\n————————————————————————————————————————–
\nCOVERAGE INFORMATION<\/p>\n COVERAGE INFORMATION AMOUNT OF INSURANCE DEDUCTABLE
\n
\n Business Personal Property (including Tenants Improvements
\n and Betterments, if applicable) $ ______________ $ _____________<\/p>\n Business Income (100% contribution) $ ______________ $ _____________<\/p>\n
Boiler & Machinery (if applicable) $ ______________ $ _____________
\n Warehousers legal liability (if applicable) $ ______________ $ _____________<\/p>\n
Replacement Cost Coverage, special form
\n————————————————————————————————————————–
\nREMARKS (Including Special Conclusions)<\/p>\n
Waiver of Subrogation provision included (per lease)<\/p>\n
————————————————————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
CANCELLATION<\/p>\n
THE POLICY IS SUBJECT TO THE PREMIUMS, FORMS, AND RULES IN EFFECT FOR EACH
\n POLICY PERIOD. SHOULD THE POLICY BE TERMINATED, THE COMPANY WILL GIVE THE
\n ADDITIONAL INTEREST IDENTIFIED BELOW 60 DAYS WRITTEN NOTICE, AND WILL SEND
\n NOTIFICATION OF ANY CHANGES TO THE POLICY THAT WOULD AFFECT THAT INTEREST.
\n IN ACCORDANCE WITH THE POLICY PROVISIONS OR AS REQUIRED BY LAW.<\/p>\n
\n\n————————————————————————————————————————–
\nADDITIONAL INTEREST<\/p>\nNAME AND ADDRESS NATURE OF INTEREST
\n
\nCATELLUS DEVELOPMENT CORPORATION [ILLEGIBLE] ADDITIONAL [ILLEGIBLE]
\n1065 N. PACIFICENTER DRIVE, SUITE 200
\nANAHEIM, CA 92808 LOSS PATEE (OTHERS) Landlord
\n —————————————————————————–
\n ATTN: ASSET MANAGEMENT SIGNATURE OF AUTHORIZED AGENT OF COMPANY
\nFAX 714) 237-7416<\/p>\nACORD 27 (2\/88) D ACORD CORPORATION 19[ILLEGIBLE]
\n————————————————————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
EXHIBIT E
\n ———-<\/p>\n
PROHIBITED USES
\n —————<\/p>\n
The following types of operations and activities are expressly prohibited on the
\nPremises:<\/p>\n
1. automobile\/truck maintenance, repair or fueling;<\/p>\n
2. battery manufacturing or reclamation;<\/p>\n
3. ceramics and jewelry manufacturing or finishing;<\/p>\n
4. chemical (organic or inorganic) storage, use or manufacturing;<\/p>\n
5. drum recycling;<\/p>\n
6. dry cleaning;<\/p>\n
7. electronic components manufacturing;<\/p>\n
8. electroplating and metal finishing;<\/p>\n
9. explosives manufacturing, use or storage;<\/p>\n
10. hazardous waste treatment, storage, or disposal;<\/p>\n
11. leather production, tanning or finishing;<\/p>\n
12. machinery and tool manufacturing;<\/p>\n
13. medical equipment manufacturing and hospitals;<\/p>\n
14. metal shredding, recycling or reclamation;<\/p>\n
15. metal smelting and refining;<\/p>\n
16. mining;<\/p>\n
17. paint, pigment and coating operations;<\/p>\n
18. petroleum refining;<\/p>\n
19. plastic and synthetic materials manufacturing;<\/p>\n
20. solvent reclamation;<\/p>\n
21. tire and rubber manufacturing;<\/p>\n
22. above- and\/or underground storage tanks; and<\/p>\n
23. residential use or occupancy.<\/p>\n
EXHIBIT F
\n ———<\/p>\n
CORRECTION ITEMS
\n —————-<\/p>\n
EXHIBIT G
\n ———<\/p>\n
TENANT ESTOPPEL CERTIFICATE
\n —————————<\/p>\n
To: Bank of America National Trust
\n and Savings Association (“Bank”)
\n Real Estate Industries Division No. _______
\n ____________________________________
\n ____________________________________
\n Attn: ______________________________<\/p>\n
Re: Lease Dated: __________________
\n Current Landlord: __________________
\n Current Tenant: __________________
\n Square Feet: Approximately ____
\n Floor(s): __________________
\n Located at: __________________<\/p>\n
____________ (“Tenant”) hereby certifies that as of ________________, 199_.<\/p>\n
1. Tenant is the present owner and holder of the tenant’s interest under
\nthe lease described above, as it may be amended to date (the “Lease”) with
\n________________ as Landlord (who is called “Borrower” for the purposes of this
\nCertificate). (USE THE NEXT SENTENCE IF THE LANDLORD OR TENANT NAMED IN THE
\n ————————————————————
\nLEASE IS A PREDECESSOR TO THE CURRENT LANDLORD OR TENANT.) [The original
\n——————————————————–
\nlandlord under the Lease was _____________________, and the original tenant
\nunder the Lease was ________________.] The Lease covers the premises commonly
\nknown as ________________ (the “Premises”) in the building (the “Building”) at
\nthe address set forth above.<\/p>\n
(CHOOSE ONE OF THE FOLLOWING SECTION 2(a)s BELOW)
\n ————————————————-<\/p>\n
[2. (a) A true, correct and complete copy of the Lease (including all
\nmodifications, amendments, supplements, side letters, addenda and riders of and
\nto it) is attached to this Certificate as Exhibit A.] <\/p>\n
[2 (a) The attached Exhibit A accurately identifies the Lease and all
\n ———
\nmodifications, amendments, supplements, side letters, addenda and riders of and
\nto it.]<\/p>\n
(b) (IF APPLICABLE) [The Lease provides that in addition to the
\n ————-
\nPremises, Tenant has the right to use or rent ______ [assigned\/unassigned]
\nparking spaces near the Building or in the garage portion of the building during
\nthe term of the Lease.]<\/p>\n
(c) The term of the Lease commenced on _________ 199__ and will
\nexpire on ______________, ___, including any presently exercised option or
\nrenewal term. (CHOOSE ONE OF THE FOLLOWING TWO SENTENCES.) [Tenant has no option
\n —————————————–
\nor right to renew, extend or cancel the Lease, or to lease additional space in
\nthe Premises or Building, or to use any parking (IF APPLICABLE) [other than that
\n ————-
\nspecified in Section 2(b) above].] [Except as specified in Paragraph(s) _______
\nof the Lease (copy attached), Tenant has no option or right to renew, extend or
\ncancel the Lease, or to lease additional space in the Premises or Building, or
\nto use any parking (IF APPLICABLE) [other than that specified in Section 2(b)
\n ————-
\nabove].]<\/p>\n
(CHOOSE ONE OF THE FOLLOWING SECTION 2(d)s)
\n —————————————–<\/p>\n
[(d) Tenant has no option or preferential right to purchase all or
\nany part of the Premises (or the land of which the Premises are a part). Tenant
\nhas no right or interest with respect to the Premises or the Building other than
\nas Tenant under the Lease.]<\/p>\n
[(d) Except as specified in Paragraph(s) ___________ of the Lease
\n(copy attached), Tenant has no option or preferential right to purchase all or
\nany part of the Premises (or the land of which the Premises are a part). Except
\nfor the foregoing, Tenant has no right or interest with respect to the Premises
\nor the Building other than as Tenant under the Lease.]<\/p>\n
(e) The annual minimum rent currently payable under the Lease is
\n$___________ and such rent has been paid through _____________, 199__. (IF
\n —
\nAPPLICABLE) [The annual percentage rent currently payable under the Lease is at
\n———-
\nthe rate of _______ and such rent has been paid through ______________, 199_.]<\/p>\n
(f) (IF APPLICABLE) [Additional rent is payable under the Lease
\n ————-
\nfor (i) operating, maintenance or repair expenses, (ii) property taxes, (iii)
\nconsumer price index cost of living adjustments, or (iv) percentage of gross
\nsales adjustments (i.e., adjustments made based on underpayments of percentage
\n —-
\nrent). Such additional rent has been paid in accordance with Borrower’s rendered
\nbills through ___________, 199_. The base year amounts for additional rental
\nitems are as follows: (1) operating, maintenance or repair expenses
\n$________________ (2) property taxes $___________, and (3) consumer price index
\n______________ (please indicate base year CPI level).]<\/p>\n
(g) Tenant has made no agreement with Borrower or any agent,
\nrepresentative or employee of Borrower CONCERNING FREE RENT, PARTIAL rent,
\nrebate of rental payments or any other similar rent concession (IF APPLICABLE)
\n ————-
\n[except as expressly set forth in Paragraph(s) ___ of the Lease (copy
\nattached)].<\/p>\n
(h) Borrower currently holds a security deposit in the amount of
\n$_____________ which is to be applied by Borrower or returned to Tenant in
\naccordance with Paragraph(s) __ of the Lease. Tenant acknowledges and agrees
\nthat Bank shall have no responsibility or liability for any security deposit,
\nexcept to the extent that any security deposit shall have been actually received
\nby Bank.<\/p>\n
3. (a) The Lease constitutes the entire agreement between Tenant and
\nBorrower with respect to the Premises, has not been modified changed, altered or
\namended and is in full force and effect in the form (CHOOSE ONE) [attached
\n ———-
\nas\/described in] Exhibit A. There are no other agreements, written or oral,
\nwhich affect Tenant’s occupancy of the Premises.<\/p>\n
(b) All insurance required of Tenant under the Lease has been
\nprovided by Tenant and all premiums have been paid.<\/p>\n
(c) To the best knowledge of Tenant, no party is in default under
\nthe Lease. To the best knowledge of Tenant, no event has occurred which, with
\nthe giving of notice or passage of time, or both, would constitute such a
\ndefault.
\n (d) The interest of Tenant in the Lease has not been assigned or
\nencumbered. Tenant is not entitled to any credit against any rent or other
\ncharge or rent concession under the Lease except as set forth in the Lease. No
\nrental payments have been made more than one month in advance.<\/p>\n
4. All contributions required to be paid by Borrower to date for
\nimprovements to the Premises have been paid in full and all of Borrower’s
\nobligations with respect to tenant improvements have been fully performed.
\nTenant has accepted the Premises, subject to no conditions other than those set
\nforth in the Lease.<\/p>\n
5. Neither Tenant nor any guarantor of Tenant’s obligations under the
\nLease is the subject of any bankruptcy or other voluntary or involuntary
\nproceeding, in or out of court, for the adjustment of debtor-creditor
\nrelationships.<\/p>\n
6. (a) As used here, “Hazardous Substance” means any substance, material
\nor waste (including petroleum and petroleum products) which is designated,
\nclassified or regulated as being “toxic” or “hazardous” or a “pollutant” or
\nwhich is similarly designated, classified or regulated, under any federal, state
\nor local law, regulation or ordinance.<\/p>\n
(b) Tenant represents and warrants that it has not used, generated,
\nreleased, discharged, stored or disposed of any Hazardous Substances on, under,
\nin or about the Building or the land on which the Building is located (IF
\n —
\nAPPLICABLE) [,other than Hazardous Substances used in the ordinary and
\n———-
\ncommercially reasonable course of Tenant’s business in compliance with all
\napplicable laws]. (IF APPLICABLE) [Except for such commercially reasonable use
\n ————-
\nby Tenant,] Tenant has no actual knowledge that any Hazardous Substance is
\npresent, or has been used, generated, released, discharged, stored or disposed
\nof by any party, on, under, in or about such Building or land.<\/p>\n
2<\/p>\n
7. Tenant hereby acknowledges that Borrower (CHOOSE ONE) [intends to
\n ———-
\nencumber\/has encumbered] the property containing the Premises with a Deed of
\nTrust in favor of Bank. Tenant acknowledges the right of Borrower, Bank and any
\nand all of Borrower’s present and future lenders to rely upon the statements and
\nrepresentations of Tenant contained in this Certificate and further acknowledges
\nthat any loan secured by any such Deed of Trust or further deeds of trust will
\nbe made and entered into in material reliance on this Certificate.<\/p>\n
8. Tenant hereby agrees to furnish Bank with such other and further
\nestoppel as Bank may reasonably request.<\/p>\n
___________________________<\/p>\n
By:________________________<\/p>\n
Name:______________________<\/p>\n
Title: ____________________<\/p>\n
3<\/p>\n
PARTICIPATION AGREEMENT
\n ———————–<\/p>\n
THIS PARTICIPATION AGREEMENT (“Agreement”) is made and entered into as of
\nthis 4\/th\/ day of DEC., 1995 by and between LA MIRADA REDEVELOPMENT AGENCY, a
\npublic body, corporate and politic (“Agency”), and MOHAWK INDUSTRIES, INC., a
\nGeorgia corporation (“Participant”), with reference to the following:<\/p>\n
RECITALS
\n ——–<\/p>\n
A. Agency exists and is organized under, and exercises governmental
\nfunctions and powers pursuant, to the Community Redevelopment Law of the State
\nof California (California Health and Safety Code Section 33000, et seq.).
\n ——————————— ——<\/p>\n
B. Agency desires to implement that certain Redevelopment Plan For
\nProject Area I adopted by Ordinance No. 221 of the City Council of the City of
\nLa Mirada (“City”) on July 16, 1974, as amended by Ordinance No. 390 on December
\n23, 1986 and further amended by Ordinance No. 420 on June 28, 1998 (the
\n“Redevelopment Plan”).<\/p>\n
C. Participant has acquired, or intends to acquire, fee title to, or a
\nleasehold interest in, certain real property located at 16400 Trojan Way, La
\nMirada, California, which real property had previously been developed urban use
\nproperty and which real property, is identified and described in Exhibit A
\n ———
\nattached hereto (the “Property”), for the purpose of developing and operating
\nan approximately 220,000 square foot distribution and sales facility for sale
\nand\/or distribution of carpeting and related products.<\/p>\n
D. In connection with implementation of the Redevelopment Plan, Agency
\ndesires to encourage and provide for Participant’s proposed development,
\nimprovement and use of the Property on the terms and conditions contained
\nherein.<\/p>\n
AGREEMENT
\n ———<\/p>\n
NOW, THEREFORE, for good and valuable consideration, the receipt and
\nsufficiency of which is hereby acknowledged, Agency and Participant agree as
\nfollows:<\/p>\n
1. Recitals. Each of the recitals set forth above is true and correct,
\n ——–
\nand is incorporated herein by this reference.<\/p>\n
2. Purpose. This Agreement is intended to effectuate the California
\n ——-
\nCommunity Redevelopment Law of the State of California (California Health and
\n ———————
\nSafety Code Section 33000, et seq.) by
\n———– ——<\/p>\n
providing for the development, improvement and use of the Property. In
\nparticular, but without limitation, the development, improvement and use of the
\nProperty as contemplated in this Agreement will assist in the generation of
\nadditional sales tax and property tax revenues to the City and Agency as well as
\nassist in the creation of additional jobs and economic opportunities for the
\nresidents of the City. Consequently, the development, improvement and use of the
\nProperty as contemplated herein, and the fulfillment generally of this
\nAgreement, are in the vital and best interests of the City and the welfare of
\nits residents, and in accordance with the public purposes and provisions of
\napplicable federal, state and local laws and requirements.<\/p>\n
3. Financial Assistance. In consideration of Participant’s development,
\n ——————–
\nimprovement, use and operation of the Property and its entry into this
\nAgreement, for a period of up to ten (10) years Agency shall periodically pay to
\nParticipant the Specified Amount (as defined below) at the times, in the amounts
\nand subject to the conditions contained herein.<\/p>\n
3.1 Conditions Precedent. Notwithstanding anything to the contrary
\n ——————–
\ncontained in this Agreement, Agency’s obligation to pay the Specified Amount to
\nParticipant is expressly contingent and conditional upon (i) Participant paying
\nany and all taxes applicable to or arising out of Participant’s ownership
\n(whether a fee or leasehold interest), operation, use and\/or enjoyment of the
\nProperty (including, without limitation, all taxes attributable to sales
\noccurring on the Property), (ii) Participant timely delivering to Agency full
\nand complete copies of the Sales Tax Reports (as defined below), (iii) City
\nreceiving and having the legal right under state law to retain and control the
\ndisposition of its portion of all Sales Tax Revenues (as defined below), (iv)
\nParticipant retaining and continuing to solely own either fee title or a
\nleasehold interest in the Property in its entirety, and (v) Participant’s
\ncontinued use and occupancy of substantially all of the Property in compliance
\nwith all of the terms of this Agreement including, without limitation, use and
\noperation of the Property for the purpose of sale and distribution of carpeting
\nand related products (the “Specified Use”) as provided in Paragraph 5.1 below,
\n ————-
\nmaintenance of the Property as provided in Paragraph 5.2 below, and compliance
\n ————-
\nwith the non-discrimination provisions of Paragraph 19 below. In the event that
\n ————
\nany or all of conditions (i) through (v) above shall not be satisfied or shall
\nno longer be satisfied, Agency shall be relieved of its obligations under this
\nAgreement for payment of the Specified Amount and Agency may terminate this
\nAgreement upon written notice to Participant.<\/p>\n
3.2 Specified Amount. As used herein, the term “Specified Amount”
\n —————-
\nshall mean the following:<\/p>\n
-2-<\/p>\n
(a) for the first and second Contract Years (as defined below), the
\n Specified Amount shall be an amount equal to the sum of (1) one hundred
\n percent (100%) of the Sales Tax Revenues for each Contract Year in excess
\n of $150,000 but not exceeding $300,000, and (2) fifty percent (50%) of the
\n Sales Tax Revenue for each Contract Year in excess of $300,000.<\/p>\n
(b) for the third, fourth and fifth Contract Years, the Specified
\n Amount shall be an amount equal to the sum of (1) one hundred percent
\n (100%) of the Sales Tax Revenues for each Contract Year in excess of
\n $200,000 but not exceeding $400,000, and (2) fifty percent (50%) of the
\n Sales Tax Revenue for each Contract Year in excess of $400,000.<\/p>\n
(c) for the sixth through tenth Contract Years, the Specified Amount
\n shall be an amount equal to the sum of (1) one hundred percent (100%) of
\n the Sales Tax Revenues for each Contract Year in excess of $250,000 but
\n not exceeding $500,000, and (2) fifty percent (50%) of the Sales Tax
\n Revenue for each Contract Year in excess of $500,000.<\/p>\n
The Specified Amount due Participant under this Agreement shall be paid by
\nAgency in arrears, on an annual basis, within sixty (60) days of City’s and\/or
\nAgency’s receipt of all of its share of such Sale Tax Revenues during the
\npreceding four (4) calendar quarters.<\/p>\n
3.3 Contract Year. As used herein, the term “Contract Year” shall
\n ————-
\nmean a period of four (4) full calendar quarters. The first Contract Year shall
\nbe deemed to have commenced as of the first day of the calendar quarter in which
\nParticipant shall have substantially opened for business at the Property. For
\nexample, if Participant were to substantially open for business on July 15,
\n1995, the first Contract Year would be deemed to have commenced as of July 1,
\n1995 and each subsequent Contract Year would be deemed to have commenced as of
\nJuly 1 of such subsequent years.<\/p>\n
3.4 Sales Tax Revenues. As used herein, the term “Sales Tax Revenues”
\n ——————
\nshall mean the total tax revenues paid by Participant and ultimately remitted by
\nthe State Board of Equalization to City and\/or Agency (the disposition of which
\nunder then applicable state law is controlled by City and\/or Agency) with
\nrespect to the sale of any carpeting, related products or incidental goods sold
\non the Property, or from a point of sale location outside the City, pursuant to
\nthe Bradley-Burns Uniform Sales and Use Tax Law (California Revenue and Taxation
\n ——————————-
\nCode Section 7200 et seq.), as such law may be amended from time to time;
\n—- ——
\nprovided, however, that such tax revenues, for the purposes of this Agreement,
\nshall be deemed never to exceed a maximum of one percent (1%) of the total
\ntaxable sales on the<\/p>\n
-3-<\/p>\n
Property or from such other point of sale location outside the City.<\/p>\n
3.5 Sales Tax Reports. As used herein, the term “Sales Tax Reports”
\n —————–
\nshall mean the statements and quarterly reports, and any other or supplemental
\nreports, statements or submissions, actually filed or required to be filed by
\nParticipant with the State Board of Equalization relating to or in connection
\nwith the collection, remittance and\/or calculation of Sales Tax Revenues from
\nthe Property and\/or any other facilities owned or operated by Participant within
\nthe State of California. The Sales Tax Reports shall be delivered by Participant
\nto Agency on or before January 31, April 30, July 31 and October 31 of each
\nfiscal year (July 1-June 30).<\/p>\n
3.6 Termination. Agency’s obligations under this Agreement for
\n ———–
\nperiodic payment of the Specified Amount to Participant shall terminate upon the
\nearlier of (i) written notice by Agency to Participant of the occurrence of any
\nof the events specified in Paragraph 3.1(i) through (v) above, (ii) breach of
\n —————————-
\nthis Agreement by Participant, (iii) expiration of the tenth (10th) Contract
\nYear, or (iv) written notice of termination by Participant to Agency pursuant to
\nParagraph 7 below. In addition, this Agreement shall terminate in the event that
\n———–
\nParticipant shall fail to acquire fee title to, or a leasehold interest in, all
\nof the Property, and thereby qualify as “participant” within the meaning of the
\nRedevelopment Plan, on or before December 31, 1995.<\/p>\n
4. Compliance With Laws and Requirements. Participant acknowledges and
