\n 0-5 $45,709.00
\n 6-10 $52,565.35
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n Rent shall be payable in lawful money of the United States to Landlord at
\nthe address stated in this Lease or to any other address that Landlord may
\ndesignate from time to time.<\/p>\n
4.2 Additional Rent. In the event that Landlord contributes the Additional
\nAllowance pursuant to Section 2(b) of the work Letter Agreement, then Tenant
\nshall repay the Additional Allowance in monthly installments together with the
\nBase Rent. Such payments shall be calculated as set forth in Section 2(b) of the
\nWork Letter Agreement and shall be deemed “additional rent” for purposes of this
\nLease.<\/p>\n
ARTICLE 5
\n TENANT’S<\/p>\n
5.1 Tenant’s Expenses. Tenant shall promptly pay, as additional rent, as
\nthey become due, all charges for water, gas, heat, light, power, telephone,
\ngarbage and trash removal and other utilities and services supplied to the
\nPremises (including but not limited to any<\/p>\n
10<\/p>\n
connection or hook-up fees beyond building standard connections and hookups for
\nwater, sewer and electricity, and any penalties for discontinued or interrupted
\nservice), together with any taxes thereon, and all other reasonable costs
\nincurred in connection with the operation, management, maintenance and repair of
\nthe Premises (“Tenant’s Expenses”). Tenant’s Expenses shall include, limitation,
\nthe following:<\/p>\n
(a) all costs and expenses for the following (which may be subject to
\n amortization in accordance with Section 8.2): (i) the maintenance, repair,
\n operation, and replacement of the Premises’ hearing, ventilation or air
\n conditioning systems; (ii) the maintenance, repair, cleaning, resurfacing
\n or painting, as appropriate, of the premises’s roof and walls; (iii) the
\n maintenance of all landscaping in the Premise, including the maintenance of
\n irrigation systems, the re-planting (as necessary) and maintenance of
\n shrubs, trees, flowering plants, and ground cover; (iv) the compliance with
\n all Laws enacted or implemented after the Commencement Date; (v) the
\n installation, repair, and maintenance of all light fixtures and signs
\n located in the Premises; (vi) the provision of security to the Premises;
\n (vii) the maintenance, repair, cleaning, painting, and resurfacing of all
\n parking areas, roadways, sidewalks, walkways, driveways, striping, fences,
\n and gates contained in the Premises; (viii) the maintenance and repair of
\n all the prevention and detection systems, including smoke detectors and
\n sprinkler systems; and<\/p>\n
(b) Property Taxes as described in Section 5.2;<\/p>\n
(c) the cost of any insurance maintained by Landlord with respect to
\n the premises;<\/p>\n
(d) the amount of any uninsured loss resulting from damage to the
\n Premises (unless uninsured due to Landlord’s failure to maintain insurance
\n as required by this Lease); and<\/p>\n
(e) a management\/administrative fee equal to Five Hundred Dollars
\n ($500.00) per month.<\/p>\n
Commencing with the Commencement Date, Tenant shall pay an amount reasonably
\nestimated by Landlord to be sufficient to pay Tenant’s Expenses on a monthly
\nbasis. The foregoing estimated monthly payment may be adjusted by Landlord at
\nthe end of any calendar quarter, on the basis of Landlord’s experience and
\nanticipated costs. Within one hundred twenty (120) days following the end of the
\ncalendar year during the term, Landlord shall endeavor to give Tenant a
\nstatement showing the total of Tenant’s Expenses incurred for the prior calendar
\nyear. The first and last such statements during the term shall be prorated from
\nthe Commencement Date and the expiration of the Term or earlier termination of
\nthis Lease. In the event the total of the monthly payments which Tenant has made
\nfor the prior calendar year shall be less than the actual amount of Tenant’s
\nExpenses incurred, then Tenant shall pay the difference to Landlord within
\nthirty (30) days after receipt of such statement from Landlord. In the event the
\ntotal of the monthly payments which Tenant has made for the prior calendar year
\nshall be more than the actual Tenant’s Expenses, then Tenant shall be entitled
\nto a credit in the amount of such excess against<\/p>\n
11<\/p>\n
Tenant’s monthly payment of Tenant’s expenses next coming due during this Lease,
\nand the monthly amount to be paid by Tenant for the ensuing year for Tenant’s
\nExpenses will be proportionately adjusted based on the prior year’s actual
\nexpenses and reasonable projections for the ensuing year.<\/p>\n
5.2 Definition of Property Taxes. As used in this Lease, the term “Property
\nTaxes” shall mean any and all taxes, assessments, levies, and other charges of
\nany kind, general and special, foreseen and unforeseen (including all
\ninstallments of principal and interest required to pay any existing or future
\ngeneral or special assessments, and any increases resulting from reassessments
\nmade in connection with a change in ownership, new construction, or any other
\ncause), now or later imposed by any governmental or quasi-governmental authority
\nor special district having the power to tax or levy assessments, which are
\nlevied or assessed against or with respect to the value of all or any portion of
\nthe Premises (as now constructed or as may at any later time be constructed,
\naltered, or otherwise changed) or Landlord’s interest in the Premises, the
\nfixtures, equipment, and other property of Landlord, real or personal, that are
\npart of and located on the Premises. If at any time during the term of this
\nLease, the method of taxation or assessment of the Premises prevailing as of the
\nCommencement Date is altered so that in lieu of or in addition to any Property
\nTax described above there shall be levied, assessed, or imposed by governmental
\nauthority (whether because of a change in the method of taxation or assessment,
\ncreation of a new tax or charge, or any other cause) an alternate or additional
\ntax or charge (a) on the value, use, or occupancy of the Premises or Landlord’s
\ninterest in the Premises, or (b) on or measured by the gross receipts, income or
\nrentals from the Premises, then any tax or charge, however designated, shall be
\nincluded within the meaning of the term Property Taxes for purposes of this
\nLease. However, the term Property Taxes shall not include estate, inheritance,
\ntransfer, gift, or franchise taxes of Landlord or the federal or state net
\nincome tax imposed on Landlord’s income from all sources.<\/p>\n
ARTICLE 6
\n SECURITY DEPOSIT<\/p>\n
6.1 Security Deposit. Tenant agrees to deposit with Landlord on the date of
\nthis Lease the sum of Forty-Five Thousand Seven Hundred Nine Dollars ($45,709)
\n(the “Security Deposit”), which shall be held by Landlord, without interest, as
\nsecurity for the performance of Tenant’s covenants and obligations under this
\nLease, it being expressly understood and agreed that the deposit is not an
\nadvance rental deposit or a measure of the Landlord’s damages in case or
\nTenant’s default. Upon the occurrence of any Event of Default by Tenant,
\nLandlord may, from time to time and without prejudice to any other remedy
\nprovided by this Lease or by law, use and apply the Security Deposit to any
\narrears of rent or other payments, damages or liability caused by the Event of
\nDefault. Tenant shall pay to landlord on demand the amount that was applied in
\norder to restore the Security Deposit to the amount then required under this
\nLease. Although the Security Deposit shall be deemed the property of Landlord,
\nany remaining balance of the Security Deposit shall promptly be returned by
\nLandlord to Tenant at the time after termination of this Lease that all of
\nTenant’s obligations under this Lease have been fulfilled. Landlord shall not be
\nrequired to keep the Security Deposit separate from the general accounts of
\nLandlord.<\/p>\n
12<\/p>\n
ARTICLE 7
\n HAZARDOUS SUBSTANCES<\/p>\n
7.1 Compliance with Law. Tenant agrees that any and all handling,
\ntransportation, storage, treatment, disposal, or use of Hazardous Substances in
\nor about the Premises by Tenant, its employees, agents, contractors, invitees
\nand any others controlled by Tenant or for whom Tenant is otherwise responsible
\nshall comply with all applicable Environmental Laws.<\/p>\n
7.2 Tenant’s Indemnification. Tenant agrees to indemnify, defend and hold
\nharmless Landlord from any Liabilities, remediation costs, investigation costs,
\nor other expenses resulting from or arising from or arising out of the use,
\nstorage, treatment, transportation, release, or disposal of Hazardous Substances
\nin, on, under or about the Premises.<\/p>\n
7.3 Tenant’s Responsibilities. Tenant shall comply with all Environmental
\nLaws in connection with its use of the Premises. If any Hazardous Substances
\ncome to be located on or about the Premises or any other property or any water
\nor soil on, around, about, or beneath the Premises or any other property, Tenant
\nshall promptly take all action necessary to investigate, remove and remedy that
