\n22.5 Choice of Law……………………………………………………….. 15
\n22.6 Captions……………………………………………………………. 15
\n22.7 Amendments………………………………………………………….. 15
\n22.8 Fees and Expenses……………………………………………………. 15
\n22.9 Severability………………………………………………………… 15
\n22.10 Security Measures ………………………………………………….. 15
\n22.11 Easements…………………………………………………………… 15
\n22.12 Performance Under Protest…………………………………………….. 15
\n22.13 Effective Date\/Nonbinding Offer……………………………………….. 16
\n22.14 Notices…………………………………………………………….. 16
\n22.15 Corporate Authority………………………………………………….. 16
\n22.16 Brokerage Commissions………………………………………………… 16
\n22.17 Entire Agreement…………………………………………………….. 16
\n22.18 Joint and Several Liability…………………………………………… 16
\n22.19 Quiet Enjoyment……………………………………………………… 16
\n22.20 Survival……………………………………………………………. 16
\n22.21 Recording…………………………………………………………… 16
\n22.22 Counterparts………………………………………………………… 16
\n22.23 Merger……………………………………………………………… 16
\n22.24 No Third Party Beneficiaries………………………………………….. 16
\n22.25 Force Majeure……………………………………………………….. 16
\n22.26 Confidentiality……………………………………………………… 17
\n22.27 Additional Provisions………………………………………………… 17
\n<\/c><\/s><\/table>\n iii.<\/p>\n
INDUSTRIAL LEASE AGREEMENT
\n ————————–
\n (Multi-Tenant)<\/p>\n
BASIC LEASE PROVISIONS
\n ———————-<\/p>\n
1. Effective Date: Date Lease has been executed by both parties
\n ——————————————–<\/p>\n
2. Landlord: Lathrop Industrial Development, LLC
\n ——————————————–<\/p>\n
3. Landlords Address
\n For Notice: 129 Edelen Avenue
\n ——————————————–
\n Los Gatos, CA 95030
\n ——————————————–
\n Attention: Mr. Timothy J. Murphy
\n ———————————
\n Telephone: 408-395-4084
\n ———————————
\n Fax: 408-354-0150
\n ————————————— <\/p>\n
4. Tenant: Aladdin Manufacturing Corporation,
\n ——————————————–
\n a Delaware Corporation.
\n ——————————————– <\/p>\n
5. Tenant’s Address
\n For Notice: 160 South Industrial Boulevard
\n ——————————————–
\n Calhoun, Georgia 30701
\n ——————————————–
\n Attention: Salvatore J. Perillo, Esq.
\n ———————————
\n Telephone: (800) 24l-4494
\n ———————————
\n Fax: (706) 624-2483
\n ————————————— <\/p>\n
6. Project: Lathrop Industrial Park, Building 4, consisting of
\n ———————————–
\n the land (“Land”) and all of the improvements,
\n —-
\n including the Building, located thereon and more
\n particularly shown on Exhibit A attached hereto.
\n ———<\/p>\n
7. Building: An approximately 231,840 sq. ft. building located
\n ————————————————-
\n on approximately 12.94 acres of land
\n ————————————<\/p>\n
8. Premises: Approximately 101,112 rentable square feet in the
\n ——-
\n Building, as shown in Exhibit B, attached hereto.
\n ——— <\/p>\n
9. Premises Address: 2733 Yosemite Avenue, Building #4
\n ——————————————–
\n City and State: Lathrop, California
\n ——————- <\/p>\n
10. Term & Option to Extend:Original Lease Term shall be for Seventy-Three (73)
\n —————————————————
\n Months Tenant has one (1) option to extend Lease
\n ————————————————
\n for additional sixty (60) months at fair market
\n ———————————————–
\n rate as provided in Exhibit E.
\n —————————–
\n11. Estimated Commencement
\n Date: Sixty (60) Days from Full Execution of Lease
\n ———————————————–<\/p>\n
12. Base Rent Per Month: Thirty Four Thousand Three Hundred Seventy Eight
\n ————————————————
\n Dollars ($34,378.00)
\n ——————– <\/p>\n
Rent Schedule: Months Base Monthly Rent
\n —— —————–
\n 1 -0-
\n 2 – 38 $ 34,378
\n 39 – 73 $ 37,411<\/p>\n
13. Tenant’s Share: Forty-three and sixty one hundreds percent (43.61%)
\n —————————————— —–<\/p>\n
14. Security Deposit: N\/A Dollars ($ N\/A )
\n ————————– —–<\/p>\n
15. Broker: Lee & Associates – Central Valley, Inc.,
\n —————————————-
\n represents Landlord, and both Lee & Associates
\n ———————————————-
\n Realty Group, Inc. -Newport Beach and Lee & ——————————————-
\n Associates – Central Valley, Inc., represents
\n ———————————————
\n Lessee
\n ——<\/p>\n
16. Base Year: 2001
\n —- <\/p>\n
17. Parking Spaces: 50 unassigned spaces
\n ——————– <\/p>\n
18. Permitted Uses: warehousing and distributing hard surface flooring,
\n ————————————————–
\n carpeting and related products and for no other
\n ——————————
\n use.<\/p>\n
iv.<\/p>\n
19. Tenant’s Minimum Liability
\n Insurance Amount: Five Million Dollars ($5,000,000.00
\n ————————————- <\/p>\n
20. Guarantor: Mohawk Industries Inc., a Delaware Corporation
\n ———————————————–<\/p>\n
21. Exhibits:
\n “A” Project
\n “B” Site Plan of Premises
\n “C” Work Letter
\n “D” Commencement Date Memorandum
\n “E” Option to Extend
\n “F” Guaranty of Lease
\n “G” Tenant Sign Criteria
\n “H” Environmental Questionnaire and Disclosure Statement
\n “I” Rules and Regulations<\/p>\n
The Basic Lease Provisions set forth above and the Exhibits and Addendum if
\nany, attached hereto are hereby incorporated into and made a part of this Lease.
\nEach reference in this Lease to any of the Basic Lease Provisions shall mean the
\nrespective information hereinabove set forth and shall be construed to
\nincorporate all of the terms provided under the particular paragraph pertaining
\nto such information. In the event of any conflict between any of the Basic Lease
\nProvisions and the Lease, the latter shall control.<\/p>\n
Landlord (____________________) and Tenant (_____________) Agree.<\/p>\n
v.<\/p>\n
1. PREMISES.<\/p>\n
1.1 Lease of Premises. Landlord hereby leases to Tenant, and Tenant
\nhereby leases from Landlord, the Premises, together with (i) the non-exclusive
\nright to use Tenant’s Parking Spaces within the Common Areas (subject to the
\nlimitations set forth in Section 8.8), and (ii) the non-exclusive right to use
\nthe grounds, sidewalks, parking areas, driveways, alleys and other areas of the
\nBuilding designated by Landlord as Common Areas (the “Common Areas”), which
\nCommon Areas are depicted on Exhibit “B” attached hereto. Landlord and Tenant
\nagree that all measurements of area contained in this Lease are conclusively
\nagreed to be correct and binding upon the parties, and subsequent determination
\nthat the area is more or less than shown in this Lease shall not result in a
\nchange in any matter described in this Lease where area is a factor.<\/p>\n
1.2 Construction of Tenant Improvements. Prior to the Commencement
\nDate, Landlord shall construct certain improvements (the “Tenant Improvements”)
\n ——————-
\nto the Premises in accordance with the terms of the Work Letter attached hereto
\nas Exhibit C.
\n ———<\/p>\n
1.3 Landlord’s Improvements. Landlord warrants and represents that
\nupon Commencement Date the Building shall be in good condition and repair and
\nstructurally sound [which condition includes, without limitation, that the roof
\nshall be leak-free and not in need, or in imminent need, of repair and that the
\nplumbing, electrical, heating, ventilation and air-conditioning (“HVAC”)
\nsystems shall be in good operating condition and repair and not in need, or
\nimminent need, of repair. Notwithstanding anything to the contrary contained in
\nthis Lease, in the event any portion of the Building, whether structural or non-
\nstructural and including, without limitation, the roof, the HVAC and any
\noperating systems therein, require repair or replacement for the first year of
\nthis Lease and such repair or replacement is not caused by the acts or
\nomissions of Tenant (normal wear and tear excepted), Landlord shall make such
\nrepairs or replacements without cost to Tenant.<\/p>\n
1.4 Premises Specifications\/Access. Landlord warrants and represents
\nthat (i) the Premises shall have a height clearance of no less than 28 feet,
\n(ii) the Premises shall have truck loading facilities as shown on the Approved
\nPlans and including 15 dock high doors and one (1) grade level doors, (iii)
\nthere is access to the Premises over the Common Areas (hereinafter defined) to
\npublicly dedicated (and accepted) right-of-way, (iv) the office shown on the
\napproved floor plan shall be adequately heated and air conditioned, (v) the
\nPremises shall include men’s and women’s restrooms, (vi) the warehouse lighting
\nshall be as heretofore agreed to by Landlord and Tenant and shall be in good
\nworking order and repair, and (vii) as of the Commencement Date, the Project
\nshall comply with all applicable Laws, including, without limitation, the
\nAmericans With Disabilities Act.<\/p>\n
2. TERM<\/p>\n
2.1 Term. The Term of this Lease shall commence on the Commencement
\nDate and shall continue in full force and effect for the Term hereof, unless
\nterminated earlier pursuant to the terms hereof.<\/p>\n
2.1.1 Commencement Date. The Commencement Date of the Lease
\nshall be the earlier of the date on which: (i) Tenant takes possession of any
\nportion of the Premises in order to conduct business thereon; (ii) the Premises
\nwould have been Ready for Occupancy but for Tenant Delays (as defined in the
\nWork Letter attached hereto as Exhibit C); or (iii) the Premises are Ready for
\n ———
\nOccupancy. The Premises shall be deemed “Ready for Occupancy” on the date of
\nsubstantial completion of all Tenant Improvements to be constructed by
\nLandlord, except for punchlist items which do not prevent Tenant from using the
\nPremises for the Permitted Uses and such work as Landlord is required to
\nperform but cannot complete until Tenant performs necessary portions of the
\nconstruction work it has elected or is required to do. Tenant shall, upon
\ndemand, execute and deliver to Landlord a Commencement Date Memorandum in the
\nform attached hereto as Exhibit D acknowledging the actual Commencement Date of
\nthis Lease.<\/p>\n
2.2 Delay in Possession. If Landlord, for any reason whatsoever,
\ncannot deliver possession of the Premises to Tenant on or before the Estimated
\nCommencement Date, this Lease shall not be void or voidable nor shall Landlord
\nbe liable to Tenant for any resulting loss or damage. However, Tenant shall not
\nbe liable for any Rent (as defined in Section 3.1 below) and the Commencement
\nDate shall not occur until the Premises are Ready for Occupancy, except that if
\nLandlord’s failure to make the Premises Ready for Occupancy by the Estimated
\nCommencement Date is attributable to any Tenant Delays, then the Commencement
\nDate shall not be advanced to the date on which possession of the Premises is
\ntendered to Tenant, and Landlord shall be entitled to full performance by
\nTenant (including the payment of Rent) from the date the Premises would have
\nbeen Ready for Occupancy but for such Tenant Delays. Notwithstanding anything
\nto the contrary contained herein, in the event Landlord fails to deliver
\npossession of the Premises to Tenant within thirty (30) days of the Estimated
\nCommencement Date and such delay is not caused by a Tenant Delay, Tenant, at
\nits sole and exclusive remedy, shall have the right to terminate this Lease by
\nnotice delivered to Landlord prior to the date Landlord delivers the Premises
\nto Tenant.<\/p>\n
3. RENT AND SECURITY DEPOSIT.<\/p>\n
3.1 Base Rent. From and after the Commencement Date, Tenant shall pay
\nthe Base Rent to Landlord on the first day of each calendar month in lawful
\nmoney of the United States, at Landlord’s Address or such other address as
\nLandlord shall from time to time designate in writing to Tenant for the payment
\nof Rent, without notice, and, except as may otherwise be set forth herein,
\nwithout demand, abatement, offset or deduction. Upon the <\/p>\n
1.<\/p>\n
execution of this Lease, Tenant shall pay to Landlord the first month’s Base
\nRent. If the Term commences (or ends) on a date other than the first (or last)
\nday of a month, Tenant shall pay on the Commencement Date or first day of the
\nlast month a pro rata portion of Base Rent, prorated on a per diem basis with
\nrespect to the portion of the month within the Term. Any sums other than Base
\nRent which Tenant is obligated to pay under this Lease shall be deemed to be
\nAdditional Rent due hereunder, whether or not such sums are designated
\n“Additional Rent.” The term “Rent” means the Base Rent and all Additional Rent
\npayable hereunder.<\/p>\n
(a) Increases in Base Rent. Notwithstanding anything to the
\ncontrary herein, the Base Rent due hereunder shall be increased at the times
\nand in the amounts more particularly described in Item 12 of the Basic Lease
\nProvisions.<\/p>\n
3.2 Late Charges. Tenant acknowledges that late payment by Tenant of
\nany amount owed to Landlord under this Lease will cause Landlord to incur costs
\nnot contemplated by this Lease, the exact amount of such costs being extremely
\ndifficult and impracticable to fix. Therefore, if any installment of Base Rent
\nis not received by Landlord, within five (5) days of the date same is due, or
\nif any other installment of Rent is not received by Landlord within five (5)
\ndays of Tenant’s receipt of written notice that same is overdue and payable,
\nTenant shall pay to Landlord, as liquidated damages for Tenant’s failure to
\nmake such timely payment, an additional sum of eight percent (8%) of the
\noverdue Rent per month as a late charge. The parties agree that this late
\ncharge represents a fair and reasonable estimate of the administrative costs
\nthat Landlord will incur by reason of a late payment by Tenant.<\/p>\n
4. UTILITIES. Tenant shall pay, as the same become due, all charges for
\ndomestic and irrigation water, gas, electricity (including parking lot
\nlighting), telephone, storm and sanitary sewer service, waste pick-up and any
\nother utilities, materials or services furnished directly to or used by Tenant
\non or about the Premises during the Term, including, without limitation, meter,
\nuse and\/or connection fees, hook-up fees, penalties and surcharges. If any
\nutility or other service is not separately metered to the Premises, or is billed
\ndirectly to Landlord, or included as part of a tax bill, then Tenant shall
\nreimburse Landlord or pay its pro rata share of the cost of such utility service
\nwith all others served by the service not separately metered, as appropriate.
\nSuch proration shall be based upon the respective gross leaseable areas of the
\nparties using such utility services. If Landlord is responsible for paying such
\nutility costs directly to the provider of such services, Landlord shall make
\nsuch payments in a timely manner, and Tenant shall not be responsible for any
\nlate payment penalties or charges assessed against Landlord as a result of
\nLandlord’s failure to pay such costs on or before the date same are due and
\npayable. Landlord and Tenant shall comply with all rules, regulations and
\nrequirements promulgated by national, state or local governmental agencies or
\nutility suppliers concerning the use of utility services, including any
\nrationing, limitation or other control. Tenant shall not be entitled to
\nterminate this Lease nor to any abatement in Rent by reason of such compliance.
\nLandlord shall not be liable for damages or otherwise for any failure or
\ninterruption of any utility or other service furnished to the Premises, and no
\nsuch failure or interruption shall be deemed an eviction or entitle Tenant to
\nterminate this Lease or withhold or abate any rent due hereunder, unless such
\nfailure is directly attributable to the intentional acts or omissions of
\nLandlord. Landlord shall at all reasonable times have free access to all
\nelectrical and mechanical installations of Landlord.<\/p>\n
5. TAXES.<\/p>\n
5.1 Increase in Real Property Taxes. Tenant shall pay to Landlord
\n Tenant’s Share of the Increase in Real Property Taxes for each fiscal
\n tax year of the Lease. The “Increase in Real Property Taxes” is the
\n increase in Real Property Taxes in any fiscal tax year over Real
\n Property Taxes for the Base Year. If the Base Year valuation of the
\n improvements as shown on the tax bill do not reflect the cost of initial
\n construction of the Building and Common Areas, such value shall be
\n adjusted to reflect the increase in the valuation by the San Joaquin
\n County Assessor on account of the initial construction of the Building
\n and Common Areas. Under no circumstances shall Tenant have any
\n obligation to pay Landlord any amount or contribution toward the payment
\n of Real Property Taxes for any fiscal tax year in which the amount of
\n Real Property Taxes for the Land and the Building is less than or equal
\n to the Real Property Taxes for the Base Year. If the term of this Lease
\n shall terminate on any date other than the last day of a tax fiscal
\n period, the amount payable by Tenant (if any) during the tax fiscal
\n period in which such termination occurs shall be prorated on the basis
\n which the number of days from the commencement of said tax fiscal period
\n to and including said termination date bears to the number of days in
\n the fiscal period.<\/p>\n
(a) Payment of Real Property Taxes. Landlord agrees to pay all
\nReal Property Taxes prior to the last date that the same may be paid without
\npenalty or interest, or if a discount shall be available for early payment,
\nprior to the last day that such discount is available. Without cost to Tenant,
\nLandlord shall bear all interest, penalties, late charges and lost discount
\namounts incurred as a result of Landlord’s failure to timely pay any installment
\nof Real Property Taxes. Landlord shall take the maximum benefit of any law
\nallowing Real Property Taxes to be paid in installments, and in such event only
\nthe amount actually paid by Landlord during the applicable tax year shall be
\nincluded in Real Property Taxes for purposes of this Article. Landlord shall use
\ndiligent and good faith efforts to obtain any available tax abatements, refunds,
\nrebates or credits that may reduce Real Property Taxes for the Premises, and the
\nReal Property Taxes for any tax year shall mean such amounts as shall be finally
\ndetermined to be the Real Property Taxes payable during such tax year less any
\nabatements, refunds, rebates or credits made thereof. The parties shall make
\nappropriate adjustments to previous reimbursements from Tenant to Landlord on
\naccount of any abatements, refunds, rebates or credits immediately following the
\ndetermination of the amount of such abatements, refunds, rebates or credits.
\nPrior to the Commencement Date, Landlord shall pay all Real Property Taxes
\nbefore they become overdue.
\n 2.<\/p>\n
5.2 Definition of Real Property Taxes. “Real Property Taxes” shall
\n include any form of real estate tax or assessment, general and special,
\n ordinary and extraordinary, (including fees “in-lieu” of any such tax
\n or assessment) which are assessed, levied, charged, confirmed or
\n imposed by any public authority upon the Premises (or any real property
\n comprising any portion thereof and any license fee, commercial rental
\n tax, improvement bond or bonds, levy or tax), together with any tax
\n imposed in substitution, partially or totally, of any tax previously
\n included within the aforesaid definition or any additional tax the
\n nature of which was previously included within the aforesaid
\n definition, together with the costs and expenses (including reasonable
\n attorneys fees) of challenging any of the foregoing, but only to the
\n extent of any resulting reduction, abatement, redemption or return.