\n ————————————-
\nagrees that the execution of this Agreement by Agency does not in any way
\nconstitute, nor shall the same be inferred to constitute, waiver by Agency or
\nCity of any applicable laws, regulations, requirements, permits, fees or
\nagreements pertaining to or affecting Participant’s acquisition, or proposed
\ndevelopment, improvement, construction, occupancy or use, of the Property all of
\nwhich shall continue to be and remain fully applicable and effective with the
\nsame force and effect as if this Agreement had never been executed by Agency and
\nParticipant.<\/p>\n
5. Use and Maintenance of the Property. As additional consideration to
\n ———————————–
\nAgency to enter into this Agreement, and as a material and substantial
\ninducement to Agency in the absence of which Agency would not have entered into
\nthis Agreement, Participant agrees to use and maintain the Property as provided
\nherein.<\/p>\n
5.1 Use of the Property. Participant shall continuously use and
\n ——————-
\noperate substantially all of the Property for the Specified Use. Participant
\nspecifically acknowledges and agrees that, as provided in Paragraph 3.1(v)
\n —————-
\nabove, Participant’s<\/p>\n
-4-<\/p>\n
continued use and operation of the Property for the Specified Use is a condition
\nprecedent to Agency’s obligations under this Agreement. Participant covenants
\nand agrees that Participant shall not either directly or indirectly, in its own
\nname or in the name of any affiliated entity, enter into any other sales tax
\nsubsidy agreement or a similar agreement with any other governmental agency or
\ntake any other action which would cause or facilitate the transfer to another
\nlocation or locations of the sales contemplated in this Agreement to occur from
\nthe Property’s operation for the Specified Use. In addition, Participant
\nexpressly covenants and agrees that for the full remaining term of the
\nRedevelopment Plan and irrespective of the earlier expiration or termination of
\nthis Agreement, Participant shall not use or permit the use of the Property for
\nany purpose other than the purposes authorized in the Redevelopment Plan.<\/p>\n
5.2 Maintenance of the Property. Participant covenants and agrees to
\n —————————
\nmaintain all improvements on the Property in good condition and repair (and, as
\nto landscaping, in a healthy condition) and in accordance with all other
\napplicable laws, rules, ordinances, orders, and regulations of all federal,
\nstate, county, municipal, and other governmental agencies and bodies having or
\nclaiming jurisdiction and all their respective departments, bureaus, and
\nofficials. In addition, Participant shall keep the Property free from all
\ngraffiti and any accumulation of debris or waste material. Participant shall
\nmake all repairs and replacements necessary to keep the improvements in good
\ncondition and repair and shall promptly eliminate all graffiti and replace dead
\nand diseased plants and landscaping with comparable approved materials. In the
\nevent that Participant breaches any of the covenants contained in this Paragraph
\n ———
\n5.2 and such default continues for a period of five (5) business days after
\n—
\nwritten notice from Agency (with respect to landscaping, graffiti, debris, waste
\nmaterial, and general maintenance) or thirty (30) days after written notice from
\nAgency (with respect to building improvements), then Agency and\/or City, in
\naddition to whatever other remedy it may have at law or in equity, shall have
\nthe right to enter upon the Property and perform or cause to be performed all
\nsuch acts and work necessary to cure the default. Pursuant to such right of
\nentry, Agency and\/or City shall be permitted (but are not required) to enter
\nupon the Property and perform all acts and work necessary to protect, maintain,
\nand preserve the improvements and landscaped areas on the Property, and to
\nattach a lien on the Property, or to assess the Property, in the amount of the
\nexpenditures arising from such acts and work of protection, maintenance, and
\npreservation by Agency and\/or City and\/or costs of such cure, including a
\nfifteen percent (15%) administrative charge, which amount shall be promptly paid
\nby Participant to Agency upon demand.<\/p>\n
-5-<\/p>\n
In addition to any other remedy that Agency may have, it shall be entitled
\nto pay to the City the amount of any duly imposed assessments against the
\nProperty, and to reduce the Specified Amount in a corresponding sum. Such
\nassessments might include, but shall not be limited to, the amounts required for
\nparking lot maintenance, landscape maintenance, graffiti removal or debris or
\nhazardous waste removal. No such assessment shall be made unless the provisions
\nof this Agreement have been complied with and the City’s nuisance abatement
\nprocedures.<\/p>\n
6. No Third-Party Beneficiaries. Nothing contained in this Agreement is
\n —————————-
\nintended nor shall this Agreement be construed as creating any third party
\nbeneficiary to this Agreement, and no person or entity other than Agency and
\nParticipant, and to the extent expressly permitted hereunder their permitted
\nsuccessors and assigns, shall be authorized to enforce the provisions of this
\nAgreement.<\/p>\n
7. Indemnification. Participant shall indemnify, defend (with counsel
\n —————
\nselected by Agency), protect and hold harmless Agency and City, and each of
\ntheir officers, officials, employees and agents from and against any and all
\nchallenges (including, without limitation, CEQA challenge to the development,
\nimprovement or use of the Property as contemplated herein), claims, damages,
\nliabilities, causes of action, losses and expenses (including, without
\nlimitation, attorneys’ fees and costs) arising out of or incurred in connection
\nwith this Agreement and\/or Participant’s performance or non-performance hereof;
\nprovided, however, (i) in the event that any judicial action is filed against
\nAgency by any third party challenging the validity or enforceability of this
\nAgreement or seeking to prohibit the performance of this Agreement (including,
\nwithout limitation, CEQA challenge to the development, improvement or use of the
\nProperty as contemplated herein), within thirty (30) days of receipt of written
\nnotice of such judicial action Participant may terminate this Agreement by
\nwritten notice of termination to Agency, (ii) after that date which is one (1)
\nyear from the date Participant shall substantially open for business at the
\nProperty, Participant’s obligation to indemnify, defend, protect and hold
\nharmless Agency and City as provided in this paragraph shall be limited to
\nchallenges, claims, damages, liabilities, causes of action, losses and expenses
\n(including, without limitation, attorneys’ fees and costs) arising out of or
\nincurred in connection with Participant’s performance or non-performance hereof,
\nand (iii) Participant shall have no obligation under this paragraph to
\nindemnify, defend, protect and hold harmless Agency and the City from any
\nchallenges, claims, damages, liabilities, causes of action, losses and expenses
\n(including, without limitation, attorneys’ fees and costs) arising out of or
\nincurred by reason of negligent acts or intentional misconduct of Agency or
\nCity.<\/p>\n
-6-<\/p>\n
8. Attorneys’ Fees. If Agency or Participant institutes any legal action
\n —————
\nor arbitration proceeding against the other in connection with any controversy
\nrelated to, concerning or arising out of the Agreement, or any facts based upon
\nor involving the Agreement, the prevailing party, whether in court, through
\narbitration, or by way of out-of-court settlement, shall be entitled to recover
\nfrom the non-prevailing party such prevailing party’s attorney’s fees, court
\ncosts, expert witness fees and other expenses relating to such controversy,
\nincluding such fees, costs and expenses on appeal, if any, and the
\narbitrator(s), if any, is hereby authorized to make such an award to the
\nprevailing party in arbitration.<\/p>\n
9. Entire Agreement. This Agreement shall constitute the entire agreement
\n —————-
\nbetween Agency and Participant with respect to the subject matter hereof, and
\nall prior or contemporaneous negotiations and agreements relating thereto,
\nwhether oral or written, are merged herein and shall be of no further force or
\neffect.<\/p>\n
10. Time of the Essence. Time is of the essence of this Agreement and each
\n ——————-
\nand every provision hereof.<\/p>\n
11. Counterparts. Agency and Participant agree that this Agreement may be
\n ————
\nexecuted in two or more counterparts, each of which shall be an original but all
\nof the same when taken together shall be deemed one and the same instrument.<\/p>\n
12. Modifications. This Agreement may only be modified in writing pursuant
\n ————-
\nto a written agreement executed by both Agency and Participant.<\/p>\n
13. Notices. Any notice required or permitted to be given under this
\n ——-
\nAgreement, shall be in writing and personally delivered or sent by United States
\nmail, registered or certified mail, or sent by Federal Express or other
\nnationally recognized overnight delivery service, postage prepaid, return
\nreceipt requested, and addressed to the addressee at the address set forth below
\n(or such other address as either party may from time to time specify in writing
\nto the other in the manner provided herein), and shall be deemed to have been
\ngiven upon the date of actual delivery (or refusal to accept delivery) as
\nindicated on the return receipt.<\/p>\n
If to Agency: La Mirada Redevelopment Agency
\n 13700 La Mirada Boulevard
\n La Mirada, CA 90638
\n Attn: Economic Development
\n Department<\/p>\n
-7-<\/p>\n
If to Participant: Mohawk Industries, Inc.<\/p>\n
P.O. Box 2208
\n —————————
\n Dalton GA 30722
\n —————————
\n Attn: Jack Sharpe
\n ——————-<\/p>\n
14. Assignment. Participant acknowledges and agrees that the rights,
\n ———-
\nbenefits, duties and obligations of Participant as provided in this Agreement
\nare personal to Participant. Neither this Agreement nor any rights, benefits,
\nduties or obligations of Participant may be assigned or delegated to any other
\nperson or entity except as follows:<\/p>\n
(a) upon compliance with the requirements of subparagraph (b) below,
\n without the prior consent of Agency, Participant may assign all, but not a
\n portion, of Participant’s rights, benefits, duties and obligations under
\n this Agreement to (i) any affiliated person or entity, any successor by
\n merger or other entity resulting from a corporate reorganization
\n (“Affiliated Transferee”), or (ii) any unaffiliated person or entity which
\n will use and operate the Property for a retail sales and distribution
\n center which is reasonably anticipated to produce Sales Tax Revenues from
\n the Property comparable or in excess of that produced by Participant from
\n the Property (“Unaffiliated Transferee”);<\/p>\n
(b) each Affiliated Transferee or Unaffiliated Transferee
\n (collectively, “Transferee”) shall (i) acquire Participant’s entire
\n interest in the Property, (ii) continue to use, operate and maintain the
\n Property as provided in this Agreement, and (iii) execute, acknowledge and
\n deliver to Agency a written assumption agreement in form and substance
\n reasonably acceptable to Agency.<\/p>\n
Except as provided in subparagraph (a) above, any purported assignment or
\ndelegation by Participant without such consent, at Agency’s option, shall be
\nvoid and of no force or effect. Agency expressly reserves the right to assign
\nand delegate its obligations under this Agreement.<\/p>\n
15. Captions. The paragraph headings or captions used herein are for
\n ——–
\nconvenience only and are not a part of this instrument and do not in any way
\nlimit, define or amplify the scope or intent of the terms and provisions hereof.<\/p>\n
16. Invalidity of Provision. If any provision of this Agreement shall be
\n ———————–
\nadjudged by a court of competent jurisdiction to be void or unenforceable for
\nany reason, the same shall in no way affect (to the maximum extent permissible
\nby law) any other provision of this Agreement or the application of any such
\nprovision under circumstances different from those adjudicated by<\/p>\n
-8-<\/p>\n
the court, or the validity or enforceability of the instrument as a whole.<\/p>\n
17. Recording. At Agency’s sole option to evidence of record Agency’s
\n ———
\nacquisition of certain interests in the Property as specifically provided in
\nthis Agreement, within ten (10) days of Agency’s written request to Participant,
\nParticipant shall execute, acknowledge and deliver to Agency a memorandum of
\nthis Agreement in the form attached hereto as Exhibit B, which memorandum may be
\n ———
\nfiled and\/or recorded by Agency in the office of the County Recorder of Los
\nAngeles County, California.<\/p>\n
18. Governing Law. This Agreement and the terms hereof shall be governed
\n ————-
\nby and construed in accordance with the laws of the State of California.<\/p>\n
19. Non-Discrimination.
\n ——————<\/p>\n
19.1 Obligation to Refrain from Discrimination. There shall be no
\n —————————————–
\ndiscrimination against, or segregation of, any persons, or group of persons, on
\naccount of race, color, creed, religion, sex, marital status, ancestry, or
\nnational origin in the enjoyment of the Property, nor shall Participant itself,
\nor any person claiming under or through it, establish or permit any such
\npractice or practices of discrimination or segregation with reference to the
\nselection, location, number, use, or occupancy of tenants, lessees, subtenants,
\nsublessees, or vendees of the Property or any portion thereof.<\/p>\n
19.2 Form Non-Discrimination and Non-Segregation Clauses. Participant
\n —————————————————
\nshall refrain from restricting the rental, sale, or lease of any portion of the
\nProperty, or contracts relating to the Property, on the basis of race, color,
\ncreed, religion, sex, marital status, ancestry, or national origin of any
\nperson. All such deeds, leases or contracts shall contain or be subject to
\nsubstantially the following non-discrimination or non-segregation clauses:<\/p>\n
(a) In deeds: “The grantee herein covenants by and for himself or
\n herself, his or her heirs, executors, administrators, and assigns, and all
\n persons claiming under or through them, that there shall be no
\n discrimination against or segregation of any person or group of persons on
\n account of race, color, creed, religion, sex, marital status, ancestry, or
\n national origin in the sale, lease, sublease, transfer, use, occupancy,
\n tenure, or enjoyment of the land herein conveyed, nor shall the grantee or
\n any person claiming under or through him or her, establish or permit any
\n such practice or practices of discrimination or segregation with reference
\n to the selection, location, number, use, or occupancy of tenants, lessees,
\n sublessees,<\/p>\n
-9-<\/p>\n
or vendees in the land herein conveyed. The foregoing covenants shall run
\n with the land.”<\/p>\n
(b) In leases: “The lessee herein covenants by and for himself or
\n herself, his or her heirs, executors, administrators, and assigns, and all
\n persons claiming under or through him or her, and this lease is made and
\n accepted upon and subject to the following conditions:<\/p>\n
“That there shall be no discrimination against or segregation of any
\n person or group of persons on account of race, color, creed, religion,
\n sex, marital status, ancestry, or national origin in the leasing,
\n subleasing, transferring, use, occupancy, tenure, or enjoyment of the
\n land herein leased, nor shall the lessee himself, or any person
\n claiming under or through him or her, establish or permit any such
\n practice or practices of discrimination or segregation with reference
\n to the selection, location, number, use, or occupancy of tenants,
\n lessees, sublessees, subtenants, or vendees in the land herein
\n leased.”<\/p>\n
(c) In contracts: “That there shall be no discrimination against or
\n segregation of any person or group of persons on account of race, color,
\n creed, religion, sex, marital status, ancestry, or national origin in the
\n leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of
\n the land herein leased, nor shall the transferee himself, or any person
\n claiming under or through him or her establish or permit any such practice
\n or practices of discrimination or segregation with reference to the
\n selection, location, number, use, or occupancy of tenants, lessees,
\n sublessees, subtenants, or vendees of land.”<\/p>\n
19.3 Effect of Covenants. Agency is deemed a beneficiary of the terms
\n ——————-
\nand provisions of this Agreement and of the restrictions and covenants for and
\nin its own right and for the purposes of protecting the interests of the
\ncommunity and other parties, public or private, in whose favor and for whose
\nbenefit the covenants have been provided. Agency shall have the right, if any of
\nthe covenants set forth in this Agreement which are provided for its benefit are
\nbreached, to exercise all rights and remedies and to maintain any actions or
\nsuits at law or in equity or other proper proceedings to enforce the curing of
\nsuch<\/p>\n
-10-<\/p>\n
breaches to which it or any other beneficiaries of such covenants may be
\nentitled.<\/p>\n
IN WITNESS WHEREOF, Agency and Participant have executed this Agreement in
\nduplicate as of the day and year first above written.<\/p>\n
AGENCY:
\n——<\/p>\n
LA MIRADA REDEVELOPMENT AGENCY<\/p>\n
By: \/s\/ C. David Peters
\n —————————-
\n C. David Peters, Chairman<\/p>\n
Attest: \/s\/ Gail A. Vasquez
\n ———————–
\n Gail A. Vasquez
\n Assistant Secretary<\/p>\n
Approved as to form: \/s\/ Scott D. Rogers
\n ————————-
\n Scott D. Rogers
\n Landels, Ripley & Diamond
\n Attorneys for Agency<\/p>\n
PARTICIPANT:
\n———–<\/p>\n
MOHAWK INDUSTRIES, INC.,
\na Georgia corporation<\/p>\n
By: \/s\/ [SIGNATURE ILLEGIBLE]
\n —————————-
\nIts: President
\n —————————<\/p>\n
By: \/s\/ [SIGNATURE ILLEGIBLE]
\n —————————-
\nIts: ILLEGIBLE
\n —————————<\/p>\n
-11-<\/p>\n
EXHIBIT A
\n DESCRIPTION OF PROPERTY
\n ———————–<\/p>\n
PARCEL 1 OF PARCEL MAP NO. 1492 AS SHOWN ON MAP FILED IN BOOK 28, PAGE 88,
\n OF PARCEL MAPS FILED NOVEMBER 18, 1990 IN THE OFFICE OF THE COUNTY RECORDER
\n OF LOS ANGELES COUNTY, CALIFORNIA<\/p>\n
EXHIBIT B<\/p>\n
Recording Requested By and
\nWhen Recorded Mail To:<\/p>\n
LA MIRADA REDEVELOPMENT AGENCY
\n13700 La Mirada Boulevard
\nLa Mirada, CA 90638
\nAttn: Economic Development Department<\/p>\n
——————————————————————————–<\/p>\n
MEMORANDUM OF AGREEMENT
\n ———————–<\/p>\n
THIS MEMORANDUM OF AGREEMENT (this “Memorandum”) is made and entered
\ninto as of the 4th day of December, 1995 by and among MOHAWK INDUSTIES, INC., a
\nGeorgia corporation (“Participant”), and LA MIRADA REDEVELOPMENT AGENCY, a
\npublic body, corporate and politic (“Agency”), with reference to the following:<\/p>\n
R E C I T A L S
\n —————<\/p>\n
A: Participant is the current owner of a leasehold or fee title interest
\nin and to certain real property located in the City of La Mirada, State of
\nCalifornia and more particularly described in attached Exhibit 1 (the
\n“Property”).<\/p>\n
B. Participant and Agency have entered that certain unrecorded
\nParticipation Agreement dated as of ___________, 1995 (the “Agreement”). The
\nAgreement provides, among other things, that Agency will make certain financial
\nassistance available to Participant and that Participant will develop, improve,
\nuse and maintain the Property, all as more specifically provided therein.<\/p>\n
C. Pursuant to the Agreement, Participant and Agency have agreed to
\nrecord this Memorandum to reflect of record and provide notice of the Agreement
\nand Agency’s acquisition of certain interests in the Property.<\/p>\n
A G R E E M E N T
\n —————–<\/p>\n
NOW, THEREFORE, for good and valuable consideration, the receipt and
\nsufficiency of which is hereby acknowledged, Participant and Agency for
\nthemselves and all of their respective successors and assigns acknowledge and
\nagree as follows:<\/p>\n
1. Recitals; Incorporation of Agreement: Definitions. Each of the
\n ————————————————-
\nrecitals set forth above is true and correct and is incorporated herein by this
\nreference. All of the terms and conditions of the Agreement are incorporated
\nherein by this<\/p>\n
-13-<\/p>\n
reference with the same effect as if set forth herein in full. All words and
\nphrases having their initial letters capitalized in this Memorandum and not
\nspecifically defined herein shall have the meanings set forth in the Agreement.<\/p>\n
2. Financial Assistance From Agency. As provided in the Agreement, Agency
\n ——————————–
\ndoes hereby agree to pay to Participant the Specified Amount at the times, in
\nthe amounts and subject to the terms and conditions set forth in the Agreement.<\/p>\n
3. Grant of Interest; Covenants of Participant. As provided in the
\n ——————————————-
\nAgreement, Participant does hereby agree to, and grants to Agency an interest in
\nthe Property sufficient to cause Participant to, comply with applicable laws,
\nuse and maintain the Property and indemnify Agency and the City of La Mirada as
\nprovided in and subject to the terms and conditions set forth in the Agreement.
