
immediately upon demand.
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(c) Landlord shall not, by any reentry or other act, be deemed to
have accepted any surrender by Tenant of the Property or Tenant's interest
therein, or be deemed to have terminated this Lease or Tenant's right to
possession of the Property or the liability of Tenant to pay rent thereafter
to accrue or Tenant's liability for damages under any of the provisions
hereof, unless Landlord shall have given Tenant notice in writing that it has
so elected to terminate this Lease.
(d) Tenant acknowledges and agrees that the restrictions on the
Transfer of the Lease set forth in Article 18 of this Lease constitute
reasonable restrictions on such transfer for purposes of this Section and
California Civil Code Section 1951.4.
22.3 PERFORMANCE BY LANDLORD. If Tenant fails to pay any sum of money or
perform any other act to be performed by Tenant hereunder and such failure
continues for fifteen (15) days after notice by Landlord, Landlord shall have
the right (but not the obligation) to make such payment or perform such other
act without waiving or releasing Tenant from its obligations. All sums so paid
by Landlord and all necessary incidental costs, together with interest thereon
at the rate specified in Section 22.4, shall be payable to Landlord on demand.
Landlord shall have the same rights and remedies in the event of non-payment by
Tenant as in the case of default by Tenant in the payment of the rent.
22.4 LATE CHARGE; INTEREST ON OVERDUE PAYMENTS. The parties acknowledge
that late payment by Tenant of Minimum Monthly Rent or any Additional Rent will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult and impractical to determine, including,
but not limited to, processing and accounting charges, administrative expenses,
and additional interest expenses or late charges that Landlord may be required
to pay as a result of late payment on Landlord's obligations. Therefore, if any
installment of Minimum Monthly Rent or Additional Rent is not received by
Landlord within ten (10) days after Landlord has given Tenant notice of such
late payment, and without regard to whether Landlord exercises any of its
remedies upon an Event of Default, Tenant shall pay a late charge equal to the
greater of six percent (6%) of the overdue amount or $100, as Additional Rent
hereunder. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the damages Landlord will incur by reason of late payment
by Tenant. In addition, any amount due from Tenant that is not paid when due
shall bear interest at a rate equal to 2% over the then current Bank of America
prime or reference rate, but a not to exceed the maximum permissible legal rate,
from the date such payment is due until the date paid by Tenant. Landlord's
acceptance of any interest or late charge shall not constitute a waiver of
Tenant's default or prevent Landlord from exercising any other rights or
remedies available to Landlord.
22.5 LANDLORD'S RIGHT TO REQUIRE ADVANCE PAYMENT OF RENT; CASHIER'S
CHECKS. SEE ADDENDUM. If Tenant is late in paying any component of rent more
than three (3) times during the Lease Term, Landlord shall have the right, upon
notice to Tenant, to require that all rent be paid three (3) months in advance.
Additionally, if any of Tenant's checks are returned for non-sufficient funds,
or if Landlord at any time serves upon Tenant a Three Day Notice to Pay Rent or
Quit (pursuant to California Civil Code Sections 1161 ET SEQ. or any successor
or similar unlawful detainer statutes), Landlord may, at its option, require
that all future rent (including any sums demanded in any subsequent three (3)
day notice) be paid exclusively by money order or cashier's check.
23. DEFAULT BY LANDLORD.
23.1 NOTICE TO LANDLORD. Landlord shall not be in default under this Lease
unless Landlord fails to perform an obligation required of Landlord within a
reasonable time, but in no event later than thirty (30) days after written
notice by Tenant to Landlord and to each Mortgagee as provided in Section 23.2,
specifying the nature of the alleged default; provided, however, that if the
nature of the obligation is such that more then thirty (30) business days are
required for performance, then Landlord shall not be in default if Landlord
commences performance within such 30-day period and thereafter diligently
prosecutes the same to completion.
23.2 NOTICE TO MORTGAGEES. Tenant agrees to give each mortgagee or trust
deed holder on the Premises or the Center ("Mortgagee"), by registered mail, a
copy of any notice of default served upon Landlord, provided that Tenant has
been previously notified in writing of the address of such Mortgagee. Tenant
further agrees that if Landlord fails to cure such default within the time
provided for in this Lease, then the Mortgagees shall have an additional thirty
(30) days within which to cure such default, or if such default cannot
reasonably be cured within that time, then such additional time as may be
necessary if, within said 30-day period, any Mortgagee has commenced and is
diligently pursuing the remedies necessary to cure the default (including but
not limited to commencement of foreclosure proceedings if necessary to affect
such cure), in which event this Lease shall not be terminated while such
remedies are being so diligently pursued.
23.3 LIMITATIONS ON REMEDIES AGAINST LANDLORD. In the event Tenant has any
claim or cause of action against Landlord: (a) Tenant's sole and exclusive
remedy shall be against Landlord's interest in the building of which the
Premises are a part, and neither Landlord nor any partner of Landlord nor any
other property of Landlord shall be liable for any deficiency, (b) no partner of
Landlord shall be sued or named as a party in any suit or action (except as may
be necessary to secure jurisdiction over Landlord), (c) no service of process
shall be made against any partner of Landlord (except as may be necessary to
secure jurisdiction over the partnership), and no such partner shall be
required to answer or otherwise plead to any service of process, (d) no judgment
shall be taken against any partner of Landlord and any judgment taken against
any partner of Landlord may be vacated and set aside at any time, and (e) no
writ of execution will ever be levied against the assets of any partner of
Landlord. The covenants and agreements set forth in this Section shall be
enforceable by Landlord and/or by any partner of Landlord. If Landlord fails to
give any consent that a court later holds Landlord was required to give under
the terms of this Lease, Tenant shall be entitled solely to specific performance
and such other remedies as may be specifically reserved to Tenant under this
Lease, but in no event shall Landlord be responsible for monetary damages
(including incidental and consequential damages) for such failure to give
consent.