\n Sanitary, landscape, lighting and storm sewer assessments shall not be
\n included as Real Property Taxes, but shall instead be payable by Tenant
\n as provided in Section 4 of this Lease. Notwithstanding anything to the
\n contrary contained herein, Real Property Taxes to be shared by Tenant
\n shall not include the following: (i) income, intangible, franchise,
\n capital stock, estate or inheritance taxes or taxes substituted for or
\n in lieu of the foregoing exclusions; (ii) any roll-back taxes; (iii)
\n any assessment for special improvements to the Land or the Building,
\n including, but not limited to, the widening of exterior roads, the
\n installation of or hook up to sewer lines, sanitary and storm drainage
\n systems and other utility lines and installations, if such assessment
\n was made prior to the date hereof; (iv) taxes on rents, gross receipts
\n or revenues of Landlord from the Premises or other portions of the
\n Building, unless same pertain only to rents paid by Tenant hereunder and
\n —
\n are made specifically in lieu of existing Real Property Taxes; or (v)
\n impact fees.<\/p>\n
5.3 Personal Property Taxes. Prior to delinquency, Tenant shall pay
\nall taxes and assessments levied upon trade fixtures, alterations, additions,
\nimprovements, inventories and other personal property located and\/or installed
\non the Premises by Tenant; and Tenant shall provide Landlord copies of receipts
\nfor payment of all such taxes and assessments. To the extent any such taxes are
\nnot separately assessed or billed to Tenant, Tenant shall pay the amount thereof
\nas invoiced by Landlord.<\/p>\n
5.4 Tenant’s Contest of Taxes. Landlord shall furnish Tenant with
\ncopies of all Real Property Tax bills applicable to the Premises promptly upon
\nreceipt thereof and in sufficient time to allow Tenant to determine whether or
\nnot to contest any increase in Real Property Taxes. If Tenant desires to contest
\nany increase in assessment, Tenant shall promptly notify Landlord of same, and
\nTenant shall have the right to do so at its own expense and Landlord shall fully
\ncooperate with Tenant in any such proceeding; provided, however, Landlord shall
\nhave the right to elect to contest such assessment increase in lieu of Tenant’s
\ncontest, in which event Landlord shall do so in a diligent and commercially
\nreasonable manner. In the event Tenant does contest such assessment increase and
\na savings results, Tenant shall have the right to offset its reasonable costs
\n(including reasonable attorneys’ fees) against the next ensuing payment(s) of
\nTenant’s Share of an Increase in Real Property Taxes due under this Lease.<\/p>\n
6. OPERATING EXPENSES.<\/p>\n
6.1 Payment of Operating Expenses. Tenant shall pay to Landlord
\nTenant’s Share of Operating Expenses.<\/p>\n
6.2 Definition of Operating Expenses. “Operating Expenses” shall mean
\nthe total amounts paid or payable by Landlord in connection with the ownership,
\nmaintenance, repair, replacement and operation of the Building and Common
\nAreas, including but not limited to:<\/p>\n
(a) Cost (including a replacement reserve as established by
\nLandlord) of (i) non-structural maintenance and repair of the foundations, and
\n(ii) maintenance and repair of the roof and exposed parts of the Building as
\nprovided in Section 9.1. Notwithstanding the foregoing, in no event shall
\nLandlord’s replacement reserve exceed for any lease year exceed Forty Five
\nThousand Dollars ($45,000).<\/p>\n
(b) Cost of maintaining (including utilities) Common Areas,
\nincluding without limitation, paved areas and landscaping.<\/p>\n
(c) All insurance cost increase or other charges as provided in
\nSection 15.<\/p>\n
(d) Management fees (whether for services rendered by Landlord,
\nan affiliate of Landlord, Landlords employees, or a third party property manager
\nhired by Landlord), provided in all events such services are provided pursuant
\nto a commercially reasonable, arms-length management agreement) equal to eight
\npercent (8%) of Operating Expenses.<\/p>\n
(e) Cost of modifications to the Building occasioned by any
\nrules, laws or regulations effective subsequent to the commencement of the
\nLease not otherwise payable by Tenant hereunder.<\/p>\n
Notwithstanding anything to the contrary contained herein, Operating
\nExpenses shall not include: (i) administrative and overhead costs, including
\nbut not limited to office space, equipment and utilities, legal, accounting or
\nadministrative services and Landlord’s personnel who are not permanently
\nlocated at the Building; (ii) any Capital Expenditure, except for the amortized
\nportion of any Capital Expenditure reasonably made for the general benefit of
\nall tenants of the Building, which amortization shall be made over the
\nestimated actual useful life <\/p>\n
3.<\/p>\n
of the improvement in question (as used herein, the term “Capital Expenditure”
\nshall mean those expenditures which in accordance with generally accepted
\naccounting principles are capitalized as opposed to expensed); (iii) expenses
\nincurred in leasing space, such as legal expenses, brokerage commissions or
\nadvertising or promotional expenses; (iv) interest and amortization under
\nmortgages or any other secured or unsecured loan payable by Landlord; (v)
\nexpenses separately reimbursed by any other tenants of the Building (excluding
\nreimbursements to Landlord for such tenants’ prorata share of Operating
\nExpenses); (vi) financing and refinancing costs, including fees paid by Landlord
\nto obtain financing or refinancing such as origination fees and brokerage
\ncommissions; (vii) non-cash depreciation, (viii) costs incurred in connection
\nwith the enforcement of leases, including attorneys’ fees or other costs and
\nexpenses incurred in connection with summary proceedings to dispossess any other
\ntenant in the Building; and (ix) any expenses associated with any special
\nrequirements of a particular tenant.<\/p>\n
Landlord estimates that Tenant’s Share of Operating Expenses will
\ntotal Thirty Thousand Dollars ($30,000) for the entire first lease year.
\nLandlord warrants and represents that said estimate is reasonable and made in
\ngood faith.<\/p>\n
7. ESTIMATED EXPENSES.<\/p>\n
7.1 Payment. “Estimated Expenses” for any particular year shall mean
\nLandlord’s estimate of Tenant’s Share of Operating Expenses and the Increase in
\nReal Property Taxes and\/or Insurance for a calendar year. On or about the last
\nmonth of each calendar year, Landlord shall give Tenant notice of the Estimated
\nExpenses for the ensuing calendar year. Tenant shall pay Tenant’s share of the
\nEstimated Expenses with installments of Base Rent in monthly installments on
\nthe first day of each calendar month during such year.<\/p>\n
7.2 Adjustment. “Operating Expenses and Real Property Taxes
\nAdjustment” (or “Adjustment”) shall mean the difference between Estimated
\nExpenses and Tenant’s share of the Operating Expenses and increase in Real
\nProperty Taxes for any calendar year. Within ninety (90) days after the end of
\neach calendar year, Landlord shall deliver to Tenant a statement of Tenant’s
\nshare of the Operating Expenses and the Increase in Real Property Taxes and
\nInsurance for such calendar year together with copies of invoices and other
\nsupporting documentation, accompanied by a computation of the Adjustment. If
\nTenant’s payments are less than Tenant’s share thereof, then Tenant shall pay
\nthe difference within twenty (20) days after receipt of such statement. If
\nTenant’s payments exceed Tenant’s share thereof, then (provided that Tenant is
\nnot in default), Landlord shall credit such amount to the installments thereof
\nnext coming due.<\/p>\n
7.3 Audits. Landlord shall retain its records relating to the
\nOperating Expenses at Landlord’s principal office, and upon reasonable prior
\nnotice to Landlord, Tenant shall have the right to inspect all of Landlord’s
\nrecords relating to such costs. Appropriate adjustments shall be made for
\nerrors in the computation of such costs revealed by such audit or inspection.
\nIf any audit by Tenant indicates an overcharge in the amount of Tenant’s Share
\nof Operating Expenses by more than five percent (5%), the reasonable cost of
\nsuch audit shall be paid on demand by Landlord to Tenant; otherwise the
\nexpenses of Tenant’s audit shall be borne by Tenant. Landlord shall retain its
\nOperating Expense records for at least forty (40) months after the expiration
\nof each calendar year.<\/p>\n
8. USE.<\/p>\n
8.1 Use of Premises. Tenant shall use the Premises solely for the
\nPermitted Uses specified in Item 18 of the Basic Lease Provisions. Tenant shall
\nnot do anything in or about the Premises or the Common Areas which will (i)
\ncause structural or other damage to or overload the Building or Common Areas;
\n(ii) overload or impair the efficient operation of existing electrical systems
\nor other mechanical equipment or systems servicing the Building; (iii) damage,
\noverload or corrode the sanitary sewer system; (iv) operate forklifts with
\ndrive wheels no less than 18 inches in diameter and four (4) inches in width
\nand a steering wheel with a diameter of 16 inches and six (6) inches in width;
\nor (v) materially interfere with other tenants of the Building. Tenant shall
\nnot change the exterior of the Building or install any equipment or antennas on
\nor make any penetrations of the exterior or roof of the Building. Tenant shall
\nnot commit any waste in or about the Premises, and Tenant shall keep the
\nPremises in a neat, clean, attractive and orderly condition (normal wear and
\ntear excepted), free of any nuisances. Tenant shall not conduct on any portion
\nof the Premises or the Project any sale of any kind, including any public or
\nprivate auction, fire sale, going-out-of-business sale, distress sale or other
\nliquidation sale.<\/p>\n
8.2 Compliance with Laws. Tenant shall be responsible for and shall
\nat Tenant’s own cost and expense obtain any and all licenses and permits
\nnecessary for any Permitted Use. Tenant shall not use the Premises in any manner
\nwhich violates, and shall comply with, any law, ordinance, rule, ruling, statue
\nor restriction affecting the Building or Project (collectively “Laws”) which
\naffect the Building or Project. Notwithstanding the foregoing, Tenant shall have
\nthe right to contest the applicability of any Laws to Tenant’s operations in the
\nPremises providing same does not materially adversely affect Landlord’s fee
\nsimple interest in the Premises, the Building and the Land. Tenant shall not use
\nthe Premises in any manner which will cause a cancellation of any insurance
\npolicy with respect to the Premises, the Building or the Project. Tenant shall
\ncomply with all reasonable requirements of any insurance company, insurance
\nunderwriter, or Board of Fire Underwriters which are necessary to maintain the
\ninsurance coverage carried by either Landlord or Tenant pursuant to this Lease.<\/p>\n
8.3 Outside Areas. No property of any nature shall he stored upon or
\npermitted to remain outside of the Premises except in fully fenced and screened
\nareas outside the Building which have been designed for such purpose and have
\nbeen approved in writing by Landlord for such use by Tenant.<\/p>\n
4.<\/p>\n
8.4 Signs. Tenant shall not place on any portion of the Premises,
\nBuilding or Project any sign, placard, lettering in or on windows, banner,
\ndisplays or other advertising or communicative material which is visible from
\nthe exterior to the Building without the prior written approval of Landlord,
\nwhich approval shall not be unreasonably withheld, conditioned or delayed. All
\nsuch approved signs shall strictly conform to all Laws, Private Restrictions,
\nand Landlord’s sign criteria attached hereto as Exhibit E, and shall be
\n ———
\ninstalled at the expense of Tenant. Tenant shall maintain such signs in good
\ncondition and repair. If Tenant fails to maintain Tenant’s signs, or if Tenant
\nfails to remove such sign(s) upon the termination of this Lease and repair any
\ndamage caused by such removal, Landlord may do so at Tenant’s expense.<\/p>\n
8.5 Waste Disposal. Tenant shall store its waste either inside the
\nBuilding or within outside trash enclosures on the Premises that are fully
\nfenced and screened in compliance with all Private Restrictions, and designed
\nfor such purpose. All entrances to such outside trash enclosures shall be kept
\nclosed, and waste shall be stored in such manner as not to be visible from the
\nexterior of such outside enclosures. Tenant shall cause all of its waste to be
\nregularly removed from the Premises at Tenant’s sole cost. Tenant shall keep all
\nfire corridors and mechanical equipment rooms in the Building free and clear of
\nall obstructions at all times.<\/p>\n
8.6 Hazardous Material.<\/p>\n
8.6.1 Definition of Hazardous Materials. For purposes of this
\nLease, the term “Hazardous Materials” shall mean the substances included within
\nthe definitions of the terms “Hazardous Substance” under the Comprehensive
\nEnvironmental Response, Compensation and Liability Act of 1980, as amended, 42
\nU.S.C. Section 9601 et. seq., and the California Carpenter-Presley-Tanner
\n ——-
\nHazardous Substances Account Act, California Health & Safety Code Section 25300
\net. seq., and regulations promulgated thereunder, as amended. “Hazardous Waste”
\n——–
\nshall mean (a) any waste listed as or meeting the identified characteristics of
\na “Hazardous Waste” under the Resource Conservation and Recovery Act of 1976,42
\nU.S.C. Section 6901 et. seq. and regulations promulgated pursuant thereto, or
\n ——-
\n(b) any waste meeting the identified characteristics of “Hazardous Waste” under
\nCalifornia Hazardous Waste Control Law, California Health and Safety Code
\nSection 25100 et. seq., and regulations promulgated pursuant thereto.
\n ——-<\/p>\n
8.6.2 Landlord’s Delivery of Premises. Landlord shall deliver the
\nPremises to Tenant on the Commencement Date free of all Hazardous Substances to
\nthe extent necessary to be in compliance with all environmental and other laws
\nrelated to health and safety and so as to allow Tenant to operate in the
\nPremises for its intended use hereunder without impairment, interruption,
\ninterference, liability or additional cost or expense with respect to any
\nHazardous Substance.<\/p>\n
8.6.3 Prohibition on Use. Tenant shall not cause or permit any
\nHazardous Materials to be brought upon, stored, used, generated, released or
\ndisposed of on, under, from or about the Premises, Building or Project
\n(including without limitation the soil and groundwater thereunder) without the
\nprior written consent of Landlord; provided, however, that nothing herein shall
\nprevent Hazardous Substances to be brought onto the Premises in the ordinary
\ncourse of Tenant’s business, as long as such presence is in compliance with all
\nLaws. Landlord may, in its commercially reasonable discretion, place such
\nconditions as Landlord deems appropriate with respect to any such Hazardous
\nMaterials, and may further require that Tenant demonstrate that any such
\nHazardous Materials are necessary or useful to Tenant’s business and will be
\ngenerated, stored, used and disposed of in a manner that complies with all
\napplicable Laws and Private Restrictions and with good business practices.
\nTenant understands that Landlord may utilize an environmental consultant to
\nassist in determining conditions of approval in connection with the presence,
\nstorage, generation or use of Hazardous Materials by Tenant on or about the
\nPremises, and Tenant agrees that any reasonable costs actually incurred by
\nLandlord in connection therewith shall be reimbursed by Tenant to Landlord as
\nAdditional Rent hereunder upon demand.<\/p>\n
8.6.4 Environmental Questionnaire; Reports. Prior to execution of
\nthis Lease and thereafter on each anniversary of the Lease Commencement Date,
\nTenant shall complete, execute, and deliver to Landlord an Environmental
\nQuestionnaire and Disclosure Statement (the “Environmental Questionnaire”) in
\nthe form of Exhibit F attached hereto. Tenant shall immediately notify Landlord
\n ———
\nin writing of any complaints, investigations or other governmental action with
\nrespect to the use, storage, generation, release and\/or clean-up of Hazardous
\nMaterials in or about the Premises. In addition, to the extent Tenant brings
\nHazardous Materials upon the Premises in the ordinary course of its business
\npursuant to the terms and conditions of this Lease, Tenant shall promptly
\nprovide Landlord with complete and legible copies of all the following
\nenvironmental documents relating thereto: reports filed pursuant to any self-
\nreporting requirements; permit applications, permits, monitoring reports,
\nworkplace exposure and community exposure warnings or notices and all other
\nreports, disclosures, plans or documents relating to water discharges, air
\npollution, waste generation or disposal, and underground storage tanks for
\nHazardous Materials; orders, reports, notices listings and correspondence of or
\nconcerning the release, investigation of, compliance, cleanup, remedial and
\ncorrective actions, and abatement of Hazardous Materials; and all complaints,
\npleadings and other legal documents filed by or against Tenant related to
\nTenant’s use, handling, storage or disposal of Hazardous Materials.<\/p>\n
8.6.5 Landlord’s Investigation Rights. Landlord and Landlord’s
\nagents, employees, contractors and assigns (collectively, “Landlord’s Parties”)
\n ——————
\nshall have the right, but not the obligation, to inspect, sample and\/or monitor
\nthe Premises Building or Project and\/or the soil or groundwater thereunder at
\nany time to determine whether Tenant is complying with the terms of this Section
\n8.6, and in connection therewith Tenant shall <\/p>\n
5.<\/p>\n
provide Landlord with full access to all relevant facilities, records and
\npersonnel. If Tenant is not in compliance with any of the provisions of this
\nSection 8.6, or in the event of a release of any Hazardous Material on, under or
\nabout the Premises, Landlord and Landlord’s Parties shall have the right, but
\nnot the obligation, without limitation upon any of Landlord’s other rights and
\nremedies under this Lease, to immediately enter upon the Premises without notice
\nand acting on behalf of Tenant to discharge Tenant’s obligations under this
\nSection 8.6 at Tenant’s expense, including without limitation the taking of
\nemergency or long-term remedial action. Landlord and Landlord’s Parties shall
\nendeavor to minimize interference with Tenant’s business in connection
\ntherewith, but shall not be liable for any such interference. In addition,
\nLandlord, at Tenant’s expense, shall have the right, but not the obligation, to
\njoin and participate in any legal proceedings or actions initiated in connection
\nwith any claims arising out of the storage, generation, use or disposal by
\nTenant or Tenant’s agents, employees, contractors, assigns, subtenants or
\ninvitees (collectively, “Tenant’s Parties”) of Hazardous Materials on, under,
\n —————-
\nfrom or about the Premises, Building or Project.<\/p>\n
8.6.6 Tenant’s Remediation Obligations. If the presence of any
\nHazardous Materials on, under, from or about the Premises or the Project caused
\nor permitted by Tenant results in (i) injury to any person; (ii) injury to or
\nany contamination of the Premises or the Project; or (iii) injury to or
\ncontamination of any real or personal property wherever situated, Tenant, at
\nTenant’s expense, shall promptly take all actions necessary to return the
\nPremises and the Project to the condition existing prior to the introduction of
\nsuch Hazardous Materials and to remedy or repair any such injury or
\ncontamination, including without limitation, any cleanup, remediation, removal,
\ndisposal, neutralization or other treatment of any such Hazardous Materials.