\ncontamination to the extent required by the governmental authority enforcing the
\nEnvironmental Laws.<\/p>\n
7.4 Notification of Hazardous Substances. Tenant agrees to promptly notify
\nLandlord of any communication received from any governmental entity concerning
\nHazardous Substances or the violation of Environmental Laws that relate to the
\nPremises.<\/p>\n
7.5 Handling of Hazardous Substances. Tenant shall not use, handle, store,
\ntransport, generate, release, or dispose of any Hazardous Substances in, on,
\nunder or about the Premises, except that Tenant may use small quantities of
\ncommon chemicals which are common office products such as office copier toner
\nand cleaning fluids in order to conduct business at the Premises, which shall be
\nstored and used safely and in compliance with all Laws. At any time during the
\nterm of this Lease, Tenant shall within ten (10) days after written request from
\nLandlord, disclose in writing all Hazardous Substances other than those
\npermitted above in this Section 7.5 that are being used by Tenant on the
\nPremises, the nature of the use, and the manner of storage and disposal.<\/p>\n
7.6 Testing by Landlord. At any time and upon prior written notice to
\nTenant, Landlord may require testing wells or other apparatus to be placed or
\ndrilled on the Premises and may require the ground water to be tested to detect
\nthe presence of Hazardous Substances by the use of any tests that are then
\ncustomarily used for those purposes. The reasonable cost of these tests and of
\nthe installation, maintenance, repair, and replacement of the wells shall be
\npaid by the Tenant if the tests disclose the existence of facts that give rise
\nto liability of Tenant with respect to Hazardous Substances pursuant to this
\nArticle.<\/p>\n
13<\/p>\n
ARTICLE 8
\n REPAIRS AND MAINTENANCE<\/p>\n
8.1 Landlord’s Responsibilities. Landlord shall deliver the Premises at the
\ncommencement of this Lease in compliance with all applicable laws (including
\nthen applicable building codes), including the then applicable provisions of
\nTitle III of the Americans with Disabilities Act, and Tenant shall be
\nresponsible for any compliance necessitated by Tenant’s Use, Tenant’s
\nImprovements, and any changes in Tenant’s use and any subsequent improvements,
\ninstallations or alterations made by or for Tenant. Landlord shall have no
\nresponsibility for any repair and maintenance costs in connection with the
\nPremises. Tenant expressly waives the benefits of any statute now or later in
\neffect that would otherwise give Tenant the right to make repairs at Landlord’s
\nexpense and deduct that cost from rent owing to Landlord. Landlord warrants that
\nthe roof, exterior walls, structural support elements, and utility systems shall
\nbe in good working order and repair at the Commencement Date, and Landlord shall
\nenforce for Tenant’s benefit all warranties received by Landlord in connection
\nwith the construction and\/or installation thereof. Further, and notwithstanding
\nanything to the contrary set forth in this Lease, Landlord shall maintain and
\nrepair the foundation, the structural portions of the exterior walls and the
\nstructural components of the roof (provided that, as respects the roof, it shall
\nbe Tenant’s responsibility to maintain the roof membrane to guard against and
\nprevent leakage and deterioration). Landlord’s maintenance and repair
\nobligations pursuant to this Section 8.1 shall include those that are
\nnecessitated by the enactment of a new Law, unless such obligations arise from
\nor are triggered by one of the conditions set forth in Section 9.5.<\/p>\n
8.2 Tenant’s Responsibilities. Subject to the provisions of Section 8.1,
\nTenant shall maintain in good order, condition, and repair and replace when
\nnecessary each and every portion of the Premises including, without limitation,
\nthe following: (a) all plumbing and sewage facilities in the Premises, including
\nbut not limited to all plumbing fixtures, pipes, fittings, or other parts of the
\nplumbing system in the Premises; (b) all fixtures, interior walls, floors,
\ncarpets, draperies, window coverings, and ceilings in the Premises; (c) the
\nnon-structural components of the roof (including the roof membrane in a
\nwater-tight condition) and exterior of the Premises; (d) all windows, doors,
\nentrances, and plate glass in the Premises; (e) all electrical facilities and
\nall equipment in the Premises, including all light fixtures, lamps, bulbs,
\ntubes, fans, vents, exhaust equipment, and systems; and (f) all heating, air
\ncondition, ventilation or other equipment or utility facilities serving the
\nPremises, keeping them in good condition through regular inspection and
\nservicing; (g) any fire detection or extinguisher equipment in the Premises. If
\nTenant properly repairs and maintains said systems and facilities (including
\nthose items set forth in section 5.1(a)), but due to ordinary wear and tear or
\nthe enactment of a new Law, subsequent to the Commencement Date but on or before
\nthe expiration of this Lease, such system and\/or facility (which shall include
\nthose items set forth in Section 5.1(a)) must be replaced to keep it in good
\nworking order and in compliance with such new Law, and the cost thereof would
\nexceed $7,500 for such item and otherwise be characterized as a capital
\nexpenditure as determined in accordance with generally accepted accounting
\nprinciples, then Landlord shall pay for such item and the cost thereof shall be
\namortized over its useful life as reasonably determined by Landlord with the
\nannual amount to amortized payable by Tenant during the term of this Lease as
\npart of Tenant’s Expenses under Section 5.1.<\/p>\n
14<\/p>\n
8.3 HVAC; Windows. Tenant shall maintain continuously throughout the term
\nof the lease a service contract for the maintenance of all hearing, air
\nconditioning, and ventilation equipment with a licensed repair and maintenance
\ncontractor approved by Landlord, the contract shall provide for periodic
\ninspections and servicing of the hearing, air conditioning, and ventilation
\nequipment at least once every ninety (90) days during the term of the Lease.
\nTenant will use its best efforts to cause its maintenance contractor to provide
\nto Tenant and Landlord a written inspection\/service report describing the
\ncondition of the equipment and any service or repair recommendations within
\nfifteen (15) days after each inspection. If Landlord reasonably suspects that
\nfacilities are not being maintained, Landlord may elect at any time during the
\nterm of the Lease to assume responsibility at Tenant’s expense for the
\nmaintenance, repair, and replacement of the heating, air conditioning, and
\nventilation equipment that serves the Premises.<\/p>\n
Tenant shall maintain continuously throughout the term of the Lease a
\nservice contract for the washing of all windows, both interior and exterior
\nsurfaces, at the Premises at commercially reasonable times.<\/p>\n
8.4 Standards for Repairs. All repairs and replacements required of Tenant
\nshall be promptly made with new materials of like kind and qualify. If the work
\naffects the mechanical or structural parts or exterior appearances of the
\nPremises or if the estimated cost of any item of repair or replacement is in
\nexcess of Five Thousand Dollars ($5,000), Tenant shall first obtain Landlord’s
\nwritten approval of the scope of the work, the plans for the work, the materials
\nto be used, and the contractor hired to perform the work. Upon completion of any
\nwork performed by or for Tenant, Tenant shall deliver as-built plans to
\nLandlord.<\/p>\n
8.5 Tenant’s Failure to Perform. If Tenant fails to perform Tenant’s
\nobligations under this Section or under any other section of this Lease, and
\ndoes not commence performance five (5) days’ after written notice to Tenant and
\nthereafter diligently and continuously prosecute such cure to completion, in any
\ncase completing such cure within the cure period specified in Section 16.1(b),
\nexcept in an emergency when no notice shall be required, Landlord may, in
\naddition and without prejudice any other of Landlord’s rights or remedies, enter
\nthe Premises, perform the obligations on Tenant’s behalf, and recover the
\nreasonable cost of performance, together with interest at the maximum rate then
\nallowed by law, as additional rent payable by Tenant with the next installment
\nof Base Rent.<\/p>\n
ARTICLE 9
\n ALTERATIONS<\/p>\n
9.1 Landlord’s Consent. Tenant shall not construct any alterations,
\nimprovements, or additions or otherwise alter the Premises (collectively,
\n“Alternations”) without Landlord’s prior written consent; provided, however,
\nthat Tenant shall be entitled, without Landlord’s prior consent, to make
\nAlterations (i) that do not affect the structural or mechanical components or
\nsystems, the exterior sections, or water-tight nature of the Premises, and (ii)
\nthe reasonably estimated cost of which does not exceed Twenty-Five Thousand
\nDollars ($25,000). If Landlord’s approval for any Alterations is required.