24. GENERAL PROVISIONS.
24.3 ATTORNEYS' FEES. If either party brings any legal action or
proceeding, declaratory or otherwise, arising out of this Lease, including
any suit by Landlord to recover rent or possession of the Premises or to
otherwise enforce this Lease, the losing party shall pay the prevailing
party's costs and attorneys' fees and costs incurred in such proceeding. If
Landlord issues notice(s) to pay rent, notice(s) to perform covenant,
notice(s) of abandonment or comparable documents as a result of Tenant's
default under this Lease, and if Tenant cures such default, Tenant shall pay
to Landlord the reasonable costs incurred by Landlord, including Landlord's
attorneys' fees and costs, of preparation and delivery of same.
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24.4 AUTHORITY OF TENANT. Tenant represents and warrants that it has full
power and authority to execute and fully perform its obligations under this
Lease pursuant to its governing instruments, without the need for any further
action, and that the person(s) executing this Agreement on behalf of Tenant are
the duly designated agents of Tenant and are authorized to do so. Prior to
execution of this Lease, Tenant shall supply Landlord with such evidence as
Landlord may request regarding the authority of Tenant to enter into this Lease.
Any actual or constructive taking of possession of the Premises by Tenant shall
constitute a ratification of this Lease by Tenant.
24.5 BINDING EFFECT. Subject to the provisions of Article 18 restricting
transfers by Tenant and subject to Section 24.27 regarding transfer of
Landlord's interest, all of the provisions of this Lease shall bind and inure to
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.
24.6 BROKERS. Tenant warrants that it has had no dealings with any real
estate brokers or agents in connection with the negotiation of this transaction
except only the broker whose name is set forth in the Basic Lease Provisions,
and it knows of no other real estate broker or agents who is entitled to a
commission in connection with this transaction. Tenant agrees to indemnify, hold
harmless and defend the Landlord from and against any obligation or liability to
pay any commission or compensation to any other party arising from the act or
agreement of Tenant.
24.7 CONSTRUCTION. The headings and captions used in this Lease are for
convenience only and are not a part of the terms and provisions of this Lease.
In any provision relating to the conduct, acts or omissions of Tenant, the term
"Tenant" shall include Tenant, its subtenants and assigns and their respective
agents, employees, contractors, and invitees, and any others using the Premises
with Tenant's express or implied permission. Any use in this Lease, or in any
addendum, amendment or other document related hereto, of the terms "lessor" or
"lessee" to refer to a party to this Lease shall be deemed to be references to
Landlord and Tenant, respectively.
24.8 COUNTERPARTS. This Lease may be executed in multiple copies, each of
which shall be deemed an original, but all of which shall constitute one Lease
binding on all parties after all parties have signed such a counterpart.
24.9 COVENANTS AND CONDITIONS. Each provision to be performed by Tenant
shall be deemed to be both a covenant and a condition.
24.10 ENTIRE AGREEMENT. This Lease, together with, constitutes the entire
agreement between the parties with respect to the subject matter hereof. There
are no oral or written agreements or representations between the parties hereto
affecting this Lease, and this Lease supersedes, cancels, merges any and all
previous verbal or written negotiations, arrangements, representations,
brochures, displays, models, photographs, renderings, floor plans, elevations,
projections, estimates, agreements and understandings if any, made by or between
Landlord and Tenant and their agents, with respect to the subject matter, and
none thereof shall be used to interpret, construe, supplement or contradict this
Lease. This Lease and all amendments thereto is and shall be considered to be
the only agreement between the parties hereto and their representatives and
agents. There are no other representations or warranties between the parties,
and all reliance with respect to representations is solely based upon the
representations and agreements contained in this Lease.
24.11 EXHIBITS. All exhibits, addenda and riders attached or referred to
herein are hereby incorporated herein by reference.
24.12 FINANCIAL STATEMENTS. Within ten (10) days after written request from
Landlord, Tenant shall deliver to Landlord such financial statements as are
reasonably requested by Landlord to verify the net worth of Tenant, or any
assignee, subtenant, or guarantor of Tenant. In addition, Tenant shall deliver
to any proposed or actual lender or purchaser of the Premises designated by
Landlord any financial statements required by such party to facilitate the sale,
financing or refinancing of the Premises, including the past three years'
financial statements. Tenant represents and warrants to Landlord that: (a) each
such financial statement is a true and accurate statement as of the date of such
statement; and (b) at all times during the Lease Term or any extension thereof,
Tenant's net worth shall not be reduced below Tenant's net worth as of the date
of execution of this Lease. All such financial statement shall be received in
confidence and shall be used only for the purposes set forth herein. Tenant
hereby irrevocably authorizes Landlord to do credit checks or other
investigations into Tenant's financial affairs.