\nNotwithstanding the foregoing, Tenant shall not, without Landlord’s prior
\nwritten consent, take any remedial action in response to the presence of any
\nHazardous Materials on, under or about the Premises or enter into any similar
\nagreement, consent, decree or other compromise with any governmental agency with
\nrespect to any Hazardous Materials claims; provided however, Landlord’s prior
\nwritten consent shall not be necessary in the event that the presence of
\nHazardous Materials on, under or about the Premises (a) imposes an immediate
\nthreat to the health, safety or welfare of any individual or (b) is of such a
\nnature that an immediate remedial response is necessary and it is not possible
\nto obtain Landlord’s consent before taking such action. If Landlord at any time
\ndiscovers that Tenant may have caused or permitted the release of Hazardous
\nMaterials on, under, from or about the Premises, Tenant shall, at Landlord’s
\nrequest, immediately prepare and submit to Landlord a comprehensive plan,
\nsubject to Landlord’s approval, specifying the actions to be taken by Tenant to
\nreturn the Premises to the condition existing prior to the introduction of
\nHazardous Materials. Upon Landlord’s approval of such cleanup plan, Tenant
\nshall, at its expense, and without limitation of any rights and remedies of
\nLandlord under this Lease or at law or in equity, immediately implement such
\nplan and proceed to cleanup such Hazardous Materials in accordance with all
\napplicable Laws and as required by such plan and this Lease.<\/p>\n
8.6.7 Indemnification by Tenant. To the fullest extent permitted by
\nlaw, Tenant shall indemnify, hold harmless, protect and defend (with attorneys
\nacceptable to Landlord) Landlord and any successors to all or any portion of
\nLandlord’s interest in the Premises and the Project from and against any and ail
\nliabilities, losses, damages, diminution in value, judgments, fines, demands,
\nclaims, recoveries, deficiencies, costs and expenses (including without
\nlimitation attorneys’ fees, court costs and other professional expenses),
\nwhether foreseeable or unforeseeable, arising directly or indirectly out of the
\npresence, use, generation, storage, treatment, on- or off-site disposal or
\ntransportation of Hazardous Materials on, into, from, under or about the
\nPremises, the Building and the Project by Tenant or Tenant’s Parties,
\nspecifically including without limitation the cost of any required or necessary
\nrepair, restoration, cleanup or detoxification of the Premises or the Project,
\nand the preparation of any closure or other required plans, whether or not such
\naction is required or necessary during the Term or after the expiration of this
\nLease.<\/p>\n
8.6.8. Indemnification by Landlord. Landlord shall not cause or
\npermit the storage, use, escape, disposal or release of Hazardous Substances in,
\non or with respect to the Building or the Project in any manner not in
\ncompliance with Laws, provided, however, that nothing herein shall prevent
\nHazardous Substances to be brought onto the Land or the Project in the ordinary
\ncourse of Landlord’s business or the businesses of Landlord’s other tenants, as
\nlong as such presence is in compliance with all applicable Laws. Landlord shall
\nindemnify and hold Tenant harmless against and from any liability, claim of
\nliability, claims, suits, costs, expenses, causes of action, personal liability
\nand property damage (including without limitation reasonable attorney’s fees)
\narising out of a breach by Landlord of its covenant in the preceding sentence.
\nFurther, Landlord shall indemnify and hold Tenant harmless against and from any
\nliability, claim of liability, claims, suits, costs, expenses, causes of action,
\npersonal liability and property damage (including without limitation reasonable
\nattorney’s fees) arising out of a breach by Landlord of its representations,
\nwarranties and covenants in this Section 8.6. Landlord shall not be liable to
\nTenant under this Section 8.6 with respect to the acts of other tenants of
\nLandlord, unless same results from Landlord’s gross negligence or willful
\nmisconduct; provided, however, that if any Hazardous Substances brought onto the
\nLand by such other tenants materially adversely affects Tenant’s ability to use
\nthe Premises for the use contemplated hereunder, then Tenant may terminate this
\nLease by written notice to Landlord, unless Landlord agrees to promptly abate
\nsuch interference.<\/p>\n
8.6.9 Survival. The provisions of this Section 8.6 shall expressly
\nsurvive the expiration or sooner termination of this Lease.<\/p>\n
8.7 Common Areas. Landlord shall at all times have exclusive control of
\nand operate and maintain the Common Areas in the manner Landlord may determine
\nto be appropriate. “Common Areas” (or “Common Area”) shall mean all
\nexterior\/outdoor areas, space, installations and equipment on the Land and the
\nBuilding for the common use and benefit of the tenants of the Project, their
\nemployees, agents, licensees, customers and other <\/p>\n
6.<\/p>\n
invitees, including without limitation parking areas, exits, entrances, access
\nroads, driveways, sidewalks, retaining walls, landscaped areas. Landlord hereby
\ngrants to Tenant, its licensees, subtenants, concessionaires, successors and
\nassigns, and its and their employees, agents, licensees, customers, and invitees
\nthe non-exclusive right and easement to use the Common Areas during the term
\nhereof and any extensions of same, continuously and without interruption, in
\ncommon with other tenants of the Building and the Project. Except as otherwise
\nexpressly set forth in this Lease, all reasonable costs actually incurred by
\nLandlord for the maintenance and operation of the Common Areas shall be included
\nin Operating Expenses unless any particular cost incurred can be charged to a
\nspecific tenant of the Project. Tenant shall keep the Common Areas clear of any
\nobstruction or unauthorized use related to Tenant’s operations. Landlord may
\ntemporarily close any portion of the Common Areas as reasonably required for
\nrepairs or to prevent a public dedication or the accrual of prescriptive rights.
\nNotwithstanding the foregoing, Landlord shall make no change or alteration to
\nthe Common Areas that would have a material adverse impact on Tenant’s
\noperations in the Premises and, except for de minimis changes, shall provide
\nTenant with at least ten (10) business days advance written notice before
\nimplementing any such change. No change shall be made to any curb cut or major
\naccess drive within the Common Areas without Tenant’s prior written consent,
\nwhich consent shall not be unreasonably withheld.<\/p>\n
8.8 Parking. Tenant is allocated and shall have the non-exclusive right to
\nuse not more than the number of Parking Spaces described in Item 17 of the Basic
\nLease Provisions, the location of which may be designated from time to time by
\nLandlord. Tenant shall not at any time use more parking spaces than the number
\nso allocated to Tenant or park its vehicles or the vehicles of others in any
\nportion of the Project not designated by Landlord as a non-exclusive parking
\narea. Neither Tenant nor Tenant’s Parties shall have the exclusive right to use
\nany specific parking space. Landlord shall have the right and obligation to
\nconstruct, maintain and operate lighting facilities within the parking areas in
\ngood condition and repair, and Tenant shall have no right to install any
\nfixtures, equipment or personal property in parking areas.<\/p>\n
8.9 Building Name and Address. Tenant shall not utilize any name selected
\nby Landlord from time to time for the Building and\/or Project as any part of
\nTenant’s corporate or trade name. Landlord shall have the right to change the
\nname, number or designation of the Building or Project without liability to
\nTenant.<\/p>\n
8.10 Rules and Regulations. Tenant agrees to observe faithfully and comply
\nstrictly with the Rules and Regulations attached hereto as Exhibit I, and any
\n ———
\nreasonable and nondiscriminatory amendments, modifications and\/or additions as
\nmay be adopted and published by written notice to tenants by Landlord; provided,
\nhowever, that such amendments, modifications and\/or additions do not materially
\ninterfere with Tenant’s operations in the Premises. Landlord shall not be liable
\nto Tenant for any violation of the Rules and Regulations or the breach of any
\ncovenant or condition in any lease by any other tenant. Tenant’s failure to keep
\nand observe the Rules and Regulations shall constitute a default under this
\nLease. In the case of any conflict between the Rules and Regulations and this
\nLease, this Lease shall be controlling.<\/p>\n
9. LANDLORD’S MAINTENANCE AND REPAIR<\/p>\n
9.1 Landlord’s Maintenance. Landlord shall, with such right of
\nreimbursement from Tenant as is specified in Section 6: (i) maintain in good
\ncondition and repair the roof, foundation (subject to Section 10.1.2 below), and
\nthe exterior walls of the Building and utility facilities stubbed to the
\nBuilding in good condition, reasonable wear and tear excepted; and (ii) maintain
\nin good condition and repair and repaint the exterior walls, canopies, entries,
\nhandrails, gutters and other exposed parts of the Building as necessary to
\nmaintain safety and aesthetic standards. The term “walls” as used herein shall
\nnot include windows, glass or plate glass, doors, overhead doors, dock bumpers,
\ndock plates and levelers, special store fronts or office entries, unless
\notherwise specified by Landlord in writing.<\/p>\n
9.2 Common Areas. Landlord shall repair, maintain, operate and replace
\nwhen necessary the Common Areas, if any, in order to keep them in good, clean
\nand safe condition, with such right of reimbursement from Tenant as is specified
\nin Section 6. Landlord shall not be responsible for repairs required by either
\n(i) an accident, fire or other peril, except as required by Section 12 hereof;
\nor (ii) for damage caused to any part of the Project by any act, negligence or
\nomission of Tenant or Tenant’s Parties, the uninsured cost, including any
\ndeductible, of which shall be paid to Landlord by Tenant. Landlord may engage
\ncontractors of Landlord’s choice to perform the obligations required of Landlord
\nby this Section 9.2, and the necessity of any expenditure to perform such
\nobligations shall be at the commercially reasonable discretion of Landlord.<\/p>\n
9.3 Procedure and Liability. Tenant shall immediately give Landlord
\nwritten notice of defect or need for repair of the items described above, after
\nwhich Landlord shall have reasonable opportunity to repair same or cure such
\ndefect with contractors of Landlord’s choice. Landlord’s liability shall be
\nlimited by the terms of Sections 14 and 19 of this Lease. If Tenant or Tenant’s
\nParties caused any damage necessitating such repair, then Tenant shall pay the
\ncost thereof, upon demand.<\/p>\n
9.4 Waiver. Except as expressly set forth herein, Tenant hereby waives the
\nbenefit of California Civil Code Section 1941 and 1942, and any other statute
\nproviding a right to make repairs and deduct the cost thereof from the Rent.
\nNotwithstanding the foregoing, if Landlord defaults in the performance of any
\nobligation imposed on it by this lease and does not cure such default within
\nthirty (30) days after written notice from Tenant specifying the default (or
\ndoes not within said period commence and diligently proceed to cure such
\ndefault), Tenant without waiver of or prejudice to any other right or
\nremedy it may have, shall have the right, at any time thereafter,<\/p>\n
7.<\/p>\n
to cure such default for the account of the Landlord, and Landlord shall
\nreimburse Tenant upon an invoice for any amount paid and any expense or
\ncontractual liability so incurred. If Landlord fails to reimburse Tenant within
\nfifteen (15) days after invoice, then Tenant shall have the right to offset the
\namount due thereunder, together with interest at the Interest Rate from the date
\nof disbursement against all rent and other charges due from Tenant to Landlord
\nunder this Lease until Tenant has been completely reimbursed for its expenses.
\nIn the event of emergencies, or where necessary to prevent injury to persons or
\ndamage to property or to mitigate damages, Tenant may cure a default by Landlord
\nbefore the expiration of the waiting period, but after giving such written or
\noral notice to Landlord as is practical under all of the circumstances.<\/p>\n
9.5 Landlord’s Right to Perform Tenant’s Covenants. Tenant agrees that, if
\nTenant shall at any time fail to pay within the grace or notice and cure period
\nherein provided any mechanic’s lien, taxes or other fees and charges the
\nnonpayment of which may place in jeopardy Landlord’s interest in the Project or
\nany portion thereof, or if Tenant shall at any time fail to provide the
\ninsurance required pursuant to Section 15, or perform any other act to be made
\nor performed by it under this Lease within the grace or notice and cure period
\nprovided therefor, Landlord may, but shall not be obligated to, make such
\npayment or perform such other act to the extent Landlord may reasonably deem
\nsuch action necessary for the protection of the Premises or the Project, and
\nwithout waiving or releasing Tenant from any obligation under this Lease. All
\nsums so paid by Landlord and all reasonable expenses paid in connection
\ntherewith, including without limitation reasonable attorneys’ fees, together
\nwith interest thereon at the Interest Rate from the date of such payment until
\nrepaid by Tenant, shall be paid by Tenant to Landlord within fifteen (15) days
\nof demand.<\/p>\n
10. TENANT’S MAINTENANCE AND REPAIR.<\/p>\n
10.1 Tenant’s Obligation to Maintain. Tenant shall be responsible for the
\nfollowing during the Term:<\/p>\n
10.1.1 General. Except as otherwise expressly set forth herein, Tenant
\nshall clean and maintain in good order, condition, and repair and replace when
\nnecessary the Premises and every part thereof through regular inspections and
\nservicing, including but not limited to: (i) those portions of the plumbing and
\nsewage facilities and the HVAC system to the extent they service the Premises;
\n(ii) all fixtures, interior walls, floors, carpets and ceilings; (iii) all
\nwindows, doors, entrances, plate glass, showcases and skylights (including
\ncleaning both interior and exterior surfaces); (iv) all electrical facilities
\nand all equipment; and (v) any automatic fire extinguisher equipment in the
\nPremises. Notwithstanding the foregoing, Tenant shall not be responsible for any
\nof the foregoing repairs or replacements if such repairs or replacements are
\nnecessitated by Landlord’s failure to promptly perform its obligations
\nhereunder, by damage caused by the wrongful acts or negligence of Landlord, its
\nemployees, agents and contractors, or by damage by fire or other casualty for
\nwhich Landlord is responsible for repairing pursuant to this Lease. In light of
\nthe substantial costs of replacing any portions of the Premises’ HVAC system,
\nthe parties hereby agree that in the event such system requires any replacement
\nduring the last two (2) years of the initial term of this Lease or any extension
\nterm hereof, Landlord shall reimburse Tenant on the expiration or earlier
\ntermination of this Lease for the unamortized portion of such expense based on
\nthe date of installation of such equipment and the useful life of such
\nequipment.<\/p>\n
10.1.2 Maintenance Contracts. Except as otherwise expressly set forth
\nherein, Tenant shall (i) maintain, repair and replace when necessary all HVAC
\nequipment which services only the Premises, and shall keep the same in good
\ncondition through regular inspection and servicing; (normal wear and tear
\nexcepted) and (ii) maintain continuously throughout the Term a service contract
\nfor the maintenance of all such HVAC equipment with a licensed HVAC repair and
\nmaintenance contractor approved by Landlord, which contract provides for the
\nperiodic inspection and servicing of the HVAC equipment at least once every
\nthirty (30) days during the Term. Notwithstanding the foregoing, Landlord may
\nelect at any time to assume responsibility for the maintenance, repair and
\nreplacement of such HVAC equipment which serves only the Premises, the
\nreasonable and actual cost of which shall be paid by Tenant. Tenant shall
\nmaintain continuously throughout the Term a service contract for the washing of
\nall windows (both interior and exterior surfaces) in the Premises with a
\ncontractor approved by Landlord, which contract provides for the periodic
\nwashing of all such windows at least once every sixty (60) days during the Term.
\nTenant shall furnish Landlord with copies of all such service contracts, which
\nshall provide that they may not be cancelled or changed without at least thirty
\n(30) days’ prior written notice to Landlord.<\/p>\n
10.1.3 Standards. All repairs and replacements required of Tenant
\nshall be promptly made with new materials of like kind and quality and shall be
\nperformed in accordance with all applicable Laws and the terms of Section 11 of
\nthis Lease. If Tenant fails to properly maintain the Premises or provide the
\nmaintenance contracts provided above, Landlord, upon providing Tenant with
\nnotice and reasonable opportunity to cure, may undertake to do so, the cost of
\nwhich shall be deemed Rent which shall be due within fifteen (15) days of demand
\nby Landlord.<\/p>\n
11. ALTERATIONS.<\/p>\n
11.1 Trade Fixtures. During the Term of this Lease, Tenant may install
\nTenant’s Trade Fixtures which may be removed without material injury to the
\nPremises on the Premises without the prior consent of Landlord. All Trade
\nFixtures shall remain Tenant’s property. “Trade Fixtures” shall not include the
\ninitial Tenant Improvements paid for with the funds of Landlord nor any
\nimprovements thereafter made to the Premises by Landlord at any time with
\nLandlord’s Funds.<\/p>\n
8.<\/p>\n
11.2 Consent Requirement for Alterations. Tenant shall make no material
\nalterations, additions or improvements (collectively, “Alterations”) to the
\n ———–
\nPremises or any part thereof without obtaining the prior written consent of
\nLandlord, which consent shall not be unreasonably withheld. Landlord may impose
\nas a condition to such consent such requirements as Landlord may reasonably deem
\nnecessary, in its sole and absolute discretion including, without limitation:
\n(i) that Landlord be furnished with working drawings before work commences;
\n(ii) that performance and labor and material payment bonds be furnished; (iii)
\nthat Landlord approve the contractor by whom the work is to be performed, such
\napproval not to be unreasonably withheld; (iv) that adequate course of
\nconstruction insurance be in place and the Landlord is named as an additional
\ninsured under the contractor’s liability and property damage policies; and (v)
\nthat Landlord may require the removal of the alterations and restoration of the
\nPremises to the condition which existed prior to the installation of such
\nTenant’s Alterations, at Tenant’s sole expense upon expiration of the Term. All
\nsuch alterations, additions or improvements must be done in compliance with all
\napplicable Laws, in a good and workmanlike manner and diligently prosecuted to
\ncompletion. Tenant shall deliver to Landlord upon commencement of such work, a
\ncopy of the building permit with respect thereto. All such work shall be
\nperformed so as not to obstruct the access to the Premises of any other tenant
\nin the Building or Project. Should Tenant make any material alterations without
\nLandlord’s prior written consent, Landlord shall have the right, in addition to
\nand without limitation of any right or remedy Landlord may have under this
\nLease, at law or in equity, to require the Tenant to remove all or some of the
\nalterations at Tenant’s sole cost and restore the Premises to the same condition
\nas existed prior to undertaking the alterations. Tenant shall notify Landlord in
\nwriting at least ten (10) days prior to the commencement of any such work in or
\nabout the Premises and Landlord shall have the right at any time and from time
\nto time to post and maintain notices of nonresponsibility in or about the
\nPremises.<\/p>\n
11.3 Possession. All Tenant’s Alterations shall remain the property of
\nTenant during the Term but shall not be altered or removed from the Premises. At
\nthe expiration or sooner termination of the Term, all Tenant’s Alterations shall
\nbe surrendered to Landlord and shall then become Landlord’s property, and
\nLandlord shall have no obligation to reimburse Tenant for all or any portion of
\nthe value or cost thereof.<\/p>\n
11.4 Alterations Required by Law. Tenant shall make any Alteration or
\nchange of any sort to the Premises that is required by any Law because of (i)
\nTenant’s particular use or change of use of the Premises, (ii) Tenant’s
\napplication for any permit or governmental approval, or (iii) Tenant’s
\nconstruction or installation of any Tenant’s Alterations or Trade Fixtures. Any
\nother alteration, addition, or change required by Law which is not the
\nresponsibility of Tenant pursuant to the foregoing shall be made by Landlord
\n(subject to Landlord’s right to reimbursement from Tenant specified in Section
\n6), provided that Tenant shall have no obligation to reimburse Landlord for any
\nalteration, addition or change to the Premises or the Project required by Law
\nwhich relates to the original construction of the Premises or the Project.<\/p>\n
11.5 Mechanic’s Liens. If any claim of lien is recorded with respect to
\nwork performed by or on behalf of Tenant or Tenant’s Parties, Tenant shall bond
\nagainst or discharge the same within thirty (30) days after receipt of notice
\nthereof. Thereafter, Landlord shall have the right, at Landlord’s option, of
\npaying and discharging the same or any portion thereof without inquiry as to the
\nvalidity thereof, and any amounts so paid, including expenses, together with
\ninterest thereon at the Interest Rate, shall be Additional Rent due and payable
\nwithin fifteen (15) days of Tenant’s receipt of a bill therefor. Tenant shall
\nindemnify, defend (by counsel satisfactory to Landlord), protect and hold
\nLandlord harmless from any and all loss, cost or expense based on or arising out
\nof asserted claims or liens against the leasehold estate or against the right,
\ntitle and interest of Landlord in the Premises or Project or this Lease arising
\nfrom the act or agreement of Tenant. Tenant agrees to give Landlord immediate
\nwritten notice of the placing of any lien or encumbrance against the Premises or
\nProject.<\/p>\n
12. FIRE AND CASUALTY DAMAGE.<\/p>\n
12.1 Notice of Destruction. If the Building should be damaged or destroyed
\nby fire, earthquake or other casualty, to the extent that the Premises are
\ntotally or partially inaccessible or unusable by Tenant in the ordinary course
\nof Tenant’s business, Tenant shall give immediate written notice thereof to
\nLandlord. Landlord shall thereafter, within thirty (30) days after receipt of
\nwritten notice of such damage, notify Tenant of the amount of time Landlord
\nestimates in its reasonable discretion that it will take to repair such damage
\n(“Landlord’s Estimate”).<\/p>\n
12.2 Loss Covered by Insurance. If the loss to Landlord from which is fully
\n(exclusive of any deductible) covered by insurance maintained by Landlord or for
\nLandlord’s benefit, which risk renders the Building totally, or partially
\ninaccessible or unusable by Tenant in the ordinary conduct of Tenant’s business,
\nthen:<\/p>\n
(a) If(i) Landlord’s Estimate is equal to or less than ninety (90)
\ndays; and (ii) Landlord is not prevented by applicable Laws from rebuilding the
\nBuilding to its preexisting condition, Landlord shall, at Landlord’s expense,
\nrepair the same and this Lease shall remain in full force and effect and a
\nproportionate reduction of Rent shall be allowed Tenant for such portion of the
\nBuilding as shall be rendered inaccessible or unusable to Tenant during the
\nperiod of time that such portion is unusable or inaccessible. In such event,
\nTenant shall pay to Landlord the amount of the deductible under Landlord’s
\ninsurance policy, which in no event shall exceed Five Thousand Dollars ($5000).