\nWithout limiting the foregoing, as provided in the Agreement, Participant
\nspecifically covenants and agrees that the Property shall only be used and
\noperated for the purpose of sale and distribution of carpeting and related
\nproducts.<\/p>\n
4. Covenant Running With the Land. The Agreement and this Memorandum
\n ——————————
\nshall be and constitute a covenant running with the land, such that this
\nAgreement and this Memorandum shall be binding and effective against the
\nProperty and each and every current and subsequent owner of all or any portion
\nof the Property or right or interest therein.<\/p>\n
5. Interpretation. In the event of any conflict between the terms
\n ————–
\ncontained in this Memorandum and the terms contained in<\/p>\n
-14-<\/p>\n
the Agreement, the terms contained in the Agreement shall prevail and be
\ncontrolling.<\/p>\n
IN WITNESS WHEREOF, Agency and Participant have executed this
\nMemorandum effective as of the date first set forth above.<\/p>\n
AGENCY:
\n——<\/p>\n
LA MIRADA REDEVELOPMENT AGENCY<\/p>\n
By: _______________________________
\n C. David Peters, Chairman<\/p>\n
Attest: _____________________
\n Gail A. Vasquez,
\n Assistant Secretary<\/p>\n
Approved as to form: ___________________
\n Scott D. Rogers
\n Landels, Ripley & Diamond
\n Attorneys for Agency<\/p>\n
PARTICIPANT :
\n———–<\/p>\n
MOHAWK INDUSTRIES, INC.
\na Georgia corporation
\nBy: _________________________
\nIts : _______________________<\/p>\n
By : ________________________
\nIts: ________________________<\/p>\n
[ALL SIGNATURES TO BE ACKNOWLEDGED]<\/p>\n
-15-<\/p>\n
EXHIBIT 1
\n DESCRIPTION OF PROPERTY
\n ———————–<\/p>\n
PARCEL 1 OF PARCEL MAP NO. 1492 AS SHOWN ON MAP FILED IN BOOK 28, PAGE 88,
\n OF PARCEL MAPS FILED NOVEMBER 18, 1990 IN THE OFFICE OF THE COUNTY RECORDER
\n OF LOS ANGELES COUNTY, CALIFORNIA<\/p>\n
-16-<\/p>\n
SINGLE TENANT INDUSTRIAL LEASE
\n ——————————<\/p>\n
Effective Date: December 4, 1995
\n (The date set forth below Landlord’s signature.)<\/p>\n
BASIC LEASE INFORMATION
\n ———————–<\/p>\n
Landlord: CATELLUS DEVELOPMENT CORPORATION, a Delaware
\n corporation <\/p>\n
Landlord’s Address
\n For Notice: 1065 N. PacifiCenter Drive, Suite 200
\n Anaheim, CA 92806
\n Attn: Asset Management
\n Telephone: (714) 630-8100
\n Fax: (714) 237-7416<\/p>\n
Landlord’s Address
\n For Payment of Rent: File #53694
\n Los Angeles, CA 90074-3694<\/p>\n
Tenant: MOHAWK INDUSTRIES, INC., a Georgia corporation<\/p>\n
Tenant’s Address
\n For Notice: P.O. Box 2208
\n ———————————
\n Dalton CA, 30722
\n ———————————
\n Attn: Jack Sharpe
\n —————————-
\n Telephone: 706-277-1100
\n ———————–
\n Fax: 706-277-1440
\n —————————–<\/p>\n
Project: 16400 Trojan Way<\/p>\n
Building: Approximately 220,000 rentable square feet as
\n shown in Exhibit A.
\n ———
\nBuilding Address:
\n Street: 16400 Trojan Way
\n City and State: La Mirada, CA 90638
\n Lot: The tax parcel on which the Building is located.<\/p>\n
Term: Sixty (60) months<\/p>\n
Estimated Commencement
\n Date: September 1, 1996<\/p>\n
Base Rent Per Month: Seventy Four Thousand Eight Hundred Dollars
\n ($74,800.00)<\/p>\n
Security Deposit: None<\/p>\n
Broker: Lee & Associates<\/p>\n
Lease Year: Shall refer to each three hundred sixty-five
\n (365) day period during the Term commencing on
\n the Commencement Date and on each anniversary
\n thereof.<\/p>\n
Permitted Uses: Warehousing and distribution of carpet and no
\n other uses shall be permitted without the prior
\n written consent of Landlord.<\/p>\n
(i)<\/p>\n
EXHIBITS<\/p>\n
A – Building\\Lot-Premises
\n B – Work Letter
\n B-1 – Space Plan
\n C – Commencement Date Memorandum
\n D – Insurance Certificate
\n E – Prohibited Uses
\n F – Correction Items
\n G – Estoppel Certificate<\/p>\n
The Basic Lease Information set forth above and the Exhibits attached
\nhereto are incorporated into and made a part of the following Lease. Each
\nreference in this Lease to any of the Basic Lease Information shall mean the
\nrespective information above and shall be construed to incorporate all of the
\nterms provided under the particular Lease paragraph pertaining to such
\ninformation. In the event of any conflict between the Basic Lease Information
\nand the provisions of the Lease, the latter shall control.<\/p>\n
LANDLORD [ILLEGIBLE] AND TENANT (JV) AGREE.
\n initial initial<\/p>\n
(ii)<\/p>\n
Table of Contents
\n —————–<\/p>\n
\n\n Page
\n —-
\n
\n1. PREMISES………………………………………………… 1
\n 1.1 Premises………………………………………….. 1
\n 1.2 Reserved Rights……………………………………. 1<\/p>\n2. TERM……………………………………………………. 1
\n 2.1 Lease Term and Commencement Date……………………… 1
\n 2.2 Possession…………………………………………. 1<\/p>\n
3. RENT……………………………………………………. 2
\n 3.1 Rent………………………………………………. 2
\n 3.2 Late Charge and Interest…………………………….. 2
\n 3.3 Intentionally Omitted……………………………….. 2<\/p>\n
4. UTILITIES……………………………………………….. 2<\/p>\n
5. TAXES…………………………………………………… 2
\n 5.1 Real Property Taxes…………………………………. 2
\n 5.2 Personal Property Taxes……………………………… 3<\/p>\n
6. TRIPLE NET LEASE…………………………………………. 3<\/p>\n
7. INSURANCE……………………………………………….. 3
\n 7.1 Landlord…………………………………………… 3
\n 7.2 Tenant ……………………………………………. 3
\n 7.3 General……………………………………………. 4
\n 7.4 Indemnity………………………………………….. 4
\n 7.5 Exemption of Landlord from Liability………………….. 5<\/p>\n
8. REPAIRS AND MAINTENANCE…………………………………… 5
\n 8.1 Landlord…………………………………………… 5
\n 8.2 Tenant…………………………………………….. 5
\n 8.3 Roof – Repair and Replacement………………………… 6
\n 8.4 Condition of the Premises……………………………. 6<\/p>\n
9. ALTERATIONS……………………………………………… 6
\n 9.1 Trade Fixtures; Alterations………………………….. 6
\n 9.2 Damage; Removal…………………………………….. 6
\n 9.3 Liens……………………………………………… 6<\/p>\n
10. USE…………………………………………………….. 7<\/p>\n
11. ENVIRONMENTAL MATTERS…………………………………….. 7
\n 11.1 Hazardous Materials…………………………………. 7
\n 11.2 Indemnification…………………………………….. 7
\n 11.3 Landlord’s Disclosure……………………………….. 8
\n 11.4 Storage Tank Removal………………………………… 8<\/p>\n
12. DAMAGE AND DESTRUCTION……………………………………. 8
\n 12.1 Casualty…………………………………………… 8
\n 12.2 Tenant’s Fault …………………………………….. 8
\n 12.3 Uninsured Casualty………………………………….. 9
\n 12.4 Waiver…………………………………………….. 9<\/p>\n
13. EMINENT DOMAIN…………………………………………… 9
\n 13.1 Total Condemnation …………………………………. 9
\n 13.2 Partial Condemnation………………………………… 9
\n 13.3 Award……………………………………………… 9
\n 13.4 Temporary Condemnation………………………………. 9
\n<\/c><\/s><\/caption>\n<\/table>\n
(iii)<\/p>\n
\n
\n14. DEFAULT……………………………………………………. 9
\n 14.1 Events of Defaults…………………………………….. 9
\n 14.2 Remedies……………………………………………… 10
\n 14.3 Cumulative……………………………………………. 11<\/p>\n15. ASSIGNMENT AND SUBLETTING……………………………………. 11<\/p>\n
16. ESTOPPEL, ATTORNMENT AND SUBORDINATION………………………… 11
\n 16.1 Estoppel……………………………………………… 11
\n 16.2 Subordination…………………………………………. 11
\n 16.3 Attornment……………………………………………. 12<\/p>\n
17. MISCELLANEOUS………………………………………………. 12
\n 17.1 General………………………………………………. 12
\n 17.2 Signs ……………………………………………….. 12
\n 17.3 Waiver……………………………………………….. 12
\n 17.4 Financial Statements…………………………………… 13
\n 17.5 Limitation of Liability………………………………… 13
\n 17.6 Notices………………………………………………. 13
\n 17.7 Brokerage Commission ………………………………….. 13
\n 17.8 Authorization…………………………………………. 13
\n 17.9 Holding Over, Surrender………………………………… 13
\n 17.10 Joint and Several……………………………………… 13
\n 17.11 Covenants and Conditions……………………………….. 13
\n 17.12 Addenda………………………………………………. 13
\n<\/c><\/s><\/table>\n
(iv)<\/p>\n
1. PREMISES.
\n ——–<\/p>\n
1.1 Premises. Landlord hereby leases to Tenant the Building and that
\n ——–
\nportion of the Lot (or all thereof if the Building constitutes the material
\nimprovement thereon) upon which the same is situated (hereinafter collectively
\nreferred to as the “Premises”) as shown on Exhibit A attached hereto.
\n ———<\/p>\n
1.2 Reserved Rights. Landlord reserves the right to enter the Premises
\n —————
\nupon reasonable notice to Tenant (except in case of an emergency) and\/or to
\nundertake the following: inspect the Premises and\/or the performance by Tenant
\nof the terms and conditions hereof; grant easements on the Project, dedicate for
\npublic use portions thereof and record covenants, conditions and restrictions
\n(“CC&R’s”) affecting the Project and\/or amendments to existing CC&R’s which do
\nnot unreasonably interfere with Tenant’s use of the Premises; change the name of
\nthe Project; and, during the last nine (9) months of the Term, show the Premises
\nto prospective tenants.<\/p>\n
2. TERM.
\n —- <\/p>\n
2.1 Lease Term and Commencement Date. The Term of the Lease shall be for a
\n ——————————–
\nperiod of sixty (60) months, subject to extension in accordance with Section 20
\nbelow. The Term shall commence (the “Commencement Date”) on the first day of the
\nfirst full calendar month following the Possession Date (as defined in Section
\n2.2.2), except that if the Possession Date occurs on the first day of a month,
\nthat day shall also be the Commencement Date. Tenant shall execute and deliver
\nto Landlord, upon request by Landlord, a Commencement Date Memorandum in the
\nform attached hereto as Exhibit C acknowledging (i) the Commencement Date (and,
\n ———
\nif requested, the Possession Date and Rent Commencement Date, as defined below),
\n(ii) the final square footage of the Premises, and (iii) Tenant’s acceptance of
\nthe Premises.<\/p>\n
2.2 Possession.
\n ———-<\/p>\n
2.2.1 Landlord’s Possession. Tenant acknowledges that the Premises
\n ———————
\nare currently occupied by an existing tenant thereof and that Landlord’s
\ndelivery of possession of the Premises is contingent upon such tenant vacating
\nthe Premises. Landlord presently anticipates that the current tenant will vacate
\nthe Premises and restore possession thereof to Landlord on or about September 1,
\n1996 and Landlord shall use its commercially reasonable efforts to recover
\npossession on such date or as soon as practicable thereafter. In the event that
\nLandlord does not recover possession of the Premises on or before such date, as
\na result of the failure of the existing tenant to vacate the Premises on or
\nbefore such date, Landlord shall not be subject to any liability therefor and
\nsuch failure shall not affect the validity of this Lease or the obligations of
\neither party hereunder, provided, however, that if the existing tenant fails to
\nvacate the Premises on or before November 1, 1996 (subject to Force Majeure
\nevents), either Landlord or Tenant may, at its option, by written notice to the
\nother party given within ten (10) days thereafter, terminate this Lease, in
\nwhich event Landlord shall return to Tenant all funds paid in advance and the
\nParties shall be discharged from all further obligations hereunder.
\nNotwithstanding anything set forth in this Section 2.2, Tenant shall not be
\nobligated to pay Base Rent for its use and occupancy of the Premises until the
\nRent Commencement Date, as defined in Section 3.1.<\/p>\n
2.2.2 Tender of Possession to Tenant. Landlord shall tender
\n ——————————
\npossession of the Premises to Tenant as soon as practicable following the date
\non which Landlord receives possession thereof. Tenant’s possession and use of
\nthe Premises from the date, on which Landlord tenders possession thereof to
\nTenant (the “Possession Date”) to the Commencement Date (the “Early Possession
\nPeriod”) shall be subject to all the provisions of this Lease. During the Early
\nPossession Period, Tenant shall (i) arrange for and pay for all utilities
\ndelivered to the Premises, (ii) arrange for, and maintain in effect, the
\ninsurance coverages required to be obtained by Tenant pursuant to Section 7.2 of
\nthis Lease, (iii) pay to Landlord, as and when due, all sums payable to Landlord
\nhereunder, including, without limitation, amounts payable for Real Property
\nTaxes (as defined in Section 5) and insurance premiums, and (iv) perform all
\nother obligations required by Tenant pursuant to this Lease.<\/p>\n
2.2.3 Tenant Improvements. Landlord shall arrange for the
\n ——————-
\nconstruction of certain Tenant Improvements (as defined in the Work Letter
\nattached hereto as Exhibit B) in accordance with and subject to the terms of the
\n ———
\nWork Letter. Landlord shall commence the construction of the Tenant improvements
\nand diligently pursue such construction to completion as soon as reasonably
\npracticable following the Possession Date. Tenant’s use of the Premises shall
\nnot unreasonably interfere with Landlord’s contractor(s) or otherwise impede the
\ncompletion of the Tenant improvements. The construction of the Tenant
\nImprovements shall not delay the occurrence of the Commencement Date. Tenant has
\ndetermined that the Premises are acceptable for Tenant’s use and Tenant
\nacknowledges that, except as set forth in the Work Letter, neither Landlord nor
\nany broker or agent has made any representations or warranties in connection
\nwith the physical condition of the Premises or their fitness for Tenant’s use
\nupon which Tenant has relied directly or indirectly for any purpose.<\/p>\n
2.2.4 Substantial Completion. The Tenant Improvements shall be deemed
\n ———————-
\nto be “Substantially Complete” on the date on which Landlord files or causes to
\nbe filed with the City in which the Premises are located (if required) and<\/p>\n
1.<\/p>\n
delivers to Tenant an architect’s notice of substantial completion, or similar
\nwritten notice that the Tenant Improvements are Substantially Complete. As used
\nherein, the term “Substantially Complete” means that the Tenant Improvements
\nhave been constructed in substantial compliance with the applicable plans and
\nspecifications, except only minor “punchlist” items. Landlord shall promptly
\ncomplete such punchlist items to the reasonable satisfaction of Tenant.<\/p>\n
3. RENT.
\n —-<\/p>\n
3.1 Rent.
\n —-<\/p>\n
3.1.1 Tenant’s obligation to pay Base Rent shall commence on the
\nfirst (1st) calendar day following the date on which the Tenant Improvements are
\nSubstantially Complete and possession of the Premises has been tendered to
\nTenant (the “Rent Commencement Date”). Tenant shall pay to Landlord, at
\nLandlord’s Address for Payment of Rent designated in the Basic Lease
\nInformation, or at such other address as Landlord may from time to time
\ndesignate in writing to Tenant for the payment of Rent, the Base Rent, without
\nnotice, demand, offset or deduction, in advance, on the first day of each
\ncalendar month. Upon the execution of this Lease, Tenant shall pay to Landlord
\nthe first month’s Base Rent. Base Rent for the period from the Rent Commencement
\nDate to the first day of the next calendar month shall be prorated on a per diem
\nbasis. All sums other than Base Rent which Tenant is obligated to pay under this
\nLease shall be deemed to be additional rent due hereunder, whether or not such
\nsums are designated “additional rent.” The term “Rent” means the Base Rent and
\nall additional rent payable hereunder.<\/p>\n
3.1.2 As set forth in the Basic Lease Information, the initial Base
\nRent shall be the sum of $74,800.00 per month, which is calculated on the basis
\nof $0.34 per square foot. Tenant acknowledges that the Premises contains
\napproximately 220,000 rentable square feet of space. The parties acknowledge
\nthat such measurement is an estimate and that the Base Rent shall not be
\nadjusted on the basis of a difference in the actual number of rentable square
\nfeet.<\/p>\n
3.2 Late Charge and Interest. The late payment of any Rent will cause
\n ————————
\nLandlord to incur additional costs, including administration and collection
\ncosts and processing and accounting expenses and increased debt service
\n(“Delinquency Costs”). If Landlord has not received any installment of Rent
\nwithin ten (10) days after such amount is due, Tenant shall pay a late charge
\nof five percent (5%) of the delinquent amount, which is agreed to represent a
\nreasonable estimate of the Delinquency Costs incurred by Landlord. In addition,
\nall such delinquent amounts shall bear interest from the date such amount was
\ndue until paid in full at a rate per annum (“Applicable Interest Rate”) equal to
\nthe lesser of(a) the maximum interest rate permitted by law or (b) five percent
\n(5%) above the rate publicly announced by Bank of America, N.A. (or if Bank of
\nAmerica, N.A. ceases to exist, the largest bank then headquartered in the State
\nof California (“Bank”) as its “Reference Rate.” If the use of the announced
\nReference Rate is discontinued by the Bank, then the term Reference Rate shall
\nmean the announced rate charged by the Bank which is, from time to time,
\nsubstituted for the Reference Rate. Landlord and Tenant recognize that the
\ndamage which Landlord shall suffer as a result of Tenant’s failure to pay such
\namounts is difficult to ascertain and said late charge and interest are the best
\nestimate of the damage which Landlord shall suffer in the event of late payment.