24.13 FORCE MAJEURE. It Landlord is delayed in performing any of its
obligations hereunder due to strikes, labor problems, inability to procure
utilities, materials, equipment or transportation, governmental regulations,
weather conditions, riots, insurrection, war or other events beyond Landlord's
control, then the time for performance of such obligation shall be extended to
the extent reasonably necessary as a result of such event.
24.14 GOVERNING LAW. This Lease shall be governed, construed and enforced
in accordance with the laws of the State of California.
24.15 JOINT AND SEVERAL LIABILITY. If more than one person or entity
executes this Lease as Tenant, each of them is jointly and severally liable for
all of the obligations of Tenant hereunder.
24.16 MODIFICATION. The provisions of this Lease may not be modified or
amended, except by a written instrument signed by both parties.
24.17 MODIFICATION FOR LENDER. If, in connection with obtaining financing
or refinancing for the Premises or the Center, Landlord's lender requests
reasonable modifications to this Lease, Tenant will not unreasonably withhold or
delay its consent thereto, provided that such modifications do not increase the
obligations of Tenant hereunder or materially and adversely affect Tenant's
rights hereunder.
24.18 NONDISCRIMINATION. Tenant for itself and its officers, directors,
shareholders, partners, principals, employees, agents, representatives, and
other related entities and individuals, agrees to comply fully with any and all
laws and other requirements prohibiting discrimination against any person or
group of persons on account of race, color, religion, creed, sex, marital
status, sexual orientation, national origin, ancestry, age, physical handicap or
medical condition, in the use occupancy or patronage of the Premises and/or of
Tenant's business, Tenant shall indemnify and hold Landlord and its affiliates
harmless from and against all damage and liability incurred by Landlord in the
event of any violation of the foregoing covenant or because of any event of or
practice of discrimination against any such persons or group of persons by
Tenant or its officers, directors, shareholders, partners, principals,
employees, agents, representatives, and other related entities and individuals
in accordance with the indemnification provisions of Article 13.
24.19 NOTICE. Any and all notices to either party shall be personally
delivered or sent by regular mail, postage prepaid, addressed to the party to be
notified at the address specified in Section 1.1, or at such other address as
such party may from time to time designate in writing. Notice shall be deemed
delivered on the date of personal delivery or three (3) business days after
deposit in the U.S. Mail, certified, return receipt requested.
24.20 PARTIAL INVALIDITY. If any provision of this Lease is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Lease shall not be affected thereby. Each provision shall be valid and
enforceable to the fullest extent permitted by law.
24.21 QUIET ENJOYMENT. Landlord agrees that Tenant, upon paying the rent
and performing the terms, covenants and conditions of this Lease, may quietly
have, hold and enjoy the Premises from and after Landlord's delivery of the
Premises to Tenant and until the end of the Lease Term, subject, however, to the
lien and provisions of any mortgage or deed of trust to which this Lease is or
shall become subordinate.
24.22 RECORDING. Tenant shall not record this Lease or any memorandum
hereof without Landlord's prior written consent.
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24.23 RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease shall be
deemed or construed as creating a partnership, joint venture, principal-agent,
or employer-employee relationship between Landlord and any other person or
entity (including, without limitation, Tenant) or as causing Landlord to be
responsible in any way for the debts or obligations of such other person or
entity.
24.25 RIGHTS OF REDEMPTION WAIVED. Tenant hereby expressly waives any and
all rights of redemption under any present or future laws in the event Tenant is
evicted or dispossessed for any cause, or in the event Landlord obtains
possession of the Premises by reason of Tenant's violation of any of the
covenants and conditions of this Lease or otherwise.
24.26 TIME OF ESSENCE. Time is of the essence of each and every provision
of this Lease.
24.27 TRANSFER OF LANDLORD'S INTEREST. In the event of a sale, assignment,
exchange or other disposition of Landlord's interest in the Premises, other than
a transfer for security purposes only, Landlord shall be relieved of all
obligations and liabilities accruing hereunder after the effective date of said
sale, assignment, exchange or other disposition, provided that any Security
Deposit or other funds then held by Landlord in which Tenant has an interest are
delivered to Landlord's successor. The obligations to be performed by Landlord
hereunder shall be binding on Landlord's successors and assigns only during
their respective periods of ownership.
24.28 WAIVER. No provision of this Lease or the breach thereof shall be
deemed waived, except by written consent of the party against whom the waiver is
claimed. A waiver of any such breach shall not be deemed a waiver of any
preceding or succeeding breach of the same or any other provision. No delay or
omission by Landlord in exercising any of its remedies shall impair or be
construed as a waiver thereof, unless such waiver is expressly set forth in a
writing signed by Landlord. The subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant,
other than the failure of Tenant to pay the particular rental so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent.
THE SUBMISSION OF THIS LEASE FOR EXAMINATION
AND/OR SIGNATURE BY TENANT IS NOT A COMMITMENT BY
LANDLORD OR ITS AGENTS TO RESERVE THE PREMISES OR
TO LEASE THE PREMISES TO TENANT. THIS LEASE SHALL
BECOME EFFECTIVE AND LEGALLY BINDING UPON ONLY
UPON FULL EXECUTION AND DELIVERY BY BOTH LANDLORD
AND TENANT. UNTIL LANDLORD DELIVERS A FULLY
EXECUTED COUNTERPART HEREOF TO TENANT, LANDLORD
HAS THE RIGHT TO OFFER AND TO LEASE THE PREMISES
TO ANY OTHER PERSON TO THE EXCLUSION OF TENANT.