\nIf the damage involves portions of the Building other than the Premises leased
\nby Tenant, Tenant shall pay only a portion of the deductible based on the ratio
\nof the cost of repairing the damages in the Premises to the total cost of
\nrepairing all of the damage on the Building.<\/p>\n
9.<\/p>\n
(b) If Landlord’s Estimate exceeds ninety (90) days, then either
\nparty may by written notice to the other, given within thirty (30) days after
\nLandlord gives Tenant notice of Landlord’s Estimate, terminate this Lease as of
\nthe date of the occurrence of such damage or destruction.<\/p>\n
12.3 Loss Not Covered by Insurance. If, at any time prior to the expiration
\nor termination of this Lease, the Building is totally or partially damaged or
\ndestroyed from a risk, the loss to Landlord from which is not fully (exclusive
\nof any deductible) covered by insurance maintained by Landlord or for Landlord’s
\nbenefit, Landlord may, at its option, upon written notice to Tenant within
\nthirty (30) days after notice to Landlord of the occurrence of such damage or
\ndestruction, elect to repair or restore such damage or destruction, or Landlord
\nmay elect to terminate this Lease. If Landlord elects to repair or restore such
\ndamage or destruction and such repair and restoration can be completed within
\nninety (90) days, this Lease shall continue in full force and effect, but the
\nRent shall be proportionately reduced as provided in Section 12.2(a).<\/p>\n
12.4 Loss Covered by Tenant or Tenant’s Parties. If the Building is wholly
\nor partially damaged or destroyed as a result of the negligence or willful
\nmisconduct or omission of Tenant or Tenant’s Parties, Tenant shall forthwith
\ndiligently undertake to repair or restore all such damage or destruction at
\nTenant’s sole cost and expense; provided, however, that Tenant shall be relieved
\nof its repair and payment obligations pursuant to this Section 12.4 to the
\nextent that insurance proceeds are collectible by Landlord to repair such
\ndamage. This Lease shall continue in full force and effect without any abatement
\nor reduction in Rent or other payments owed by Tenant.<\/p>\n
12.5 Destruction Near End of Term. Notwithstanding the foregoing, if the
\nBuilding is wholly or partially damaged or destroyed within the final twelve
\n(12) months of the Term, either Tenant or Landlord may, at its option, elect to
\nterminate this Lease; provided, however, that Landlord may not terminate this
\nLease pursuant to this subparagraph if Tenant at the time of such damage has a
\nthen valid express written option to extend the Term and Tenant exercises such
\noption to extend the Term within thirty (30) days following the date of such
\ndamage.<\/p>\n
12.6 Destruction of Improvements and Personal Property. In the event of any
\ndamage to or destruction of the Building, under no circumstances shall Landlord
\nbe required to repair, replace or compensate anyone for the personal property,
\nTrade Fixtures, Alterations, machinery, equipment or furniture of Tenant or any
\nof Tenant’s Parties, and Tenant shall repair and replace all such personal
\nproperty, Alterations and Trade Fixtures at Tenant’s sole cost and expense.<\/p>\n
12.7 Exclusive Remedy. This Section 12 shall be Tenant’s sole and exclusive
\nremedy in the event of damage or destruction to the Premises or the Project, and
\nTenant waives and releases Tenant’s rights under California Civil Code Sections
\n1932 and 1933(4). No damages, compensation or claim shall be payable by Landlord
\nfor any inconvenience, any interruption or cessation of Tenant’s business, or
\nany annoyance, arising from any damage or destruction of all or any portion of
\nthe Premises or the Project.<\/p>\n
12.8 Lender Discretion. Notwithstanding anything herein to the contrary, in
\nthe event the holder of any indebtedness secured by a mortgage or deed of trust
\ncovering the Premises requires that the insurance proceeds from insurance held
\nby Landlord be applied to such indebtedness, then Landlord shall have the right
\nto deliver written notice to Tenant terminating this Lease within sixty (60)
\ndays of the date of damage or destruction of the Premises.<\/p>\n
13. CONDEMNATION. If any part of the Premises, the Building or the Land should
\nbe taken for any public or quasi-public use under governmental law, ordinance,
\nor regulation, or by right of eminent domain, or by private purchase in lieu
\nthereof (a “Taking” or “Taken”), and the Taking would prevent or materially
\ninterfere with Tenant’s use of the Premises or in Landlord’s judgment would
\nmaterially interfere with or impair its ownership or operation of the Building,
\nthen upon written notice by Landlord or Tenant to the other party, this Lease
\nshall terminate and Rent shall be apportioned as of said date. If part of the
\npremises shall be Taken, and this Lease is not terminated as provided above, the
\nRent payable hereunder during the unexpired Lease Term shall be reduced to such
\nextent as may be fair and reasonable under the circumstances. In the event of
\nany such Taking, Landlord shall be entitled to receive the entire price or award
\nfrom any such Taking without any payment to Tenant, and Tenant hereby assigns to
\nLandlord Tenant’s interest, if any, in such award. Tenant shall have the right,
\nto the extent that same shall not diminish Landlord’s award, to make a separate
\nclaim against the condemning authority (but not Landlord) for such compensation
\nas may be separately awarded or recoverable by Tenant for moving expenses, loss
\nof its leasehold estate and damage to Tenant’s Trade Fixtures, if a separate
\naward for such items is made to Tenant.<\/p>\n
14. LIABILITY OF LANDLORD; MUTUAL INDEMNITY BY TENANT.<\/p>\n
14.1 Limitation on Landlord’s Liability. Landlord shall not be liable to
\nTenant for any injury to Tenant or Tenant’s Parties, damage to the property of
\nTenant or Tenant’s Parties, or loss to Tenant’s business resulting from: (i)
\nfailure, interruption or installation of any HVAC or other utility system or
\nservice (except as expressly set forth in Section 1.3 herein); (ii) failure to
\nfurnish or delay in furnishing any utilities or services when such failure or
\ndelay is caused by fire or other peril, the elements, labor disturbances of any
\ncharacter, or any other accidents or other conditions beyond the reasonable
\ncontrol of Landlord; (iii) limitation, curtailment, rationing or restriction on
\nthe use of water or electricity, gas or any other form of energy or any services
\nor utility serving the Project; or (iv) vandalism or forcible entry by
\nunauthorized persons or the criminal acts of any person. Notwithstanding the
\nforegoing but subject to Sections 14.2 and 15.5, Landlord shall be liable for
\nany such injury, <\/p>\n
10.<\/p>\n
damage or loss which is proximately caused by Landlord’s willful misconduct,
\n or negligence of which Landlord has actual notice and a reasonable opportunity
\n to cure but which it fails to so cure.<\/p>\n
14.2 Limitation on Tenant’s Recourse. If Landlord is a corporation,
\n trust, partnership, joint venture, unincorporated association or other form of
\n business entity: (i) the obligations of Landlord shall not constitute personal
\n obligations of the officers, directors, trustees, partners, joint venturers,
\n members, owners, stockholders, or other principals or representatives of such
\n business entity; and (ii) Tenant shall not have recourse to the assets of such
\n officers, directors, trustees, partners, joint venturers, members, owners,
\n stockholders, principals or representatives except to the extent of their
\n interest in the Project. Notwithstanding anything to the contrary in this
\n Lease, Tenant shall have recourse only to the interest of Landlord in the
\n Project for the satisfaction of each and every remedy of Tenant in the event of
\n default by Landlord hereunder; such exculpation of personal liability is
\n absolute and without exception whatever.<\/p>\n
14.3 Mutual Indemnification. Tenant and Landlord agree to indemnify
\n and hold each other harmless horn and against any and all claims, damages or
\n causes of action for damages brought on account of injury to any person or
\n persons or property, or loss of life, arising out of (i) the failure to comply
\n with its obligations hereunder by Landlord or Tenant, respectively, or (ii) the
\n use, operation or maintenance of the Premises by Tenant or by the use,
\n operation or maintenance of the remainder of the Building and other
\n improvements on the Land by Landlord, except for matters arising from the gross
\n negligence or willful misconduct of the party seeking indemnification.
\n Notwithstanding any other provisions set forth herein, the parties hereby agree
\n that in the event of any damage to a party, including all personal and property
\n damages and losses to a party’s employees or invitees, each party shall resort
\n to any and all insurance coverage available prior to asserting any claim or
\n demand against the other party or its assets. No insurer is meant to be a third
\n party or other beneficiary of any provision contained in this Lease.<\/p>\n
14.4 Notice of Claim or Suit. Landlord and Tenant shall promptly
\n notify the other of any claim, action, proceeding or suit instituted or
\n threatened against Landlord or Tenant of which they received notice or of which
\n they acquire knowledge and which names the other party as a defendant thereto.<\/p>\n
14.5 Waiver of Jury Trial. Landlord and Tenant each acknowledges that
\n it is aware of and has had the advice of counsel of its choice with respect to
\n its rights to trial by jury, and each party does hereby expressly and knowingly
\n waive and release all such rights to trial by jury in any action, proceeding or
\n counterclaim brought by either party hereto against the other (and\/or against
\n its officers, directors, employees, agents, or subsidiary or affiliated
\n entities) on any matters whatsoever arising out of or in any way connected with
\n this Lease, Tenant’s use of occupancy of the Premises, and\/or any claim of
\n injury or damage.<\/p>\n
14.6 Sale of Premises. In the event of any sale or transfer of the
\n Premises, the seller, transferor or assignor shall be and hereby is entirely
\n freed and relieved of all agreements, covenants and obligations of Landlord
\n thereafter to be performed provided such purchaser, transferee or assignee has
\n assumed and agreed in writing to carry out any and all agreements, covenants
\n and obligations of Landlord hereunder.<\/p>\n
15. INSURANCE.<\/p>\n
15.1 Tenant’s Insurance Obligations. Tenant agrees that at all times
\n from and after the date Tenant is given access to the Premises for any reason,
\n Tenant shall carry and maintain, at its sole cost and expense, the following
\n types, amounts and forms of insurance:<\/p>\n
15.1.1 Public Liability Insurance. A broad form comprehensive
\n general liability or commercial general liability policy including contractual
\n liability coverage for obligations under this Lease, covering the Project in
\n an amount of not less than the amount per occurrence specified in Item 19 of
\n the Basic Lease Provisions. Such policy shall be in the occurrence form with a
\n per location general aggregate. The amounts of such insurance required
\n hereunder shall be subject to adjustment from time to time as requested by
\n Landlord based upon Landlord’s commercially reasonable determination as to the
\n amounts of such insurance generally required at such time for comparable
\n tenants, premises and buildings in the general geographical location of the
\n Building or as requested by any lender with an interest in the Premises or
\n Project.<\/p>\n
15.1.2 Property Insurance. A policy or policies, including the
\n basic form, broad form and special form of coverage (“All Risks”), including
\n vandalism and malicious mischief, theft, sprinkler leakage and water damage
\n coverage in an amount equal to the full replacement value, new without
\n deduction for depreciation, of all Trade Fixtures, furniture and equipment in
\n the Premises, and all Alterations to the Premises installed by or for Tenant
\n or provided to Tenant. Such coverage shall name the Landlord as an additional
\n insured as its interest may appear.<\/p>\n
15.1.3 Other Insurance. Such other insurance that is
\n either (i) required by any Lender, or (ii) reasonably required by Landlord and
\n customarily carried by tenants of similar property in similar businesses.<\/p>\n
15.2 Requirements of Tenant’s Insurance Coverage. Each policy of
\n insurance required to be carried by Tenant pursuant to Section 15.1: (i) shall
\n name Landlord and such other parties in interest as Landlord reasonably
\n designates as additional insureds; (ii) shall be primary insurance; (iii)
\n shall be in a form reasonably satisfactory to Landlord; (iv) shall be carried
\n with companies licensed to do business in California and which have a general
\n policy holders’ rating of at least “A” and a Financial rating of at least
\n “VIII” as set forth in the most current issue of Best’s<\/p>\n
11.<\/p>\n
Insurance Guide; (v) shall provide that such policy shall not be subject to
\ncancellation, lapse or change except after at least thirty (30) days prior
\nwritten notice to Landlord so long as such provision of thirty (30) days notice
\nis reasonably obtainable, but in any event not less than ten (10) days prior
\nwritten notice; (vi) shall not have a “deductible” in excess of such amount as
\nis approved by Landlord; (vii) shall contain a cross liability endorsement;
\n(viii) shall contain a severability clause and (ix) shall be written on an
\n“occurrence” basis only, with a per location aggregate, unless such forms are no
\nlonger available, in which case the policy form obtained by Tenant shall be
\nsubject to Landlord’s prior written approval, such approval not to be
\nunreasonably withheld, conditioned or delayed. If Tenant has in full force and
\neffect a blanket policy of liability insurance with the same coverage for the
\nPremises as described above, as well as other coverage of other premises and
\nproperties of Tenant, or in which Tenant has some interest, such blanket
\ninsurance shall satisfy the requirements of this Section 15, provide that
\nLandlord is named as an additional insured thereunder and provide that the
\ncoverage afforded with respect to the Premises shall not be reduced or
\ndiminished by reason of the use of such blanket policy of insurance.<\/p>\n
15.3 Evidence of Tenant’s Insurance Coverage. A copy of each paid-up
\npolicy evidencing the insurance required to be carried by Tenant pursuant to
\nSection 15.1 (appropriately authenticated by the insurer) shall be delivered to
\nLandlord prior to the time Tenant or any of Tenant’s Parties enters the Premises
\nand upon renewal of such policies, but not less than ten (10) days prior to the
\nexpiration of the term of such coverage. If Tenant fails to obtain the insurance
\nrequired hereby or provide evidence thereof to Landlord, Landlord may, but shall
\nnot be obligated to, and Tenant hereby appoints Landlord as its agent to procure
\nsuch insurance and bill the cost of the insurance to Tenant.<\/p>\n
15.4 Landlord’s Insurance. Landlord shall maintain all risk property
\ninsurance covering the full replacement cost of the Project. Landlord shall at
\nall times maintain general commercial liability insurance covering the Land,
\nincluding, but not limited to, the Common Areas, against claims for personal
\ninjury and damage to property naming Tenant as an additional insured under the
\npolicy. Landlord may, but is not obligated to, maintain such other insurance and
\nadditional coverages as it may deem necessary, including, but not limited to,
\nworkers’ compensation and rent loss insurance. The amount of any increase in
\npremiums for the insurance carried by Landlord as allowed by this paragraph in
\nexcess of the premiums paid by Landlord for the Base Year shall be included as
\npart of the Operating Expenses charged to Tenant hereunder. The Building may be
\nincluded in a blanket policy (in which case the cost of such insurance allocable
\nto the Project will be determined by Landlord based upon the insurer’s cost
\ncalculations). Tenant shall also reimburse Landlord for any increased premiums
\nor additional insurance which Landlord deems reasonably necessary as a result of
\nTenant’s use of the Premises. In the event that Landlord is required to obtain
\nadditional insurance due the Tenant’s operations on the Premises, Tenant shall
\nbe required to pay all costs of such insurance. Landlord shall deliver to Tenant
\nthe foregoing insurance policies or certificates thereof at or prior to the date
\nthat same are required to be in effect and evidence of all renewals or
\nreplacements of same.<\/p>\n
15.5 Release and Waiver of Subrogation. Notwithstanding anything to the
\ncontrary contained in this Lease, the parties hereto release each other, and
\ntheir respective agents and employees, from any liability for injury to any
\nperson or damage to property to the extent that is covered under any valid and
\ncollectible insurance policy carried by either of the parties which is in force
\nat the time of such injury or damage. Each party shall cause each insurance
\npolicy obtained by it to provide that the insurer waives all right of recovery
\nby way of subrogation against the other party and its agents and employees in
\nconnection with any injury or damage covered by the policy. Each party shall
\nprovide the other party with a certificate of insurance evidencing the
\nrequirements of this section.<\/p>\n
16. Landlord’s Right of Access. Tenant shall permit Landlord and Landlord’s
\nParties, at all reasonable times and at any time in case of emergency: (a) to
\nenter into and upon the Premises to inspect them, to protect the Landlord’s
\ninterest therein, to post notices of non-responsibility; (b) to take all
\nnecessary materials and equipment into the Premises and perform necessary work
\ntherein; and (c) to perform environmental testing. No such work shall cause or
\npermit any rebate of Rent to Tenant. Landlord may at any time place on or about
\nthe Building any ordinary “for sale” and “for lease” signs. Tenant shall also
\npermit Landlord and Landlord’s Parties, upon request and reasonable advance
\nnotice, to enter the Premises or any part thereof, at reasonable times during
\nnormal business hours, to show the Premises to prospective purchasers,
\nmortgagees or lessees.<\/p>\n
17. Assignment and Subletting. Tenant shall have the right to assign this
\nLease, or to sublet all or any portion of the Premises to any party without the
\nprior written consent provided that subsequent to such subletting or assignment
\nTenant remains liable for the payment and performance of Tenant’s obligations
\nunder this Lease and, in the case of any assignment, the assignee assumes
\nTenant’s obligations under this Lease. No transfer or any interest under this
\nlease shall relieve Tenant and any guarantor of this lease of its\/his personal
\nand primary obligation to pay the Rent and to perform all of the other
\nobligations to be performed by Tenant hereunder.<\/p>\n
17.1 Terms of Transfer. If Tenant sublets or assigns any portion of the
\nPremises, the following shall apply:<\/p>\n
(a) Tenant shall pay to Landlord an amount equal to one-half (l\/2) of
\nthe difference, if any, between the rent and other charges due and payable by a
\nsublessee or assignee (or the combination of the rent and other charges due and
\npayable under such sublease or assignment plus any other consideration therefor
\nor incidental thereto) exceeds the Rent payable under this Lease with respect to
\nthe Premises or portion thereof which is assigned or subleased. Such amount owed
\nto Landlord shall be paid to Landlord on the same basis, whether periodic or in
\nlump sum, that such Subrent is paid to Tenant by the assignee.<\/p>\n
12.<\/p>\n
(b) Upon a default by Tenant hereunder, Landlord may collect rent from
\nthe assignee or sublessee and, except to the extent set forth in Section
\n17.1(a), apply the amount collected to the next Rent payable hereunder; and all
\nsuch Rent collected by Tenant shall be held in trust for Landlord and
\nimmediately forwarded to Landlord. No such transaction or collection of rent or
\napplication thereof by Landlord, however, shall be deemed a waiver of these
\nprovisions or a release of Tenant from the further performance by Tenant of its
\ncovenants, duties or obligations herewith.<\/p>\n
18. Default and Remedies.<\/p>\n
18.1 Events of Tenant’s Default. Tenant shall be in default of its