\nIf a late charge becomes payable for any three (3) installments of Rent within
\nany twelve (12) month period, then the Rent shall automatically become due and
\npayable quarterly in advance.<\/p>\n
3.3 Intentionally Omitted.
\n ———————<\/p>\n
4. UTILITIES. Tenant shall make all arrangements for and shall pay all charges
\n ———
\nfor heat, water, gas, electricity, telephone and any other utilities used on or
\nprovided to the Premises including, without limitation, paying any deposits and
\n“hook up charges.” Landlord shall not be liable to Tenant for interruption in or
\ncurtailment of any utility service, nor shall any such interruption or
\ncurtailment constitute constructive eviction or grounds for rental abatement.
\nThe cost of maintaining and repairing the plumbing, electrical distribution, and
\nmechanical systems, and other utility installations shall be borne by the
\nparties as provided in Section 8.<\/p>\n
5. TAXES.
\n —–<\/p>\n
5.1 Real Property Taxes. Landlord shall pay to the proper taxing
\n ——————-
\nauthorities as the same become due all Real Property Taxes applicable to the
\nPremises, subject to reimbursement by Tenant as provided below. The term “Real
\nProperty Taxes” shall be the sum of the following: all real property taxes,
\npossessory-interest taxes, business or license taxes or fees, service payments
\nin lieu of such taxes or fees, annual or periodic license or use fees, excises,
\ntransit and traffic charges, housing fund assessments, open space charges, child
\ncare fees, school, sewer and parking fees or any other assessments, levies,
\nfees, exactions or charges, general and special, ordinary and extraordinary,
\nunforeseen as well as foreseen (including fees “in-lieu” of any such tax or
\nassessment) which are assessed, levied, charged, conferred or imposed by any
\npublic authority upon the Premises (or any real property comprising any portion
\nthereof) or its operations, together with all taxes, assessments or other fees
\nimposed by any public authority upon or measured by any Rent or other charges
\npayable hereunder, including any gross receipts tax or excise tax levied by any
\ngovernmental authority with respect to receipt of rental income, or upon, with
\nrespect to or by reason of the development, possession, leasing, operation,
\nmanagement, maintenance, alteration, repair, use or occupancy by Tenant of the
\nPremises or any portion thereof, or documentary transfer taxes upon this
\ntransaction or<\/p>\n
2.<\/p>\n
any document to which Tenant is a party creating or transferring an interest in
\nthe Premises, together with any tax imposed in substitution, partially or
\ntotally, of any tax previously included within the aforesaid definition or any
\nadditional tax the nature of which was previously included within the aforesaid
\ndefinition, together with the costs and expenses (including attorneys and expert
\nwitness fees and costs) of challenging any of the foregoing or seeking the
\nreduction in or abatement, redemption or return of any of the foregoing, but
\nonly to the extent of any such reduction, abatement, redemption or return.
\nNothing contained in this Lease shall require Tenant to pay any franchise,
\ncorporate, estate or inheritance tax of Landlord, or any income, profits or
\nrevenue tax or charge upon the net income of Landlord.<\/p>\n
5.1.1 Reimbursement By Tenant. Tenant shall pay to Landlord an amount
\n ———————–
\nequal to the Real Property Taxes then due within fifteen (15) days after
\ndelivery to Tenant by Landlord of an invoice for the same, together with a copy
\nof the corresponding tax bill. Landlord may, at Landlord’s option, deliver
\nstatements from different taxing authorities at different times or deliver all
\nsuch statements at one time; provided, however, that Landlord shall not change
\nthe method of invoicing Tenant for Real Property Taxes more than one (1) time
\nin each three (3) year period and, in each case, shall give Tenant thirty (30)
\ndays notice prior to any change in such method of invoicing Tenant. In addition,
\nLandlord may elect to collect such Real Property Taxes from Tenant in advance,
\non a monthly or quarterly basis, based upon Landlord’s reasonable estimate of
\nsuch Real Property Taxes. If the amount of monthly or quarterly payments for
\nestimated Real Property Taxes received by Landlord from Tenant is more or less
\nthan the actual Real Property Taxes due, an appropriate adjustment shall be made
\nby Landlord and Tenant.<\/p>\n
5.1.2 Partial Years. Real Property Taxes for partial tax fiscal
\n ————-
\nyears, if any, falling within the Term, shall be prorated. Tenant’s obligations
\nfor Real Property Taxes for the last full or partial year of the Term shall
\nsurvive the expiration or earlier termination of this Lease.<\/p>\n
5.2 Personal Property Taxes. Prior to delinquency, Tenant shall pay all
\n ———————–
\ntaxes 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
6. TRIPLE NET LEASE. It is intended that this Lease be a “triple net lease,”
\n —————-
\nand that the Rent to be paid hereunder by Tenant will be received by Landlord
\nwithout any deduction or offset whatsoever by Tenant, foreseeable or
\nunforeseeable. Except as expressly provided to the contrary in this Lease,
\nLandlord shall not be required to make any expenditure, incur any obligation, or
\nincur any liability of any kind whatsoever in connection with this Lease or the
\nownership, construction, maintenance, operation or repair of the Premises.
\nNotwithstanding the foregoing, Tenant shall reimburse Landlord monthly, as
\nadditional rent, for all costs and fees reasonably incurred by Landlord in
\nconnection with the management of this Lease and the Premises including the cost
\nof those services which are customarily performed by a property management
\nservices company.<\/p>\n
7. INSURANCE.
\n ———<\/p>\n
7.1 Landlord. Landlord shall maintain insurance insuring the Building
\n ——–
\nagainst fire and extended coverage (including, if Landlord elects, “all risk”
\ncoverage, earthquake\/volcanic action, flood and\/or surface water insurance) for
\nthe full replacement cost of the Building, with deductibles and the form and
\nendorsements of such coverage as selected by Landlord, together with rental
\nabatement insurance against loss of Rent in an amount equal to the amount of
\nRent for a period of at least twelve (12) months commencing on the date of loss.
\nLandlord may also carry such other insurance as Landlord may deem prudent or
\nadvisable, including, without limitation, liability insurance in such amounts
\nand on such terms as Landlord shall determine. Tenant shall pay to Landlord an
\namount equal to the premiums then due within fifteen (15) days after delivery to
\nTenant by Landlord of an invoice for any such premiums. Landlord may, at
\nLandlord’s option, elect to collect such premiums from Tenant in advance, on a
\nmonthly or quarterly basis, based upon Landlord’s reasonable estimate of such
\npremiums. If the amount of monthly or quarterly payments for estimated premiums
\nreceived by Landlord from Tenant are more or less than the actual premiums due,
\nan appropriate adjustment shall be made by Landlord and Tenant.<\/p>\n
7.2 Tenant. Tenant shall, at Tenant’s expense, obtain and keep in force at
\n ——
\nall times the following insurance:<\/p>\n
7.2.1 Commercial General Liability Insurance (Occurrence Form). A
\n ——————————————————–
\npolicy of commercial general liability insurance (occurrence form) having a
\ncombined single limit of not less than Two Million Dollars ($2,000,000) per
\noccurrence and Two Million Dollars ($2,000,000) aggregate per location if Tenant
\nhas multiple locations, providing coverage for, among other things, blanket
\ncontractual liability, premises, products\/completed operations and personal and
\nadvertising injury coverage, with deletion of (a) the exclusion for operations
\nwithin fifty (50) feet of a railroad track (railroad protective liability), if
\napplicable, and (b) the exclusion for explosion, collapse or underground hazard,
\nif applicable, and, if necessary, Tenant shall provide for restoration of the
\naggregate limit.<\/p>\n
3.<\/p>\n
7.2.2 Automobile Liability Insurance. Comprehensive automobile
\n ——————————
\nliability insurance having a combined single limit of not less than Two Million
\nDollars ($2,000,000) per occurrence and insuring Tenant against liability for
\nclaims arising out of ownership, maintenance, or use of any owned, hired or non-
\nowned automobiles:<\/p>\n
7.2.3 Workers’ Compensation and Employer’s Liability Insurance.
\n ——————————————————–
\nWorkers’ compensation insurance having limits not less than those required by
\nstate statute and federal statute, if applicable, and covering all persons
\nemployed by Tenant in the conduct of its operations on the Premises (including
\nthe all states endorsement and, if applicable, the volunteers endorsement),
\ntogether with employer’s liability insurance coverage in the amount of at least
\nOne Million Dollars ($1,000,000); and<\/p>\n
7.2.4 Property Insurance. “All risk” property insurance including
\n ——————
\nboiler and machinery comprehensive form, if applicable, covering damage to or
\nloss of any of Tenant’s personal property, fixtures, equipment and alterations,
\nincluding electronic data processing equipment (collectively “Tenant’s
\nProperty”) (and coverage for the full replacement cost thereof including
\nbusiness interruption of Tenant), together with, if the property of Tenant’s
\ninvitee’s is to be kept in the Premises, warehouser’s legal liability or bailee
\ncustomers insurance for the full replacement cost of the property belonging to
\ninvitee’s and located in the Premises.<\/p>\n
7.3 General.
\n ——-<\/p>\n
7.3.1 Insurance Companies. Insurance required to be maintained by
\n ——————-
\nTenant shall be written by companies licensed to do business in the state in
\nwhich the Premises are located and having a “General Policyholders Rating” of at
\nleast A 8 (or such higher rating as may be required by a lender having a lien on
\nthe Premises) as set forth in the most current issue of “Best’s Insurance
\nGuide.”<\/p>\n
7.3.2 Certificates of Insurance. Tenant shall deliver to Landlord
\n ————————-
\ncertificates of insurance for all insurance required to be maintained by Tenant
\nin the form of Exhibit D, attached hereto, no later than seven (7) days prior to
\n ———
\nthe date of possession of the Premises. Tenant shall, at least ten (10) days
\nprior to expiration of the policy, furnish Landlord with certificates of renewal
\nor “binders” thereof. Each certificate shall expressly provide that such
\npolicies shall not be cancelable or otherwise subject to modification except
\nafter sixty (60) days prior written notice to the parties named as additional
\ninsured in this Lease (except in the case of cancellation for nonpayment of
\npremium in which case cancellation shall not take effect until at least (10)
\ndays’ notice has been given to Landlord). If Tenant fails to maintain any
\ninsurance required in this Lease, Tenant shall be liable for all losses and cost
\nresulting from said failure.<\/p>\n
7.3.3 Additional Insured. Landlord and any property management
\n ——————
\ncompany of Landlord for the Premises shall be named as additional insured under
\nall of the policies required by Section 7.2.1. The policies required under
\nSection 7.2.1 shall provide for severability of interest.<\/p>\n
7.3.4 Primary Coverage. All insurance to be maintained by Tenant
\n —————-
\nshall, except for workers’ compensation and employer’s liability insurance, be
\nprimary, without right of contribution from insurance of Landlord. Any umbrella
\nliability policy or excess liability policy (which shall be in “following form”)
\nshall provide that if the underlying aggregate is exhausted, the excess coverage
\nwill drop down as primary insurance. The limits of insurance maintained by
\nTenant shall not limit Tenant’s liability under this Lease.<\/p>\n
7.3.5 Mutual Waiver of Subrogation. Tenant waives any right to
\n —————————-
\nrecover against Landlord for claims for damages to Tenant’s Property to the
\nextent covered, or required by this Lease to be covered by insurance. Landlord
\nwaives any right to recover against Tenant for damages to Landlord’s property to
\nthe extent covered, or required by this Lease to be covered by property
\ninsurance. This provision is intended to waive fully, and for the benefit of
\nLandlord and Tenant, any rights and\/or claims which might give rise to a right
\nof subrogation in favor of any insurance carrier. The coverage obtained by
\nLandlord and Tenant pursuant to this Lease shall include, without limitation, a
\nwaiver of subrogation endorsement attached to the certificate of insurance.<\/p>\n
7.3.6 Notification of Incidents. Tenant shall notify Landlord within
\n ————————-
\nseventy-two (72) hours after the occurrence of any accidents or incidents in the
\nPremises which could give rise to a claim under any of the insurance policies
\nrequired under this Section 7.<\/p>\n
7.4 Indemnity.
\n ———<\/p>\n
7.4.1 Tenant’s Indemnity. Tenant shall indemnify, protect, defend (by
\n ——————
\ncounsel reasonably acceptable to both Landlord and Tenant) and hold harmless
\nLandlord and its partners, directors, officers, employees, shareholders,
\nlenders, agents, contractors and each of their successors and assigns from and
\nagainst any and all claims, judgments, causes of action, damages, penalties,
\ncosts, liabilities, and expenses, including all costs, attorneys’ fees, expenses
\nand liabilities incurred in the defense of any such claim or any action or
\nproceeding brought thereon, arising at any time during or after the Term as a
\nresult (directly or indirectly) of or in connection with (i) any default in the
\nperformance of any obligation on Tenant’s part to be<\/p>\n
4.<\/p>\n
performed under the terms of this Lease, or (ii) Tenant’s use of the Premises,
\nthe conduct of Tenant’s business or any activity, work or things done, permitted
\nor suffered by Tenant in or about the Premises or other portions of the Project,
\nexcept to the extent caused by Landlord’s gross negligence or willful
\nmisconduct. The obligations of Tenant under this Section 7.4 shall survive the
\ntermination of this Lease with respect to any claims or liability arising out of
\nany act, omission, or event occurring on or before the date of such termination.<\/p>\n
7.4.2 Landlord’s Indemnity. Except as expressly provided in this
\n ——————–
\nLease, and subject to the limitations of Section 17.5, Landlord shall indemnify,
\nprotect, defend (by counsel reasonably acceptable to both Landlord and Tenant)
\nand hold harmless Tenant and its partners, directors, officers, employees,
\nshareholders, lenders, agents, contractors and each of their successors and
\nassigns from and against any and all claims, judgments, causes of action,
\ndamages, penalties, costs, liabilities, and expenses, including all costs,
\nattorneys’ fees, expenses and liabilities incurred in the defense of any such
\nclaim or any action or proceeding brought thereon, arising at any time during or
\nafter the Term as a result (directly or indirectly) of or in connection with (i)
\nany default in the performance of any obligation on Landlord’s part to be
\nperformed under the terms of this Lease, or (ii) landlord’s gross negligence or
\nintentional misconduct in connection with Landlord’s activities in or about the
\nPremises. The obligations of Landlord under this Section 7.4 shall survive the
\ntermination of this Lease with respect to any claims or liability arising out of
\nany act, omission, or event occurring on or before the date of such termination.<\/p>\n
7.5 Exemption of Landlord from Liability. Tenant, as a material part of
\n ————————————
\nthe consideration to Landlord, hereby assumes all risk of damage to property
\nincluding, but not limited to, Tenant’s fixtures, equipment, furniture and
\nalterations or injury to persons in, upon or about the Premises or other
\nportions of the Project arising from any cause, and Tenant hereby waives all
\nclaims in respect thereof against Landlord, except to the extent such claims are
\ncaused by the gross negligence or willful misconduct of Landlord, its employees,
\nagents, and contractors. Tenant hereby agrees that Landlord shall not be liable
\nfor injury to Tenant’s business or any loss of income therefrom or for damage to
\nthe property of Tenant, or injury to or death of Tenant, Tenant’s employees,
\ninvitee’s, customers, agents or contractors or any other person in or about the
\nPremises or the Project, whether such damage or injury is caused by fire, steam,
\nelectricity, gas, water or rain, or from the breakage, leakage or other defects
\nof sprinklers, wires, appliances, plumbing, air conditioning or lighting
\nfixtures, or from any other cause, whether said damage or injury results from
\nconditions arising upon the Premises, or from other sources or places, and
\nregardless of whether the cause of such damage or injury or the means of
\nrepairing the same is inaccessible to Tenant, except to the extent caused by the
\ngross negligence or willful misconduct of Landlord, its employees, agents, and
\ncontractors.<\/p>\n
8. REPAIRS AND MAINTENANCE.
\n ———————–<\/p>\n
8.1 Landlord. Landlord shall, subject to the following sentence, maintain
\n ——–
\nthe structural portions of the roof, foundation, and load-bearing portions of
\nwalls (excluding wall coverings, painting, glass and doors) of the Improvements.
\nLandlord shall not be required to make any repair resulting from (i) any
\nalteration or modification to the Improvements or to mechanical equipment within
\nthe Improvements performed by, for or because of Tenant or to special equipment
\nor systems installed by, for or because of Tenant, (ii) the installation, use or
\noperation of Tenant’s property, fixtures and equipment, (iii) the moving of
\nTenant’s property in or out of the Improvements or in and about the Premises,
\n(iv) Tenant’s use or occupancy of the Premises in violation of Section 10 of
\nthis Lease or in the manner not contemplated by the parties at the time of the
\nexecution of this Lease, (v) the acts or omissions of Tenant and Tenant’s
\nemployees, agents, invitees, subtenants, licensees or contractors, (vi) fire and
\nother casualty, except as provided by Section 12 of this Lease or (vii)
\ncondemnation, except as provided in Section 13 of this Lease. Landlord shall
\nmake repairs under this Section 8.1 as soon as reasonably practicable after
\nreceipt of written notice from Tenant of the need for such repairs. Landlord
\nshall procure and maintain, at Tenant’s expense, regularly scheduled preventive
\nmaintenance\/service contracts for (i) the maintenance and repair of the fire
\ndetection and sprinkler system, and (ii) the regular and routine maintenance and
\nannual inspection of the roof membrane. Tenant shall reimburse Landlord upon
\nthirty (30) days written notice for the reasonable cost thereof. Tenant waives
\nany right to repair the Premises at the expense of Landlord under any applicable
\ngovernmental laws, ordinances, statutes, orders or regulations now or hereafter
\nin effect which might otherwise apply.<\/p>\n
8.2 Tenant. Except for the portions of the Premises expressly required to
\n ——
\nbe maintained by Landlord under Section 8.1, Tenant, at Tenant’s expense, shall
\nmaintain the Premises in good order, condition and repair, including, without
\nlimitation, subfloors and floor coverings, walls and wall coverings, mechanical,
\nelectrical, and plumbing systems, doors, windows. parking lots, and truck
\naprons, gutters and downspouts, landscaping and any signage. During the Term of
\nthis Lease, or any extensions thereof, Tenant shall procure and maintain, at
\nTenant’s expense, regularly scheduled preventive maintenance\/service contracts
\nwith maintenance contractors reasonably acceptable to Landlord for (i) servicing
\nall hot water and heating and air conditioning systems and equipment (“HVAC”) in
\nthe Premises, and (ii) the landscape maintenance. Tenant shall provide Landlord
\nwith a copy of the HVAC contract and shall furnish a copy of all reports and
\ncorrespondence involving the condition of the HVAC equipment to Landlord. Each
\ncontract shall provide that the maintenance contractor will notify Landlord in
\nwriting at least ten (10) days prior to any termination of the contract.