\nTenant shall not undertake the Alterations<\/p>\n
15<\/p>\n
until Landlord has given written consent to the plans and specifications, and
\nthe Alterations shall be constructed in compliance with plans and specifications
\napproved by a licensed contractor and by Landlord. All Alterations shall be
\nconstructed by a licensed contractor in accordance with all Laws using new
\nmaterial of good quality. Upon completion of any work performed by or for
\nTenant, Tenant shall deliver as-built plans to Landlord.<\/p>\n
9.2 Requirements for Commencement of Alterations. Tenant shall not commence
\nconstruction of any Alterations until: (a) all required governmental approvals
\nand permits have been obtained, (b) all requirements regarding insurance imposed
\nby this Lease have been satisfied, and (c) Tenant has given Landlord at least
\nten (10) days’ prior written notice of Tenant’s intention to commence
\nconstruction.<\/p>\n
9.3 Payment for Alterations. Tenant shall pay, when due, all claims for
\nlabor or materials furnished or alleged to have been furnished in connection
\nwith the Alterations that are or may become mechanics’ or materialmen’s liens
\nagainst the Premises or any interest therein. Tenant shall have the right to, in
\ngood faith, contest the validity of any lien, claim, or demand, provided that
\nTenant shall, at Tenant’s sole expense, defend Landlord against the lien, claim,
\nor demand, and, upon the request of Landlord, Tenant shall furnish to Landlord a
\nsurety bond or other commercially reasonable assurance reasonably acceptable to
\nLandlord, in an amount equal to the contested lien, claim, or demand
\nindemnifying Landlord against liability and holding the Premises free from the
\neffect of the lien, claim, or demand. In addition, Landlord may require Tenant
\nto pay Landlord’s attorneys’ fees and costs in connection with the defense of
\nany lien, claim, or demand. Tenant shall pay and satisfy any adverse judgment
\nthat may be rendered to enforce the lien, claim, or demand against the Landlord
\nor the Premises.<\/p>\n
9.4 Ownership of Alterations. All Alterations shall be and remain the
\nproperty of Tenant during the term of this Lease but shall not be altered or
\nremoved from the Premises. At the expiration or sooner termination of the term
\nof this Lease, all Alterations shall become the property of Landlord, and
\nLandlord shall have no obligation to reimburse Tenant for any portion of the
\nvalue or cost. Notwithstanding the foregoing, if Tenant gives notice to Landlord
\ngives notice to Landlord at the time of the installation of a custom trade
\nfixture that Tenant desires to remove such fixture at the end of the term, then
\nTenant shall be permitted to remove such fixture provided that it can and does
\nso without damage to the Premises, and, in any event, repairs any damage
\noccasioned by the installation or removal of such fixture and restores the
\nPremises to its condition existing prior to such installation. However, Landlord
\nshall have the right to require Tenant to remove any Alterations; in that case,
\nTenant shall remove the Alterations prior to the expiration or sooner
\ntermination of the term of this Lease. Notwithstanding the foregoing, Tenant
\nshall not be obligated to remove any Alterations with respect to which (a)
\nTenant was required or selected to obtain the consent of Landlord; (b) at the
\ntime Tenant requested the consent of Landlord, Tenant requested that Landlord
\ninform Tenant of whether Landlord would require Tenant to remove the Alteration
\nat the expiration of the term of this Lease; and (c) at the time Landlord
\ngranted consent, Landlord notified Tenant that Landlord would not require the
\nremoval of the Alteration at the expiration of the term of this Lease.<\/p>\n
16<\/p>\n
9.5 Required Alterations. Except as provided in Section 8.1, Tenant shall
\nmake all alterations, additions, or charges of any sort to the Premises that are
\nrequired by any Law and result from: (a) Tenant’s use or change of use of the
\nPremises; (b) Tenant’s application for any permit or governmental approval; or
\n(c) Tenant’s construction or installation of any Alterations.<\/p>\n
ARTICLE 10
\n TRADE FIXTURES<\/p>\n
10.1 Tenant’s Trade Fixtures. Tenant shall have the right, at any time and
\nfrom time to time during the Term and any renewal or extension, at Tenant’s sole
\ncost and expense, to install and affix in, to, or on the Premises items for use
\nin Tenant’s trade or business that Tenant, in Tenant’s reasonable discretion,
\ndeems advisable (collectively, “Trade Fixtures”). Trade Fixtures or any other
\nequipment installed in the Premises by Tenant shall remain the property of
\nTenant and may be removed at the expiration of the Term or any extension,
\nprovided that any damage to the Premises caused by the removal of Trade Fixtures
\nor equipment shall be repaired by Tenant, and further provided that Landlord
\nshall have the right to keep any Trade Fixtures or equipment that Tenant
\notherwise elects to abandon.<\/p>\n
10.2 Abandonment of Trade Fixtures. Any Trade Fixtures that are not removed
\nfrom the Premises by Tenant within thirty (30) days after the Termination Date
\nshall be deemed abandoned by Tenant and shall automatically become the property
\nof Landlord as the owner of the real property to which they are affixed and not
\ndue to the lien provided to Landlord in Section 10.2.<\/p>\n
ARTICLE 11
\n INSURANCE<\/p>\n
11.1 Tenant’s Insurance. Tenant shall, Tenant’s expense, obtain and keep in
\nforce during the term of this Lease:<\/p>\n
(a) Commercial general liability insurance, including property damage,
\n against liability for bodily injury, personal injury, death, and damage to
\n property occurring on the Premises with combined single limit coverage of
\n at least Two Million Dollars ($2,000,000) per occurrence and a general
\n aggregate combined single limit of bodily injury and property damage
\n liability of at least Five Million Dollars ($5,000,000); that policy shall
\n include contractual liability, insuring Tenant’s performance of
\n indemnification obligations contained in this Lease; and<\/p>\n
(b) Fire and all risk property damage insurance, insuring any
\n Alterations and all of Tenant’s equipment and Trade Fixtures located on the
\n Premises for full replacement cost.<\/p>\n
(c) Where applicable, each policy of insurance required to be carried
\n by Tenant pursuant to this Section: (i) shall name Landlord and any other
\n parties in interest<\/p>\n
17<\/p>\n
that Landlord reasonably designates as additional insureds; (ii) shall be
\n primary insurance that provides that the insurer shall be liable for the
\n full amount of the loss without the right of contribution from any other
\n insurance coverage of Landlord; (iii) shall be in a form satisfactory to
\n Landlord; (iv) shall be carried with companies reasonably acceptable to
\n Landlord; (v) shall provide that the policy shall not be subject to
\n cancellation, lapse, or change, except after at least thirty (30) days’
\n prior written notice to Landlord; (vi) shall not have a deductible in
\n excess of any amount reasonably approved by Landlord; (vii) shall contain a
\n cross liability endorsement; and (viii) shall contain a severability
\n clause.<\/p>\n
(d) If Tenant has in full force a blanket policy of liability
\n insurance with the same coverage for the Premises as described in this
\n Section, that blanket insurance shall satisfy the requirements of this
\n Section, provided that the blanket policy specifically states the address
\n of the Premises as being covered with at least the policy amounts specified
\n herein for that location. A copy of each policy evidencing the insurance
\n required to be carried by Tenant pursuant to this Section or a certificate
\n of the insurer, certifying that the policy has been issued, which provides
\n the coverage required by this Section and which contains the specified
\n provisions, shall be delivered to Landlord prior to the time Tenant takes
\n possession of the Premises and upon renewal of those policies, not less
\n than thirty (30) days prior to the expiration of the term of the coverage.<\/p>\n
11.1.2 Landlord’s Insurance. Landlord shall maintain fire and all-risk
\nproperty damage insurance, with extended coverage and a commercially reasonable
\ndeductible, in the amount of the full replacement cost of the Premises.