\n obligations under this Lease if any of the following events occurs (an “Event
\n of Tenant’s Default”):<\/p>\n
(a) Tenant shall have failed to pay Base Rent or Additional
\n Rent when due, and such failure is not cured within five (5) days after
\n delivery of written notice from Landlord specifying such failure to pay; or<\/p>\n
(b) Tenant shall have failed to perform any term, covenant, or
\n condition of this Lease except those requiring the payment of Base Rent or
\n Additional Rent, and Tenant shall have failed to cure such breach within thirty
\n (30) days after written notice from Landlord specifying the nature of such
\n breach where such breach could reasonably be cured within said thirty (30) day
\n period, or if such breach could not be reasonably cured within said thirty (30)
\n day period, Tenant shall have failed to commence such cure within said thirty
\n (30) day period and thereafter continue with due diligence to prosecute such
\n cure to completion within such time period as is reasonably needed; or<\/p>\n
(c) Tenant shall have sublet the Premises or assigned its
\n interest in the Lease in violation of the provisions contained in Section 17;
\n or<\/p>\n
(d) The occurrence of the following: (i) the making by Tenant
\n of any general arrangements or assignments for the benefit of creditors; (ii)
\n Tenant becomes a “debtor” as defined in 11 U.S.C. Section 101 or any successor
\n statute thereto (unless, in the case of a petition filed against Tenant, the
\n same is dismissed within 60 days); (iii) the appointment of a trustee or
\n receiver to take possession of substantially all of Tenant’s assets located at
\n the Premises or of Tenant’s interest in this Lease, where possession is not
\n restored to Tenant within sixty (60) days; or (iv) the attachment, execution or
\n other judicial seizure of substantially all of Tenant’s assets located at the
\n Premises or of Tenant’s interest in this Lease, where such seizure is not
\n discharged within sixty (60) days; provided, however, in the event that any
\n provision of this Section 18.1 is contrary to any applicable Law, such
\n provision shall be of no force or effect.<\/p>\n
The notice periods provided for in this Section 18.1 are intended to satisfy
\n any and all notice requirements imposed on Landlord by law and are not in
\n addition to any such requirements.<\/p>\n
18.2 Landlord’s Remedies. If an Event of Tenant’s Default occurs,
\n Landlord shall have the following remedies, in addition to all other rights and
\n remedies provided by any Law or otherwise provided in this Lease, to which
\n Landlord may resort cumulatively or in the alternative:<\/p>\n
(a) Landlord may keep this Lease in effect and enforce its
\n rights and remedies under this Lease. Landlord may enter the Premises and
\n release them to third parties for Tenant’s account for any period, whether
\n shorter or longer than the remaining Term. Tenant shall be liable immediately
\n to Landlord for all reasonable costs Landlord incurs in releasing the Premises,
\n including brokers’ commissions, expenses of altering and preparing the Premises
\n required by the releasing. No act by Landlord allowed by this subparagraph or
\n intended to mitigate the adverse effects of a breach of this Lease by Tenant
\n shall terminate this Lease unless Landlord notifies Tenant in writing that
\n Landlord elects to terminate this Lease. Notwithstanding any releasing without
\n termination, Landlord may later elect to terminate this Lease because of the
\n default by Tenant. Landlord may enforce all its rights and remedies under this
\n Lease, including the right to recover the Rent as it becomes due under the
\n Lease as provided in California Civil Code Section 1951.4.<\/p>\n
(b) Landlord may terminate this Lease by giving Tenant
\n written notice of termination in which event this Lease shall terminate on the
\n date set for termination in such notice. In the event Landlord terminates this
\n Lease, Landlord shall be entitled, at Landlord’s election, to damages in an
\n amount as set forth in California Civil Code Section 1951.2 as in effect on
\n the Effective Date. For purposes of computing damages pursuant to California
\n Civil Code Section 1951.2, an interest rate equal to the Interest Rate shall
\n be used where permitted. Such damages shall include:<\/p>\n
(1) The worth at the time of award of the amount by
\n which the unpaid Rent for the balance of the term after the time of award
\n exceeds the amount of such rental loss that Tenant proves could be reasonably
\n avoided, computed by discounting such amount at the discount rate of the
\n Federal Reserve Bank of San Francisco at the time of award plus one percent
\n (1%); and<\/p>\n
(2) Any other amount reasonably necessary to compensate
\n Landlord for all detriment proximately caused by Tenant’s failure to perform
\n Tenant’s obligations under this Lease, or which in the ordinary course of
\n things would be likely to result therefrom, including the following: (i)
\n reasonable expenses for
\n 13. <\/p>\n
cleaning, repairing or restoring the Premises; (ii) reasonable expenses for
\n altering, remodeling or otherwise improving the Premises for the purpose of
\n reletting, including installation of leasehold improvements (whether such
\n installation be funded by a reduction of rent, direct payment or allowance to a
\n new tenant, or otherwise); (iii) broker’s fees, advertising costs and other
\n expenses of reletting the Premises; (iv) costs of carrying the Premises, such
\n as taxes, insurance premiums, utilities and security precautions; (v) expenses
\n in retaking possession of the Premises; and (vi) reasonable attorneys’ fees and
\n court costs incurred by Landlord in retaking possession of the Premises and in
\n releasing the Premises or otherwise incurred as a result of Tenant’s default.<\/p>\n
(c) Nothing in this Section 18.2 shall limit Landlord’s right
\n to indemnification from Tenant as provided in Sections 8.6.6, 11.5, 14.3, 20.1
\n and 22.16. Any notice given by Landlord in order to satisfy the requirements of
\n this Section 18.2 shall also satisfy the notice requirements of California Code
\n of Civil Procedure Section 1161 regarding unlawful detainer proceedings.<\/p>\n
18.3 Waiver. One party’s consent to or approval of any act by the
\n other party requiring the first party’s consent or approval shall not be deemed
\n to waive or render unnecessary the fast party’s consent to or approval of any
\n subsequent similar act by the other party. The receipt by Landlord of any Rent,
\n payment, interest or late charge with or without knowledge of the breach of any
\n other provision hereof shall not be deemed a waiver of any such breach unless
\n such waiver is in writing and signed by Landlord. No delay or omission in the
\n exercise of any right or remedy accruing to either party upon any breach by the
\n other party under this Lease shall impair such right or remedy or be construed
\n as a waiver of any such breach theretofore or thereafter occurring. The waiver
\n by either party of any breach of any provision of this Lease shall not be
\n deemed to be a waiver of any subsequent breach of the same or of any other
\n provisions herein contained.<\/p>\n
18.4 Limitation on Exercise of Rights. At any time that an Event of
\n Tenant’s Default has occurred and remains uncured, (i) Landlord may deny or
\n withhold any consent or approval requested of it by Tenant which Landlord would
\n otherwise be obligated to give; and (ii) Tenant may not exercise any option to
\n extend, right to terminate this Lease, or other right granted to it by this
\n Lease which would otherwise be available to it.<\/p>\n
18.5 Remedies Cumulative. All rights, privileges and remedies of the
\n parties are cumulative and not alternative or exclusive to the extent permitted
\n by law except as otherwise provided herein.<\/p>\n
19. TENANT’S REMEDIES.<\/p>\n
19.1 Landlord’s Default. Landlord shall not be in default under this
\n Lease unless Landlord fails to perform obligations required of Landlord within
\n thirty (30) days after written notice is delivered by Tenant to Landlord,
\n specifying the obligation which Landlord has failed to perform; provided,
\n however, that if the nature of Landlord’s obligation is such that more than
\n thirty (30) days are required for performance, then Landlord shall not be in
\n default if Landlord commences performance within such thirty (30) day period
\n and thereafter diligently prosecutes the same to completion.<\/p>\n
19.2 Tenant’s Remedies. In the event of any default by Landlord,
\n Tenant shall be entitled at its election to bring suit for the collection or
\n any amounts for which Landlord may be in default, or for the performance of any
\n other covenant or agreement devolving upon Landlord in addition to all remedies
\n otherwise provided in this Lease or otherwise available in law or equity.<\/p>\n
20. SURRENDER AND HOLDING OVER.<\/p>\n
20.1 Surrender of the Premises. Upon the expiration or sooner
\n termination of this Lease, Tenant shall vacate and surrender the Premises to
\n Landlord in the same condition as existed at the Commencement Date, except for
\n (i) reasonable wear and tear, and (ii) damage caused by any peril or
\n condemnation. In any event, Tenant shall cause the following to be done prior
\n to the expiration or the sooner termination of this Lease: (a) all interior
\n walls shall be painted or cleaned so that they appear freshly painted; (b) all
\n tiled floors shall be cleaned and waxed; (c) all carpets shall be cleaned and
\n shampooed; (d) all broken, marred, stained or nonconforming acoustical ceiling
\n tiles shall be replaced; (e) all windows shall be washed; (f) the HVAC system
\n shall be serviced by a reputable and licensed service firm and left in good
\n operating condition and repair (normal wear and tear excepted) as so certified
\n by such firm; and (g) the plumbing and electrical systems and lighting shall be
\n placed in good order and repair (including replacement of any burned out,
\n discolored or broken light bulbs, ballasts, or lenses). If Landlord so
\n requests, Tenant shall, prior to the expiration or sooner termination of this
\n Lease, (1) remove any Tenant’s Alterations which Tenant is required to remove
\n pursuant to Section 11 and repair all damage caused by such removal; and (2)
\n return the Premises or any part thereof to its original configuration existing
\n as of the time the Premises were delivered to Tenant. If the Premises are not
\n so surrendered at the termination of this Lease, Tenant shall be liable to
\n Landlord for all reasonable costs incurred by Landlord in returning the
\n Premises to the required condition, plus interest on all costs incurred at the
\n Interest Rate. Tenant shall indemnify, defend by counsel satisfactory to
\n Landlord, protect and hold Landlord harmless against loss or liability
\n resulting from delay by Tenant in so surrendering the Premises, including,
\n without limitation, any claims made by any succeeding tenant or losses to
\n Landlord due to lost opportunities to lease to succeeding tenants.<\/p>\n
20.2 Holding Over. This Lease shall terminate without further notice
\n at the expiration of the Term. Any holding over by Tenant after expiration of
\n the Term shall not constitute a renewal or extension of the Lease or leave
\n Tenant any rights in or to the Premises except as expressly provided in this
\n Lease. Any holding over after <\/p>\n
14.<\/p>\n
such expiration with the written consent of Landlord shall be construed to be a
\ntenancy from month to month on the same terms and conditions herein specified
\ninsofar as applicable except that Base Rent shall be increased to an amount
\nequal to 125% of the Base Rent payable during the last full calendar month of
\nthe Term.<\/p>\n
21. MORTGAGES.<\/p>\n
21.1 Subordination. The following provisions shall govern the
\nrelationship of this Lease to any underlying lease, mortgage or deed of trust
\nwhich now or hereafter affects the Project, and any renewal, modification,
\nconsolidation, replacement or extension thereof (collectively, a “Security
\n ——–
\ninstrument”).
\n———–<\/p>\n
(a) The Lease is subject and subordinate to all Security
\nInstruments existing as of the Effective Date; on the condition, however, that
\nprior to the Commencement Date the holder of any present Security Interest shall
\nenter into a subordination, non-disturbance and attornment agreement (“SNDA”)
\nwith Tenant providing that so long as there is not an Event of Tenant’s Default
\nunder the Lease, in the event of foreclosure or other action or exercise of
\nrights taken under such Security Instrument, this Lease and all of the rights of
\nTenant hereunder shall not be disturbed, but shall continue in full force and
\neffect. However, if any Lender so requires, this Lease shall become prior and
\nsuperior to any such Security Instrument.<\/p>\n
(b) At Landlord’s election, this Lease shall become subject
\nand subordinate to any Security Instrument created after the Effective Date.
\nNotwithstanding such subordination, this Lease and all of the rights of Tenant
\nhereunder shall not be disturbed but shall continue in full force and effect so
\nlong and Event of Tenant’s Default has not occurred. Subject to the foregoing
\nsentence, Tenant shall upon request execute any document or instrument
\nreasonably required by any Lender to make this Lease either prior or subordinate
\nto a Security Instrument, which may include such other matters as the Lender
\ncustomarily and reasonably requires in connection with such agreements,
\nincluding provisions that the Lender not be liable for (i) the return of any
\nsecurity deposit unless the Lender receives it from Landlord, and (ii) any
\ndefaults on the part of Landlord occurring prior to the time the Lender takes
\npossession of the Project in connection with the enforcement of its Security
\nInstrument, provided, however, that in any SNDA such Lender shall agree not to
\ndisturb Tenant’s rights under this Lease so long as an Event of Tenant’s Default
\nhas not occurred hereunder.-<\/p>\n
21.2 Mortgagee Protection and Attornment. In the event of any default
\non the part of the Landlord, Tenant will use reasonable efforts to give notice
\nby registered mail to any Lender whose name has been provided to Tenant and
\nprovide such Lender with a reasonable opportunity to cure such default;
\nprovided, however, any cure period afforded Lender pursuant to this paragraph
\nshall in no way operate to the benefit of Landlord. Tenant shall attorn to any
\npurchaser of the Premises at any foreclosure sale or private sale conducted
\npursuant to any Security Instrument encumbering the Premises, or to any grantee
\nor transferee designated in any deed given in lieu of foreclosure, provided
\nTenant’s rights under the Lease are not disturbed and continue in full force and
\neffect so long as an Event of Tenant’s Default has not occurred.<\/p>\n
21.3 Estoppel Certificates and Financial Statements. Each party
\nagrees, within fifteen (15) days following request by the other party, to
\nexecute and deliver an estoppel certificate: (i) certifying that this Lease is
\nunmodified and in full force and effect or, if modified, stating the nature of
\nsuch modification and certifying that this Lease, as so modified, is in full
\nforce and effect; (ii) stating the date to which the Rent and other charges are
\npaid in advance, if any, (iii) acknowledging that there are not, to the
\ncertifying party’s knowledge, any uncured defaults on the part of any party
\nhereunder or, if there are uncured defaults, specifying the nature of such
\ndefaults; and (iv) certifying such other information about the Lease as may be
\nreasonably required by the requesting party. At any time during the Term Tenant
\nshall, upon fifteen (15) days’ prior written notice from Landlord, provide
\nTenant’s most recent annual report to any existing Lender or to any potential
\nLender or buyer of the Premises. In the event Tenant fails to deliver an
\nestoppel certificate within fifteen (15) days after a request therefor, Landlord
\nshall immediately notify Tenant of such failure. Tenant shall have five (5) days
\nfrom such notification to provide Landlord with the estoppel certificate. A
\nfailure to deliver an estoppel certificate within five (5) days after Landlord’s
\nrequest shall be a conclusive admission that, as of the date of the request for
\nsuch statement: (a) this Lease is unmodified except as may be represented by the
\nrequesting party in raid request and is in full force and effect, (b) there are
\nno uncured defaults in the requesting party’s performance, and (c) no rent has
\nbeen paid more than thirty (30) days in advance.<\/p>\n
22. GENERAL PROVISIONS.<\/p>\n
22.1 Construction of Meaning. Words in the singular number shall be
\nheld to include the plural, unless the context otherwise requires. The language
\nin all parts of this Lease shall in all cases be construed as a whole according
\nto its fair meaning, and not strictly for or against either Landlord or Tenant.<\/p>\n
22.2 Interest on Past-Due Obligations. Except as expressly herein
\nprovided, any amount due to any party not paid when due shall bear interest at a
\nrate (the “Interest Rate”) equal to the lesser of (i) five percent (5%) in
\nexcess of the discount rate established by the Federal Reserve Bank of San
\nFrancisco as it may be adjusted from time to time; or (ii) fifteen percent (15%)
\nper annum.<\/p>\n
22.3 Time of Essence. Time is of the essence with respect to all of the
\nterms and conditions of this Lease.<\/p>\n
15.<\/p>\n
22.4 Binding Effect. The terms, provisions and covenants and
\nconditions contained in this Lease shall apply to, inure to the benefit of, and
\nbe binding upon, the parties hereto and upon their respective heirs, legal
\nrepresentatives, successors and permitted assigns, except as otherwise herein
\nexpressly provided.<\/p>\n
22.5 Choice of Law. This Lease shall be governed by the laws of the
\nState of California.<\/p>\n
22.6 Captions. The captions inserted in this Lease are for convenience
\n only and in no way define, limit or otherwise describe the scope or intent of
\n this Lease, or any provision hereof, or in anyway affect the interpretation of
\n this Lease.<\/p>\n
22.7 Amendments. This Lease may not be altered, changed or amended
\n except by an instrument in writing signed and dated by both parties hereto.<\/p>\n
22.8 Fees and Expenses. If either Landlord or Tenant commences or
\n engages in, or threatens to commence or engage in an action by or against the
\n other party arising out of or in connection with this Lease or the Premises,
\n the prevailing party shall be entitled to have and recover from the losing
\n party reasonable attorneys’ fees and other costs incurred in connection with
\n the action, preparation for such action, any appeals relating thereto and
\n enforcing any judgments rendered in connection therewith. If Landlord becomes
\n involved in any action, threatened or actual, by or against anyone not a party
\n to this Lease, but arising by reason of or related to any act or omission of
\n Tenant or Tenant’s Parties, Tenant agrees to pay Landlord’s reasonable
\n attorneys’ fees and other costs incurred in connection with the action,
\n preparation for such action, any appeals relating thereto and enforcing any
\n judgments rendered in connection therewith.<\/p>\n
22.9 Severability. If any clause or provision of this Lease is
\n illegal, invalid or unenforceable under present or future laws effective during
\n the Term of this Lease, then and in that event, the remainder of this Lease
\n shall not be affected thereby, and in lieu of each clause or provision of this
\n Lease that is illegal, invalid or unenforceable, there be added as a part of
\n this Lease a clause or provision as similar in terms to such illegal, invalid
\n or unenforceable clause or provision as may be possible and be legal, valid and
\n enforceable.<\/p>\n
22.10 Security Measures. Tenant hereby acknowledges that the Rent
\n payable to Landlord hereunder does not include the cost of guard service or
\n other security measures, and that Landlord shall have no obligation whatsoever
\n to provide same. Tenant assumes all responsibility for the protection of
\n Tenant, Tenants’ Parties and their property from acts of third parties.<\/p>\n
22.11 Easements. Landlord reserves to itself the right, from time to
\n time, to grant and\/or record such easements, rights, Private Restrictions, maps
\n and dedications that Landlord deems necessary or desirable, which do not
\n unreasonably interfere with the Permitted Uses of the Premises by Tenant.