\nNotwithstanding the foregoing, Landlord reserves the right to procure and
\nmaintain the foregoing maintenance\/service contracts, and Tenant shall promptly
\nreimburse Landlord upon thirty (30) days written notice for the cost thereof. In
\nthe event Tenant fails, in the reasonable judgment of Landlord, to maintain the
\nPremises in good order, condition and repair, Landlord shall have the right to
\nperform such maintenance, repairs or refurbishing at Tenant’s expense.<\/p>\n
5.<\/p>\n
8.3 Roof — Repair and Replacement. As provided in Section 8.1. Landlord,
\n ——————————
\nat its cost, shall maintain the structural portions of the roof during the Term
\nof this Lease. In addition, Landlord shall arrange for regular and routine
\nmaintenance and annual inspection of the roof surface and membrane, subject to
\nTenant’s reimbursement to Landlord for the reasonable cost thereof within thirty
\n(30) days’ written notice. In the event that the surface and membrane of the
\nroof needs to be replaced as a matter of prudent building management and
\nownership, as reasonably determine by an independent and qualified roofing
\nconsultant, during the initial Term of this Lease or, if the Term is extended
\npursuant to Section 20, during the First Extension Term, Landlord shall arrange
\nand pay for the replacement thereof at Landlord’s sole cost and expense. If the
\nTerm of this Lease is further extended, either pursuant to Section 20 or by
\nother agreement of the parties, and the roof surface and membrane needs to be
\nreplaced as a matter of prudent building management and ownership, as reasonably
\ndetermined by an independent and qualified roofing consultant, during such
\nadditionally extended term, Tenant shall arrange and pay for the replacement
\nthereof at Tenant’s sole cost and expense.<\/p>\n
8.4 Condition of the Premises.
\n ————————-<\/p>\n
8.4.1 Landlord warrants to Tenant that the Premises comply with all
\napplicable covenants or restrictions of record and applicable building codes,
\nregulations and ordinances in effect on the Commencement Date. Said warranty
\ndoes not apply to the use to which Tenant will put the Premises or to any
\nalterations or utility installations made or to be made by Tenant. If the
\nPremises do not comply with said warranty, Landlord shall, except as otherwise
\nprovided in this Lease, promptly after receipt of written notice from Tenant
\nsetting forth with specificity the nature and extent of such condition of non-
\ncompliance, rectify the same at Landlord’s expense. If Tenant fails to give
\nLandlord written notice of a condition of non-compliance with this warranty
\nwithin six (6) months alter the Possession Date, the correction of such
\ncondition of non-compliance shall be the obligation of Tenant at Tenant’s sole
\ncost and expense.<\/p>\n
8.4.2 Landlord and Tenant have jointly conducted a walk-through of
\nthe Premises and have agreed that those items which are set forth in Exhibit F
\n ———
\nhereto require correction and that such items shall be corrected by Landlord, at
\nits sole cost and expense. On or about the Possession Date, Landlord and Tenant
\nshall conduct a subsequent walk-through of the Premises and shall jointly and
\nreasonably determine if there are any new and additional items in the Premises
\nwhich require correction and, if so, such items shall be added to Exhibit F.
\n ———
\nLandlord shall cause the items set forth in Exhibit F, as the same may be
\n ———
\nrevised following the Possession Date walk through, to be corrected promptly and
\nat Landlord’s sole cost and expense.<\/p>\n
9. ALTERATIONS.
\n ———–<\/p>\n
9.1 Trade Fixtures; Alterations. Tenant may install necessary trade
\n —————————
\nfixtures, equipment and furniture in the Premises, provided that such items are
\ninstalled and are removable without structural or material damage to the
\nPremises or the Project. Tenant shall not construct, nor allow to be
\nconstructed, any alterations or physical additions in, about or to the Premises
\nwithout obtaining the prior written consent of Landlord, which consent shall be
\nconditioned upon Tenant’s compliance with Landlord’s reasonable requirements
\nregarding construction of improvements and alterations but such consent
\notherwise shall not be unreasonably withheld. Tenant shall submit plans and
\nspecifications to Landlord with Tenant’s request for approval and shall
\nreimburse Landlord for all costs which Landlord may incur in connection with
\ngranting approval to Tenant for any such alterations and additions, including
\nany costs or expenses which Landlord may incur in electing to have outside
\narchitects and engineers review said matters. Tenant shall file a notice of
\ncompletion after completion of such work and provide Landlord with a copy
\nthereof. Tenant shall provide Landlord with a set of “as-built” drawings for any
\nsuch work.<\/p>\n
9.2 Damage; Removal. Tenant shall repair all damage to the Premises caused
\n —————
\nby the installation or removal of Tenant’s fixtures, equipment, furniture and
\nalterations. Upon the termination of this Lease, Tenant shall remove any or all
\nalterations, additions, improvements and partitions made or installed by Tenant
\nand restore the Premises to its condition existing prior to the construction of
\nany such items; provided, however, Landlord may permit, upon written notice to
\nTenant, any such items designated by Landlord to remain on the Premises, in
\nwhich event (and if Tenant elects to leave such items on the Premises) they
\nshall be and become the property of Landlord upon the termination of this Lease.
\nAll such removals and restoration shall be accomplished in a good and
\nworkmanlike manner and so as not to cause any damage to the Premises or the
\nProject whatsoever.<\/p>\n
9.3 Liens. Tenant shall promptly pay and discharge all claims for labor
\n —–
\nperformed, supplies furnished and services rendered at the request of Tenant and
\nshall keep the Premises free of all mechanics’ and materialmen’s liens in
\nconnection therewith. Tenant shall provide at least ten (10) days prior written
\nnotice to Landlord before any labor is performed, supplies furnished or services
\nrendered on or at the Premises and Landlord shall have the right to post on the
\nPremises notices of non-responsibility. If any lien is filed, Tenant shall cause
\nsuch lien to be released and removed within ten (10) days after the date of
\nfiling, and if Tenant fails to do so, Landlord may take such action as may be
\nnecessary to remove such lien and Tenant shall pay Landlord such amounts
\nexpended by Landlord together with interest thereon at the Applicable interest
\nRate from the date of expenditure.<\/p>\n
6.<\/p>\n
10. USE. The Premises shall be used only for the Permitted Uses set forth in the
\n —
\nBasic Lease Information and for no other uses. Tenant’s use of the Premises
\nshall be in compliance with and subject to all applicable governmental laws,
\nordinances, statutes, orders and regulations and any CC&R’s or any supplement
\nthereto recorded in any official or public records with respect to the Project
\nor any portion thereof. In no event shall the Premises be used for any of the
\nProhibited Uses set forth on Exhibit E attached hereto. Tenant shall comply with
\n ———
\nthe reasonable rules and regulations as Landlord may from time to time
\nprescribe. Tenant shall not commit waste, overload the floors or structure of
\nthe Premises, subject the Premises or the Project to any use which would damage
\nthe same or increase the risk of loss or violate any insurance coverage, permit
\nany unreasonable odors, smoke, dust, gas, substances, noise or vibrations to
\nemanate from the Premises, take any action which would constitute a nuisance or
\nwould disturb, obstruct or endanger any other tenants of the Project, take any
\naction which would abrogate any warranties, or use or allow the Premises to be
\nused for any unlawful purpose. Tenant shall have the right to use for its
\nemployees and invitees, the parking areas on the Premises. Landlord shall not be
\nresponsible for non-compliance by any other tenant or occupant of the Project
\nwith, or Landlord’s failure to enforce, any of the rules or regulations or any
\nother terms or provisions of such tenant’s or occupant’s lease. Tenant shall
\npromptly comply with the reasonable requirements of any board of fire insurance
\nunderwriters or other similar body now or hereafter constituted. Tenant shall
\nnot do any act which shall in any way encumber the title of Landlord in and to
\nthe Premises or the Project.<\/p>\n
11. ENVIRONMENTAL MATTERS.
\n ———————<\/p>\n
11.1 Hazardous Materials. Tenant shall not cause nor permit, nor allow any
\n ——————-
\nof Tenant’s employees, agents, customers, visitors, invitees, licensees,
\ncontractors, assignees or subtenants (collectively, “Tenant’s Parties”) to cause
\nor permit, any Hazardous Materials to be brought upon, stored, manufactured,
\ngenerated, blended, handled, recycled, treated, disposed or used on, under or
\nabout the Premises or the Project, except for routine office and janitorial
\nsupplies in usual and customary quantities stored, used and disposed of in
\naccordance with all applicable Environmental Laws. As used herein, “Hazardous
\nMaterials” means any chemical, substance, material, controlled substance,
\nobject, condition, waste, living organism or combination thereof which is or may
\nbe hazardous to human health or safety or to the environment due to its
\nradioactivity, ignitability, corrosivity, reactivity, explosivity, toxicity,
\ncarcinogenicity, mutagenicity, phytotoxicity, infectiousness or other harmful or
\npotentially harmful properties or effects, including, without limitation,
\npetroleum and petroleum products, asbestos, radon, polychlorinated biphenyls
\n(PCBs) and all of those chemicals, substances, materials, controlled substances.
\nobjects, conditions, wastes, living organisms or combinations thereof which are
\nnow or become in the future listed, defined or regulated in any manner by any
\nEnvironmental Law based upon, directly or indirectly, such properties or
\neffects. As used herein, “Environmental Laws” means any and all federal, state
\nor local environmental, health and\/or safety-related laws, regulations,
\nstandards, decisions of courts, ordinances, rules, codes, orders, decrees,
\ndirectives, guidelines, permits or permit conditions, currently existing and as
\namended, enacted, issued or adopted in the future which are or become applicable
\nto Tenant, the Premises, the Building or the Project. Tenant and Tenant’s
\nParties shall comply with all Environmental Laws and promptly notify Landlord of
\nthe violation of any Environmental Law or presence of any Hazardous Materials,
\nother than office and janitorial supplies as permitted above, on the Premises.
\nLandlord shall have the right to enter upon and inspect the Premises and to
\nconduct tests, monitoring and investigations. If such tests indicate the
\npresence of any environmental condition which occurred during the Term of this
\nLease, Tenant shall reimburse Landlord for the cost of conducting such tests.
\nThe phrase “environmental condition” shall mean any adverse condition relating
\nto any Hazardous Materials or the environment, including surface water,
\ngroundwater, drinking water supply, land, surface or subsurface strata or the
\nambient air and includes air, land and water pollutants, noise, vibration, light
\nand odors. In the event of any such environmental condition, Tenant shall
\npromptly take any and all steps necessary to rectify the same to Landlord’s
\nreasonable satisfaction or shall, at Landlord’s election, reimburse Landlord,
\nupon demand, for the cost to Landlord of performing rectifying work. The
\nreimbursement shall be paid to Landlord in advance of Landlord’s performing such
\nwork, based upon Landlord’s reasonable estimate of the cost thereof; and upon
\ncompletion of such work by Landlord, Tenant shall pay to Landlord any shortfall
\nwithin thirty (30) days after Landlord bills Tenant therefore or Landlord shall
\nwithin thirty (30) days refund to Tenant any excess deposit, as the case may be.<\/p>\n
11.2 Indemnification. Tenant shall indemnify, protect, defend (by counsel
\n —————
\nacceptable to Landlord) and hold harmless Landlord and its partners, directors,
\nofficers, employees, shareholders, lenders, agents, contractors and each of
\ntheir respective successors and assigns (individually and collectively,
\n“Indemnitees”) from and against any and all claims, judgments, causes of action,
\ndamages, penalties, fines, taxes, costs, liabilities, losses and expenses
\narising at any time during or after the Term as a result (directly or
\nindirectly) of or in connection with (a) Tenant and\/or Tenant’s Parties’ breach
\nof any prohibition or provision of the preceding section, or (b) the presence of
\nHazardous Materials on, under or about the Premises or other property as a
\nresult (directly or indirectly) of Tenant’s and\/or Tenant’s Parties’ activities,
\nor failure to act, in connection with the Premises. This indemnity shall include
\nthe cost of any required or necessary repair, cleanup or detoxification, and the
\npreparation and implementation of any closure, monitoring or other required
\nplans, whether such action is required or necessary prior to or following the
\ntermination of this Lease. Neither the written consent by Landlord to the
\npresence of Hazardous Materials on, under or about the Premises, nor the strict
\ncompliance by Tenant with all Environmental Laws, shall excuse Tenant from
\nTenant’s obligation of indemnification pursuant hereto. Tenant’s obligations
\npursuant to the foregoing indemnity shall survive the termination of this Lease.<\/p>\n
7.<\/p>\n
11.3 Landlord’s Disclosure. Landlord has no actual knowledge and has
\n ———————
\nreceived no written notice that (i) any Hazardous Materials are located on,
\nunder, or in the Premises, or (ii) there is a pending proceeding, inquiry,
\ninvestigation, or order by any governmental authority with respect to any
\nHazardous Materials on, under, or in be Premises. As use herein, the term
\n“actual knowledge” means that the specific matter has come to the actual
\nattention of the person or persons employed by Landlord who are responsible and
\nauthorized to act with respect to such matter.<\/p>\n
11.4 Storage Tank Removal. The parties acknowledge that the previous
\n ——————–
\ntenant of the Premises had installed a 10,000 gallon underground diesel storage
\ntank (the “Tank”). Landlord shall remove or cause the Tank to be removed in
\naccordance with all applicable laws and regulations and within sixty (60) days
\nfollowing the Commencement Date. Landlord further acknowledges and agrees that
\nTenant shall have no liability for any cost or expense arising out of the
\ninstallation, use, or removal of the Tank.<\/p>\n
12. DAMAGE AND DESTRUCTION.
\n ———————-<\/p>\n
12.1 Casualty. If the Premises should be damaged or destroyed by fire or
\n ——–
\nother casualty, Tenant shall give immediate written notice to Landlord. Within
\nthirty (30) days after receipt thereof, Landlord shall notify Tenant whether the
\nnecessary repairs can reasonably be made: (a) within ninety (90) days; (b) in
\nmore than ninety (90) days but in less than one hundred eighty (180) days; or
\n(c) in more than one hundred eighty (180) days from the date of such notice.<\/p>\n
12.1.1 Less Than 90 Days. If the Premises should be damaged only to
\n —————–
\nsuch extent that rebuilding or repairs can reasonably be completed within ninety
\n(90) days, this Lease shall not terminate and, provided that insurance proceeds
\nare available to fully repair the damage. Landlord shall repair the Premises
\nutilizing such insurance proceeds and shall not recover any of such repair costs
\nfrom Tenant pursuant to Section 6. Landlord shall not be required to rebuild,
\nrepair or replace any alterations, partitions, fixtures, additions and other
\nimprovements (collectively, “Improvements”) which may have been placed in, on or
\nabout the Premises by or for the benefit of Tenant, it being the intent of the
\nparties that Tenant shall replace such Improvements utilizing insurance proceeds
\navailable to Tenant pursuant to Section 7.2.4. If Tenant is required to vacate
\nall or a portion of the Premises during Landlord’s repair thereof, the Base Rent
\npayable hereunder shall be abated proportionately from the date Tenant vacates
\nall or a portion of the Premises only to the extent rental abatement insurance
\nproceeds are received by Landlord and only during the period the Premises are
\nunfit for occupancy.<\/p>\n
12.1.2 Greater Than 90 Days. If the Premises should be damaged only
\n ——————–
\nto such extent that rebuilding or repairs can reasonably be completed in more
\nthan ninety (90) days but in less than one hundred eighty (180) days, then
\nLandlord shall have the option of: (a) terminating the Lease effective upon the
\noccurrence of such damage, in which event the Rent shall be abated from the date
\nTenant vacates the Premises; or (b) electing to repair the Premises, provided
\ninsurance proceeds are available to fully repair the damage (except that
\nLandlord shall not be required to rebuild, repair or replace any part of the
\nImprovements which may have been placed in, on or about the Premises by or for
\nthe benefit of Tenant). If Tenant is required to vacate all or a portion of the
\nPremises during Landlord’s repair thereof, the Base Rent payable hereunder shall
\nbe abated proportionately from the date Tenant vacates all or a portion of the
\nPremises only to the extent rental abatement insurance proceeds are received by
\nLandlord and only during the period the Premises are unfit for occupancy. In the
\nevent that Landlord should fail to substantially complete such repairs within
\none hundred eighty (180) days after the date upon which Landlord is notified by
\nTenant of the casualty (such period to be extended for delays caused by Tenant
\nor because of any items of Force Majeure, as hereinafter defined) and Tenant has
\nnot re-occupied the Premises. Tenant shall have the right, as Tenant’s exclusive
\nremedy, within ten (10) days after the expiration of such one hundred eighty
\n(180) day period, to terminate this Lease by delivering written notice to
\nLandlord as Tenant’s exclusive remedy, whereupon all rights hereunder shall
\ncease and terminate thirty (30) days after Landlord’s receipt of such notice.<\/p>\n
12.1.3 Greater Than 180 Days. If the Premises should be so damaged
\n ———————
\nthat rebuilding or repairs cannot be completed within one hundred eighty (180)
\ndays, either Landlord or Tenant may terminate this Lease by giving written
\nnotice within ten (10) days after notice from Landlord specifying such time
\nperiod of repair; and this Lease shall terminate and the Rent shall be abated
\nfrom the date Tenant vacates the Premises. In the event that neither party
\nelects to terminate this Lease. Landlord shall promptly commence and diligently
\nprosecute to completion the repairs to the Premises, provided insurance proceeds
\nare available to repair the damage (except that Landlord shall not be required
\nto rebuild, repair or replace any Improvements which may have been placed in, on
\nor about the Premises by or for the benefit of Tenant). If Tenant is required to
\nvacate all or a portion of the Premises during Landlord’s repair thereof, the
\nBase Rent payable hereunder shall be abated proportionately from the date Tenant
\nvacates all or a portion of the Premises only to the extent rental abatement
\ninsurance proceeds are received by Landlord and only during the period that the
\nPremises are unfit for occupancy.<\/p>\n
12.2 Tenant’s Fault. If the Premises or any portion of the Premises is
\n ————–
\ndamaged resulting from the negligence or breach of this Lease by Tenant or any
\nof Tenant’s Parties. Rent shall not be reduced during the repair of such damage
\nand Tenant shall be liable to Landlord for the cost of the repair caused thereby
\nto the extent such cost is not covered by insurance proceeds.<\/p>\n
8.<\/p>\n
12.3 Uninsured Casualty. In the event that the Premises or any portion of
\n ——————
\nthe Premises is damaged to the extent Tenant is unable to use the Premises and
\nsuch damage is not covered by insurance proceeds received by Landlord or in the
\nevent that the holder of any indebtedness secured by the Premises requires that
\nthe insurance proceeds be applied to such indebtedness, then Landlord shall have
\nthe right at Landlord’s option either (i) to repair such damage as soon as
\nreasonably possible at Landlord’s expense, or (ii) to give written notice to
\nTenant within thirty (30) days after the date of the occurrence of such damage
\nof Landlord’s intention to terminate this Lease as of the date of the occurrence
\nof such damage. In the event Landlord elects to terminate this Lease, Tenant
\nshall have the right (but not the obligation) within ten (10) days after receipt
\nof such notice to give written notice to landlord of Tenant’s intention to pay
\nthe cost of repair of such damage, in which event this Lease shall continue in
\nfull force and effect, Landlord shall make such repairs as soon as reasonably
\npossible and Tenant shall reimburse Landlord for such repairs within fifteen
\n(15) days after receipt of an invoice from Landlord. If Tenant is required to
\nvacate all or a portion of the Premises during Landlord’s repair thereof, the
\nBase Rent payable hereunder shall be abated proportionately from the date Tenant
\nvacates all or a portion of the Premises only to the extent rental abatement
\ninsurance proceeds are received by Landlord and only during the period that the
\nPremises are unfit for occupancy. If Tenant does not give such notice within the
\nten ( 10) day period, this Lease shall terminate automatically as of the date of