\nLandlord’s insurance shall not be required to cover the property which Tenant is
\nobligated to insure hereunder. Landlord shall provide Tenant with a certificate
\nof insurance evidencing such coverage on an annual basis. Landlord’s insurance
\nwill include provision for notice to Tenant of any cancellation, non-renewal
\nand\/or material reduction of coverage.<\/p>\n
11.2 Tenant’s Payment of Increases. Tenant shall pay any increase in
\nLandlord’s property insurance over the amount of the premium immediately prior
\nto the commencement of the Term that is attributed by Landlord’s insurance
\ncarrier to the nature of Tenant’s occupancy or any act or omission of Tenant.<\/p>\n
11.3 Waiver of Subrogation. Tenant and Landlord each release the other and
\nwaive the entire right of recovery against the other for any damage or liability
\narising out of or incident to the perils insured against, whether due to the
\nnegligence of Landlord, Tenant, or their respective employees, agents,
\ncontractors, and invitees. Prior to obtaining the required policies of
\ninsurance, Tenant and Landlord shall notify their respective insurance carriers
\nthat the previous waiver of subrogation is in this Lease.<\/p>\n
ARTICLE 12
\n DAMAGE AND DESTRUCTION<\/p>\n
12.1 Uninsured Casualty. If the Premises are destroyed or damaged to the
\nextent of twenty percent (20%) or more of the then full replacement cost from a
\ncause not<\/p>\n
18<\/p>\n
required to be insured against under either Landlord’s or Tenant’s casualty
\ninsurance policy, Landlord shall have the right to terminate this Lease by
\ngiving written notice of termination to Tenant within thirty (30) days after the
\ndate of the damage or destruction, in which case this Lease shall terminate as
\nof the receipt by Tenant of Landlord’s notice. If the Lease is not so
\nterminated, then Landlord shall diligently proceed to repair and restore the
\nPremises; provided that if Landlord undertakes such repair and restoration but
\nfails to substantially complete same within 150 days after the date of damage or
\ndestruction, then Tenant shall have the right to terminate this Lease by written
\nnotice to Landlord given within thirty (30) days of the expiration of such
\n150-day period.<\/p>\n
12.2 Insured Casualty. If the Premises are destroyed or damaged to the
\nextent of twenty percent (20%) or more of the then full replacement cost from a
\ncause covered by either Tenant’s or Landlord’s casualty insurance, and that
\ndamage or destruction may be repaired or restored within ninety (90) days after
\ncommencement of repair or restoration, then Landlord shall proceed to repair and
\nrestore the Premises. If Landlord reasonably determines that the Premises cannot
\nbe repaired or restored within that period, then Landlord shall have the right
\nto terminate this Lease by written notice to Tenant given within thirty (30)
\ndays after the date of damage or destruction; Tenant’s obligation to pay rent
\nand other charges under this Lease shall terminate as of the date of the receipt
\nby Tenant of Landlord’s notice.<\/p>\n
12.3 Substantial Damage. If the Premises are damaged to the extent of fifty
\npercent (50%) or more of its replacement cost, and a contractor mutually
\nagreeable to Landlord and Tenant determines that the Premises cannot be repaired
\nor restored within 180 days after commencement of repair or restoration, then
\nLandlord or Tenant may elect to terminate this Lease by written notice to the
\nother given within thirty (30) days after the date of such determination, in
\nwhich case this Lease shall terminate as of the receipt of such notice.<\/p>\n
12.4 Abatement of Base Rent. If, in any case that is the subject of this
\nArticle 12, the Premises or any portion of the Premises is rendered unfit for
\nuse and occupancy and this Lease is not terminated as provided above, a just
\nproportion of the Base Rent, in light of the nature and extent of the damage,
\nshall be abated until the Premises are restored by Landlord as provided above,
\nexcluding any fixtures or items installed or paid for by Tenant that Tenant is
\nentitled or required to remove under this Lease.<\/p>\n
12.5 No Right of Offset. Except as expressly provided in this Lease, damage
\nto or destruction of the Premises shall not terminate this Lease or result in
\nany abatement of rentals. Tenant waives any right of offset against Tenant’s
\nrental obligations that may be provided by any statute or rule of law in
\nconnection with Landlord’s duties of repair and restoration under the provisions
\nof this Lease.<\/p>\n
12.6 Tenant’s Leasehold Improvements. Landlord shall not be responsible for
\nany loss, damage, or destruction to Tenant’s leasehold improvements or to
\nfixtures, inventory, or other Tenant-owned improvements or property, unless
\ncaused solely by the negligence or willful misconduct of Landlord.<\/p>\n
19<\/p>\n
ARTICLE 13
\n CONDEMNATION<\/p>\n
13.1 Condemnation. If any part of the Premises is condemned or otherwise
\ntaken under the power of eminent domain or conveyed in lieu of condemnation, and
\nthe condemnation or taking materially and adversely affects Tenant’s occupancy
\nof the Premises, either party shall, at each party’s option, have the right to
\nterminate this Lease; provided that Landlord shall not exercise such option to
\nterminate this Lease unless the taking or conveyance in lieu of condemnation
\naffects at least twenty percent (20%) of the value or area of the Premises. In
\neither event, except as set forth below in this paragraph, Landlord shall
\nreceive any award that may be paid in connection with any condemnation or
\ntaking, and Tenant shall have no claim or interest in any award, whether or not
\nthe award or any part of it is attributable to the value of the unexpired term
\nof this Lease. If a part of the Premises is condemned or taken, and neither
\nparty elects to terminate this Lease, but the Premises have been damaged as a
\nconsequence, Landlord shall not be required to repair or restore any damage to
\nthe Premises, provided that the Base Rent for the remainder of the term of this
\nLease shall be proportionately reduced, based on the degree of interference with
\nTenant’s use of the Premises. If the Premises is temporarily condemned or taken,
\nthis Lease shall be unaffected, and Tenant shall continue to pay all rent
\npayable under this Lease; provided, however, that in such case, Tenant shall be
\nentitled to receive that portion of any award that represents compensation for
\nits use or occupancy of the Premises. Notwithstanding anything to the contrary
\nset forth hereinabove, Tenant shall have the right to pursue a separate claim
\nfor the diminution of the value of its leasehold estate so long as it can do so
\nwithout interfering or reducing any condemnation claim by Landlord.<\/p>\n
ARTICLE 14
\n ASSIGNMENT AND SUBLETTING<\/p>\n
14.1 Landlord’s Consent. The terms and conditions in this Lease were
\noffered solely to Tenant as an inducement to lease the Premises for its use or
\nthe use by any of its subsidiaries or affiliates, as permitted under the terms
\nof Section 2.1. Landlord would not necessarily lease the Premises to another
\ntenant on such favorable terms and conditions, it being understood that Landlord
\nis specifically relying on the identity of Tenant in agreeing to the terms and
\nconditions in this Lease. Tenant acknowledges that the lease terms and
\nconditions are for Tenant’s benefit only so long as Tenant, or any of its
\nsubsidiaries or affiliates, operates the business allowed by this Lease, and
\nthat Tenant is not entering into this Lease for any other purpose, such as the
\nrecognition of a leasehold value that it could later sell. It is understood and
\nagreed that any value, upon the early termination of Tenant’s occupancy of the
\nPremises, shall revert to Landlord, either by termination of this Lease or as a
\ncondition of assignment or subletting, as provided in this Section. But for
\nthese reasons, Landlord would not enter into this Lease. Therefore, Tenant shall
\nnot voluntarily, involuntarily, or by operation of laws, without the prior
\nwritten consent of Landlord, which consent shall not be unreasonably withheld or
\ndelayed, (a) sublet all or any part of the Premises or allow it to be sublet,
\noccupied, or used by any person or entity other than Tenant; (b) assign Tenant’s
\ninterest in this Lease; (c) mortgage or encumber the Lease, or otherwise use the
\nLease as a security device in any manner; or (d) amend or modify an assignment,
\nsublease, or other transfer that has been previously approved by Landlord.<\/p>\n