\n Tenant shall sign any of the aforementioned documents (provided they do not
\n unreasonably interfere with the Permitted Uses of the Premises by Tenant) upon
\n request of Landlord and failure to do so shall constitute a material breach of
\n this Lease.<\/p>\n
22.12 Performance Under Protest. If at any time a dispute shall arise
\n as to any amount or sum of money to be paid by one party to the other under the
\n provisions hereof, the party against whom the obligation to pay the money is
\n asserted shall have the right to make payment under protest and such payment
\n shall not be regarded as a voluntary payment, and there shall survive the right
\n on the part of said party to institute suit for recovery of such sum.<\/p>\n
22.13 Effective Date\/Nonbinding Offer. Submission of this Lease for
\n examination or signature by Tenant does not constitute an offer or option for
\n lease, and it is not effective as a lease or otherwise until executed and
\n delivered by both Landlord and Tenant.<\/p>\n
22.14 Notices. Any notice required or desired to be given regarding
\n this Lease shall be in writing and may be given by personal delivery, by
\n facsimile telecopy, by courier service, or by mail. A notice shall be deemed
\n to have been given (i) on the third business day after mailing if such notice
\n was deposited in the United States mail, certified or registered, postage
\n prepaid, addressed to the party to be served at its Address for Notices
\n specified in Items 3 and 5 of the Basic Provisions (as applicable); (ii) when
\n delivered if given by personal delivery; and (iii) in all other cases when
\n actually received at the party’s Address for Notices. Either party may change
\n its address by giving notice of the same in accordance with this Section
\n 22.14.<\/p>\n
22.15 Corporate Authority. If Tenant is a corporation (or partnership),
\n Tenant represents and warrants that those persons executing this Lease upon
\n behalf of Tenant are duly authorized to do so in accordance with the by-laws
\n of such corporation (or partnership in accordance with the partnership
\n agreement of such partnership) and that this Lease is binding upon such
\n corporation (or partnership) in accordance with its terms.<\/p>\n
22.16 Brokerage Commissions. Each party hereto (i) represents and
\n warrants to the other that it has not had any dealings with any real estate
\n brokers, leasing agents or salesmen, or incurred any obligations for the
\n payment of real estate brokerage commissions or finder’s fees which would be
\n earned or due and payable by reason of the execution of this Lease, other than
\n to the Broker described in Item 14 of the Basic Provisions; and (ii) agrees to
\n indemnify, defend, and hold harmless the other party from any claim for any
\n such commission or fees which result from the actions of the indemnifying
\n party.<\/p>\n
16.<\/p>\n
22.17 Entire Agreement. This Lease constitutes the entire agreement
\nbetween the parties, and there are no binding agreements or representations
\nbetween the parties except as expressed herein. Tenant acknowledges that neither
\nLandlord nor Landlord’s Agents has made any legally binding representation or
\nwarranty as to any matter except those expressly set forth herein, including
\nany warranty as to (i) whether the Premises may be used for Tenant’s intended
\nuse under existing Law; (ii) the suitability of the Premises or the Project for
\nthe conduct of Tenant’s business; or (iii) the condition of any improvements.
\nThere are no oral agreements between Landlord and Tenant affecting this Lease,
\nand this Lease supersedes and cancels any and all previous negotiations,
\narrangements, brochures, agreements and understandings, if any, between Landlord
\nand Tenant or displayed by Landlord to Tenant with respect to the subject matter
\nof this Lease.<\/p>\n
22.18 Joint and Several Liability. If more than one person or entity is
\n named as tenant, the obligations imposed upon each shall be joint and several
\n and the act of or notice from, or notice or refund to, or the signature of, any
\n one or more of them shall be binding on all of them with respect to the tenancy
\n of this Lease, including, but not limited to, any renewal, extension,
\n termination or modification of this Lease.<\/p>\n
22.19 Quiet Enjoyment. Upon the observance and performance of all the
\n covenants, terms and conditions on Tenant’s part to be observed and performed
\n within any applicable grace or notice and cure periods, and subject to the
\n other provisions of this Lease, Tenant shall peaceably and quietly hold and
\n enjoy the Premises for the Term without hindrance or interruption by Landlord
\n or any other person claiming by or through Landlord.<\/p>\n
22.20 Survival. All covenants of Landlord or Tenant which reasonably
\n would be intended to survive the expiration or sooner termination of this
\n Lease, including without limitation any warranty or indemnity hereunder, shall
\n so survive and continue to be binding upon and inure to the benefit of the
\n respective parties and their successors and assigns.<\/p>\n
22.21 Recording. Tenant shall not record this Lease without the prior
\n written consent of Landlord. Tenant, upon the request of Landlord, shall
\n execute and acknowledge a “short form” memorandum of this Lease for recording
\n purposes.<\/p>\n
22.22 Counterparts. This Lease may be executed in one or more
\n counterparts, each of which shall constitute an original and all of which shall
\n be one and the same agreement.<\/p>\n
22.23 Merger. The voluntary or other surrender of this Lease by Tenant
\n or a mutual cancellation hereof shall not constitute a merger. Such event shall
\n at the option of Landlord, either terminate all or any existing subtenancies or
\n operate as an assignment to Landlord of any or all of such subtenancies.<\/p>\n
22.24 No Third Party Beneficiaries. This Lease is not intended by
\n either party to confer any benefit on any third party, including without
\n limitations any broker, finder, or brokerage firm.<\/p>\n
22.25 Force Majeure. Any prevention, delay or stoppage due to strikes,
\n lock-outs, inclement weather, labor disputes, inability to obtain labor,
\n materials, fuels or reasonable substitutes therefor, governmental restrictions,
\n regulations, controls, action or inaction, civil commotion, fire or other acts
\n of God, and other causes beyond the reasonable control of the party obligated
\n to perform (except financial inability) shall excuse the performance, for a
\n period equal to the period of any said prevention, delay or stoppage, or any
\n obligation hereunder except the obligation of Tenant to pay rent or any other
\n sums due hereunder.<\/p>\n
22.26 Confidentiality. This Lease document, the terms of this Lease,
\n and the covenants, obligations, and conditions contained in this Lease shall
\n remain strictly confidential. Tenant agrees to keep such terms, covenants,
\n obligations and conditions strictly confidential and not to disclose such
\n matters to any other landlord, tenant, prospective tenant, or broker; provided,
\n however, Tenant may provide a copy of this Lease to a non-party solely in
\n conjunction with Tenant’s reasonable and good faith effort to secure an
\n assignee or sublessee for the Premises.<\/p>\n
22.27 Additional Provisions. Those additional provisions set forth in
\n Exhibit H, if any, are hereby incorporated by this reference as if fully set
\n ———
\n forth herein.<\/p>\n
22.28 Covenants and Warranties. Landlord covenants and warrants that
\n Landlord has good right and full power to let and lease the Premises and to
\n enter into the agreements contained herein. Landlord agrees that, if and a
\n long as Tenant is not in default after the applicable grace periods after
\n notice under the terms hereof, Tenant shall quietly and peaceably hold,
\n possess and enjoy the Premises for the full term of this Lease without any
\n hindrance or molestation by Landlord or its agents or employees, and Landlord
\n shall defend the use and occupancy of the same by Tenant against the lawful
\n claims of all persons whomsoever, except with respect to such matters of title
\n as affect the Premises as of the date hereof. Landlord covenants, warrants and
\n represents that all matters of title affecting the Premises, either
\n individually or in the aggregate, do not and shall not materially interfere
\n with Tenant’s use of the Premises contemplated hereunder.<\/p>\n
22.29 Representations and Warranties. Landlord makes the following
\n representations, warranties and covenants to Tenant:<\/p>\n
17.<\/p>\n
EXHIBIT H
\n ———<\/p>\n
ENVIRONMENTAL QUESTIONNAIRE AND DISCLOSURE STATEMENT
\n —————————————————-<\/p>\n
The purpose of this form is to obtain information regarding the use
\nof hazardous substances on the premises. Prospective tenants should answer the
\nquestions in light of their proposed operations on the premises. Existing
\ntenants should answer the questions as they relate to on-going operations on the
\npremises and should update any information previously submitted. If additional
\nspace is needed to answer the questions, you may attach separate sheets of paper
\nto this form.<\/p>\n
Your cooperation in this matter is appreciated. Any questions should
\nbe directed to, and when completed, the form should be mailed to:<\/p>\n
LATHROP INDUSTRIAL DEVELOPMENT LLC
\n c\/o Keamy Ventures LLC
\n 129 Edelan Avenue
\n Los Gatos, CA 95030
\n Attention: Timothy J. Murphy, Manager<\/p>\n
3<\/p>\n
1. GENERAL INFORMATION<\/p>\n
Name of Responding Company: Mohawk Industries, Inc.
\n ————————————-
\n (Lathrop, CA Whse) <\/p>\n
Check the Applicable Status:<\/p>\n
Prospective Tenant X Existing Tenant<\/p>\n
Mailing Address: 160 South Industrial Blvd.
\n ————————————————
\n Calhoun, GA. 30703
\n ————————————————<\/p>\n
Contact Person and Title: Denise Wood – Environmental Coordinator
\n —————————————<\/p>\n
Telephone Number: (706) 270-6601 EXT. 27
\n —– —————————————–<\/p>\n
Address of Leased Premises: _____________________________________<\/p>\n
Length of Lease Term: ___________________________________________<\/p>\n
Describe the proposed operations to take place on the property,
\n including principal products manufactured or services to be
\n conducted. Existing tenants should describe any proposed changes
\n to on-going operations.<\/p>\n
Storage and distribution of Carpets, Rugs, wood flooring, and
\n —————————————————————–
\n tile.
\n —————————————————————–<\/p>\n
2. STORAGE OF HAZARDOUS MATERIALS<\/p>\n
2.1 Will any hazardous materials be used or stored on-site?<\/p>\n
Wastes Yes (No)
\n Chemical Products Yes (No)<\/p>\n
2.2 Attach the list of any hazardous materials to be used or
\n stored, the quantities that will be on-site at any given time,
\n and the location and method of storage (e.g., 55 gallon drums
\n on concrete pad).<\/p>\n
3. STORAGE TANKS & PUMPS<\/p>\n
3.1 Is any above or below ground storage of gasoline, diesel, or
\n other hazardous substances in tanks or pumps proposed or
\n currently conducted on the premises?<\/p>\n
Yes (No)<\/p>\n
If yes, describe the materials to be stored, and the type,
\n size and construction of the pump or tank. Attach copies of
\n any permits obtained for the storage of such substances.<\/p>\n
____________________________________________________________<\/p>\n
____________________________________________________________<\/p>\n
3.2 Have any of the tanks or pumps been inspected or tested for
\n leakage? N\/A<\/p>\n
Yes No
\n If so, attach the result.<\/p>\n
3.3 Have any spills or leaks occurred from such tanks or pumps?<\/p>\n
Yes (No)<\/p>\n
If so, describe.<\/p>\n
_________________________________________________________________<\/p>\n
_________________________________________________________________<\/p>\n
3.4 Were any regulatory agencies notified of the spill or leak? N\/A<\/p>\n
Yes (No)<\/p>\n
If so, attach copies of any spill reports filed, any clearance
\n letters or other correspondence from regulatory agencies relating
\n to the spill or leak.<\/p>\n
3.5 Have any underground storage tanks or pumps been taken out of
\n service or removed?<\/p>\n
Yes (No)<\/p>\n
If yes, attach copies of any closure permits and clearance
\n obtained from regulatory agencies relating to closure and removal
\n of such tanks.<\/p>\n
4. SPILLS<\/p>\n
4.1 During the past year, have any spills occurred on the premises?<\/p>\n
Yes (No)<\/p>\n
If so, please describe the spill and attach the results of any
\n testing conducted to determine the extent of such spills.<\/p>\n
_________________________________________________________________<\/p>\n
_________________________________________________________________<\/p>\n
4.2 Were any agencies notified in connection with such spills? N\/A<\/p>\n
Yes No<\/p>\n
If so, attach copies of any spill reports or other correspondence
\n with regulatory agencies.<\/p>\n
4.3 Were any clean up actions undertaken in connection with the
\n spills? N\/A<\/p>\n
Yes No<\/p>\n
If so, briefly describe the actions taken. Attach copies of any
\n clearance letters obtained from any regulatory agencies involved
\n and the results of any final soil or groundwater sampling done
\n upon completion of the clean-up work.<\/p>\n
_________________________________________________________________<\/p>\n
_________________________________________________________________<\/p>\n
5. WASTE MANAGEMENT<\/p>\n
5.1 Has your company been issued an SPA Hazardous Waste Generator
\n I.D. Number?<\/p>\n
2<\/p>\n
Yes N\/A<\/p>\n
5.2 Has your company filed a biennial report as a hazardous waste
\n generator?<\/p>\n
Yes N\/A<\/p>\n
If so, attach a copy of the most recent report filed.<\/p>\n
5.3 Attach the list of the hazardous waste, if any, generated or to be
\n generated at the premises, its hazard class and the quantity
\n generated on a monthly basis.<\/p>\n
5.4 Describe the method(s) of disposal for each waste. Indicate where and
\n how often disposal will take place.<\/p>\n
N\/A
\n ———————————————————————-<\/p>\n
———————————————————————-<\/p>\n
———————————————————————-<\/p>\n
5.5 Indicate the name of the person(s) responsible for maintaining
\n copies of hazardous waste manifests completed for off-site shipments
\n of hazardous waste.<\/p>\n
N\/A
\n ———————————————————————-<\/p>\n
———————————————————————-<\/p>\n
5.6 Is any treatment or processing of hazardous wastes currently conducted
\n or proposed to be conducted at the premises:<\/p>\n
Yes (No)<\/p>\n
If yes, please describe any existing or proposed treatment methods.<\/p>\n
———————————————————————-<\/p>\n
———————————————————————-<\/p>\n
———————————————————————-<\/p>\n
5.7 Attach copies of any hazardous waste permits or licenses issued to
\n your company with respect to its operations on the premises. N\/A<\/p>\n
6. WASTEWATER TREATMENT\/DISCHARGE<\/p>\n
6.1 Do you discharge wastewater to:<\/p>\n
_______ storm drain? _______ sewer?
\n _______ surface water? x no industrial discharge Sanitary only
\n ——- <\/p>\n
6.2 Is your wastewater treated before discharge?<\/p>\n
Yes (No) Sanitary only<\/p>\n
If yes, describe the type of treatment conducted.<\/p>\n
3<\/p>\n
————————————————–<\/p>\n
————————————————–<\/p>\n
63 Attach copies of any wastewater discharge permits
\n issued to your company with respect to its
\n operations on the premises. N\/A <\/p>\n
7 AIR DISCHARGES<\/p>\n
7.1 Do you have any air filtration systems or stacks
\n that discharge into the air?<\/p>\n
Yes (No)<\/p>\n
7.2 Do you operate any of the following types of
\n equipment, or any other equipment requiring an air
\n emissions permit?<\/p>\n
________________ Spray booth
\n ________________ Dip tank
\n ________________ Drying oven
\n ________________ Incinerator
\n ________________ Other (please describe)
\n X
\n —————- No Equipment Requiring Air Permits<\/p>\n
7.3 Are air emissions from your operations monitored?<\/p>\n
Yes N\/A<\/p>\n
If so, indicate the frequency of monitoring and a
\n description of the monitoring results.<\/p>\n
—————————————————<\/p>\n
—————————————————<\/p>\n
7.4 Attach copies of any air emissions permits
\n pertaining to your operations on the premises. N\/A<\/p>\n
8. HAZARDOUS MATERIALS DISCLOSURES<\/p>\n
8.1 Does your company handle hazardous materials in a
\n quantity equal to or exceeding an aggregate of 500
\n pounds, 55 gallons, or 200 cubic feet?<\/p>\n
Yes (No)<\/p>\n
8.2 Has your company prepared a hazardous materials
\n management plan (“business plan”) pursuant to
\n Orange County Fire Department requirements? N\/A<\/p>\n
Yes (No)<\/p>\n
If so, attach a copy of the business plan.<\/p>\n
8.3 Are any of the chemicals used in your operations
\n regulated under Proposition 65?<\/p>\n
Yes (No)<\/p>\n
If so, describe the actions taken, or proposed
\n actions to be taken, to comply with Proposition 65
\n requirements.<\/p>\n
MOHAWK INDUSTRIES CHEMICAL INVENTORY LIST<\/p>\n
——————————————————————————–
\n SACRAMENTO
\n——————————————————————————–<\/p>\n
——————————————————————————–
\n Product R Codes Equipment
\n——————————————————————————–
\n Ajax 0 N NONE
\n——————————————————————————–
\n Citra-Cide 0 N NONE
\n——————————————————————————–
\n Clorox Bleach Toilet Bowl Cleaner 0 N NONE
\n——————————————————————————–
\n Formula 409 0 N NONE
\n——————————————————————————–
\n Fresh & Clean Restroom Cleaner 0 N NONE
\n——————————————————————————–
\n Lead-Acid Battery 2 D NONE
\n——————————————————————————–
\n Pine-Sol 0 N [PICTURE APPEARS HERE]
\n——————————————————————————–
\n Simple Green 0 N NONE
\n——————————————————————————–
\n Urethane Cushioning – Bonded 0 N NONE
\n——————————————————————————–
\n Windex 0 N NONE
\n——————————————————————————–<\/p>\n
____________________________________________________
\n *See attached chemical inventory list for Sacramento
\n —————————————————- <\/p>\n
*8.4 Describe the procedures followed to comply with OSHA
\n Hazard Communication Standard requirements. <\/p>\n
Employees are trained on HAZCOM. All cleaning and
\n —————————————————-
\n maintenance chemicals are labeled and MSOSs are
\n —————————————————-
\n maintained on site.
