Exhibit 10(n)
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE - NET
(DO NOT USE THIS FORM FOR MULTI-TENANT BUILDINGS)
1. Basic Provisions ("Basic Provisions")
1.1 Parties: Lease ("Lease"), dated for reference purposes only,
April 6, 2000, is made by and between Slater Properties, LLC ("Lessor") and
LifePoint Inc. ("Lessee") (Collectively the "Parties," or individually a
"Party")
1.2 Premises: That certain real property, including all improvements
therein or to be provided by Lessor under the terms of this Lease, and commonly
known as 1205 Dupont Street, Ontario, located in the County of San Bernardino,
State of California, and generally described as (describe briefly the nature
of the property and, if applicable, the "Project", if the property is located
within a Project) an approximate 31,382 square foot freestanding building
("Premises"). (See also Paragraph 2)
1.3 Term: Five (5) years and Three (3) months ("Original Term")
Commencing May 1, 2000 ("Commencement Date) and ending July 31, 2005
("Expiration Date"). (See also Paragraph 3.2 and 3)
1.4 Early Possession: Upon full execution of leases ("Early
Possession Date"). (See also Paragraph 3.2 and 3.3)
1.5 Base Rent: $18,829.20 per month ("Base Rent"), payable on the
First day of each month commencing May 2000. (See also Paragraph 4)
If this box is checked, there are provisions in this Lease for the Base Rent
to be adjusted.
1.6 Base Rent Paid Upon Execution: $18,829.20 as Base Rent for the
period of May 2000.
1.7 Security Deposit: $20,000 ("Security Deposit"). (See also
Paragraph 5)
1.8 Agreed Use: Sales, manufacturing and distribution of biomedical
fluid testing equipment. (See also paragraph 6)
1.9 Insuring Party: Lessor is the "Insuring Party" unless otherwise
stated herein. (See also Paragraph 8)
1.10 Real Estate Brokers: (See also Paragraph 15)
(a) Representation: The following real estate brokers (collectively,
the "Brokers") and brokerage relationships exist n this transaction
(check applicable boxes):
___________________represents Lessor exclusively ("Lessor's Broker");
___________________represents Lessee exclusively ("Lessee's Broker");
or
The Seeley Company represents both Lessor and Lessee ("Dual Agency").
(b) Payment to Brokers: Upon execution and delivery of this Lease by
both Parties, Lessor shall pay to the Broker the fee agreed to in
their separate written agreement (or if there is no such agreement,
the sum of _____________ % of the total Base Rent for the brokerage
services rendered by said Broker).
1.11 Grantor. The obligations of the Lessee under this Lease are
to be guaranteed by__________________("Grantor"). (See also paragraph 37)
1.12 Addenda and Exhibits. Attached hereto is an Addendum or Addenda
consisting of Paragraphs 50 through 55 and Exhibits _____________, all of
which constitute a part of this Lease.
2. Premises.
2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases
form Lessor, the Premises, for the term, at the rental, and upon all of the
terms, convenants and conditions set forth in this Lease. Unless otherwise
provided herein, any statement of size set forth in this Lease, or that may
have been used in calculating rental, is an approximation which the Parties
agree is reasonable and the rental based thereon is not subject to revision
whether or not the actual size is more or less.
2.2 Condition. Lessor shall deliver the Premises to Lessee broom
clean and free of debris on the Commencement Date or the Early Possession
Date, whichever first occurs ("Start Date"), and, so long as the required
service contracts described in Paragraph 7.1(b) below are obtained by Lessee
within thirty (30) days following the Start Date, warrants that the existing
electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air
conditioning systems ("HVAC"), loading doors, if any, and all other such
elements in the Premises, other than those constructed by Lessee, shall be
in good operating condition on said date and that the structural elements of
the roof, bearing walls and foundation of any building on the Premises (The
"Building") shall be free of material defects. If a non-compliance with said
warranty exists as of the Start Date, Lessor shall, as Lessor's sole
obligation with respect to such matter, except as otherwise provided in this
Lease, promptly after receipt of written notice from Lessee setting forth
with specificity the nature and extent of such non-compliance, rectify same
at Lessor's expense. If, after the Start Date, Lessee does not give Lessor
written notice of any non-compliance with this warranty within: (I) two (2)
years as to the roof and the structural portions of the roof, foundations and
bearing walls, (ii) two (2) years as to the HVAC systems, (iii) two (2) years
as to the remaining systems and other elements of the Building, correction of
such non-compliance shall be the obligation of Lessee at Lessee's sole cost
and expense.