EXECUTED, by Landlord and Tenant as of the date first written above.
TENANT: LANDLORD:
SCRIPPS BANK, a State-Chartered bank KEARNY VILLA CENTER EAST, a California
limited partnership
By: /s/ [ILLEGIBLE]
-------------------------- By: PROPERTIES INVESTMENT COMPANY, a
California limited partnership,
General Partner
Title: SVP/CFO
------------------------ By: COLLINS DEVELOPMENT
COMPANY a California
By: /s/ Patricia MacLean Corporation, General Partner
---------------------------
By /s/ [ILLEGIBLE]
Title: VP/ Data Processing ---------------------------------
------------------------
Title:
Tenant's EIN: 95-3875333 -----------------------------
-----------------
By: /s/ Robert C Petz
--------------------------------
Title:
-----------------------------
13
ADDENDUM TO STANDARD INDUSTRIAL GROSS LEASE
This ADDENDUM TO STANDARD INDUSTRIAL GROSS LEASE is attached to and
made a part of that certain Standard Industrial Gross Lease dated April 25, 1995
(the "Lease") by between KEARNY VILLA CENTER EAST, a California limited
partnership ("Landlord"), and SCRIPPS BANK, a State-Chartered bank ("Tenant"),
for premises located at 9265 Chesapeake Drive, Suites B, C, and D, San Diego,
California 92123 (the "Premises"). The following provisions are hereby attached
to and made a part of the Lease:
25. RENTAL CONCESSIONS.
(a) ABATED RENT. The entire Minimum Monthly Rent for the second
(2nd), fourth (4th), sixth (6th) and eighth (8th) full calendar months for which
the Minimum Monthly Rent is due shall be abated in the entirety, provided Tenant
is not in default under any of the terms of this Lease. During such rental
concession periods (i.e., the months during which the Minimum Month Rent is
abated), Tenant shall pay its full share of Tenant's charges (other than Minimum
Monthly Rent) in accordance with this Lease.
(b) CONDITIONAL ABATEMENT. The abated rental described in
subsection (a) above is referred to herein as the "rent concession." The rent
concession is granted to Tenant on the condition that Tenant complete the term
of this Lease, and perform all of its obligations throughout the entire term of
this Lease, including timely payment of all rent and other charges due
hereunder. The full amount of the rent concession (or so much thereof as Tenant
may have received the benefit at the time) shall become immediately due and
payable upon the occurrence of any Event of Default on the part of Tenant, or
upon the occurrence of any event or condition that, with the passage of time or
the giving of notice or both, would constitute an Event of Default on the part
of Tenant. Upon the occurrence of any Event of Default on the part of Tenant,
this Lease shall be enforced, and Landlord shall be entitled to all of its
remedies under Article 22, as if the rent concession had not been granted. In
addition to all other remedies of Landlord, Landlord shall have the right to
include the full amount of the rent concession (or so much thereof as Tenant may
have received the benefit at that time) in its demand in any Three-Day Notice to
Pay Rent or Quit that Landlord may give Tenant hereunder.
26. OPTION TO EXTEND TERM. Provided that Tenant is not in default
under the terms of this Lease, and provided further that no condition exists
that, with the giving of notice or the passage of time or both would constitute
a default under this Lease, Tenant shall have the option (the "Option") to
extend the term of this Lease for two (2) additional period of five (5) years
each upon all of the terms and conditions of this Lease, other than the Minimum
Monthly Rent, which shall be determined as described below. The Option must be
exercised, if at all, by Tenant giving Landlord written notice of the exercise
thereof no more than eight (8) months and no less than six (6) months prior to
the expiration of the Lease Term, as the same may have been
1
extended. Any failure of Tenant to give due notice of its exercise of the Option
within such time shall constitute an irrevocable election on the part of Tenant
not to exercise the Option.
The Minimum Monthly Rent during the Option Term shall be the then
"Fair Market Rental Value" of the Premises, as defined below; provided, however,
that in no event shall the Minimum Monthly Rent for any portion of the Option
Term be less than the Minimum Monthly Rent in effect for the last month of the
Term immediately preceding the commencement of the Option Term, regardless of
any determination of a Fair Market Rental Value pursuant to the other provisions
of this Section that would result in a lower Minimum Monthly Rent. Upon exercise
of the Option, Landlord and Tenant shall, in good faith, attempt to reach a
mutually acceptable Fair Market Rental Value of the Premises and consequent
Minimum Monthly Rent for the Option Term.
If Landlord and Tenant cannot agree upon the Fair Market Rental Value
within thirty (30) days of Tenant's exercise of the Option, then, within five
(5) days thereafter, Landlord and Tenant shall each select and notify the other
of the name of an "Evaluator," who, for purposes of this Lease, shall be a
professional real estate appraiser having more than ten years' experience in the
appraisal of fair market leasing rates for premises comparable to the Premises.