\nthe occurrence of the damage. <\/p>\n
12.4. Waiver. With respect to any damage or destruction which Landlord is
\n ——
\nobligated to repair or may elect to repair, Tenant waives all rights to
\nterminate this Lease pursuant to rights otherwise presently or hereafter
\naccorded by law and not specifically set forth herein.<\/p>\n
13. EMINENT DOMAIN.
\n ————–<\/p>\n
13.1 Total Condemnation. If all of the Premises is condemned by eminent
\n ——————
\ndomain, inversely condemned or sold under threat of condemnation for any public
\nor quasi-public use or purpose (“Condemned”), this Lease shall terminate as of
\nthe earlier of the date the condemning authority takes title to or possession of
\nthe Premises, and Rent shall be adjusted to the date of termination.<\/p>\n
13.2 Partial Condemnation, If any portion of the Premises is Condemned and
\n ——————–
\nsuch partial condemnation materially impairs Tenant’s ability to use the
\nPremises for Tenant’s business as reasonably determined by Landlord. Landlord
\nshall have the option of either (i) relocating Tenant to comparable space within
\nthe Project or (ii) terminating this Lease as of the earlier of the date title
\nvests in the condemning authority or as of the date an order of immediate
\npossession is issued and Rent shall be adjusted to the date of termination. If
\nsuch partial condemnation does not materially impair Tenant’s ability to use the
\nPremises for the business of Tenant, Landlord shall promptly restore the
\nPremises to the extent of any condemnation proceeds recovered by Landlord,
\nexcluding the portion thereof lost in such condemnation, and this Lease shall
\ncontinue in full force and effect except that after the date of such title
\nvesting Rent shall be adjusted as reasonably determined by Landlord.<\/p>\n
13.3 Award. If the Premises are wholly or partially Condemned, Landlord
\n —–
\nshall be entitled to the entire award paid for such condemnation, and Tenant
\nwaives any claim to any part of the award from Landlord or the condemning
\nauthority; provided, however, Tenant shall have the right to recover from
\nLandlord such compensation, if any, as may be specifically awarded to Landlord
\nin connection with costs in removing Tenant’s merchandise, furniture, fixtures,
\nleasehold improvements and equipment to a new location. No condemnation of any
\nkind shall be construed to constitute an actual or constructive eviction of
\nTenant or a breach of any express or implied covenant of quiet enjoyment.<\/p>\n
13.4 Temporary Condemnation. In the event of a temporary condemnation not
\n ———————-
\nextending beyond the Term, this Lease shall remain in effect, Tenant shall
\ncontinue to pay Rent and Tenant shall receive any award made for such
\ncondemnation except damages to any of Landlord’s property. If a temporary
\ncondemnation is for a period which extends beyond the Term, this Lease shall
\nterminate as of the date of initial occupancy by the condemning authority and
\nany such award shall be distributed in accordance with the preceding section. If
\na temporary condemnation remains in effect at the expiration or earlier
\ntermination of this Lease, Tenant shall pay Landlord the reasonable cost of
\nperforming any obligations required of Tenant with respect to the surrender of
\nthe Premises, unless Landlord receives such costs from the condemning authority.<\/p>\n
14. DEFAULT.
\n ——-<\/p>\n
14.1 Events of Defaults. The occurrence of any of the following events
\n ——————
\nshall, at Landlord’s option, constitute an “Event of Default”:<\/p>\n
14.1.1 Vacation or abandonment of the Premises for a period of thirty
\n(30) consecutive days;<\/p>\n
14.1.2 Failure to pay Rent on the date when due and the failure
\ncontinuing for a period of five (5) days after such payment is due:<\/p>\n
14.1.3 Failure to perform Tenant’s covenants and obligations
\nhereunder (except default in the payment of Rent) where such failure continues
\nfor a period of thirty (30) days after written notice from Landlord: provided,
\nhowever, if the<\/p>\n
9.<\/p>\n
nature of the default is such that more than thirty (30) days are reasonably
\nrequired for its cure. Tenant shall not be deemed to be in default if Tenant
\ncommences the cure within the thirty (30) day period and diligently prosecutes
\nsuch cure to completion;<\/p>\n
14.1.4 The making of a general assignment by Tenant for the benefit
\nof creditors: the filing of a voluntary petition by Tenant or the filing of an
\ninvoluntary petition by any of Tenant’s creditors seeking the rehabilitation,
\nliquidation or reorganization of Tenant under any law relating to bankruptcy,
\ninsolvency or other relief of debtors and, in the case of an involuntary action,
\nthe failure to remove or discharge the same within sixty (60) days of such
\nfiling; the appointment of a receiver or other custodian to take possession of
\nsubstantially all of Tenant’s assets or this leasehold; Tenant’s insolvency or
\ninability to pay Tenant’s debts or failure generally to pay Tenant’s debts when
\ndue; any court entering a decree or order directing the winding up or
\nliquidation of Tenant or of substantially all of Tenant’s assets; Tenant taking
\nany action toward the dissolution or winding up of Tenant’s affairs; the
\ncessation or suspension of Tenant’s use of the Premises; or the attachment,
\nexecution or other judicial seizure of substantially all of Tenant’s assets or
\nthis leasehold;<\/p>\n
14.1.5 The making of any material misrepresentation or omission by
\nTenant or any successor in interest of Tenant in any materials delivered by or
\non behalf of Tenant to Landlord or Landlord’s lender pursuant to this Lease; or<\/p>\n
14.1.6 The occurrence of an Event of Default set forth in Section
\n14.1.4 or 15.1.5 with respect to any guarantor of this Lease, if applicable.<\/p>\n
14.2 Remedies.
\n ——–<\/p>\n
14.2.1 Termination. In the event of the occurrence of any Event of
\n ———–
\nDefault, Landlord shall have the right to give a written termination notice to
\nTenant and, on the date specified in such notice, this Lease shall terminate
\nunless on or before such date all arrears of Rent and all other sums payable by
\nTenant under this Lease and all costs and expenses incurred by or on behalf of
\nLandlord hereunder shall have been paid by Tenant and all other Events of
\nDefault at the time existing shall have been fully remedied to the satisfaction
\nof Landlord.<\/p>\n
14.2.1.1 Repossession. Following termination, without
\n ————
\nprejudice to other remedies Landlord may have, Landlord may (i) peaceably re-
\nenter the Premises upon voluntary surrender by Tenant or remove Tenant therefrom
\nand any other persons occupying the Premises, using such legal proceedings as
\nmay be available; (ii) repossess the Premises or relet the Premises or any part
\nthereof for such term (which may be for a term extending beyond the Term), at
\nsuch rental and upon such other terms and conditions as Landlord in Landlord’s
\nsole discretion shall determine, with the right to make reasonable alterations
\nand repairs to the Premises; and (iii) remove all personal property therefrom. <\/p>\n
14.2.1.2 Unpaid Rent. Landlord shall have all the rights and
\n ———–
\nremedies of a landlord provided by applicable law, including the right to
\nrecover from Tenant: (a) the worth, at the time of award, of the unpaid Rent
\nthat had been earned at the time of termination, (b) the worth, at the time of
\naward, of the amount by which the unpaid Rent that would have been earned after
\nthe date of termination until the time of award exceeds the amount of loss of
\nrent that Tenant proves could have been reasonably avoided, (c) the worth, at
\nthe time of award, of the amount by which the unpaid Rent for the balance of the
\nTerm after the time of award exceeds the amount of the loss of rent that Tenant
\nproves could have been reasonably avoided, and (d) any other amount, and court
\ncosts, necessary to compensate Landlord for all detriment proximately caused by
\nTenant’s default, The phrase “worth, at the time of award,” as used in (a) and
\n(b) above, shall be computed at the Applicable Interest Rate, and as used in (c)
\nabove, shall be computed by discounting such amount at the discount rate of the
\nFederal Reserve Bank of San Francisco at the time of award plus one percent
\n(1%).<\/p>\n
14.2.2 Continuation. Even though an Event of Default may have
\n ————
\noccurred, this Lease shall continue in effect for so long as Landlord does not
\nterminate Tenant’s right to possession; and Landlord may enforce all of
\nLandlord’s rights and remedies under this Lease, including the right to recover
\nRent as it becomes due. Landlord, without terminating this Lease, may, during
\nthe period Tenant is in default, enter the Premises and relet the same, or any
\nportion thereof, to third parties for Tenant’s account and Tenant shall be
\nliable to Landlord for all costs Landlord incurs in reletting the Premises,
\nincluding, without limitation, brokers’ commissions, expenses of remodeling the
\nPremises and like costs. Reletting may be for a period shorter or longer than
\nthe remaining Term. Tenant shall continue to pay the Rent on the date the same
\nis due. No act by Landlord hereunder, including acts of maintenance,
\npreservation or efforts to lease the Premises or the appointment of a receiver
\nupon application of Landlord to protect Landlord’s interest under this Lease,
\nshall terminate this Lease unless Landlord notifies Tenant that Landlord elects
\nto terminate this Lease. In the event that Landlord elects to relet the
\nPremises, the rent that Landlord receives from reletting shall be applied to the
\npayment of, first, any indebtedness from Tenant to Landlord other than Base Rent
\nand Real Property Taxes; second, all costs, including maintenance, incurred by
\nLandlord in reletting; and, third, Base Rent and Real Property Taxes under this
\nLease. After deducting the payments referred to above, any sum remaining from
\nthe rental Landlord receives from reletting shall be held by Landlord and
\napplied in payment of future Rent as Rent becomes due under this Lease. In no
\nevent, and notwithstanding anything in Section 15 to the contrary, shall Tenant
\nbe entitled to any excess rent received by Landlord. If, on the date Rent is due
\nunder this Lease, the rent received from the reletting is less than the Rent due
\non that date. Tenant shall pay to Landlord, in addition to the remaining<\/p>\n
10.<\/p>\n
Rent due, all costs, including maintenance, which Landlord incurred in reletting
\nthe Premises that remain after applying the rent received from reletting as
\nprovided hereinabove. So long as this Lease is not terminated, Landlord shall
\nhave the right to remedy any default of Tenant, to maintain or improve the
\nPremises, to cause a receiver to be appointed to administer the Premises and new
\nor existing subleases and to add to the Rent payable hereunder all of Landlord’s
\nreasonable costs in so doing, with interest at the Applicable Interest Rate from
\nthe date of such expenditure.<\/p>\n
14.3 Cumulative. Each right and remedy of Landlord provided for herein or
\n ———-
\nnow or hereafter existing at law, in equity, by statute or otherwise shall be
\ncumulative and shall not preclude Landlord from exercising any other rights or
\nremedies provided for in this Lease or now or hereafter existing at law or in
\nequity, by statute or otherwise. No payment by Tenant of a lesser amount than
\nthe Rent nor any endorsement on any check or letter accompanying any check or
\npayment as Rent shall be deemed an accord and satisfaction of full payment of
\nRent; and Landlord may accept such payment without prejudice to Landlord’s right
\nto recover the balance of such Rent or to pursue other remedies.<\/p>\n
15. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, sublet or otherwise
\n ————————-
\ntransfer, whether voluntarily or involuntarily or by operation of law, the
\nPremises or any part thereof without Landlord’s prior written approval, which
\nshall not be unreasonably withheld. The merger of Tenant with any other entity
\nor the transfer of any controlling or managing ownership or beneficial interest
\nin Tenant, or the assignment of a substantial portion of the assets of Tenant,
\nwhether or not located at the Premises, shall constitute an assignment
\nhereunder. If Tenant desires to assign this Lease or sublet any or all of the
\nPremises, Tenant shall give Landlord written notice thereof with copies of all
\nrelated documents and agreements associated with the assignment or sublease,
\nincluding without limitation, the financial statements of any proposed assignee
\nor subtenant, forty-five (45) days prior to the anticipated effective date of
\nthe assignment or sublease. Tenant shall pay Landlord’s reasonable attorneys’
\nfees incurred in the review of such documentation plus an administrative fee of
\nThree Hundred Fifty Dollars ($350.00) for each proposed transfer. Landlord shall
\nhave a period of thirty (30) days following receipt of such notice and all
\nrelated documents and agreements to notify Tenant in writing of Landlord’s
\napproval or disapproval of the proposed assignment or sublease. If Landlord
\nfails to notify Tenant in writing of such election, Landlord shall be deemed to
\nhave approved such assignment or subletting. This Lease may not be assigned by
\noperation of law. Any purported assignment or subletting contrary to the
\nprovisions hereof shall be void and shall constitute an Event of Default
\nhereunder. If Tenant receives rent or other consideration for any such transfer
\nin excess of the Rent, or in case of the sublease of a portion of the Premises,
\nin excess of such Rent that is fairly allocable to such portion after
\nappropriate adjustments to assure that all other payments required hereunder are
\nappropriately taken into account, Tenant shall pay Landlord fifty percent (50%)
\nof the difference between each such payment of rent or other consideration and
\nthe Rent required hereunder. During any period in which an Event of Default (as
\ndefined in Section 14.1) remains uncured, Landlord may, without waiving any
\nother rights or remedies, collect rent from the assignee, subtenant or occupant
\nand apply the net amount collected to the Rent herein reserved and apportion any
\nexcess rent so collected in accordance with the terms of the preceding sentence.
\nTenant shall continue to be liable as a principal and not as a guarantor or
\nsurety to the same extent as though no assignment or subletting had been made.
\nLandlord may consent to subsequent assignments or subletting of this Lease or
\namendments or modifications to the Lease by assignees of Tenant without
\nnotifying Tenant or any successor of Tenant and without obtaining their consent.
\nNo permitted transfer shall be effective until there has been delivered to
\nLandlord a counterpart of the transfer instrument in which the transferee agrees
\nto be and remain jointly and severally liable with Tenant for the payment of
\nRent pertaining to the Premises and for the performance of all the terms and
\nprovisions of this Lease relating thereto arising on or after the date of the
\ntransfer. Subject to the provisions hereof and provided Landlord receives thirty
\n(30) days prior written notice and a true and correct copy of the assignment
\ninstrument. Landlord hereby consents to the assignment of Tenant’s interest in
\nand to this Lease to any wholly owned subsidiary of Tenant.<\/p>\n
16. ESTOPPEL ATTORNMENT AND SUBORDINATION.
\n ————————————-<\/p>\n
16.1 Estoppel. Within ten (10) days after request by Landlord, Tenant
\n ——–
\nshall deliver an estoppel certificate duly executed (and acknowledged if
\nrequired by any lender), in the form attached hereto as Exhibit G, or in such
\n ———
\nother form as may be acceptable to the lender, which form may include some or
\nall of the provisions contained in Exhibit G, to any proposed mortgagee,
\n ———
\npurchaser or Landlord. Tenant’s failure to deliver said statement in such time
\nperiod shall be an Event of Default hereunder and shall be conclusive upon
\nTenant that (a) this Lease is in full force and effect, without modification
\nexcept as may be represented by Landlord; (b) there are no uncured defaults in
\nLandlord’s performance and Tenant has no right of offset, counterclaim or
\ndeduction against Rent hereunder; and (c) no more than one month’s Base Rent has
\nbeen paid in advance. If any financier should require that this Lease be amended
\n(other than in the description of the Premises, the Term, the Permitted Use, the
\nRent or as will substantially, materially and adversely affect the rights of
\nTenant). Landlord shall give written notice thereof to Tenant, which notice
\nshall be accompanied by a Lease supplement embodying such amendments. Tenant
\nshall, within ten ( 10) days after the receipt of Landlord’s notice, meet and
\nconfer with Landlord in good faith with respect to such proposed amendments.<\/p>\n
16.2 Subordination. This Lease shall be subject and subordinate to all
\n ————-
\nground leases and the lien of all mortgages and deeds of trust which now or
\nhereafter affect the Premises or the Project or Landlord’s interest therein, and
\nall amendments thereto, all without the necessity of Tenant’s executing further
\ninstruments to effect such subordination. If requested, Tenant shall execute and
\ndeliver to Landlord within ten (10) days after Landlord’s request whatever
\ndocumentation that may<\/p>\n
11.<\/p>\n
reasonably be required to further effect the provisions of this paragraph. With
\nrespect to any new mortgage or deed of trust encumbering the Premises after the
\ndate of this Lease, Landlord shall use its best efforts to obtain from such
\nmortgagee or beneficiary under the deed of trust a non-disturbance agreement in
\nsuch party’s usual and customary form protecting the interest of Tenant
\nhereunder.<\/p>\n
16.3 Attornment. In the event of a foreclosure proceeding, the exercise of
\n ———-
\nthe power of sale under any mortgage or deed of trust or the termination of a
\nground lease, Tenant shall, if requested, attorn to the purchaser thereupon and
\nrecognize such purchaser as Landlord under this Lease; provided, however,
\nTenant’s obligation to attorn to such purchaser shall be conditioned upon
\nTenant’s receipt of a non-disturbance agreement protecting the interest of
\nTenant hereunder.<\/p>\n
17. MISCELLANEOUS.
\n ————-<\/p>\n
17.1 General.
\n ——- <\/p>\n
17.1.1 Entire Agreement. This Lease sets forth all the agreements
\n —————-
\nbetween Landlord and Tenant concerning the Premises; and there are no agreements
\neither oral or written other than as set forth herein.<\/p>\n
17.1.2 Time of Essence. Time is of the essence of this Lease.
\n —————<\/p>\n
17.1.3 Attorneys’ Fees. In any action or proceeding which either
\n —————
\nparty brings against the other to enforce its rights hereunder, the unsuccessful
\nparty shall pay all costs incurred by the prevailing party, including reasonable
\nattorneys’ fees, which amounts shall be a part of the judgment in said action or
\nproceeding.<\/p>\n
17.1.4 Severability. If any provision of this Lease or the
\n ————
\napplication of any such provision shall be held by a court of competent
\njurisdiction to be invalid, void or unenforceable to any extent, the remaining
\nprovisions of this Lease and the application thereof shall remain in full force
\nand effect and shall not be affected, impaired or invalidated.<\/p>\n
17.1.5 Law. This Lease shall be construed and enforced in
\n —
\naccordance with the laws of the state in which the Premises are located.<\/p>\n
17.1.6 No Option. Submission of this Lease to Tenant for
\n ———
\nexamination or negotiation does not constitute an option to lease, offer to
\nlease or a reservation of, or option for, the Premises; and this document shall
\nbecome effective and binding only upon the execution and delivery hereof by
\nLandlord and Tenant.<\/p>\n
17.1.7 Successors and Assigns. This Lease shall be binding upon
\n ———————-
\nand inure to the benefit of the successors and assigns of Landlord and, subject
\nto compliance with the terms of Section 15, Tenant.<\/p>\n
17.1.8 Third Party Beneficiaries. Nothing herein is intended to
\n ————————-
\ncreate any third party benefit.<\/p>\n
17.1.9 Memorandum of Lease. Tenant shall not record this Lease or
\n ——————-
\na short form memorandum hereof without Landlord’s prior written consent.<\/p>\n
17.1.10 Agency Partnership or Joint Venture. Nothing contained
\n ———————————–
\nherein nor any acts of the parties hereto shall be deemed or construed by the
\nparties hereto, nor by any third party, as creating the relationship of
\nprincipal and agent or of partnership or of joint venture by the parties hereto
\nor any relationship other than the relationship of landlord and tenant.<\/p>\n
17.1.11 Merger. The voluntary or other surrender of this Lease by
\n ——
\nTenant or a mutual cancellation thereof or a termination by Landlord shall not
\nwork a merger and shall, at the option of Landlord, terminate all or any
\nexisting subtenancies or may, at the option of Landlord, operate as an
\nassignment to Landlord of any or all of such subtenancies.<\/p>\n
17.1.12 Headings. Section headings have been inserted solely as a
\n ——–
\nmatter of convenience and are not intended to define or limit the scope of any
\nof the provisions contained therein.<\/p>\n
17.2 Signs. All signs and graphics of every kind visible in or from public
\n —–
\nview or the exterior of the Premises shall be subject to Landlord’s prior
\nwritten approval and shall be subject to any applicable governmental laws,
\nordinances, and regulations and in compliance with Landlord’s signage program.