2.3 Compliance. Lessor warrants that the improvements on the Premises
(Building, Building Systems and Structure) comply with all applicable laws,
covenants or restrictions of record, building codes include the Americans
With Disabilities Act, 42 U.S.C. SS12181-12189, regulations and ordinances
("Applicable Requirements") in effect on the Start Date. Said warranty does
not apply to the use to which Lessee will put the Premise or to any Alterations
or Utility Installations (as defined in Paragraph 7.3(a)) made or to be made by
Lessee. NOTE: Lessee is responsible for determining whether or not the zoning
is appropriate for Lessee's intended use, and acknowledges that past uses or
the Premises may not longer be allowed. If the Premises do not comply with
said warranty, Lessor shall, promptly after receipt to written notice from
Lessee setting forth with specificity the nature and extent of such
non-compliance, rectify the same at Lessor's expense. If the Applicable
Requirements are hereafter changed (as opposed to being in existence at the
Start Date, which is addressed in Paragraph 6.2(e) below) so as to require
during the term of this Lease the construction of an addition to or an
alteration to the Building, the remediation of any Hazardous Substance, or
the reinforcement or other physical modification of the Building ("Capital
Expenditure"), Lessor and Lessee shall allocate the cost of such work as
follows:
(a) Subject to Paragraph 2.3(c) below, if such Capital Expenditures are
required as a result of the specific and unique use of the Premises by
Lessee as compared with uses by tenants in general, Lessee shall be
fully responsible for the cost thereof, provided, however that if such
Capital Expenditures is required during the last two (2) year of this
Lease and the cost thereof and exceeds six (6) months' Base Rent,
Lessee may instead terminate this Lease unless Lessor notifies Lessee,
in writing, within ten (10) days after receipt to Lessee's termination
notice that Lessor has elected to pay the difference between the actual
cost thereof and the amount equal to six (6) months' Base Rent. If
Lessee elects termination, Lessee shall immediately cease the use of
the Premises which requires such Capital Expenditure and deliver to
Lessor written notice specifying a termination date at least ninety
(90) days thereafter. Such termination date shall, however, in no
event be earlier than the last day that Lessee could legally utilize
the Premises without commencing such Capital Expenditure.
(b) If such Capital Expenditure is not the result of the specific and
unique use of the Premises by Lessee (such as, governmentally mandated
seismic modifications), then Lessor and Lessee shall allocate the
obligation to pay for such costs pursuant to the provision of Paragraph
7.1(c)
(c) Notwithstanding the above, the provisions concerning Capital
Expenditures are intended to apply only to new Applicable Requirements
that become applicable to the Building following the Start Date. If
the Capital Expenditures are instead triggered by Lessee as a result of
an actual or proposed change in use, change in intensity of use, or
modification to the Premises then, and in the event, Lessee shall be
fully responsible for the cost thereof, and Lessee shall not have any
right to terminate this Lease.
2.4 Acknowledgements. Lessee acknowledge that: (a) it has been
advised by Lessor and/or Brokers to satisfy itself with respect to the
condition of the Premises (including but not limited to the electrical, HVAC
and fire sprinkler systems, security, environmental aspects, and compliance
with Applicable Requirements), and their suitability for Lessee's intended us;
(b) Lessee has made such investigation as it deems necessary with reference
to such matters and assumes all responsibility therefor as the same relate to
its occupancy of the Premises; and (c) neither Lessor, Lessor's agents, nor
any Broker has made any oral or written representations or warrants with
respect to said matters other than as set forth in this Lease. In addition,
Lessor acknowledges the: (a) Broker has made no representations, promises or
warranties concerning Lessee's ability to honor the Lease or suitability to
occupy the Premises; and (b) it is Lessor's sole responsibility to investigate
the financial capability and/or suitability of all proposed tenants.
3. Term
3.1 Term. The Commencement Date, Expiration Date and Original Term
of this Lease are as specified in Paragraph 1.3.
3.2 Early Possession. If Lessee totally or partially occupies the
Premises prior to the Commencement date, the obligation to pay Base Rent shall
be abated for the period of such early possession. All other terms of this
Lease, (including, but not limited to, the obligation to pay Real Property
Taxes and insurance premiums and to maintain the Premises) shall, however,
be in effect during such period. Any such early possession shall not affect
the Expiration Date.
3.3 Delay in Possession. Lessor agrees to use its best commercially
reasonable efforts to deliver possession of the Premises to Lessee by the
Commencement Date. If, despite said efforts, Lessor is unable to deliver
possession as agreed, Lessor shall not be subject to any liability therefor,
nor shall such failure affect the validity of his Lease. Lessee shall not,
however, be obligated to pay Rent or perform its other obligations to pay Rent
or perform its other obligation until it receives possession of the Premises.