20<\/p>\n
Notwithstanding the foregoing, Tenant may without the consent of Landlord, but
\nfollowing at least fifteen (15) days advance written notice, assign this Lease
\nto a subsidiary of Tenant or affiliate under common ownership with Tenant
\nprovided, however, that (x) no such assignment shall result in Tenant being
\nreleased or discharged from any obligation or liability under this Lease, (y)
\nthe proposed Assignee agrees in writing to be bound by all of the terms and
\nconditions of this Lease in an instrument reasonably acceptable to Landlord, and
\n(z) the use proposed by the proposed Assignee is a permitted use under this
\nLease.<\/p>\n
Any action taken or proposed to be taken pursuant to this Section shall be
\ncollectively referred to as an “Assignment,” and any third party succeeding to
\nall or a portion of Tenant’s interest under this Lease or proposed to succeed to
\nall or a portion of Tenant’s interest under this Lease shall be referred to as
\nan Assignee.<\/p>\n
14.2 Landlord’s Costs. Tenant shall pay to Landlord, as additional rent,
\nall reasonable costs and attorney fees incurred by Landlord in connection with
\nthe evaluation, processing, or documentation of any requested Assignment,
\nwhether or not Landlord’s consent is granted. Landlord’s reasonable costs shall
\ninclude the reasonable cost of any review or investigation performed by Landlord
\nor consultant acting on behalf of Landlord of (a) any Hazardous Substances used,
\nstored, released, or disposed of by the proposed Assignee, or (b) violations of
\nany Environmental Law by the Tenant or the proposed Assignee.<\/p>\n
14.3 Evidence of Assignment. Any Assignment approved by Landlord shall not
\nbe effective until Tenant has delivered to Landlord an executed counterpart of
\nthe document evidencing the Assignment that (a) is in form and substance
\nreasonably satisfactory to Landlord, and (b) contains the same terms and
\nconditions as stated in Tenant’s notice given to Landlord pursuant to this
\nSection.<\/p>\n
14.4 Effect of Tenant’s Assignment. Except as otherwise expressly permitted
\nhereby, any attempted Assignment without Landlord’s consent shall constitute an
\nEvent of Default and shall be voidable at Landlord’s option. Landlord’s consent
\nto any one Assignment shall not constitute a waiver of the provisions of this
\nArticle as to any subsequent Assignment or a consent to any subsequent
\nAssignment. No Assignment, even with the consent of Landlord, shall relieve
\nTenant of the obligation to pay the rent and to perform all of the other
\nobligations to be performed by Tenant. The acceptance of rent by Landlord from,
\nany person shall not be deemed to be a waiver by Landlord of any provision of
\nthis Lease, nor to be a consent to any Assignment.<\/p>\n
14.5 Procedure to Assign. Except as otherwise expressly permitted hereby,
\nat least sixty (60) days before a proposed Assignment is to become effective,
\nTenant shall give Landlord written notice of the proposed terms of the
\nAssignment and request Landlord’s approval, which notice shall include the
\nfollowing: (a) the name and legal composition of the Assignee; (b) a current
\nfinancial statement of the Assignee, financial statements of the Assignee
\ncovering the preceding three (3) years, if they exist, and, if available, an
\naudited financial statement of the Assignee for a period ending not more than
\none (1) year prior to the proposed effective date of the Assignment, all of
\nwhich are to be prepared in accordance with generally<\/p>\n
21<\/p>\n
accepted accounting principles; (c) the nature of the Assignee’s business to be
\ncarried on in the Premises; (d) a statement of all consideration to be given on
\naccount of the Assignment; and (e) any other information that Landlord requests.<\/p>\n
14.6 Conditions to Landlord’s Consent. Landlord’s consent to a requested
\nAssignment shall not be unreasonably withheld, and shall be subject to the
\npayment to Landlord of one-half of all consideration paid or to be paid or to be
\npaid by the Assignee which exceeds the rent payable by Tenant under this Lease.<\/p>\n
14.7 Landlord’s Discretion. EXCEPT AS OTHERWISE EXPRESSLY PERMITTED HEREIN,
\nANY ASSIGNMENT, SUBLETTING, OCCUPANCY, OR USE WITHOUT THE PRIOR WRITTEN CONSENT
\nOF LANDLORD, SHALL BE VOID AND SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THIS
\nLEASE. TENANT SPECIFICALLY UNDERSTANDS AND AGREES THAT AT ANY TIME AN EVENT OF
\nDEFAULT OCCURS AND IS CONTINUING, TENANT SHALL HAVE NO RIGHT TO ASSIGN TENANT’S
\nINTEREST IN THIS LEASE, AND LANDLORD SHALL HAVE NO OBLIGATION TO GIVE LANDLORD’S
\nAPPROVAL UNDER THIS ARTICLE IF TENANT ATTEMPTS AN ASSIGNMENT OR SUBLETTING WHILE
\nIN DEFAULT.<\/p>\n
14.8 Tenant Remains Liable. If an Event of Default occurs and is
\ncontinuing, Landlord may proceed directly against Tenant, any Assignee, any
\nguarantors or any other party responsible for the performance of this Lease,
\nwithout first exhausting Landlord’s remedies against any other party responsible
\nto Landlord, or resorting to any security held by Landlord.<\/p>\n
14.9 Attornment. If an Event of Default occurs and is continuing, Landlord
\nmay require any subtenant to attorn to Landlord, in which event Landlord shall
\nundertake the obligations of Tenant under any sublease, provided, however, that
\nLandlord shall not be liable for any amounts paid by the subtenant to Tenant or
\nfor any defaults by Tenant under the sublease.<\/p>\n
14.10 Binding on Assignee. Every provision of this Article shall be binding
\non any Assignee as if that Assignee were the tenant under this Lease.<\/p>\n
14.11 No Further Assignment. No Assignee shall further assign or sublet the
\nPremises without Landlord’s prior written consent.<\/p>\n
14.12 Effect of Assignment on Default. Landlord’s consent to any Assignment
\nshall not constitute an acknowledgement that no default exists under this Lease,
\nnor shall consent be deemed a waiver of any existing default, except as
\notherwise stated by Landlord at the time.<\/p>\n
ARTICLE 15
\n INDEMNITY<\/p>\n
15.1 Tenant’s Indemnification of Landlord. Tenant agrees to indemnify,
\ndefend, and hold harmless Landlord and Landlord’s Parties from Liabilities
\narising by reason of any death, bodily injury, personal injury, or property
\ndamage resulting from (a) any cause<\/p>\n
22<\/p>\n
occurring in or about or resulting from an occurrence in or about the Premises
\nduring the Lease Term (except if caused solely by Landlord’s negligence or
\nwillful misconduct), (b) the negligence or willful misconduct of Tenant or
\nTenant’s agents, employees, and contractors, wherever it occurs, or (c) an Event
\nof Tenant’s Default. The provisions of this Section shall survive the expiration
\nor sooner termination of this Lease.<\/p>\n
15.2 Exculpation of Landlord. Except as otherwise provided in this Lease,
\nLandlord shall not be liable to Tenant, nor shall Tenant be entitled to
\nterminate this Lease or to any abatement of rent for any damage to Tenant’s
\nproperty or any injury to Tenant or any of Tenant’s employees, agents, or
\ninvitees, or loss to Tenant’s business arising out of any cause (except if
\ncaused solely by Landlord’s negligence or willful misconduct), including, but
\nnot limited to: (a) the failure, interruption, or installation of any heating,
\nair conditioning, or ventilation equipment; (b) the loss or interruption of any
\nutility service; (c) the failure to furnish or delay in furnishing any utilities
\nor services when the failure or delay is caused by fire or other casualty, the
\nelements, labor disputes, acts of God, or any other circumstance beyond the
\ncontrol of Landlord; (d) the limitation, curtailment, rationing, or restriction
\non the use of water or electricity, gas or any other form of utility; (e)
\nvandalism, malicious mischief, or forcible entry by unauthorized persons or the
\ncriminal act of any person; or (f) seepage, flooding, or other penetration of
\nwater into any portion of the Premises.<\/p>\n
ARTICLE 16
\n DEFAULT<\/p>\n
16.1 Event of Default. Each of the following shall constitute an event of
\ndefault under this Lease (each an “Event of Default”):<\/p>\n
(a) Tenant’s failure to make any payment required under this Lease
\n within five (5) days after written notice thereof from Landlord;<\/p>\n
(b) The failure of Tenant to perform any of the covenants, conditions,
\n or provisions of this Lease to be performed by Tenant, other than those
\n requiring any payment to Landlord, where this failure continues for a
\n period of thirty (30) days after written notice from Landlord to Tenant.