\nTenant shall remove all such signs and graphics prior to the termination of this
\nLease. Such installations and removals shall be made in such manner as to avoid
\ninjury or defacement of the Premises; and Tenant shall repair any injury or
\ndefacement, including without limitation, discoloration caused by such
\ninstallation or removal.<\/p>\n
17.3 Waiver. No waiver of any default or breach hereunder shall be implied
\n ——
\nfrom any omission to take action on account thereof, notwithstanding any custom
\nand practice or course of dealing. No waiver by either party of any provision
\nunder this Lease shall be effective unless in writing and signed by such party.
\nNo waiver shall affect any default other than<\/p>\n
12.<\/p>\n
the default specified in the waiver and then such waiver shall be operative only
\nfor the time and to the extent therein stated. Waivers of any covenant shall not
\nbe construed as a waiver of any subsequent breach of the same.<\/p>\n
17.4 Financial Statements. Tenant shall provide to any lender, purchaser
\n ——————–
\nor Landlord, within ten (10) days after request, a current, accurate, certified
\nfinancial statement for Tenant and Tenant’s business prepared under generally
\naccepted accounting principles consistently applied and such other certified
\nfinancial information as may be reasonably required by Landlord, purchaser or
\nany lender of either.<\/p>\n
17.5 Limitation of Liability. The obligations of Landlord under this Lease
\n ———————–
\nare not personal obligations of the individual partners, directors, officers,
\nshareholders, agents or employees of Landlord; and Tenant shall look solely to
\nthe Premises for satisfaction of any liability of Landlord and shall not look to
\nother assets of Landlord nor seek recourse against the assets of the individual
\npartners, directors, officers, shareholders, agents or employees of Landlord.
\nWhenever Landlord transfers its interest, Landlord shall be automatically
\nreleased from further performance under this Lease and from all further
\nliabilities and expenses hereunder and the transferee of Landlord’s interest
\nshall assume all liabilities and obligations of Landlord hereunder from the date
\nof such transfer.<\/p>\n
17.6 Notices. All notices to be given hereunder shall be in writing and
\n ——-
\nmailed postage prepaid by certified or registered mail, return receipt
\nrequested, or delivered by personal or courier delivery, or sent by facsimile
\n(immediately followed by one of the preceding methods), to Landlord’s Address
\nand Tenant’s Address, or to such other place as Landlord or Tenant may designate
\nin a written notice given to the other party. Notices shall be deemed served
\nupon the earlier of receipt or three (3) days after the date of mailing.<\/p>\n
17.7 Brokerage Commission. Landlord shall pay a brokerage commission to
\n ——————–
\nBroker in accordance with a separate agreement between Landlord and Broker.
\nTenant warrants to Landlord that Tenant’s sole contact with Landlord or with the
\nPremises in connection with this transaction has been directly with Landlord and
\nBroker, and that no other broker or finder can properly claim a right to a
\ncommission or a finder’s fee based upon contacts between the claimant and
\nTenant. Tenant agrees to indemnify and hold Landlord harmless from any claims or
\nliability, including reasonable attorneys’ fees, in connection with a claim by
\nany person for a real estate broker’s commission, finder’s fee or other
\ncompensation based upon any statement, representation or agreement of Tenant,
\nand Landlord agrees to indemnify and hold Tenant harmless from any such claims
\nor liability, including reasonable attorneys’ fees, based upon any statement,
\nrepresentation or agreement of Landlord.<\/p>\n
17.8 Authorization. Each individual executing this Lease on behalf of
\n ————-
\nTenant represents and warrants that he or she is duly authorized to execute and
\ndeliver this Lease on behalf of Tenant and that such execution is binding upon
\nTenant.<\/p>\n
17.9 Holding Over; Surrender.
\n ———————–<\/p>\n
17.9.1 Holding Over. If Tenant holds over the Premises or any part
\n ————
\nthereof after expiration of the Term, such holding over shall constitute a
\nmonth-to-month tenancy, at a rent equal to one hundred twenty-five percent
\n(125%) of the Base Rent in effect immediately prior to such holding over and
\nshall otherwise be on all the other terms and conditions of this Lease. This
\nparagraph shall not be construed as Landlord’s permission for Tenant to hold
\nover. Acceptance of Rent by Landlord following expiration or termination shall
\nnot constitute a renewal of this Lease or extension of the Term except as
\nspecifically set forth above. If Tenant falls to surrender the Premises upon
\nexpiration or earlier termination of this Lease, Tenant shall indemnify and hold
\nLandlord harmless from and against all loss or liability resulting from or
\narising out of Tenant’s failure to surrender the Premises, including, but not
\nlimited to, any amounts required to be paid to any tenant or prospective tenant
\nwho was to have occupied the Premises after the expiration or earlier
\ntermination of this Lease and any related attorneys’ fees and brokerage
\ncommissions.<\/p>\n
17.9.2 Surrender. Upon the termination of this Lease or Tenant’s
\n ———
\nright to possession of the Premises, Tenant will surrender the Premises,
\ntogether with all keys, in good condition and repair, reasonable wear and tear
\nexcepted. Conditions existing because of Tenant’s failure to perform
\nmaintenance, repairs or replacements shall not be deemed “reasonable wear and
\ntear.”<\/p>\n
17.10 Joint and Several. If Tenant consists of more than one person, the
\n —————–
\nobligation of all such persons shall be joint and several.<\/p>\n
17.11 Covenants and Conditions. Each provision to be performed by Tenant
\n ————————
\nhereunder shall be deemed to be both a covenant and a condition.<\/p>\n
17.12 Addenda. The Addenda attached hereto, if any, and identified with
\n ——-
\nthis Lease are incorporated herein by this reference as if fully set forth
\nherein.<\/p>\n
13.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
\nset forth above.<\/p>\n
“Landlord” “Tenant”<\/p>\n
CATELLUS DEVELOPMENT CORPORATION, MOHAWK INDUSTRIES. INC.,
\na Delaware corporation a Georgia corporation<\/p>\n
By: \/s\/ [SIGNATURE ILLEGIBLE] By: \/s\/ [SIGNATURE ILLEGIBLE]
\n —————————– ——————————
\n Its: VP Its: PRESIDENT
\n ————————- ————————–
\nDate: 12-4-95 Date: 11-28-95
\n ————————— ————————-<\/p>\n
14.<\/p>\n
ADDENDUM TO LEASE
\n —————–<\/p>\n
THIS ADDENDUM TO LEASE (“Addendum”) is attached to and constitutes an
\nintegral part of the Lease between CATELLUS DEVELOPMENT CORPORATION, as
\nLandlord, and MOHAWK INDUSTRIES, INC., as Tenant. The terms of this Addendum
\nshall be incorporated in the Lease for all purposes. In the event of a conflict
\nbetween the provisions of the Lease and the provisions of this Addendum, this
\nAddendum shall control.<\/p>\n
THE FOLLOWING NEW SECTIONS ARE HEREBY ADDED TO THE LEASE WHICH STATE IN THEIR
\nENTIRETY AS FOLLOWS:<\/p>\n
18. Force Majeure Event. For purposes of this Lease, the term “Force Majeure
\n ——————-
\nEvent” shall mean and include the following: any delay caused by any action,
\ninaction, order, ruling, moratorium, regulation, statute, condition or other
\ndecision of any governmental agency having jurisdiction over any portion of the
\nProject, over the construction anticipated to occur thereon or over any uses
\nthereof, or by fire, flood, inclement weather, strikes, lockouts or other labor
\nor industrial disturbance (whether or not on the part of agents or employees of
\neither party hereto engaged in the construction of the Premises), civil
\ndisturbance, order of any government, court or regulatory body claiming
\njurisdiction or otherwise, act of public enemy, war, riot, sabotage, blockade,
\nembargo, failure or inability to secure materials, supplies or labor through
\nordinary sources by reason of shortages or priority, discovery of hazardous or
\ntoxic materials, earthquake, or other natural disaster, or any cause whatsoever
\nbeyond the reasonable control (excluding financial inability) of the party whose
\nperformance is required, or any of its contractors or other representatives,
\nwhether or not similar to any of the causes hereinabove stated.<\/p>\n
19. CPI Adjustment. Effective as of the first day of the thirty-first (31st)
\n ————–
\nmonth of the Term (the “CPI Adjustment Date”), the Base Rent in effect
\nimmediately before the CPI Adjustment Date shall be increased, in accordance
\nwith the percentage increase, if any, in the Consumer Price Index, to an amount
\nwhich is equal to the product of (i) the Index (as hereinafter defined) for the
\nthird month preceding the CPI Adjustment Date, multiplied by (ii) the initial
\nBase Rent set forth in the Basic Lease Information, divided by (iii) the Basic
\nIndex (as hereinafter defined); provided, however, in no event shall the Base
\nRent (as adjusted) in effect immediately prior to the CPI Adjustment Date be
\ndecreased, nor shall it be increased as a result of a CPI adjustment by more
\nthan six percent (6%) per Lease Year, compounded annually. The “Index” shall
\nmean the Consumer Price Index, All Items, 1982-1984 = 100, All Urban Consumers,
\nfor the Los Angeles\/Riverside\/Anaheim Area, as published by the United States
\nDepartment of Labor, Bureau of Labor Statistics, or its successor index, and the
\n“Basic Index” shall mean the Index published for the third month preceding the
\nCommencement Date. The adjusted Base Rent shall be rounded to the nearest $1.00.
\nIf the Index required for the calculation specified in this subsection is not
\navailable on the CPI Adjustment Date in question, Tenant shall continue to pay
\nthe same amount of Base Rent payable during the period immediately preceding the
\nCPI Adjustment Date until the Index is available and the necessary calculation
\nis made. As soon as such calculation is made, Tenant shall immediately pay to
\nLandlord the amount of any underpayment of Base Rent for the month(s) that may
\nhave elapsed. In the event the compilation or publication of the Index shall be
\ntransferred to any other governmental department, bureau or agency or shall be
\ndiscontinued, the index most nearly the same as the Index shall be used to make
\nsuch calculation.<\/p>\n
15.<\/p>\n
20. Options to Extend.
\n —————–<\/p>\n
20.1 Terms of Options. Provided (i) Tenant is not in default under the
\n —————-
\nterms of this Lease at the time each renewal option is exercised or at the
\ncommencement of the applicable Extension Term (as hereinafter defined). (ii)
\nTenant is occupying at least ninety percent (90%) of the Premises, including any
\nexpansion space, and (iii) Landlord has not given more than two (2) notices of
\ndefault in any twelve (12) month period for nonpayment of monetary obligations,
\nTenant shall have two (2) options to renew this Lease for an additional period
\nof sixty (60) months each (the “First and Second Extension Terms”). The
\nExtension Terms shall be on all the terms and conditions of this Lease, except
\nthat Landlord shall have no additional obligation for free rent, leasehold
\nimprovements or for any other tenant inducements for the Extension Terms. Base
\nRent shall be increased (but not decreased) as set forth below. There shall be
\nno additional extension terms beyond the Extension Terms set forth herein.
\nTenant must exercise its options to extend this Lease by giving Landlord written
\nnotice of its election to do so not less than one hundred eighty (180) days
\nprior to the end of the initial Term, or the First Extension Term, as
\napplicable. Any notice not given in a timely manner shall be void, and Tenant
\nshall be deemed to have waived its extension rights. The extension options set
\nforth herein are personal to Tenant and shall not be included in any assignment
\nof this Lease.<\/p>\n
20.2 Base Rent During First Extension Term. Effective as of the first day
\n ————————————-
\nof the First Extension Term, and on the first day of the thirty-first (31st)
\nmonth thereafter (the “First Extension CPI Adjustment Date(s)”), the monthly
\nBase Rent shall be increased in accordance with the percentage increase, if any,
\nin the Consumer Price Index, calculated in the manner set forth in Section 19;
\nprovided, however, in no event shall the Base Rent (as adjusted) in effect
\nimmediately prior to the applicable First Extension CPI Adjustment Date be
\ndecreased, nor shall it be increased as a result of a CPI adjustment by more
\nthan six percent (6%) per Lease Year, compounded annually.<\/p>\n
20.3 Base Rent During Second Extension Term. The monthly Base Rent payable
\n ————————————–
\nfor the first thirty (30) months of the Second Extension Term shall be increased
\n(but not decreased) to 98% of the fair market rental rate (“Market Rent”) to be
\ndetermined as follows:<\/p>\n
20.3.1 Agreement on Base Rent. Landlord and Tenant shall have thirty
\n ———————-
\n(30) days after Landlord receives the exercise notice in which to agree on the
\nBase Rent during the Second Extension Term. Notwithstanding anything in this
\nSection 20.3 to the contrary, in no event shall the Base Rent for the Second
\nExtension Term be less than the Base Rent in effect immediately prior to the
\nSecond Extension Term.<\/p>\n
20.3.2 Appraisal. If Landlord and Tenant are unable to agree upon the
\n ———
\nBase Rent for the Second Extension Term within such thirty (30) day period, then
\nwithin fifteen (15) days after the expiration of the thirty (30) day period,
\neach party, by giving notice to the other party, shall appoint a real estate
\nappraiser who is a current member of the American Institute of Real Estate
\nAppraisers, with at least five (5) years of experience appraising building space
\ncomparable to the Premises in the city and county where the Premises is located
\nto determine the Market Rent. Market Rent shall mean the monthly amount per
\nrentable square foot in the Premises that a willing, non-equity new tenant would
\npay and a willing landlord would accept at arm’s length for space in a
\ncomparable building or buildings, with comparable tenant improvements, in a
\ncomparable location, giving appropriate consideration to monthly rental rates
\nper rentable square foot, the presence or absence of rent escalation clauses
\nsuch as operating expense and tax pass-throughs, length of lease term, size and
\nlocation of premises being leased and other<\/p>\n
16.<\/p>\n
generally applicable terms and conditions of tenancy for a similar building or
\nbuildings. If the two (2) appraisers are unable to agree on the Market Rent for
\nthe Second Extension Term within twenty (20) days, they shall select a third
\nappraiser meeting the qualifications stated in this Section within five (5) days
\nafter the last day the two (2) appraisers are given to set the Market Rent for
\nthe Second Extension Term. The third appraiser, however selected, shall be a
\nperson who has not previously acted in any capacity for either party. Within
\ntwenty (20) days after the selection of the third appraiser, a majority of the
\nappraisers shall set the Market Rent for the Second Extension Term. If a
\nmajority of the appraisers is unable to set the Market Rent within the twenty
\n(20) day period, the two (2) closest appraisals shall be added together and
\ntheir total divided by two (2). The resulting quotient shall be the Market Rent
\nfor the first thirty (30) months of the Second Extension Term. Each party shall
\nbe responsible for the costs, charges and fees of the appraiser appointed by
\nthat party plus one-half of the cost of the third appraiser.<\/p>\n
20.3.3 Amendment of Lease. Immediately after the Base Rent is
\n ——————
\ndetermined pursuant to this Section 20.3, Landlord and Tenant shall execute an
\namendment to this Lease stating the new Base Rent in effect.<\/p>\n
20.3.4 Base Rent Increase During Second Extension Term. Effective as
\n ———————————————–
\nof the first day of the thirty-first (31st) month of the Second Extension Term
\n(the “Second Extension CPI Adjustment Date”), the monthly Base Rent shall be
\nincreased in accordance with the percentage increase, if any, in the Consumer
\nPrice Index, calculated in the manner set forth in Section 19; except that the
\nIndex shall be multiplied by the monthly Base Rent payable during the first
\nthirty (30) months of the Second Extension Term, and the Basic Index shall mean
\nthe Index published for the third month preceding the commencement of the Second
\nExtension Term; provided, however, in no event shall the Base Rent in effect
\nafter the Second Extension CPI Adjustment Date be less than the Base Rent in
\neffect immediately preceding the Second Extension CPI Adjustment Date.<\/p>\n
LANDLORD’S INITIALS ?? TENANT’S INITIALS JL
\n —– —–<\/p>\n
17.<\/p>\n
EXHIBIT A<\/p>\n
[PLAN APPEARS HERE]<\/p>\n
EXHIBIT B
\n ———<\/p>\n
WORK LETTER
\n ———–<\/p>\n
Tenant Improvements.
\n——————-<\/p>\n
1.1 Landlord shall construct or cause to be constructed in and to the Premises,
\nat Landlord’s cost and expense, not to exceed One Hundred Eighty Thousand
\nDollars ($180,000.00), certain tenant improvements, including space planning,
\npermits and related costs (the “Tenant Improvements”), substantially in
\naccordance with the space plan or other appropriate exhibit (the “Space Plan”)
\nattached hereto, marked Exhibit B-1 and made a part hereof and in accordance
\n ———–
\nwith Landlord’s current building standards. If said Exhibit is not attached, the
\nSpace Plan shall be prepared by Landlord and submitted to Tenant for approval,
\nwhich approval shall be given within five (5) days following receipt thereof,
\nand evidenced by Tenant’s signature thereon. A failure by Tenant to respond
\nwithin said five (5) day period shall be deemed approval. Upon approval by both
\nparties, the Space Plan shall be deemed incorporated herein by reference,
\nalthough not attached hereto.<\/p>\n
1.2 The Tenant Improvements shall include costs approved by Landlord and
\nassociated with the design, permit process and construction (including, a fee
\nequal to five percent (5%) of the total cost thereof as reimbursement for the
\nexpense of Landlord’s administration and coordination) of the Tenant
\nImprovements, including but not limited to, architect’s fees, plan check and
\npermit fees, and fees for utility and telephone service hook-ups. The Tenant
\nImprovements shall not include any improvements which Landlord, in its sole
\ndiscretion, considers specialized, or any equipment or trade fixtures of Tenant,
\nnor any improvements not shown on the Space Plan which Tenant may desire or
\ngoverning agencies may require.<\/p>\n
1.3 In the event that Tenant desires any change in the Tenant Improvements which
\nis reasonable and practical (which shall be conclusively determined by the
\nArchitect), such change may only be requested by the delivery to Landlord by
\nTenant of a proposed written “Change Order” specifically setting forth the
\nrequested change. Landlord shall have five (5) business days from the receipt of
\nthe proposed Change Order to provide Tenant with the Architect’s disapproval of
\nthe proposed change stating the reason(s) for such disapproval, or if the
\nArchitect approves the proposed change, the following items: (i) a summary of
\nany increase in the cost caused by such change (the “Change Order Cost”), (ii) a
\nstatement of the number of days of any delay caused by such proposed change (the
\n“Change Order Delay”), and (iii) a statement of the cost of the Change Order
\nDelay (the “Change Order Delay Expense”), which Change Order Delay Expense shall
\nbe the product of the number of days of delay multiplied by $2,500.00. Tenant
\nshall then have three (3) business days to approve the Change Order Cost, the
\nChange Order Delay and the Change Order Delay Expense. If Tenant gives timely
\nwritten notice of approval of the Change Order Cost, the Change Order Delay and
\nthe Change Order Delay Expense, Landlord shall promptly execute the Change Order
\nand cause the appropriate changes to the Plans and Specifications to be made.