If possession is not delivered within sixty (60) days after the Commencement
Date, Lessee may, at its option, by notice in writing within ten (10) days
after the end of such sixty (60) day period, cancel this Lease, in which event
the Parties shall be discharged from all obligations hereunder. If such
written notice is not received by Lessor within said ten (10) day period.
Lessee's right to cancel shall terminate. Except as otherwise provided, if
possession is not tendered to Lessee by the Start Date and Lessee does not
terminate this Lease, as aforesaid, any period of rent abatement that Lessee
would otherwise have enjoyed shall run from the date of delivery of possession
and continue for a period equal to what Lessee would otherwise have enjoyed
under the terms hereof, but minus any days of delay caused by the acts or
omissions of Lessee. If possession of the Premises is not delivered within
four (4) months after the Commencement Date, this Lease shall terminate unless
other agreements are reached between Lessor and Lessee, in writing.
3.4 Lessee Compliance. Lessor shall not be required to tender
possession of the Premises to Lessee until Lessee complies with its
obligation to provide evidence of insurance (Paragraph 8.5). Pending
delivery of such evidence, Lessee shall be required to perform all of its
obligations under this Lease from and after the Start Date, including the
payment of Rent, notwithstanding Lessor's election to withhold possession
pending receipt of such evidence of insurance.
4. Rent.
4.1 Rent Defined. All monetary obligations of Lessee to Lessor under
the terms of this Lease (except for the Security Deposit) are deemed to be rent
("Rent")
4.2 Payment. Lessee shall cause payment of Rent to be received by
Lessor in lawful money of the United States, without offset or deduction
(except as specifically permitted in this Lease), on or before the day on
which it is due. Rent for any period during the term hereof which is for
less than one (1) full calendar month shall be prorated based upon the actual
number of days of said month. Payment of Rent shall be made to Lessor at its
address stated herein or to such other persons or place as Lessor may from
time to time designate in writing. Acceptance of a payment which is less
than the amount then due shall not be a waiver of Lessor's rights to the
balance of such Rent, regardless of Lessor's endorsement of any check so
stating.
5. Security Deposit. Lessee shall deposit with Lessor upon execution
hereof the Security Deposit as security for Lessee's faithful performance of
its obligations under this Lease. If Lessee fails to pay Rent, or otherwise
Defaults under this Lease, Lessor may use, apply or retain all or any portion
of said Security Deposit for the payment of any amount due Lessor or to
reimburse or compensate Lessor for any liability, expense, loss or damage
which Lessor may ;suffer or incur by reason thereof. If Lessor uses or
applies all or any portion of said Security Deposit, Lessee shall within ten
(10) days after written request therefor deposit monies with Lessor sufficient
to restore said Security Deposit to the full amount required by this Lease.
If the Base Rent increase during the term of this Lease, Lessee shall, upon
written request from Lessor, deposit additional monies with Lessor so that
the total amount to the Security Deposit shall at all time bear the same
proportion to the increased Baser rent as the initial Security Deposit bore
to the initial Base Rent. Should the Agreed Use be amended to accommodate a
material change in the business of Lessee or to accommodate a sublessee or
assignee, Lessor shall have the right to increase the Security Deposit to the
extent necessary, in Lessor's reasonable judgement, to account for any
increased wear and tear that the Premises may suffer as a result thereof.
If a change in control of Lessee occurs during this Lease and following such
change the financial condition of Lessee is, in Lessor's reasonable judgement,
significantly reduced, Lessee shall deposit such additional monies with Lessor
as shall be sufficient to cause the Security Deposit to be at a commercially
reasonable level based on said change in financial condition. Lessor shall
not be required to keep the Security Deposit separate from its general
accounts. Within fourteen (14) days after the expiration or termination of
this Lease, If Lessor elects to apply the Security Deposit separate from its
general accounts. Within fourteen (14) days after the Premises have been
vacated pursuant to Paragraph 7.4(c) below, Lessor shall return that
portion of the Security Deposit not used or applied by Lessor. No part of
the Security Deposit shall be considered to be held in trust, to bear
interest or to be prepayment for any monies to be paid by Lessee under this
Lease. If Landlord assigns or transfers its interest in the Premises or
Building, Landlord shall assign the entire Security Deposit to such
transferee.
6. Use.
6.1 Use. Lessee shall use and occupy the Premises only for the
Agreed Use, or any other legal use which is reasonably comparable thereto,
and for no other purpose. Lessee shall not use or permit the use of the
Premises in a manner that is unlawful. Creates damage, waste or a nuisance,
or that disturbs owners and /or occupants of, or causes damage to neighboring
properties.