\n ——————<\/p>\n
9. ENFORCEMENT ACTIONS, COMPLAINTS <\/p>\n
9.1 Has your company ever been subject to any agency
\n enforcement actions, administrative orders, or
\n consent decrees? <\/p>\n
Yes (No) <\/p>\n
If so, describe the actions and any continuing
\n compliance obligations imposed as a result of these
\n actions. <\/p>\n
____________________________________________________ <\/p>\n
____________________________________________________ <\/p>\n
9.2 Has your company ever received requests for
\n information, notice or demand letters, or any other
\n inquiries regarding its operations? <\/p>\n
Yes (No)<\/p>\n
9.3 Have there ever been, or are there now pending, any
\n lawsuits against the company regarding any
\n environmental or health and safety concerns? <\/p>\n
Yes (No) <\/p>\n
9.4 Has an environmental audit ever been conducted at
\n your company’s current facility? <\/p>\n
Yes (No) <\/p>\n
If so, discuss the results of the audit
\n ____________________________________________________ <\/p>\n
____________________________________________________ <\/p>\n
9.5 Have there been any problems or complaints from
\n neighbors at the company’s current facility? <\/p>\n
Yes (No) <\/p>\n
Please describe: <\/p>\n
____________________________________________________ <\/p>\n
____________________________________________________ <\/p>\n
By: \/s\/ Denise A. Wood
\n ————————-
\n Denise A. Wood, CHMM<\/p>\n
Title: Environmental Coordinator –
\n ————————-
\n Mohawk Industries, Inc.
\n 11-13-00<\/p>\n
EXHIBIT A
\n ———<\/p>\n
Project
\n ——-<\/p>\n
[PARTIAL SITE PLAN]<\/p>\n
[REFERENCE SITE PLAN]<\/p>\n
EXHIBIT B
\n ———<\/p>\n
SITE PLAN OF PREMISES
\n ——————–<\/p>\n
[COMPOSITE FLOOR PLAN]<\/p>\n
A. General Requirements
\n ——————–<\/p>\n
1. All signage must conform to the applicable permit, zoning and other
\n requirements of the City of Lathrop.<\/p>\n
2. The entire cost of Tenant’s signage, including, without limitation,
\n permit costs, design fabrication and installation, shall be at
\n Tenant’s sole expense.<\/p>\n
3. Tenant shall be responsible for the fulfillment of all requirements of
\n these criteria.<\/p>\n
B. General Specifications
\n ———————-<\/p>\n
1. No flashing, flickering, blinking, animated or audible signs or lights
\n will be permitted. Internally illuminated signs are acceptable.
\n Approval must be obtained from Landlord for all design and
\n installation details.<\/p>\n
2. If the sign is illuminated, the light source for the illumination
\n shall be concealed from view, and the light source shall not travel
\n from such light source straight into the viewer’s eye. Instead it
\n shall be visible only from a reflecting or diffusing surface. No part
\n of the sign’s light shall revolve, rotate, move or create the illusion
\n of same.<\/p>\n
3. Tenant’s placement of the sign will be as approved by Landlord, and
\n installation shall be by the contractor approved by Landlord for the
\n exclusive sign contractor to work on the Project.<\/p>\n
4. Upon removal of the Tenant signage, any damage to the Building must be
\n repaired at the sole cost of the Tenant.<\/p>\n
5. Tenants may place white vinyl lettering, with letter size not
\n exceeding five (5) inches on the window area or entry doors to the
\n Premises. Such lettering is limited to the identification of the
\n Tenant and for the Premises’ address only. All window lettering shall
\n be submitted to and approved in writing by Landlord.<\/p>\n
6. Due to the infinite number of building sizes and configurations, each
\n sign submission will be judged on its own merit at the sole discretion
\n of Landlord. The decision of Landlord is final, and shall not be
\n subject to review or challenge. Approval of one sign or signage
\n program should not be construed to convey approval for any other
\n signs, designs or installations.<\/p>\n
Except as provided herein, no advertising placards, banners, pennants,
\n names, insignia, trademarks or other descriptive material shall be affixed
\n or maintained upon the glass panes or exterior walls of the Building.<\/p>\n
1<\/p>\n
EXHIBIT C
\n ———<\/p>\n
WORK LETTER
\n ———–<\/p>\n
1. Definitions.
\n ———–<\/p>\n
(a) The term “Tenant Improvements” shall mean those improvements that
\n ——————-
\nLandlord is obligated to construct in the Premises pursuant to plans and
\nspecifications developed therefor in accordance with Paragraph 2(a) below and
\nshall not include those items which Landlord is required to construct at
\nLandlord’s sole cost as part of the Building Shell, as that term is defined in
\nExhibit 1 attached to this Work Letter and made a part hereof.<\/p>\n
(b) The term “Tenant Improvement Costs” shall include but not be limited
\n ————————
\nto all sums (1) paid to contractors for labor and materials furnished in
\nconnection with construction of the Tenant Improvements pursuant to Paragraph 2
\nbelow; (2) all costs, expenses, payments, fees, and charges whatsoever paid or
\nincurred by Landlord to or at the direction of any city, county, or other
\ngovernmental authority or agency which are required to be paid by Landlord in
\norder to obtain all necessary governmental permits, licenses, inspections and
\napprovals relating to the construction of the Tenant Improvements and the use
\nand occupancy of the Premises, including without limitation all in lieu fees and
\nutility fees; (3) engineering and architectural fees for services required in
\nconnection with the design and construction of the Tenant Improvements; and (4)
\npremiums, if any, for course of construction insurance and for payment and
\ncompletion bonds relating only to construction of the Tenant Improvements.<\/p>\n
2. Procedure and Time Schedules.
\n —————————-<\/p>\n
(a) Approval of Plans. Within ten (10) days after execution of this Lease
\nby both parties hereto, Landlord shall prepare and submit to Tenant for Tenant’s
\napproval preliminary plans, specifications and working drawings for the Tenant
\nImprovements which Tenant desires Landlord to construct on the Premises, and
\nTenant’s approval shall not be unreasonably withheld. At such time as Tenant has
\napproved the preliminary plans, specifications and working drawings, Landlord
\nshall proceed with the preparation of the final plans, specifications and
\nworking drawings and shall deliver the same to Tenant for Tenant’s approval,
\nwhich shall not be unreasonably withheld, and which shall be based solely upon
\nwhether such final plans are consistent with the preliminary plans. Landlord
\nshall concurrently deliver to Tenant the final plans, specifications and working
\ndrawings for the Building Shell to Tenant for its review (but not approval). If
\nLandlord and Tenant agree on such plans, they shall indicate their approval
\nthereof by initialing and dating the same and shall become a part hereof.
\nLandlord shall submit such final plans, specifications and working drawings to
\nall appropriate governmental agencies for approval. Landlord shall notify Tenant
\nof any changes required by any governmental agencies, and Tenant shall have
\nseven (7) days thereafter to indicate its approval thereof. All such changes
\nrequired by governmental agencies shall be deemed acceptable to Tenant unless
\nTenant’s use of the Premises is materially impaired thereby. The final plans,
\nspecifications and working drawings as approved, and all change orders
\nspecifically permitted pursuant to Subparagraph (c) below, shall be referred to
\nherein as the “Approved Plans.” Following governmental approval of the Approved
\n ————–
\nPlans, Landlord shall promptly deliver to Tenant a copy of the Approved Plans.
\nNotwithstanding anything to the contrary contained herein or in the Lease, in
\nthe event the parties, despite their good faith efforts, are unable to agree
\nupon Approved Plans within thirty (30) days of the date of this Lease, then
\neither party may terminate this Lease by written notice to the other, at which
\npoint the parties shall have no further rights or obligations under the Lease
\nother than pursuant to those provisions which expressly survive termination
\nthereof.<\/p>\n
(b) Contractors. The Tenant Improvements shall be constructed by
\n ———–
\nLandlord’s general contractor, Hollander-Smith. All parties shall use their good
\nfaith efforts to complete the preparation and approval of the Approved Plans so
\nthat construction contracts may be executed to ensure prompt completion of the
\nTenant Improvements.<\/p>\n
(c) Changes To Approved Plans for Tenant Improvements. Once the
\n ————————————————-<\/p>\n
3.<\/p>\n
Approved Plans have been approved by Landlord and Tenant as provided above, then
\nthereafter neither party shall have the right to order extra work or change
\norders with respect to the construction of the Tenant Improvements without the
\nprior written consent of the other, which consent shall not be unreasonably
\nwithheld or delayed. All extra work or change orders requested by either
\nLandlord or Tenant shall be made in writing, shall specify the amount of delay
\nor the time saved resulting therefrom, shall specify any added or reduced cost
\nresulting therefrom, shall specify which party shall pay such costs and the
\nmanner of payment and shall become effective and a part of the Approved Plans
\nonce approved in writing by both parties.<\/p>\n
(d) Commencement and Completion of the Tenant Improvements. As soon as (1)
\n ——————————————————
\nthe Approved Plans have been developed as provided above, and (2) all necessary
\ngovernmental approvals have been obtained, and at such time as the Building
\nShells have been sufficiently constructed to permit commencement of the Tenant
\nImprovements, then Landlord shall thereafter commence construction of such
\nTenant Improvements and shall diligently prosecute such construction to
\ncompletion, using its best efforts so that the Building Shells and Tenant
\nImprovements may be substantially completed by the Estimated Commencement Date
\nset forth in the Lease. The Tenant Improvements shall be constructed by Landlord
\nsubstantially in accordance with the Approved Plans, and in compliance with all
\napplicable regulations, ordinances, building codes, and statutes of lawful
\ngovernmental authority.<\/p>\n
(e) Payment of Cost of Tenant Improvements. Landlord shall first pay all
\n ————————————–
\nTenant Improvement Costs for those items (“Landlord Items”) as set forth in
\n ————–
\nExhibit 1 attached to this Work Letter and made a part hereof. Tenant shall pay
\n———
\nthe costs of any Tenant extra work or change orders. Landlord shall submit bills
\nto Tenant in such amounts and at such times as bills are submitted to Landlord.
\nTenant, shall make payment of any increased costs resulting from change orders
\nor extra work orders upon receipt of invoices from Landlord or the Contractor
\nshowing the increased amount payable for such change.<\/p>\n
3. Delay In Completion Caused By Tenant. The parties hereto acknowledge
\n ————————————
\n that the date on which Tenant’s obligation to pay the monthly delayed
\n because of, among other things: (a) Tenant’s failure to review and approve
\n or make comments to plans for the Tenant Improvements submitted by Landlord
\n within any specific time periods set forth in paragraph 1; (b) change
\n orders requested by Tenant and approved by Landlord; (c) Tenant’s failure
\n to complete any of its own improvement work to the extent Tenant delays
\n completion by appropriate governmental authorities of their final
\n inspection and approval of Landlord’s improvements; or (d) interference
\n with Landlord’s work caused by Tenant or by Tenant’s contractors or
\n subcontractors (collectively “Tenant Delays”). It is the intent of the
\n ————-
\n parties hereto that Tenant’s obligation to pay Base Rent not be delayed by
\n any such causes, and in the event it is so delayed, then Tenant’s
\n obligation to pay the Base Rent shall commence as of the date it would
\n otherwise have commenced absent said delay caused by Tenant. Delays in
\n excess of thirty (30) days for any of the above-mentioned reasons may
\n affect Landlord’s financing of construction of the Premises and Tenant
\n agrees to pay any reasonable additional financing costs, including loan
\n fees, incurred by Landlord as a result thereof.<\/p>\n
3. Delivery of Possession. When the Tenant Improvements are substantially
\n ———————-
\n completed, Landlord and Tenant shall together walk through and inspect the
\n Premises and Tenant Improvements so completed (which inspection shall
\n include the testing of all utility facilities, lighting, HVAC equipment,
\n and other service equipment affecting the Premises, and an inspection of
\n all ceilings, walls, and floors) using their commercially reasonable
\n efforts to discover all uncompleted or defective construction. After such
\n inspection has been completed, a list of “punchlist” items shall be
\n prepared by Landlord which the parties agree are to be corrected by
\n Landlord. Landlord shall use its best efforts to complete and\/or repair
\n such “punchlist” items within thirty (30) days. Tenant’s taking possession
\n of the Premises shall be deemed to be an acceptance by Tenant of the
\n Premises as complete and in accordance with the terms of this Lease,
\n subject to completion of the punchlist items within said period.<\/p>\n
4.<\/p>\n
EXHIBIT 1 TO EXHIBIT C
\n ———————-<\/p>\n
WORK LETTER
\n ———–<\/p>\n
Tenant Improvements:<\/p>\n
a. 800amps of 277\/480 volt power separately metered.<\/p>\n
b. Eleven 400 watt high bay lights in warehouse area to provide 25 lumens of
\n light.<\/p>\n
c. Grade level ramp to be constructed at dock door adjacent to “will call”
\n office at front of building.<\/p>\n
d. Fifteen (15) edge of dock levelers at dock doors.<\/p>\n
e. Approximately 2745 sq. ft. of office space, including restroom facilities, as
\n shown on the attached Exhibit a-1.<\/p>\n
f. Floor to ceiling demising wall separating Tenant’s space from remainder of
\n building.<\/p>\n
g. Caulking of floor joints located within the first forty eight feet of floor
\n area from dock doors.<\/p>\n
h. Tenant to provide flooring for office and restroom areas at Tenant’s cost.<\/p>\n
5.<\/p>\n
EXHIBIT I
\n ———<\/p>\n
RULES AND REGULATIONS
\n ———————<\/p>\n
1. No sign, placard, picture, advertisement, name or notice shall be installed
\n or displayed on any part of the outside of the Building without the prior
\n written consent of Landlord. Landlord shall have the right to remove, at
\n Tenant’s expense and without notice, any sign installed or displayed in
\n violation of this rule. All approved signs or lettering on doors and walls
\n shall be printed, painted, affixed or inscribed at the expense of Tenant by
\n a person chosen by Landlord.<\/p>\n
2. The directory of the Building will be provided exclusively for the display
\n of the name and location of tenants, and Landlord reserves the right to
\n exclude any other names therefrom. Tenant shall pay Landlord’s reasonable
\n charge for Tenant’s listing thereon and for any changes by Tenant.<\/p>\n
3. Except as consented to in writing by Landlord or in accordance with Building
\n standard improvements, no draperies, curtains, blinds, shades, screens or
\n other devices shall be hung at or used in connection with any window or
\n exterior door or doors of the Premises. No awning shall be permitted on any
\n part of the Premises. Tenant shall not place anything against or near glass
\n partitions or doors or windows which may appear unsightly from outside the
\n Premises.<\/p>\n
4. Tenant shall not obstruct any sidewalks, halls, lobbies, passages, exits,
\n entrances, elevators or stairways of the Building. No tenant and no employee
\n or invitee of any tenant shall go upon the roof of the Building or make any
\n roof or terrace penetrations. Tenant shall not allow anything to be placed
\n on the outside terraces or balconies without the prior written consent of
\n Landlord.<\/p>\n
5. If Tenant requires telegraphic, telephonic, burglar alarm or similar
\n services, it shall first obtain, and comply with, Landlord’s instructions
\n for their installation.<\/p>\n
6. Tenant shall not place a load upon any floor of the Premises which exceeds
\n the maximum load per square foot which the floor was designed to carry and
\n which is allowed by law. Tenant’s business machines and mechanical equipment
\n which cause noise or vibration which may be transmitted to the structure of
\n the Building or any space therein, and which is objectionable to Landlord or
\n to any tenants in the Building, shall be placed and maintained by Tenant, at
\n Tenant’s expense, on vibration eliminators or other devices sufficient to
\n eliminate noise or vibration.<\/p>\n
7. Tenant shall not use or keep in the Premises any toxic or hazardous
\n materials or any kerosene, gasoline or inflammable or combustible fluid or
\n material other than those limited quantities necessary for the operation or
\n maintenance of office equipment. Tenant shall not use or permit to be used
\n in the Premises any foul or noxious gas or substance, or permit or allow the
\n Premises to be occupied or used in a manner offensive or objectionable to
\n Landlord or other occupants of the Building by reason of noise, odors or
\n vibrations. No animal, except seeing eye dogs when in the company of their
\n masters, may be brought into or kept in the Building.<\/p>\n
8. Landlord reserves the right to prevent access to the Building by closing the
\n doors or by other appropriate action in case of invasion, mob, riot, public
\n excitement or other commotion.<\/p>\n
9. Tenant shall close and lock the doors of its Premises, shut off all water
\n faucets or other water apparatus and turn off all lights and other equipment
\n which is not required to be continuously run. Tenant shah be responsible for
\n any damage or injuries sustained by other tenants or occupants of the
\n Building or Landlord for noncompliance with this Rule.<\/p>\n
10. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not
\n be used for any purpose other than that for which they were constructed, and
\n no foreign substance of any kind whatsoever shall be placed therein. The
\n expense of any breakage, stoppage or damage resulting from any violation of
\n this rule shall be borne by the tenant who, or whose<\/p>\n
6<\/p>\n
employees or invitees, shall have caused it.<\/p>\n
11. Tenant shall not install any radio or television antenna, loudspeaker or
\n other device on the roof or exterior walls of the Building. Tenant shall not
\n interfere with radio or television broadcasting or reception from or in the
\n Building or elsewhere.<\/p>\n
12. Tenant shall not cut or bore holes for wires in the partitions, woodwork or
\n plaster of the Premises. Tenant shall not affix any floor covering to the
\n floor of the Premises in any manner except as approved by Landlord. Tenant
\n shall repair, or be responsible for the cost of repair of any damage
\n resulting from noncompliance with this Rule.<\/p>\n
13. Canvassing, soliciting and distributing handbills or any other written
\n material and peddling in the Project are prohibited, and each tenant shall
\n cooperate to prevent these activities.<\/p>\n
14. Tenant shall store all its trash and garbage within its Premises or in
\n enclosed and\/or screened outside areas as approved by Landlord, which
\n approval shall not be unreasonably withheld.<\/p>\n
15. Use by Tenant of Underwriters’ Laboratory approved equipment for brewing
\n coffee, tea, hot chocolate and similar beverages and microwaving food shall
\n be permitted, provided that the equipment and use is in accordance with all
\n applicable federal, state, county and city laws, codes, ordinances, rules
\n and regulations.<\/p>\n
16. Tenant shall not use the name of the Building in connection with or in
\n promoting or advertising the business of Tenant, except as Tenant’s address,
\n without the written consent of Landlord.<\/p>\n
17. Tenant shall comply with all safety, fire protection and evacuation
\n procedures and regulations established by Landlord or any governmental
\n agency. Tenant shall be responsible for any increased insurance premiums
\n attributable to Tenant’s use of the Premises, Building or Project.<\/p>\n
18. Tenant assumes any and all responsibility for protecting its Premises from
\n theft and robbery, which responsibility includes keeping doors locked and
\n other means of entry to the Premises closed.<\/p>\n
Tenant shall not use the Premises, or suffer or permit anything to be done on,
\nin or about the Premises, which may result in an increase to Landlord in the
\ncost of insurance maintained by Landlord on the Building and Common Areas,
\nunless Tenant agrees to pay such increase.<\/p>\n
19. Tenant’s requests for assistance will be attended to only upon appropriate
\n application to an authorized representative of Landlord. Employees of
\n Landlord shall not perform any work or do anything outside of their regular
\n duties unless under special instructions from Landlord, and no employee of
\n Landlord will admit any person (Tenant or otherwise) to any portion of the
\n Premises without specific instructions from Landlord.<\/p>\n
Landlord may waive any one or more of these Rules and Regulations for the
\nbenefit of Tenant or any other tenant, but no waiver by Landlord shall be
\nconstrued as a waiver of the Rules and Regulations in favor of Tenant or any
\nother tenant, nor prevent Landlord from thereafter enforcing the Rules and
\nRegulations against any or all of the tenants of the Building.<\/p>\n
20. These Rules and Regulations are in addition to, and shall not be construed
\n to in any way modify or amend, in whole or in part, the terms, covenants,
\n agreements and conditions of this lease or any lease of premises in the
\n Building. Landlord reserves the right to make other reasonable Rules and
\n Regulations as, in its judgment, may from time to time be needed for safety
\n and security, for care and cleanliness of the Building and for the
\n preservation of good order therein. Tenant agrees to abide by all Rules and
\n Regulations hereinabove stated and any additional rules and regulations
\n which are adopted.<\/p>\n
Tenant shall be responsible for the observance of all of the foregoing rules by
\nTenant’s employees, agents, clients, customers, invitees and guests.<\/p>\n
7<\/p>\n
EXHIBIT 2 TO EXHIBIT C
\n ———————–<\/p>\n
Office Layout<\/p>\n
APPROVED BY TENANT:<\/p>\n
\/s\/ [ILLEGIBLE]
\n ————————
\n SIGNATURE<\/p>\n
10\/15\/00
\n ————————
\n DATE<\/p>\n
[PLAN OF OFFICE APPEARS HERE]<\/p>\n
6.<\/p>\n
EXHIBIT D
\n ———<\/p>\n
COMMENCEMENT DATE MEMORANDUM
\n —————————-<\/p>\n
With respect to that certain lease (“Lease”) between ALADDIN MANUFACTURING
\nCORPORATION, a Delaware corporation (“Tenant”), and LATHROP INDUSTRIAL
\nDEVELOPMENT, LLC , a California limited liability company (“Landlord”), whereby
\nLandlord leased to Tenant and Tenant leased from Landlord approximately 101,112
\n ——-
\nrentable square feet of the building located at 2733 Yosemite Avenue, Building
\n ——————————
\n4, Lathrop, California (“Premises”) in accordance with that certain lease dated
\n———————-
\nOctober 3, 2000, Tenant hereby acknowledges and certifies to Landlord as
\n———
\nfollows:<\/p>\n
(1) The Lease commenced on January 5, 2001 (“Commencement Date”);
\n ———<\/p>\n
(2) The Premises contain 101,112 square feet of space; and
\n ——-<\/p>\n
(3) Tenant has accepted [and is currently in possession of] the Premises.<\/p>\n
IN WITNESS WHEREOF, this Commencement Date Memorandum is executed this 5
\n –
\n day of Febuary, 2000.