\nTenant’s approval shall include full payment of the Change Order Cost and Change
\nOrder Delay Expense. If Tenant fails to respond to Landlord within said three
\n(3) business day period, the Change Order Cost, the Change Order Delay and the
\nChange Order Delay Expense shall be deemed disapproved by Tenant and Landlord
\nshall have no further obligation to perform any work set forth in the proposed
\nChange Order. The Change Order Cost shall include all costs associated with the
\nChange Order, including, without limitation, architectural fees and construction
\ncosts, as conclusively determined by the Architect and the General Contractor,
\nrespectively, together with a five percent (5%) fee of these costs as
\nreimbursement for the expense of administration and coordination of such Change
\nOrder by Landlord. The Change Order Delay shall include all delays caused by the
\nChange Order, including, without limitation, all architectural and construction
\ndelays, as conclusively determined by the Architect and the General Contractor,
\nrespectively.<\/p>\n
1.4 Landlord hereby to assign to Tenant, upon request, the benefit of any and
\nall contractor’s and manufacturer’s warranties received by Landlord in
\nconnection with the construction of the Tenant Improvements.<\/p>\n
LANDLORD’S INITIALS ?? TENANT’S INITIALS _____
\n —– <\/p>\n
EXHIBIT B-1
\n ———–<\/p>\n
SPACE PLAN
\n ———-<\/p>\n
EXHIBIT C
\n ———<\/p>\n
COMMENCEMENT DATE MEMORANDUM
\n —————————-<\/p>\n
With respect to that certain lease (“Lease”) dated ______, 19__ ,
\nbetween ____________________________, a _____________________ (“Tenant”), and
\nCatellus Development Corporation, a Delaware corporation (“Landlord”), whereby
\nLandlord leased to Tenant and Tenant leased from Landlord approximately ________
\nrentable square feet of the building located at ______________________
\n(“Premises”), Tenant hereby acknowledges and certifies to Landlord as follows:<\/p>\n
(1) Landlord delivered possession of the Premises to Tenant in a
\n Substantially completed condition on ________________________
\n (“Possession Date”);<\/p>\n
(2) The Commencement Date is______________________________.<\/p>\n
(3) The Premises contain ________________ square feet of space; and<\/p>\n
(4) Tenant has accepted and is currently in possession of the Premises and
\n the Premises are acceptable for Tenant’s use.<\/p>\n
IN WITNESS WHEREOF, this Commencement Date Memorandum is executed this ____
\nday of ________________, 199__ .<\/p>\n
“Tenant”<\/p>\n
__________________________
\n a ________________________<\/p>\n
By: _____________________
\n Its: ____________________<\/p>\n
By: _____________________
\n Its: ____________________<\/p>\n
[LOGO] CERTIFICATE OF INSURANCE. ISSUE DATE (MM\/DD\/YY)
\nPRODUCER
\n——————————————————————————–
\n THIS CERTIFICATE IS ISSUED AS A MATTER OF
\n INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE
\n CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT
\n AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY
\n THE POLICIES BELOW.
\n ————————————————-
\n COMPANIES AFFORDING COVERAGE
\n (Must have “Best” Rating or “A B” or better)
\n ————————————————-
\n COMPANY
\n LETTER A
\n ————————————————-
\n COMPANY
\n—————————-
\nINSURED LETTER B
\n ————————————————-
\n COMPANY
\n LETTER C
\n ————————————————-
\n COMPANY
\n LETTER D
\n ————————————————-
\n COMPANY
\n LETTER E
\n——————————————————————————–
\nCOVERAGES
\n——————————————————————————–
\n THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE SEEN
\n ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
\n NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR
\n OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY
\n PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS
\n SUBJECT TO ALL THE TERMS, EXCLUSIONS, AND CONDITIONS OF SUCH POLICIES.
\n LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS<\/p>\n
\n\n————————————————————————————————————————————
\nCO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION ALL LIMITS IN THOUSANDS
\nLTR DATE (MM\/DD\/YY) DATE (MM\/DD\/YY)
\n————————————————————————————————————————————
\n
\n GENERAL LIABILITY GENERAL AGGREGATE $2,000
\n —————————————–
\n [X] COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP\/OPS AGGREGATE $2,000
\n —————————————–
\n [_] [_] CLAIMS MADE [x] OCCURRENCE PERSONAL AND ADVERTISING xxx $2,000
\n —————————————–
\n [X] OWNERS & CONTRACTORS PROCECTIVE EACH OCCURRENCE $2,000
\n —————————————–
\n [X] RAILROAD Prot. Liab. FIRE DAMAGE (ANY ONE FIRE) $ 50
\n ——————————- —————————————–
\n [X] X C 11 Included MEDICAL EXPENSE (ANY ONE PERSON)$ 5
\n ——————————-
\n —————————————–
\n————————————————————————————————————————————
\n AUTOMOBILE LIABILITY
\n [X] ANY AUTO CK.
\n $2000
\n [_] ALL OWNED AUTOS BODILY
\n INJURY
\n PER PERSON $
\n —————————————–
\n [_] SCHEDULED AUTOS
\n [X] HIRED AUTOS BODILY
\n INJURY
\n PER
\n ACCIDENT $
\n —————————————–
\n [X] NON-OWNED AUTOS
\n [_] GARAGE LIABILITY PROPERTY
\n DAMAGE $
\n [_] _______________________________
\n————————————————————————————————————————————
\n EXCESS LIABILITY EACH AGGREGATE
\n [X] Following Form OCCURRENCE
\n [_]OTHER THAN UMBRELLA FORM $ $
\n————————————————————————————————————————————
\n STATUTORY
\n —————————————–
\n WORKERS’ COMPENSATION $1, 000 (EACH ACCIDENT)
\n —————————————–
\n AND $1, 000 (DISEASE POLICY LIMIT)
\n —————————————–
\n EMPLOYERS’ LIABILITY $1, 000 (DISEASE EACH EMPLOYEE)
\n————————————————————————————————————————————
\n OTHER<\/p>\n————————————————————————————————————————————
\n<\/c><\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
DESCRIPTION OF OPERATIONS\/LOCATIONS\/VEHICLES\/RESTRICTIONS\/SPECIAL ITEMS
\n Certificate holder is named as additional insured as respects: <\/p>\n
_______________________________________________________________ (Location)
\n REFER to Additional Insured endorsement attached. Aggregate limits apply
\n per location.
\n——————————————————————————–
\nCERTIFICATE HOLDER CANCELLATION
\n——————————————————————————–<\/p>\n
\n\n
\n CATELLUS DEVELOPMENT CORPORATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED
\n 1065 N. PACIFICENTER DRIVE , SUITE 200 OR LIMITS REDUCED BEFORE THE EXPIRATION DATE THEREOF. THE ISSUING
\n ANAHEIM, CA 92806 COMPANY WILL ENDEAVOR TO MAIL 60 DAYS WRITTEN NOTICE TO THE
\n ATTN: ASSET MANAGEMENT CERTIFICATE HOLDER NAMED TO THE LEFT.
\n FAX (714) 237–7416 <\/p>\n ————————————————————————
\n AUTHORIZED REPRESENTATIVE
\n————————————————————————————————————————————
\n<\/c><\/s><\/caption>\n<\/table>\n
EVIDENCE OF PROPERTY INSURANCE<\/p>\n
THIS IS EVIDENCE THAT INSURANCE AS IDENTIFIED BELOW HAS BEEN ISSUED, IS IN
\n FORCE, AND CONVEYS ALL, THE RIGHTS AND PRIVILEGES AFFORDED UNDER THE
\n POLICY. (MUST HAVE “BEST” RATING OF “A 8” OR BETTER<\/p>\n
\n
\n[ILLEGIBLE] COMPANY<\/p>\nCODE SUB–CODE <\/p>\n
LOAN NUMBER POLICY NUMBER<\/p>\n
INSURED EFFECTIVE DATE (MM\/DD\/YY) EXPIRATION DATE (MM\/DD\/YY)
\n CONT. UNTIL
\n TERMINATED
\n IF CHECKED
\n THIS REPLACES PRIOR EVIDENCE DATED:<\/p>\n
—————————————————————————————————————–
\n<\/c><\/c><\/s><\/table>\n
PROPERTY INFORMATION
\nLOCATION\/DESCRIPTION<\/p>\n
(provide address of leased PREMISES)<\/p>\n
—————————————————————————–
\nCOVERAGE INFORMATION <\/p>\n
\n\n COVERAGE\/PERSONAL\/FORMS AMOUNT OF INSURANCE DEDUCTIBLE
\n
\n Business Personal. Property (including Tenants Improvements $ ________________ $ _____________
\n and Betterments, if applicable) <\/p>\n Business Income (100% contribution) $ ________________ $ _____________ <\/p>\n
Boiler & Machinery (if applicable) $ ________________ $ _____________
\n Warehousers legal liability (if applicable) $ ________________ $ _____________<\/p>\n
Replacement Cost Coverage, special form<\/p>\n
—————————————————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
REMARKS INCLUDING SPECIAL CONDITIONS:<\/p>\n
Waiver of Subrogation provision included (per lease)<\/p>\n
——————————————————————————
\nCANCELLATION<\/p>\n
THE POLICY IS SUBJECT TO THE PREMIUMS, FORMS, AND RULES IN EFFECT FOR
\n EACH POLICY PERIOD. SHOULD THE POLICY BE TERMINATED, THE COMPANY WILL
\n GIVE THE ADDITIONAL INTEREST IDENTIFIED BELOW 60 days WRITTEN NOTICE.
\n AND WILL SEND NOTIFICATION OF ANY CHANGES TO THE POLICY THAT WOULD
\n AFFECT THAT INTEREST, IN ACCORDANCE WITH THE POLICY PROVISIONS OR AS
\n REQUIRED BY LAW.
\n——————————————————————————–
\nADDITIONAL INTEREST<\/p>\n
\n\n
\n NAME AND ADDRESS NATURE OF INTEREST
\n MORTGAGEE ADDITIONAL INSURED <\/p>\n CATELLUS DEVELOPMENT CORPORATION
\n 1065 N. PACIFICENTER DRIVE, SUITE 200
\n ANAHEIM, CA 92806 LOSS PAYEE X (OTHER) Landlord
\n —————————————————————–
\n ATTN: ASSET MANAGEMENT SIGNATURE OF AUTHORIZED AGENT OF COMPANY
\n FAX 714) 237-7416 <\/p>\n
—————————————————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
EXHIBIT E
\n ———<\/p>\n
PROHIBITED USES
\n —————<\/p>\n
The following types of operations and activities are expressly prohibited on the
\nPremises:<\/p>\n
1. automobile\/truck maintenance, repair or fueling;<\/p>\n
2. battery manufacturing or reclamation;<\/p>\n
3. ceramics and jewelry manufacturing or finishing;<\/p>\n
4. chemical (organic or inorganic) storage, use or manufacturing;<\/p>\n
5. drum recycling;<\/p>\n
6. dry cleaning;<\/p>\n
7. electronic components manufacturing;<\/p>\n
8. electroplating and metal finishing;<\/p>\n
9. explosives manufacturing, use or storage;<\/p>\n
10. hazardous waste treatment, storage, or disposal;<\/p>\n
11. leather production, tanning or finishing;<\/p>\n
12. machinery and tool manufacturing;<\/p>\n
13. medical equipment manufacturing and hospitals;<\/p>\n
14. metal shredding, recycling or reclamation;<\/p>\n
15. metal smelting and refining;<\/p>\n
16. mining;<\/p>\n
17. paint, pigment and coating operations;<\/p>\n
18. petroleum refining;<\/p>\n
19. plastic and synthetic materials manufacturing;<\/p>\n
20. solvent reclamation;<\/p>\n
21. tire and rubber manufacturing;<\/p>\n
22. above- and\/or underground storage tanks; and<\/p>\n
23. residential use or occupancy.<\/p>\n
EXHIBIT F
\n ———<\/p>\n
CORRECTION ITEMS
\n —————-<\/p>\n
EXHIBIT G
\n ———<\/p>\n
TENANT ESTOPPEL CERTIFICATE<\/p>\n
To: Bank of America National Trust
\n and Savings Association (“Bank”)
\n Real Estate Industries Division No.____
\n ___________________________________
\n ___________________________________
\n Attn: _____________________________ <\/p>\n
Re: Lease Dated:
\n Current Landlord: ___________________________
\n Current Tenant: ___________________________
\n Square Feet Approximately _____________
\n Floor(s): ___________________________
\n Located at: ___________________________ <\/p>\n
_______________________ (“Tenant”) hereby certifies that as of __________,
\n199__.<\/p>\n
1. Tenant is the present owner and holder of the tenant’s interest under
\nthe lease described above, as it may be amended to date (the “Lease”) with
\n___________________ as Landlord (who is called “Borrower” for the purposes of
\nthis Certificate). (USE THE NEXT SENTENCE IF THE LANDLORD OR TENANT NAMED IN THE
\nLEASE IS A PREDECESSOR TO THE CURRENT LANDLORD OR TENANT.) [The original
\nlandlord under the Lease was ______________________, and the original tenant
\nunder the Lease was ______________.] The Lease covers the premises commonly
\nknown as (the “Premises”) in the building (the “Building”) at the address set
\nforth above.<\/p>\n
(CHOOSE ONE OF THE FOLLOWING SECTION 2(a)s BELOW)
\n ————————————————-<\/p>\n
[2. (a) A true, correct and complete copy of the Lease (including all
\nmodifications, amendments, supplements, side letters, addenda and riders of and
\nto it) is attached to this Certificate as Exhibit A.]
\n ———<\/p>\n
[2 (a) The attached Exhibit A accurately identifies the Lease and all
\n ———
\nmodifications, amendments, supplements, side letters, addenda and riders of and
\nto it.]<\/p>\n
(b) (IF APPLICABLE) [The Lease provides that in addition to the
\nPremises, Tenant has the right to use or rent ______ [assigned\/unassigned]
\nparking spaces near the Building or in the garage portion of the building during
\nthe term of the Lease.]<\/p>\n
(c) The term of the Lease commenced on _________ 199__ and will
\nexpire on ____________, ___, including any presently exercised option or renewal
\nterm. (CHOOSE ONE OF THE FOLLOWING TWO SENTENCES:) [Tenant has no option or
\n ——————————————
\nright to renew, extend or cancel the Lease, or to lease additional space in the
\nPremises or Building, or to use any parking (IF APPLICABLE) [other than that
\n ————-
\nspecified in Section 2(b) above].] [Except as specified in Paragraph(s) _______
\nof the Lease (copy attached), Tenant has no option or right to renew, extend or
\ncancel the Lease, or to lease additional space in the Premises or Building, or
\nto use any parking (IF APPLICABLE) [other than that specified in Section 2(b)
\n ————-
\nabove].]<\/p>\n
(CHOOSE ONE OF THE FOLLOWING SECTION 2(d)s)
\n —————————————– <\/p>\n
[(d) Tenant has no option or preferential right to purchase all or any
\npart of the Premises (or the land of which the Premises are a part). Tenant has
\nno right or interest with respect to the Premises or the Building other than as
\nTenant under the Lease.]<\/p>\n
[(d) Except as specified in Paragraph(s) ____________ of the Lease
\n(copy attached), Tenant has no option or preferential right to purchase all or
\nany part of the Premises (or the land of which the Premises are a part). Except
\nfor the foregoing, Tenant has no right or interest with respect to the Premises
\nor the Building other than as Tenant under the Lease.]<\/p>\n
(e) The annual minimum rent currently payable under the Lease is
\n$________ and such rent has been paid through ________________, 199__. (IF
\n —
\nAPPLICABLE) [The annual percentage rent currently payable under the Lease is at
\n———-
\nthe rate of and such rent has been paid through _______________, 199__.]<\/p>\n
(f) (IF APPLICABLE) [Additional rent is payable under the Lease for
\n ————-
\n(i) operating, maintenance or repair expenses, (ii) property taxes, (iii)
\nconsumer price index cost of living adjustments, or (iv) percentage of gross
\nsales adjustments (i.e., adjustments made based on underpayments of percentage
\nrent). Such additional rent has been paid in accordance with Borrower’s rendered
\nbills through _______________, 199__. The base year amounts for additional
\nrental items are as follows: (1) operating, maintenance or repair expenses
\n$______________ (2) property taxes $____________, and (3) consumer price index
\n______________ (please indicate base year CPI level).]<\/p>\n
(g) Tenant has made no agreement with Borrower or any agent,
\nrepresentative or employee of Borrower concerning free rent, partial rent,
\nrebate of rental payments or any other similar rent concession (IF APPLICABLE)
\n ————-
\n(except as expressly set forth in Paragraph(s) _____ of the Lease (copy
\nattached)].<\/p>\n
(h) Borrower currently holds a security deposit in the amount of
\n$___________ which is to be applied by Borrower or returned to Tenant in
\naccordance with Paragraph(s) of the Lease. Tenant acknowledges and agrees that
\nbank shall have no responsibility or liability for any security deposit, except
\nto the extent that any security deposit shall have been actually received by
\nBank.<\/p>\n
3. (a) The Lease constitutes the entire agreement between Tenant and
\nBorrower with respect to the Premises, has not been modified changed, altered or
\namended and is in full force and effect in the form (CHOOSE ONE) [attached
\n ———-
\nas\/described in] Exhibit A. There are no other agreements, written or oral,
\nwhich affect Tenant’s occupancy of the Premises.<\/p>\n
(b) All insurance required of Tenant under the Lease has been provided
\nby Tenant and all premiums have been paid.<\/p>\n
(c) To the best knowledge of Tenant, no party is in default under the
\nLease. To the best knowledge of Tenant, no event has occurred which, with the
\ngiving of notice or passage of time, or both, would constitute such a default.<\/p>\n
(d) The interest of Tenant in the Lease has not been assigned or
\nencumbered. Tenant is not entitled to any credit against any rent or other
\ncharge or rent concession under the Lease except as set forth in the Lease. No
\nrental payments have been made more than one month in advance.<\/p>\n
4. All contributions required to be paid by Borrower to date for
\nimprovements to the Premises have been paid in full and all of Borrower’s
\nobligations with respect to tenant improvements have been fully performed.
\nTenant has accepted the Premises, subject to no conditions other than those set
\nforth in the Lease.<\/p>\n
5. Neither Tenant nor any guarantor of Tenant’s obligations under the
\nLease is the subject of any bankruptcy or other voluntary or involuntary
\nproceeding, in or out of court, for the adjustment of debtor-creditor
\nrelationships.<\/p>\n
6. (a) As used here. “Hazardous Substance” means any substance, material
\nor waste (including petroleum and petroleum products) which is designated,
\nclassified or regulated as being “toxic” or “hazardous” or a “pollutant” or
\nwhich is similarly designated, classified or regulated, under any federal, state
\nor local law, regulation or ordinance.<\/p>\n
(b) Tenant represents and warrants that it has not used, generated,
\nreleased, discharged, stored or disposed of any Hazardous Substances on, under,
\nin or about the Building or the land on which the Building is located (IF
\n —
\nAPPLICABLE) [, other than Hazardous Substances used in the ordinary and
\n———–
\ncommercially reasonable course of Tenant’s business in compliance with all
\napplicable laws]. (IF APPLICABLE) [Except for such commercially reasonable use
\n ————-
\nby Tenant,] Tenant has no actual knowledge that any Hazardous Substance is
\npresent, or has been used, generated, released, discharged, stored or disposed
\nof by any party, on, under, in or about such Building or land.<\/p>\n
2<\/p>\n
7. Tenant hereby acknowledges that Borrower (CHOOSE ONE) [intends to
\n ———-
\nencumber\/has encumbered] the property containing the Premises with a Deed of
\nTrust in favor of Bank. Tenant acknowledges the right of Borrower, Bank and any
\nand all of Borrower’s present and future lenders to rely upon the statements and
\nrepresentations of Tenant contained in this Certificate and further acknowledges
\nthat any loan secured by any such Deed of Trust or further deeds of trust will
\nbe made and entered into in material reliance on this Certificate.<\/p>\n
8. Tenant hereby agrees to furnish Bank with such other and further
\nestoppel as Bank may reasonably request.<\/p>\n
________________________<\/p>\n
By:_____________________<\/p>\n
Name:___________________<\/p>\n
Title:__________________<\/p>\n
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