Both such Evaluators shall, within twenty (20) days of their respective
appointments, make an evaluation of the Fair Market Rental Value, and shall
thereafter meet and attempt within the next ten (10) days to agree on a Fair
Market Rental Value. If the two Evaluators cannot agree upon the Fair Market
Rental Value within such ten (10) day period, then, within five (5) days
thereafter, the two Evaluators shall promptly proceed to select a third
Evaluator, who shall have the aforesaid qualifications of an Evaluator, and the
first two Evaluators shall each submit to such third Evaluator their respective
determinations of the Fair Market Rental Value of the Premises. Such third
Evaluator shall choose which of the two Fair Market Rental Values submitted is
the closest to such third Evaluator's own judgment as to the Fair Market Rental
Value, and shall deliver to both Landlord and Tenant a copy of such
determination within twenty (20) days after his or her appointment as the third
Evaluator. The parties agree that the mutual determination of the first two
Evaluators, or the determination of the third Evaluator, as the case may be,
shall be considered the Fair Market Rental Value of the Premises and shall be
conclusive and binding upon Landlord and Tenant. If the original two Evaluators
shall fail to agree upon the selection of a third Evaluator, the same shall be
designated by the president of the San Diego Board of Realtors, or any successor
organization thereto. Landlord and Tenant shall each pay any fees of their own
Evaluator and shall share equally the fees of the third Evaluator, if any.
As used herein, the term "Fair Market Rental Value" shall mean the
then-prevailing rental for space comparable to the Premises in the Kearny Mesa
area of the City of San Diego, that a willing, comparable Tenant would pay to a
willing Landlord, neither of whom is compelled to rent, at arms length during a
2
term as the case may be on all of the terms and conditions of this Lease (other
than the minimum Monthly Rent, which is to be determined pursuant to this
Section). The determination of Fair Market Rental Value shall also include any
appropriate adjustments over the term of the Option Term in the Minimum Monthly
Rent based on the cost of living or otherwise, including any minimums and
maximums in the adjustment thereof.
27. RIGHT OF FIRST REFUSAL ON ADDITIONAL SPACE. Provided that no
uncured Event of Default on the part of Tenant then exists under the terms of
this Lease, and provided that no condition exists that with the giving of notice
or the passage of time or both would constitute a default under this Lease,
Landlord agrees that if during the term of this Lease Landlord enters into a
bona fide letter of intent (binding or non-binding) or similar agreement to
lease any unleased portion of Suite A of the Building, immediately adjacent to
the Premises (the "Additional Space"), Landlord will offer to lease the
Additional Space to Tenant on the same terms and conditions as set forth in such
letter of intent. Landlord's notice of such offer shall contain a copy of the
relevant letter of intent (provided that Landlord may omit the identities of the
parties thereto). Tenant shall have ten (10) days after receipt of such offer to
accept or reject the same. Tenant's failure to accept the same in writing
unconditionally and without change within such 10-day period shall constitute a
rejection of such offer. If Landlord's offer is rejected or deemed rejected,
then Landlord shall be free to let the Additional Space to any person (whether
or not a party to the letter of intent that triggered Landlord's offer to
Tenant) on terms and conditions determined by Landlord (which may be more or
less advantageous than those offered to Tenant). If Landlord does not enter into
a letter of intent from a potential tenant that leads to the consummation of a
lease for the Additional Space within four (4) months of the date Tenant rejects
or is deemed to have rejected Landlord's offer, then Landlord shall not let the
Additional Space without re-offering the same to Tenant pursuant to the terms of
this Section.
28. NO VIOLATIONS OF LAW. Landlord represents and warrants that it
has not received any written notice from any governmental board or body that the
Premises are in violation of any law, rule or regulation applicable to the
Premises.
29. DEMISING WALL. Prior to Landlord delivering possession of the
Premises, Landlord shall install a standard demising wall in the Building
between Suite "A" of the Building and the Premises. The side of such wall
facing on the Premises shall be unfinished except for drywall mud and tape,
ready for Tenant's application of paint or other wall covering.
30. TENANT IMPROVEMENTS. Tenant shall have the right to make
improvements to the Premises. Landlord shall allow Tenant early occupancy of the
Premises (see Section 3.3) for the purpose of such improvements after regaining
possession of the Premises and completing the demising wall described in the
preceding Section. All of Tenant's improvements and other Alterations shall be
subject to and made in accordance with Article 15 of this Lease. However, the
entry into the Premises
3
by Tenant, or Tenant's employees or contractors for the purpose of completing
the installation of Tenant Improvements, equipment and fixtures shall not be
defined as early occupancy requiring payment of Minimum Monthly Rent under
Section 3.3; however all of the other terms and provision of this Lease shall
apply during such early occupancy period and, upon such entry into the Premises,
Tenant shall be responsible for the payment of all utilities serving the
Premises.
31. EXCLUSIVE PARKING SPACES. Tenant shall have the right to
designate the thirteen (13) parking spaces cross-hatched on the attached Exhibit
"D" as its exclusive parking spaces ("Tenant's Exclusive Spaces"). Tenant shall
have the right to mark or otherwise designate Tenant's Exclusive Spaces as
exclusively for Tenant's use, to block off the parking lot between the parking
berms that enclose the seven (7) Tenant's Exclusive Spaces directly to the south
of suites D and C, and to enforce such exclusivity by giving warning notices and
by towing vehicles improperly parked in Tenant's Exclusive Spaces. Landlord
shall have no obligation whatsoever with respect to such enforcement, and all
such enforcement shall be undertaken in full compliance with all applicable laws
and regulations and at Tenant's sole cost, expense and liability. Tenant shall
also have the right to use fourteen (14) additional spaces on an unassigned
basis in accordance with Section 11.6 of this Lease.