\n However, if the nature of Tenant’s failure requires more than thirty (30)
\n days for cure, Tenant shall not be deemed to be in default if Tenant
\n commences to cure within thirty (30) days after notice from Landlord and
\n thereafter diligently continues this cure to completion;<\/p>\n
(c) Any of the following:<\/p>\n
(i) The making by Tenant of any general arrangements or
\n assignments for the benefit of creditors;<\/p>\n
(ii) Tenant’s becoming a debtor as defined in 11 USCss.101 or any
\n successor statute, unless, in the case of a petition filed against
\n Tenant, it is dismissed within sixty (60) days after filing;<\/p>\n
23<\/p>\n
(iii) The appointment of a trustee or receiver to take possession
\n of substantially all of Tenant’s assets at the Premises or of Tenant’s
\n interest in this Lease, where possession is not restored to Tenant
\n within sixty (60) days of this appointment; or<\/p>\n
(iv) The attachment, execution, or other judicial seizure of
\n substantially all of Tenant’s assets located at the Premises of or
\n Tenant’s interest in this Lease, where this seizure is not discharged
\n within thirty (30) days after the seizure.<\/p>\n
(d) Tenant’s Assignment in violation of Article 14.<\/p>\n
ARTICLE 17
\n REMEDIES<\/p>\n
17.1 Landlord’s Remedies. Upon the occurrence of an Event of Default,
\nLandlord, in addition to any other rights or remedies available to Landlord at
\nlaw or in equity, shall have the right to:<\/p>\n
(a) terminate this Lease and all rights of Tenant by giving Tenant
\n written notice that this Lease is terminated, in which case Landlord may
\n recover from Tenant the sum of:<\/p>\n
(i) the worth at the time of award of any unpaid rent that had
\n been earned at the time of termination;<\/p>\n
(ii) the worth at the time of award of the amount by which (A)
\n the unpaid rent that would have been earned after termination until
\n the time of award exceeds (B) the amount of rental loss, if any, as
\n Tenant affirmatively proves could have been reasonable avoided;<\/p>\n
(iii) the worth at the time of award of the amount by which (A)
\n the unpaid rent for the balance of the term after the time of award
\n exceeds (B) the amount of rental loss, if any, as Tenant affirmatively
\n proves could be reasonably avoided;<\/p>\n
(iv) any other amount reasonably necessary to compensate Landlord
\n for all the detriment proximately caused by Tenant’s failure to
\n perform Tenant’s obligations or that, in the ordinary course of
\n things, would be likely to result therefrom; and<\/p>\n
(v) all other amounts in addition to or in lieu of those
\n previously stated as may be permitted from time to time by California
\n law.<\/p>\n
As used in clauses (i) and (ii) of this Section, the “worth at the
\n time of award” is computed by allowing interest at the rate of ten percent
\n (10%) per annum. As used in clause (iii) of this Section, the “worth at the
\n time of award” is computed by discounting that amount at the discount rate
\n of the Federal Reserve Bank of San Francisco at the time of award plus one
\n percent (1%). As used int his Section the term “rent” shall include Base
\n Rent, additional rent, and any other payments required by Tenant.<\/p>\n
24<\/p>\n
(b) continue this Lease, and from time to time, without terminating
\n this Lease, either (i) recover all rent and other amounts payable as they
\n become due or (ii) relet the Premises or any part of the Premises on behalf
\n of Tenant for any term, at any rent, and pursuant to any other provisions
\n as Landlord deems advisable, all with the right, at Tenant’s cost, to make
\n reasonably necessary alterations and repairs to the Premises.<\/p>\n
(c) Upon the occurrence of an Event of Default, Landlord shall also
\n have the right, with or without terminating this Lease, to re-enter the
\n Premises and remove all persons and property from the Premises. Landlord
\n may cause property so removed from the Premises to be stored in a public
\n warehouse or elsewhere at the expense and for the account of Tenant.<\/p>\n
17.2 Termination of Lease. No remedial actions, including the following
\nactions taken singly or in combination, shall be construed as an election by
\nLandlord to terminate this Lease unless Landlord has in fact given Tenant
\nwritten notice that this Lease is terminated or unless a court of competent
\njurisdiction decrees termination of this Lease; any act by landlord to maintain
\nor preserve the Premises; any efforts by Landlord to relet the Premises; any
\nre-entry, repossession, or reletting of the Premises; or any re-entry,
\nrepossession, or reletting of the Premises by Landlord pursuant to this Article.
\nIf Landlord takes any of the foregoing remedial actions without terminating this
\nLease, Landlord may nevertheless at any time after taking any remedial action
\nterminate this Lease by written notice to Tenant.<\/p>\n
17.3 Revenues from Reletting. If Landlord relets the Premises, Landlord
\nshall apply the revenue as follows: first, to the payment of any indebtedness,
\nother than rent due from Tenant to landlord; second, to the payment of any
\nreasonable cost of reletting, including without limitation finder’s fees and
\nleasing commissions; third, to the payment of the cost of any maintenance and
\nrepairs to the Premises; and fourth, to the payment of rent and other amounts
\ndue and unpaid. Landlord shall hold and apply the residue, if any, to payment of
\nfuture amounts payable as they become due. Should revenue from reletting during
\nany months, after application pursuant to the foregoing provisions, be less than
\nthe sum of (i) Landlord’s expenditures for the Premises during that month and
\n(ii) the amounts due from Tenant during that month, Tenant shall pay the
\ndeficiency to Landlord immediately upon demand.<\/p>\n
17.4 Landlord’s Right to Cure. After the occurrence of an Event of Default,
\nLandlord, in addition to or in lieu of exercising other remedies, may, but
\nwithout any obligation to do so, cure the breach underlying the Event of Default
\nfor the account and at the expense of Tenant; provided that Landlord by prior
\nnotice shall first allow Tenant a reasonable opportunity to cure, except in
\ncases of emergency, where Landlord may proceed without prior notice to Tenant.
\nTenant shall, upon demand, immediately reimburse Landlord for all costs,
\nincluding reasonable costs of settlements, defense, court costs, and attorney
\nfees, that Landlord may incur in the course of any cure.<\/p>\n
17.5 No Defense to Action. No security or guaranty for the performance of
\nTenant’s obligations, which Landlord may now or hereafter hold, shall in any way
\nconstitute a bar or defense to any action initiated by Landlord for unlawful
\ndetainer or for the recovery of the<\/p>\n
25<\/p>\n
Premises, for enforcement of any obligation of Tenant, or for the recovery of
\ndamages caused by a breach of this Lease by Tenant or by an Event of Default.<\/p>\n
17.6 Rights Not Exclusive. Except insofar as this is inconsistent with or
\ncontrary to any provisions of this Lease, no right or remedy conferred upon or
\nreserved to either party is intended to be exclusive of any other right or
\nremedy given now or later or existing at law or in equity or by statute. Except
\nto the extent that either party may have otherwise agreed in writing, no waiver
\nby that party of any violation or nonperformance by the other party of any
\nobligations, agreements, or covenants shall be deemed to be a waiver of any
\nsubsequent violation or nonperformance of the same or any other covenant,
\nagreement, or obligation, nor shall any forbearance by either party to exercise
\na remedy for any violation or nonperformance by the other party be deemed a
\nwaiver by that party of rights or remedies with respect to that violation or
\nnonperformance.<\/p>\n
17.7 Default by Landlord. Landlord shall not be in default unless Landlord
\nfails to perform obligations required of Landlord within thirty (30) days after
\nwritten notice by Tenant to Landlord and to the holder of any first mortgage or
\ndeed of trust covering the Premises, the name and address for that holder having
\nbeen furnished to Tenant in writing, specifying in what respect Landlord has
\nfailed to perform the obligation. However, if Landlord’s obligation requires
\nmore than thirty (30) days for performance, Landlord shall not be in default if
\nLandlord commences to perform within thirty (30) days after notice from Tenant
\nand afterwards diligently completes it.<\/p>\n
ARTICLE 18
\n LATE CHARGES AND INTEREST<\/p>\n
18.1 Late Charges. Tenant acknowledges that late payment of sums due under
\nthis Lease will cause Landlord to incur costs not contemplated by this Lease,
\nthe exact amount of which will be extremely difficult to ascertain. Therefore,
\nif any sum due from Tenant is not received by Landlord when due, then without
\nany requirement for notice to Tenant, Tenant shall pay to Landlord a late charge
\nequal to the greater of fifty dollars ($50.00) or two percent (2%) of the
\noverdue sum. The parties agree that the late charge represents a fair and
\nreasonable estimate of the costs Landlord will incur because of late payment by