\n ——-<\/p>\n
“Tenant”<\/p>\n
ALADDIN MANUFACTURING CORPORATION
\n A Delaware Corporation<\/p>\n
By: Salvatore J Perillo
\n ————————————-<\/p>\n
Its: ASS & SEC \/ GENERAL COUNCIL
\n ————————————-<\/p>\n
By: _____________________________________<\/p>\n
Its: _____________________________________<\/p>\n
By: _____________________________________<\/p>\n
Its: _____________________________________<\/p>\n
7.<\/p>\n
Exhibit E
\n ———<\/p>\n
Dated: October 3, 2000<\/p>\n
By and Between
\n(Lessor): Lathrop Industrial Development LLC
\n(Lessee): Aladdin Manufacturing Corporation
\nAddress of Premises: 2733 Yosemite Avenue, Building 4, Lathrop, CA<\/p>\n
A. OPTION(S) TO EXTEND:<\/p>\n
Lessor hereby grants to Lessee the option to extend the term of this Lease for
\n one (1) additional sixty (60) month period commencing when the prior term
\n expires upon each and all of the following terms and conditions:<\/p>\n
(i) In order to exercise an option to extend, Lessee
\n must give written notice of such election to Lessor and
\n Lessor must receive the same at least six (6) but not more
\n than nine (9) months prior to the date that the option
\n period would commence, time being of the essence. If proper
\n notification of the exercise of an option is not given
\n and\/or received, such option shall automatically expire.<\/p>\n
(ii) The provisions of paragraph 18, relating to
\n Lessee’s Default of this Lease, are conditions of this
\n Option.<\/p>\n
(iii) Except for the provisions of this Lease granting
\n an option to extend the term, all of the terms and
\n conditions of this Lease except where specifically modified
\n by this option shall apply.<\/p>\n
(iv) This Option is personal to the original Lessee,
\n and cannot be assigned or exercised by anyone other than
\n said original Lessee and only while the original Lessee is
\n in full possession of the Premises and without the intention
\n of thereafter assigning or subletting; provided, however,
\n that the foregoing restriction shall not apply to assignees
\n which do not require Landlord’s consent pursuant to
\n Paragraph 17 of the Lease.<\/p>\n
(v) Base rent shall have an increase between the
\n thirtieth (30\/th\/) and thirty-first (3l\/st\/) months of the
\n option term.<\/p>\n
The monthly Base Rent shall be adjusted to the “Market Rental Value” of the
\nproperty as follows:<\/p>\n
1) Four months prior to the end of the original Lease term
\n the Parties shall attempt to agree upon what the new
\n Market Rental Value (MRV) will be on the adjustment date.
\n If agreement cannot be reached, within thirty (30) days,
\n then:<\/p>\n
(a) Lessor and Lessee shall immediately appoint a
\n mutually acceptable appraiser or broker to
\n establish the new MRV within the next thirty (30)
\n days. Any associated costs will be split equally
\n between the Parties, or<\/p>\n
(b) Both Lessor and Lessee shall each immediately
\n make a reasonable determination of the MRV and
\n submit such determination, in writing , to
\n arbitration in accordance with the following
\n provisions:<\/p>\n
(i) Within fifteen (15) days thereafter,
\n Lessor and Lessee shall each select a
\n broker (“Consultant “) of their choice
\n to act as an arbitrator. The two
\n arbitrators so appointed shall
\n immediately select a third mutually
\n acceptable Consultant to act as a
\n third arbitrator.<\/p>\n
(ii) The three arbitrators shall within
\n thirty (30) days of the <\/p>\n
8.<\/p>\n
appointment of the third arbitrator reach a decision as
\n to what the actual MRV for the Premises is, and whether
\n Lessor’s or Lessee’s MRV is the closest thereto. The
\n decision of a majority of the arbitrators shall be
\n binding on the Parties. The submitted MRV which is
\n determined to be the closest to the actual MRV shall
\n thereafter be used by the Parties.<\/p>\n
(iii) If either of the Parties fails to appoint
\n an arbitrator within the specified fifteen (15) days,
\n the arbitrator timely appointed by one of them shall
\n reach a decision on his or her own, and said decision
\n shall be binding on the Parties.<\/p>\n
(iv) The entire cost of such arbitration shall
\n be paid by the party whose submitted MRV is not
\n selected. Ie. the one that is NOT the closest to the
\n actual MRV.<\/p>\n
2) Notwithstanding the foregoing, the
\n new MRV shall not be less than the rent payable for the
\n month immediately preceding the rent adjustment.<\/p>\n
9.<\/p>\n
[LOGO]
\n AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
\n GUARANTY OF LEASE
\n EXHIBIT F<\/p>\n
WHEREAS, Lathrop Industrial Development, LLC, (hereinafter “Lessor”,
\n ———————————–
\nand Aladdin Manufacturing Corporation, a Delaware corporation, hereinafter
\n ———————————————————
\n“Lessee”, are about to execute a document entitled “Lease” dated November 2000
\n ————-
\nconcerning the premises commonly known as 2733 Yosemite Avenue, Building 4,
\n ——————————–
\nLathrop, California wherein Lessor will lease the premises to Lessee, and
\n——————-<\/p>\n
WHEREAS, Mohawk Industries, a Delaware corporation hereinafter
\n —————————————–
\n“Guarantors” have a financial interest in Lessee, and <\/p>\n
WHEREAS, Lessor would not execute the Lease if Guarantors did not
\nexecute and deliver to Lessor this Guarantee of Lease.<\/p>\n
NOW THEREFORE, in consideration of the execution of the foregoing
\nLease by Lessor and as a material inducement to Lessor to execute said Lease,
\nGuarantors hereby jointly, severally, unconditionally and irrevocably guarantee
\nthe prompt payment by Lessee of all rents and all other sums payable by Lessee
\nunder said Lease and the faithful and prompt performance by Lessee of each and
\nevery one of the terms, conditions and covenants of said Lease to be kept and
\nperformed by Lessee.<\/p>\n
It is specifically agreed that the terms of the foregoing Lease may be
\nmodified by agreement between Lessor and Lessee, or by a course of conduct, and
\nsaid Lease may be assigned by Lessor or any assignee of Lessor without consent
\nor notice to Guarantors and that this Guaranty shall guarantee the performance
\nof said Lease as so modified.<\/p>\n
This Guaranty shall not be released, modified or affected by the
\nfailure or delay on the part of Lessor to enforce any of the rights or remedies
\nof the Lessor under said Lease, whether pursuant to the terms thereof or at law
\nor in equity.<\/p>\n
No notice of default need be given to Guarantors, it being
\nspecifically agreed that the guarantee of the undersigned is a continuing
\nguarantee under which Lessor may proceed immediately against Lessee and\/or
\nagainst Guarantors following any breach or default by Lessee or for the
\nenforcement of any rights which Lessor may have as against Lessee under the
\nterms of the Lease or at law or in equity.<\/p>\n
Lessor shall have the right to proceed against Guarantors hereunder
\nfollowing any breach or default by Lessee without first proceeding against
\nLessee and without previous notice to or demand upon either Lessee or
\nGuarantors.<\/p>\n
Guarantors hereby waive (a) notice of acceptance of this Guaranty, (b)
\ndemand of payment, presentation and protest, (c) all right to assert or plead
\nany statute of limitations relating to this Guaranty or the Lease, (d) any
\nright to require the Lessor to proceed against the Lessee or any other
\nGuarantor or any other person or entity liable to Lessor, (e) any right to
\nrequire Lessor to apply to any default any security deposit or other security
\nit may hold under the Lease, (f) any right to require Lessor to proceed under
\nany other remedy Lessor may have before proceeding against Guarantors, (g) any
\nright of subrogation.<\/p>\n
Guarantors do hereby subrogate all existing or future indebtedness of
\nLessee to Guarantors to the obligations owed to Lessor under the Lease and this
\nGuaranty.<\/p>\n
If a Guarantor is married, such Guarantor expressly agrees that
\nrecourse may be had against his or her separate property for all of the
\nobligations hereunder.<\/p>\n
The obligations of Lessee under the Lease to execute and deliver
\nestoppel statements and financial statements, as therein provided, shall be
\ndeemed to also require the Guarantors hereunder to do and provide the same.<\/p>\n
The term “Lessor” refers to and means the Lessor named in the Lease
\nand also Lessor’s successors and assigns. So long as Lessor’s interest in the
\nLease, the leased premises or the rents, issues and profits therefrom, are
\nsubject to any mortgage or deed of trust or assignment for security, no
\nacquisition by Guarantors of the Lessor’s interest shall affect the continuing
\nobligation of Guarantors under this Guaranty which shall nevertheless continue
\nin full force and effect for the benefit of the mortgagee, beneficiary, trustee
\nor assignee under such mortgage, deed of trust or assignment and their
\nsuccessors and assigns.<\/p>\n
The term “Lessee” refers to and means the Lessee named in the Lease
\nand also Lessee’s successors and assigns.<\/p>\n
In the event any action be brought by said Lessor against Guarantors
\nhereunder to enforce the obligation of Guarantors hereunder, the unsuccessful
\nparty in such action shall pay to the prevailing party therein a reasonable
\nattorney’s fee which shall be fixed by the court.<\/p>\n
If this Form has been filled in, it has been prepared for submission
\n to your attorney for his approval. No representation or recommendation
\n is made by the American Industrial Real Estate Association, the real
\n estate broker or its agents or employees as to the legal sufficiency,
\n legal effect, or tax consequences of this Form or the transaction
\n relating thereto.<\/p>\n
Executed at ____________________________ _____________________________ <\/p>\n
on _____________________________________ _____________________________ <\/p>\n
Address ________________________________ _____________________________
\n “GUARANTORS”
\n________________________________________ <\/p>\n
COYTE\/ALADDIN-GUARANTY<\/p>\n
EXHIBIT G<\/p>\n
Industrial Sign Criteria
\n ————————
\n Tenant Guidelines <\/p>\n
These criteria have been established for the purpose of assuring an
\noutstanding business park and for the mutual benefit of all tenants. All
\nsignage, both as to design and shop drawings, must receive written approval by
\nLandlord and by Landlord before fabrication. Conformance will be strictly
\nenforced and any installed non-conforming or unapproved sign may be removed by
\nLandlord (or, at Landlord’s option brought into conformance) at the expense of
\nthe Tenant.<\/p>\n
Landlord’s approval shall be based on conformity to this Sign Criteria
\nand harmony, both architecturally and aesthetically, of the proposed sign with
\nthe design of the Project, which approval shall not be unreasonably withheld,
\nconditioned or delayed.<\/p>\n
To secure Landlord’s approval, a design sketch of all proposed signs is
\n to be submitted. After approval of design sketch in writing by Landlord, three
\n (3) white prints of each shop drawing of all signs must be submitted to the
\n Landlord for approval. The shop drawings must be consistent with the design
\n sketch approved by Landlord and must indicate the type and sizes of all
\n lettering, and their location. A schematic section through the sign will be
\n required where necessary to show the form, colors and finishes of all
\n materials, and wattages and light intensity must be specified. All disapproved
\n or conditionally approved drawings must be resubmitted until unconditionally
\n approved by the Landlord. Incomplete drawings will be returned without
\n approval.<\/p>\n
A. General Requirements
\n ——————–<\/p>\n
1. All signage must conform to the applicable permit, zoning and other
\n requirements of the City of Lathrop.<\/p>\n
2. The entire cost of Tenant’s signage, including, without limitation,
\n permit costs, design fabrication and installation, shall be at
\n Tenant’s sole expense.<\/p>\n
3. Tenant shall be responsible for the fulfillment of all requirements of
\n these criteria.<\/p>\n
B. General Specifications
\n ———————-<\/p>\n
1. No flashing, flickering, blinking, animated or audible signs or lights
\n will be permitted. Internally illuminated signs are acceptable.
\n Approval must be obtained from Landlord for all design and
\n installation details.<\/p>\n
2. If the sign is illuminated, the light source for the illumination
\n shall be concealed from view, and the light source shall not travel
\n from such light source straight into the viewer’s eye. Instead it
\n shall be visible only from a reflecting or diffusing surface. No part
\n of the sign’s light shall revolve, rotate, move or create the illusion
\n of same.<\/p>\n
3. Tenant’s placement of the sign will be as approved by Landlord, and
\n installation shall be by the contractor approved by Landlord for the
\n exclusive sign contractor to work on the Project.<\/p>\n
4. Upon removal of the Tenant signage, any damage to the Building must be
\n repaired at the sole cost of the Tenant.<\/p>\n
5. Tenants may place white vinyl lettering, with letter size not
\n exceeding five (5) inches on the window area or entry doors to the
\n Premises. Such lettering is limited to the identification of the
\n Tenant and for the Premises’ address only. All window lettering shall
\n be submitted to and approved in writing by Landlord.<\/p>\n
6. Due to the infinite number of building sizes and configurations, each
\n sign submission will be judged on its own merit at the sole discretion
\n of Landlord. The decision of Landlord is final, and shall not be
\n subject to review or challenge. Approval of one sign or signage
\n program should not be construed to convey approval for any other
\n signs, designs or installations.<\/p>\n
Except as provided herein, no advertising placards, banners, pennants,
\n names, insignia, trademarks or other descriptive material shall be affixed
\n or maintained upon the glass panes or exterior walls of the Building.<\/p>\n
1<\/p>\n
(a) Landlord has complete and full authority to execute this Lease
\nsubject to the provisions hereof.<\/p>\n
(b) To Landlord’s knowledge and belief, neither the entering into of
\nthis Lease nor the consummation of the transaction contemplated hereby will
\nconstitute or result in a violation or breach by Landlord of any judgment,
\norder, writ, injunction or decree issued against or imposed upon it, or will
\nresult in a violation of any applicable law, order, rule or regulation of any
\ngovernmental authority.<\/p>\n
(c) Landlord has no knowledge of, nor has Landlord received any notice
\nof, any actual or threatened action, litigation, or proceeding by any
\norganization, person, individual or governmental agency (including governmental
\nactions under condemnation authority or proceedings similar thereto) against the
\nLand, the Building or Landlord, nor has any such organization, person,
\nindividual or governmental agency communicated to Landlord anything which
\nLandlord believes to be a threat of any such action, litigation or proceeding.<\/p>\n
(d) Landlord shall not further encumber or restrict the Land or the
\nBuilding (or allow same to be encumbered or restricted) or otherwise grant any
\ninterest therein to if such encumbrance or restriction would materially
\nadversely affect Tenant’s rights hereunder and shall keep all mortgage, tax and
\nother payments related to the Land and Building current.<\/p>\n
(e) The parties executing this Lease on behalf of Landlord have the
\npower and authority to make the provisions hereof the legal, valid and binding
\nobligations of Landlord.<\/p>\n
WHERETOFORE, the Parties hereby enter into this agreement as of this ______ day
\nof November, 2000<\/p>\n
“Landlord”
\n LATHROP INDUSTRIAL DEVELOPMENT, LLC
\n a California limited liability company<\/p>\n
By: ________________________________
\n Timothy J. Murphy, Manager<\/p>\n
“Tenant”<\/p>\n
Aladdin Manufacturing Corporation,
\n A Delaware Corporation<\/p>\n
\/s\/ Salvatore J. Perillo
\n By: ——————————–
\n Salvatore J. Perillo, Esq.
\n Assistant Secretary\/General Counsel<\/p>\n
\/s\/ Salvatore J. Perillo
\n By: ——————————–
\n Name: Assistant Secretary\/
\n Title: General Counsel<\/p>\n
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