32. SPECIAL DELETIONS FOR SCRIPPS BANK. The last sentence of Section
7.1 and all of Section 22.5 shall not apply during any time that all of the
following apply: (i) Scripps Bank is the Tenant under this Lease, (ii) Scripps
Bank has not assigned its interest in this Lease, and (iii) Scripps Bank has not
sublet more than fifty percent (50%) of the floor area of the Premises.
33. LANDLORD'S REPAIR AND MAINTENANCE; SUBSTANTIAL INTERFERENCE WITH
TENANT'S ACTIVITIES; ABATEMENT OF RENT. The following sentence is hereby added
to Section 7.2: "In the event Landlord undertakes repair and maintenance
activities pursuant to this Section 7.2 that substantially interfere with the
operation of Tenant's business and activities in the entire Premises, minimum
Monthly Rent and Additional Rent shall be abated on a per them basis during the
period necessary to complete Landlord's repair and maintenance activities."
34. INDEMNIFICATION. The following sentence is hereby added to
Section 13: "Provided, further, however, that the indemnifications and waivers
of Tenant set forth in this Section 13 shall not apply to the duties,
obligations or liabilities imposed on Landlord or Landlord's Related Entities by
statute, ordinance, regulation or other law."
35. HAZARDOUS MATERIALS. The obligations of Tenant with respect to
indemnification, payment of damages, and undertaking of Remedial Work under
Sections 14.1 through 14.8 shall not apply in the case of Hazardous Materials or
violations of Hazardous Materials Laws wherein the Hazardous Materials in
question have been used, generated, manufactured, released, stored or disposed
of on, under or about, or transported from,
4
the Premises (i) prior to the earlier of the Commencement Date or the date of
entry into the Premises by Tenant, or Tenant's employees or contractors, or (ii)
as a result of the conduct of Landlord, prior tenants, or their successors or
assigns.
36. CONDEMNATION. The following sentence is hereby added to Section
17.1: "If so much of the Premises is condemned that it is economically
inappropriate for Tenant's business operations at the Premises, Tenant shall
have the right to terminate this Lease as of the date title vests in the
condemnor, by Tenant giving Landlord notice of its intention to so terminate
within thirty (30) days of Tenant's receipt of the notice of condemnation.
37. REMOVAL OF CERTAIN TRADE FIXTURES AND EQUIPMENT. With respect to
Tenant's obligations under Sections 20.1 and 20.2, Landlord agrees that Tenant
shall have the right to remove its removable trade fixtures, computers,
telephones, telecommunications panels and related equipment, provided Tenant
complies with its repair and other obligations under Section 20.1. Tenant agrees
not to remove any internal wiring in the walls and ceilings of the Premises
without Landlord's prior consent.
38. RULES AND REGULATIONS. The Rules And Regulations are hereby
modified as Follows:
(a) Landlord hereby gives Tenant permission, pursuant to Section
1 of the Rules and Regulations, to independently contract for janitorial
services to clean the Premises, and Tenant shall not be required to employ the
janitorial service used by Landlord in other portions of the Center.
(b) The following sentence is hereby added to section 15 of the
Rules and Regulations: "Notwithstanding the other provisions of this Section 15,
due to the security requirements of Tenant's business, Landlord agrees that (i)
it will not enter the Premises, or authorize its agents, contractors or other
representatives to enter the Premises, without the prior consent of Tenant, (ii)
it will not authorize copies of keys to the Premises to be made by any of its
employees, agents or contractors without prior notification, and consent being
obtained from, Tenant."
39. CONCRETE BLOCK STORAGE UNIT. Tenant shall have the right to use
and occupy, and the Premises shall include, at all times during the term of this
Lease, the concrete block storage unit immediately adjacent to Suite B and
located in the Common Facilities area of the Center. Such use and occupancy
shall not result in any additional Minimum Monthly Rent or Additional Rent
pursuant to Sections 4.1 and 4.4 of this Lease.
5
40. NO OTHER CHANGE. Except as specifically set forth in this
Addendum, all of the terms and conditions of the Lease shall remain unchanged
and in full force and effect.