\nTenant. Acceptance of the late charge by Landlord shall not constitute a waiver
\nof Tenant’s default for the overdue sum, nor prevent Landlord from exercising
\nany of the other rights and remedies in this Lease.<\/p>\n
18.2 Interest. Any amount that is due to Landlord and not paid when due
\nshall bear interest from the date due at the maximum rate then allowable by law,
\nnot to exceed twelve percent (12%) per annum; provided, however, that interest
\nshall not be payable on late charges incurred by Tenant. Payment of the interest
\nshall not cure any default by Tenant under this Lease.<\/p>\n
26<\/p>\n
ARTICLE 19
\n SUBORDINATION; TRANSFER BY LANDLORD<\/p>\n
19.1 Subordination. This Lease shall be subordinate to any ground lease,
\nmortgage, deed of trust, or any other hypothecation for security now or later
\nplaced upon the Premises and to any advances made on the security of it or
\nLandlord’s interest in it, and to all renewals, modifications, consolidations,
\nreplacements, and extensions of it. However, if any mortgagee, trustee, or
\nground landlord elects to have this Lease prior to the lien of the mortgage or
\ndeed or trust or prior to the ground lease, and gives notice of that to Tenant,
\nthis Lease shall be deemed prior to the mortgage, deed of trust, or ground
\nlease, whether this Lease is dated prior or subsequent to the date of the
\nmortgage, deed of trust, or ground lease, or the date of recording. If any
\nmortgage or deed of trust to which this Lease is subordinate is foreclosed or a
\ndeed in lieu of foreclosure is given to the mortgagee or beneficiary, Tenant
\nshall attorn to the purchaser at the foreclosure sale or to the grantee under
\nthe deed in lieu of foreclosure. If any ground lease to which this Lease is
\nsubordinate is terminated, Tenant shall attorn to the ground lessor. Tenant
\nagrees to execute any documents, in form and substance reasonably acceptable to
\nTenant, required to subordinate, to make this Lease prior to the lien of any
\nmortgage or deed of trust or ground lease, or to evidence the attornment.<\/p>\n
19.2 Attornment. If any mortgage or deed of trust to which this Lease is
\nsubordinate is foreclosed or a deed in lieu of foreclosure is given to the
\nmortgagee or beneficiary, or if any ground lease to which this Lease is
\nsubordinate is terminated, this Lease shall not be barred, terminated, cut off,
\nor foreclosed. Neither shall the rights and possession of Tenant under this
\nLease be disturbed, if Tenant is not then in default in the payment of rental
\nand other sums due under this Lease or otherwise in default under the terms of
\nthis Lease, and if Tenant attorns to the purchaser, grantee, or ground lessor as
\nprovided in Section 19.1 or, if requested, enters into a new lease for the
\nbalance of the term of this Lease on the same terms and provisions in this
\nLease. Tenant’s covenant under Section 19.1 to subordinate this Lease to any
\nground lease, mortgage, deed of trust, or other hypothecation later executed is
\nconditioned on each senior instrument containing the commitments specified in
\nthis Section.<\/p>\n
19.3 Transfer by Landlord. If Landlord transfers the Premises, Landlord
\nshall be relieved of all liability for the performance of Landlord’s obligations
\narising after the date of the transfer. However, any prepaid rent or Security
\nDeposit held by Landlord at the time of the transfer shall be delivered to the
\ntransferee.<\/p>\n
ARTICLE 20
\n ESTOPPEL CERTIFICATES<\/p>\n
20.1 Estoppel Certificates. At all times during the term of this Lease,
\nTenant agrees, following any request by Landlord, promptly to execute and
\ndeliver to Landlord within ten (10) business days following delivery of a
\nrequest an estoppel certificate: (a) certifying that this Lease is unmodified
\nand in full force, or if modified stating the nature of the modification and
\ncertifying that this Lease, as so modified, is in full force, (b) stating the
\ndate to which the rent and other charges are paid in advance, if any, (c)
\nacknowledging that there are not any uncured<\/p>\n
27<\/p>\n
defaults on the part of Tenant, or if there are uncured defaults, specifying the
\nnature of the defaults, and (d)certifying any other information about the Lease
\nas may be requested by Landlord.<\/p>\n
20.2 Failure to Deliver. Tenant’s failure to deliver an estoppel
\ncertificate within ten (10) business days after delivery of a request shall be a
\nconclusive admission that, as of the date of the request for such statement: (a)
\nthis Lease is unmodified except as may be represented by Landlord in the request
\nand is in full force, (b) there are no uncured defaults in Landlord’s
\nperformance, and (c) no rent has been paid more than thirty (30) days in
\nadvance.<\/p>\n
20.3 Guarantor’s Financial Statements. At any time during the term of this
\nLease, Tenant shall, upon ten (10) days’ prior written notice from Landlord,
\nprovide Guarantor’s most recent consolidated financial statement and financial
\nstatements covering the three (3) year period prior to the date of the most
\nrecent financial statement to any existing or potential lender or buyer of the
\nPremises. The statements shall be prepared in accordance with generally accepted
\naccounting principles.<\/p>\n
ARTICLE 21
\n MISCELLANEOUS<\/p>\n
21.1 Severability. If any provision of this Lease is held by a court of
\ncompetent jurisdiction to be either invalid or unenforceable, the remaining
\nprovisions of this Lease shall remain in effect, unimpaired by the holding.<\/p>\n
21.2 Time of Essence. Time is of the essence under this Lease.<\/p>\n
21.3 Additional Rent. All monetary obligations of Tenant to Landlord under
\nthe Lease, including but not limited to the Base Rent and additional rent, shall
\nbe deemed rent. Except as otherwise provided herein, all additional rent shall
\nbe paid by Tenant within ten (10) days after receipt of an invoice therefor.<\/p>\n
21.4 Entire Agreement. This Lease constitutes the entire agreement between
\nLandlord and Tenant, and there are no agreements or representations between the
\nparties except as expressed in this Lease. Tenant acknowledges that neither
\nLandlord nor Landlord’s representatives have made any legally binding
\nrepresentation or warranty as to any matter except those expressly set forth,
\nincluding any warranty as to: (i) whether the Premises may be used for Tenant’s
\nintended use under existing law, (ii) the suitability of the Premises for the
\nconduct of Tenant’s business, or (iii) the condition of any improvements. There
\nare no oral agreements between Landlord and Tenant affecting this Lease, and
\nthis Lease supersedes and cancels all previous negotiations, arrangements,
\nbrochures, agreements, and understandings, if any, between Landlord and Tenant
\nwith respect to the subject matter of this Lease. This instrument shall not be
\nlegally binding until it is executed by both Landlord and Tenant. No subsequent
\nchange or addition to this Lease shall be binding unless in writing and signed
\nby Landlord and Tenant.<\/p>\n
28<\/p>\n
21.5 Notices. Except as otherwise expressly provided by law, all notices or
\nother communications required or permitted by this Lease or by law to be served
\non or given to either party to this Lease by the other party shall be in writing
\nand shall be deemed given when personally delivered to the party to whom they
\nare directed, or in lieu of the personal service, upon deposit in the United
\nStates Mail, certified or registered, return receipt requested, postage prepaid,
\naddressed to Tenant at the Premises, with a copy to each of: (i) Glenayre
\nElectronics, Inc., 5935 Carnegie Boulevard, Charlotte, North Carolina, 28209,
\nAttention: Chief Financial Officer, and (ii) Kennedy Covington Lobdell & Hickman, L.L.P., NationsBank Corporate Center, 100 North Tryon Street, Suite
\n4200, Charlotte, NC 28202-4006, Attention: Eugene C. Pridgen, Esq., or to
\nLandlord in care of Dennis Henry, CB Commercial Real Estate Group, Inc., 155
\nGrand Avenue, Suite 100, Oakland, CA 94612. Either party may change its address
\nfor the purpose of this Section by giving written notice of the change to the
\nother party in the manner provided in this Section.<\/p>\n
21.6 Waivers. The waiver by Landlord of any agreement, condition or
\nprovision contained in this Lease shall not be deemed to be a waiver of any
\nsubsequent breach of the agreement, condition or provision or any other
\nagreement, condition or provision contained in this Lease, nor shall any custom
\nor practice that may arise between the parties in the administration of the
\nterms of this Lease be construed to waive or to lessen the right of Landlord to
\nthe performance by Tenant in strict accordance with these terms. Landlord’s
\nconsent to or approval of any act by Tenant shall not waive the necessity for
\nLandlord’s consent to or approval of any subsequent act by Tenant. Landlord’s
\nacceptance of rent shall not be a waiver of any preceding breach of Tenant,
\nother than Tenant’s failure to pay the rent that Landlord accepted, regardless
\nof Landlord’s knowledge of the preceding breach at the time of acceptance of the
\nrent.<\/p>\n
21.7 No Recording. Tenant shall not execute, acknowledge, or record a
\nmemorandum of this Lease without the express written consent of Landlord.<\/p>\n
21.8 Holding Over. At the end of the Term, or any extension, if Tenant
\nholds over for any reason, it is hereby agreed that in the absence of a written
\nagreement to the contrary that tenancy shall be from month-to-month only and not
\na renewal of this Lease, nor an extension for any further term. In that case,
\nTenant shall pay Base Rent in an amount equal to one hundred twenty-five percent
\n(125%) of the amount of the Base Rent payable prior to the end of the term or
\nany extension for the first two (2) months of any such holdover and, with
\nrespect to any continuing holdover thereafter, one hundred fifty percent (150%)
\nof the amount of the Base Rent payable prior to the end of the Term or any
\nextension, and the month-to-month tenancy shall be subject to every other term,
\ncovenant, and condition contained in this Lease that is consistent with and not
\ncontrary to a month-to-month tenancy.<\/p>\n
21.9 Cumulative Remedies. No remedy of election under this Lease shall be
\ndeemed exclusive but shall, wherever possible, be cumulative with all other
\nremedies at law or in equity.<\/p>\n
21.10 Covenants and Conditions. Each term of this Lease performable by
\nTenant shall be deemed both a covenant and a condition.<\/p>\n
29<\/p>\n
21.11 Binding Effect. Subject to Article 14, this Lease shall be binding on
\nand inure to the benefit of the parties and their successors and assigns.<\/p>\n
21.12 Attorneys’ Fees. In any action among the parties to enforce any of
\nthe terms of this Lease, to seek a declaration of any rights under this Lease,
\nor to recover damages for a breach of this Lease, the prevailing party shall be
\nentitled to recover reasonable attorneys’ fees together with any costs and
\nexpenses, to resolve the dispute and to enforce the final judgment. The
\n“prevailing party” shall include, without limitation, (a) a party who dismisses
\nan action in exchange for sums allegedly due; (b) a party who receives
\nperformance from the other party for an alleged breach of covenant or who
\nreceives a desired remedy that is substantially equal to the relief sought in an
\naction; or (c) a party determined to be the prevailing party by a court of law.<\/p>\n
21.13 Rights Reserved by Landlord.<\/p>\n
(a) Landlord and its agents may enter the Premises at any reasonable time
\nafter giving at least forty-eight (48) hours’ prior written notice to Tenant,
\nand immediately in the case of emergency, for the purpose of (i) inspecting the
\nPremises; (ii) posting notices of nonresponsibility; (iii) supplying any service
\nto be provided by Landlord to Tenant; (iv) showing the Premises to prospective
\npurchasers, mortgagees, or Tenants within six (6) months of the Termination
\nDate; (v) making necessary alterations, additions or repairs; (vi) performing
\nTenant’s obligations when Tenant has failed to do so after written notice from
\nLandlord; (vii) placing on the Premises ordinary for lease signs within six (6)
\nmonths of the Termination Date or for sale signs; and (viii) responding to an
\nemergency.<\/p>\n
(b) Landlord shall have the right to use any means Landlord deems
\nreasonably necessary and proper to enter the Premises in an emergency. Any entry
\ninto the Premises obtained by Landlord in accordance with this Section shall not
\nbe a forcible or unlawful entry into, or a detainer of, the Premises, or an
\neviction, actual or constructive, of Tenant from the Premises.<\/p>\n
21.14 Signs. Tenant shall not place, maintain, nor permit on any exterior
\ndoor, wall, or window of the Premises any sign, awning, canopy, marquee, or
\nother advertising without the express prior written consent of Landlord, which
\nshall not be unreasonably withheld or delayed. Furthermore, Tenant shall not
\nplace any decoration, lettering, or advertising matter on the glass of any
\nexterior window of the Premises without the written approval of Landlord. If
\nLandlord consents to any sign, awning, canopy, marquee, decoration, or
\nadvertising matter, Tenant shall, at its sole cost and in compliance with all
\napplicable Laws, covenants, conditions and restrictions, maintain it in good
\nappearance and repair at all times during this Lease. If at the end of the term
\nof this Lease, any of the items mentioned in this Section are not removed from
\nthe Premises by Tenant, that item may, without liability, be disposed of by
\nLandlord with the removal and any repair necessary to the Premises in connection
\ntherewith at Tenant’s sole cost.<\/p>\n
21.15 No Merger. To the extent permitted by Law, the voluntary or other
\nsurrender of this Lease by Tenant, a mutual cancellation of this Lease, or a
\ntermination by Landlord shall not cause a merger, and shall, at the option of
\nLandlord, terminate all existing<\/p>\n
30<\/p>\n
subtenancies or may, at the option of Landlord, cause an assignment to a
\nLandlord of all such subtenancies.<\/p>\n
21.16 Security Measures. Tenant acknowledges that Landlord shall have no
\nobligation to provide any guard service or other security measures to the
\nPremises, and Tenant assumes all responsibility for the protection of tenant,
\nTenant’s agents, invitees, and customers, and the property of Tenant and of
\nTenant’s agents, invitees, and customers form acts of third parties.<\/p>\n
21.17 Easements. Landlord reserves the right to grant easements, rights,
\nand dedications that Landlord deems necessary or desirable, and to record parcel
\nmaps and restrictions, so long as these easements, rights, dedications, maps,
\nand restrictions do not unreasonably interfere with Tenant’s use of the
\nPremises. Tenant agrees to sign any of these documents as soon as practicable
\nupon request of Landlord.<\/p>\n
21.18 Authority. If Tenants is a corporation or partnership, each
\nindividual executing this Lease on behalf of Tenant represents and warrants that
\nindividual is duly authorized to execute and deliver this Lease on behalf of the
\ncorporation in accordance with the by-laws of the corporation, or on behalf of
\nthe partnership in accordance with the partnership agreement of the partnership,
\nand that this lease is binding upon the corporation or partnership, as
\napplicable, in accordance with its terms. Each of the persons executing this
\nLease on behalf of a corporation covenants and warrants that the party for whom
\nthe person is executing this Lease is a duly authorized and existing
\ncorporation, that it is qualified to do business in California, and that the
\ncorporation has full right and authority to enter into and perform its
\nobligations under this Lease.<\/p>\n
21.19 Governing Law. This Lease shall be governed by California law.<\/p>\n
21.20 Counterparts. This Lease may be executed in any number of
\ncounterparts, all of which when taken together shall be deemed one and the same
\noriginal.<\/p>\n
21.21 No Offer. Preparation of this Lease by Landlord or Landlord’s agent
\nand submission to Tenant shall not be deemed an offer to lease. This lease shall
\nbecome binding on Landlord and Tenant only when fully executed by Landlord and
\nTenant.<\/p>\n
21.22 Memorandum of Lease. Landlord and Tenant agree to execute
\nconcurrently herewith a customary memorandum of lease document evidencing the
\nterms hereof in recordable form and to permit the recordation of same in the
\ncounty records for the county in which the Premises are located. Upon the
\nexpiration or earlier termination of this Lease, Tenant shall execute,
\nacknowledge and deliver to Landlord for recording purposes a quitclaim or other
\ninstrument sufficient to terminate the effect of the Memorandum of Lease of
\nrecord. Should Tenant fail or refuse to deliver such quitclaim or other
\nappropriate Instrument, Tenant shall indemnify, defend, and hold Landlord
\nharmless from and against all damages, liabilities, claims and costs (including
\nreasonable attorneys’ fees and costs) resulting therefrom. The form of
\nMemorandum of Lease is attached hereto as Exhibit C.<\/p>\n
31<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
\nfirst set forth above.<\/p>\n
LANDLORD:<\/p>\n
YERCAF N.V.,
\n a Delaware corporation<\/p>\n
By: \/s\/ Denise Jackson
\n ——————————-
\n Name: Denise Jackson
\n ————————-
\n Title: Director
\n ————————-<\/p>\n
TENANT:<\/p>\n
GLENAYRE ELECTRONICS, INC.
\n a Colorado corporation<\/p>\n
By: \/s\/ Stanley Ciepcielinski
\n ——————————-
\n Name: Stanley Ciepcielinski
\n ————————-
\n Title: Chief Financial Officer
\n ————————-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7646,9318],"corporate_contracts_industries":[9516],"corporate_contracts_types":[9583,9579],"class_list":["post-41774","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-glenayre-technologies-inc","corporate_contracts_companies-western-multiplex-corp","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41774","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41774"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41774"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41774"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41774"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}