"LANDLORD"
KEARNY VILLA CENTER EAST, a California
limited partnership
By: PROPERTIES INVESTMENT COMPANY, a
California limited partnership,
General Partner
By: COLLINS DEVELOPMENT COMPANY, a
California corporation
General Partner
By: /s/ [ILLEGIBLE]
--------------------------------
Title:
-----------------------------
By: /s/ Robert C Petz
--------------------------------
Title:
-----------------------------
"TENANT"
SCRIPPS BANK, a State-Chartered bank
By: /s/ Robert L. [ILLEGIBLE]
------------------------------------------
Title: SVP/ CFO
---------------------------------------
By: /s/ Patricia MacLean
------------------------------------------
Title: VP/ Data Processing
---------------------------------------
6
EXHIBIT "A"
SITE/FLOOR PLAN OF PREMISES/
DESCRIPTION OF CENTER
[FLOOR PLAN]
EXHIBIT "B"
RULES AND REGULATIONS
(INDUSTRIAL CENTERS)
The following Rules and Regulations shall apply to the Center. Tenant
agrees to comply with the same and to require its agents, employees,
contractors, customers and invitees to comply with the same. Landlord shall have
the right from time to time to amend or supplement these Rules and Regulations,
and Tenant agrees to comply, and to require its agents, employees, contractors,
customers and invitees to comply, with such amended or supplemented Rules and
Regulations, provided that (a) notice of such amended or supplemental Rules and
Regulations is given to Tenant, and (b) such amended or supplemental Rules and
Regulations apply uniformly to all tenants of the Center. If Tenant or its
subtenants, employees, agents, or invitees violate any of these Rules and
Regulations, resulting in any damage to the Center or increased costs of
maintenance of the Center, or causing Landlord to incur expenses to enforce the
Rules and Regulations, Tenant shall pay all such costs to Landlord as Additional
Rent. In the event of any conflict between the Lease and these or any amended or
supplemented Rules and Regulations, the provisions of the Lease shall control.
1. Tenant shall be responsible at its sole cost for the removal of all of
Tenant's refuse or rubbish. All garbage and refuse shall be disposed of
outside of the Premises, shall be placed in the kind of container specified
by Landlord, and shall be prepared for collection in the manner and at the
times and places specified by Landlord. If Landlord provides or designates
a service for picking up refuse and garbage, Tenant shall use the same at
Tenant's sole cost. Tenant shall not burn any trash or garbage of any kind
in or about the Premises. if Landlord supplies janitorial services to the
Premises, Tenant shall not, without Landlord's prior written consent,
employ any person or persons other than Landlord's janitorial service to
clean the Premises. See Addendum.
2. No aerial, satellite dish, transceiver, or other electronic communication
equipment shall be erected on the roof or exterior walls of the Premises,
or in any other part of the Center without Landlord's prior written
consent. Any aerial, satellite dish, transceiver, or other electronic
communication equipment so installed without Landlord's prior written
consent shall be subject to removal by Landlord without notice at any time
and without liability to Landlord.
3. No loudspeakers, televisions, phonographs, radios, or other devices shall
be used in a manner so as to be heard or seen outside of the Premises
without Landlord's prior written consent. Tenant shall conduct its business
in a quiet and orderly manner so as not to create unnecessary or
unreasonable noise. Tenant shall not cause or permit any obnoxious or foul
odors that disturb the public or other occupants of the Center. If Tenant
operates any machinery or mechanical equipment that causes noise or
vibration that is transmitted to the structure of the building in which the
Premises are located or to other parts of the Center to such a degree as to
be objectionable to Landlord or to any other occupant of the Center, Tenant
shall install and maintain, at Tenant's expense, such vibration eliminators
or other devices sufficient to eliminate the objectionable noise or
vibration.
4. Tenant shall keep the outside areas immediately adjoining the Premises
clean and free from dirt, rubbish, pallets and other debris to the
satisfaction of Landlord. If Tenant fails to cause such outside areas to be
maintained as required within 12 hours after verbal notice that the same do
not so comply, Tenant shall pay a fee equal to the greater of $50.00 or the
costs incurred by Landlord to clean up such outside areas,
5. Tenant shall not store any merchandise, inventory, equipment, supplies,
finished or semi-finished products, raw materials, or other articles of any
nature outside the Premises (or the building constructed thereon if the
Premises includes any outside areas) without Landlord's prior written
consent.
6. Tenant and Tenant's subtenants, employees, agents, or invitees shall park
only the number of cars allowed under the Lease and only in those portions
of the parking area designated for that purpose by Landlord. Upon request
by Landlord, Tenant shall provide the license plate numbers of the cars of
Tenant and Tenant's employees in order to facilitate enforcement of this
regulation. Tenant and Tenant's employees shall not store vehicles or
equipment in the parking areas, or park in such a manner as to block any of
the accessways serving the Center and its occupants.
7. The Premises shall not be used for lodging, sleeping, cooking, or for any
immoral or illegal purposes, or for any purpose that will damage the
Premises or the reputation thereof. Landlord reserves the right to expel
from the Center any person who is intoxicated or under the influence of
liquor or drugs or who shall act in violation of any of these Rules and
Regulations. Tenant shall not conduct or permit any sale by auction on the
Premises. No video, pinball, or similar electronic game machines of any
description shall be installed, maintained or operated upon the Premises
without the prior written consent of Landlord.
8. Neither Tenant nor Tenant's employees or agents shall not disturb, solicit,
or canvas any occupant of the Center, and Tenant shall take reasonable
steps to discourage others from doing the same.
9. Tenant shall not keep in, or allow to be brought into, the Premises or
Center any pet, bird or other animal, other than "seeing-eye" dogs or other
animals under the control of and specifically assisting any disabled
person.
10. The plumbing facilities shall not be used for any other purpose than that
for which they are constructed, and no foreign substance of any kind shall
be disposed of therein. The expense of any breakage, stoppage, or
Page 1 of 2
damage resulting from a violation of this provision shall be
borne by Tenant. Tenant shall not waste or use any excessive or unusual
amount of water.
11. Tenant shall use, at Tenant's cost, such pest extermination contractor as
Landlord may direct and at such intervals as Landlord may require.
12. Tenant will protect the carpeting from undue wear by providing carpet
protectors under chairs with casters, and by providing protective covering
in carpeted areas where spillage or excessive wear may occur.
13. Tenant shall be responsible for repair of any damage caused by the moving
of freight, furniture or other objects into, within, or out of the Premises
or the Center. No heavy objects (such as safes, furniture, equipment,
freight, etc.) shall be placed upon any floor without Landlord's prior
written approval as to the adequacy of the allowable floor loading at the
point where the objects are intended to be moved or stored. Landlord may
specify the time of moving to minimize any inconvenience to other occupants
of the Center. If the building in which the Premises are located is
equipped with a freight elevator, all deliveries to and from the Premises
shall be made using the freight elevator during the time periods specified
by Landlord, subject to such reasonable scheduling as Landlord in its
discretion shall deem appropriate.
14. Without Landlord's prior written consent, no drapes or sunscreens of any
nature shall be installed in the Premises and the sash doors, sashes,
windows, glass doors, lights and skylights that reflect or admit light into
the building shall not be covered or obstructed. Landlord shall have the
right to specify the type of window coverings that may be installed, at
Tenant's expense. Waste and excessive or unusual use of water shall not be
allowed. Tenant shall not mark, drive nails, screw or drill into, paint, or
in any way deface any surface or part of the building. Notwithstanding the
foregoing, Tenant may hang pictures, blackboards, or similar objects,
provided Tenant repairs and repints any nail or screw holes, and otherwise
returns the premises to the condition required under the Lease and the
expiration or earlier termination of the Lease Term. The expense of
repairing any breakage, stoppage, or damage resulting from a violation of
this rule shall be borne by Tenant.
15. No locks on any of the doors to the Premises shall be changed, and no
additional lock or locks shall be placed by Tenant on any door without
Landlord's prior written consent. Two keys will be furnished by Landlord to
Tenant. Tenant shall pay the cost of any additional keys required by
Tenant. All keys to all locks on to the Premises shall be surrendered to
Landlord upon termination or expiration of the Lease Term, See Addendum.
16. No electrical wiring, electrical apparatus, or additional electrical
outlets shall be installed in the Premises without Landlord's prior written
approval. Any such installation not so approved by Landlord may be removed
by Landlord at Tenant's expense. Tenant may not alter any existing
electrical outlets or overburden them beyond their designed capacity.
Landlord reserves the right to enter the Premises, with reasonable notice
to Tenant, for the purpose of installing additional electrical wiring and
other utilities for the benefit of Tenant or adjoining tenants. Landlord
will direct electricians as to where and how telephone and affixed wires
are to be installed in the Premises. The location of telephones, call
boxes, and other equipment affixed to the Premises shall be subject to the
prior written approval of Landlord.
17. If Tenant's use of the Premises involves the sale and/or preparation of
food, Tenant shall at all times maintain a health department rating of "A"
(or such other highest health department or similar rating as is
available), Any failure by Tenant to maintain such "A" rating twice in any
twelve (12) month period shall, at the election of Landlord, constitute a
non-curable Event of Default under the Lease.
18. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
19. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
20. If Tenant occupies any air-conditioned space, Tenant shall keep entry doors
opening onto corridors, lobby or courtyard closed at all times. All truck
and loading doors shall be closed at all times when not in use.
21. Tenant shall not paint any floor or the Premises without Landlord's prior
Written consent. Prior to surrendering the Premises upon expiration or
termination of the Lease, Tenant shall remove any paint or sealer therefrom
(whether or not previously permitted by Landlord) and restore the floor to
its original condition as of the Commencement Date, reasonable wear and
tear excepted. Tenant shall not affix any floor covering to the floor of
the Premises in any manner except as approved by Landlord.
/s/ [ILLEGIBLE]
--------------------------------
Tenant's Initials
Page 2 of 2
EXHIBIT "C"
TENANT SIGN CRITERIA
KEARNY VILLA CENTER
SIGN CRITERIA
The purpose of the criteria is to establish sign standards necessary to insure
maximum tenant identification within an overall harmony of design for the total
center.
The criteria has been designed to give tenants a considerable amount of
flexibility in personalizing their own store and at the same time allow for
maximum creativity in sign design. However, since deviations from the broad
criteria would be an injustice to all other tenants who comply, conformance to
the criteria will be strictly enforced. In the interest of the center, any
installed non-conforming or unapproved signs shall be brought into conformance
at the expense of the tenant.
Signing at the above location within the limits of the criteria is important to
your business future and that of your neighbors. Creative and effective efforts
now will contribute to the overall attractiveness of the center. We look forward
to working with everyone on this project.
As an assistance to your planning, we offer the following:
A. GENERAL
The tenant shall pay for all lettering and their installation and
maintenance.
B. SIGNING CONTRACTOR
In order to minimize the cost of signing to the tenant, a professional sign
painter will letter your sign. Contact your leasing agent and he will refer
a reputable craftsman.
C. SIGN-TYPES
Each tenant shall be provided a masonite panel which will fit on existing
suite identification plaques installed over the doors.
D. TYPE - LOGOS - COLORS
The panel is painted cream. You may use your companies own type face and
logo or have your sign contractor create your Logo. Copy colors are
approved as follows:
Black
Brown Burnt Orange
Rust
Blue
Any change should be approved by your leasing agent.
[ILLEGIBLE]
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INITIAL