Paragraph 6.2 - Hazardous Substances.
6.2.1 Definition of Hazardous Substances. "Hazardous Substances"
shall mean any material or substance which is currently defined as "hazardous
waste" or "hazardous substance", "pollutant" or "contaminant" under any
Applicable Requirement or any amendment thereto, including, without limitation
any and all federal, state, municipal, and local laws, statutes, ordinances,
rules and regulation which specifically apply to the Project and which are in
effect as of the date hereof, pertaining to the use, generation, storage,
release, treatment, or removal of any Hazardous Substance, including, without
limitation , the Comprehensive Environmental Response Compensation Liability
Act of 1980, 42 U.S.C. Section 6901, et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq., the Clean Water Act, 33
U.S.C. Sections 1251, et seq., and California Health and Safety Code Sections
25100, et seq. (collectively, "Laws")
6.2.2 Lessee's Obligations.
(a) Lessee hereby agrees that it will remediate both during
and following the Term, to the satisfaction of the applicable
governmental and regulatory agencies and , to the extent the same
are not inconsistent therewith, on a basis consistent with applicable
Laws, any release into the environment of Hazardous Substance which is
required to be remediated under applicable Laws, to the extent such
release results or resulted from the us of ( or activities on) the
Premises by Lessee, Lessee's invitees or any Lessee Party (defined
below). In those instances where Lessee, Lessee's invitees or any
Lessee Party has a duty to remediate pursuant to the immediately
preceding sentence, Lessee shall commence the process necessary for
such remediation with reasonable promptness following the receipt to
written notice from Lessor or any applicable governmental or regulatory
agency of the governmental requirement for such remediation, and
thereafter shall pursue such remediation to completion with reasonable
promptness. Lessee hereby agrees that any such remediation required
under this Paragraph 6.2.2 shall be conducted in a manner consistent
with the standard of remediation applied to similar contaminations with
respect to comparable commercial projects in California.
Notwithstanding any provision of this Paragraph 6.2.2 tot he contrary,
except as specifically provided in Paragraph 6.2.6 below, (I) Lessee
shall not be responsible for any current, pre-existing or future
contamination of the Premises, the Building or the Project by Hazardous
Substances to the extent such contamination did not result from the us of
(or activities on) the Premises by Lessee, Lessee's invitee(s) or any
Lessee Party, and (ii) Lessee shall have no obligation to pay to or to
reimburse Lessor for (or otherwise bear) any expense, cost or liability
with respect to such contamination to the extent the same did not result
from the use of (or activities on) the Premises by Lessee or any Lessee
Party.
(b) With reasonable promptness following acquisition of actual knowledge
of any material release of Hazardous Substance in, on, at, under, above or
about the Premise, the Building or Project which Lessee is required to
remediate pursuant to this Paragraph 6.2.2, Lessee shall notify Lessor of
the existence of such release; provided, however, that Lessee shall
not be deemed to have actual knowledge of any such release unless and
until the operations manager of Lessee shall become actually aware of
the existence of such release.
(c) In any case where Lessee is required or requested by Lessor or
any other party to remediate (or bear the cost of remediating) any
Hazardous Substance in, on, at, under, above or about the Premises,
the Building or Project (I) Lessee shall be permitted, subject to
reasonable participation by Lessor, to supervise investigation of the
extent of the release of Hazardous Substance in question, (ii) Lessee
shall be permitted, subject to the reasonable approval of Lessor, to
structure and negotiate the remediation plan to be submitted to and
approved by the governmental authorities having jurisdiction, and
(iii) Lessee shall be permitted, subject to reasonable participation
by lessor, to supervise the actual remediation. In connection with
foregoing, Lessee shall be provided, free of charge, with reasonable
access to all portions of the Premises possibly relevant to the
foregoing activities, including, without limitation, reasonable access
beyond the Term of this Lease, as necessary.
(d) Lessee shall conduct all of its operations within the Premises
relating to the use, transportation, storage and/or disposal of
Hazardous Substance (if any) in accordance with Laws applicable
thereto.
6.2.3 Special Lessee Rights. Notwithstanding any provision of this
Lease to the contrary, in the event any Hazardous Substance contamination
occurs or has occurred in, on, at, under, above or about the Premises, the
Building or the Project other than by reason of the use by (or activities on)
the Premises by Lessee, Lessee's invitees or any Lessee Party, (a) Lessee
shall have no responsibility or liability whatsoever to Lessor with respect
to the existence or remediation of such contamination, existence or
remediation of such contamination, except as specifically provided in
Paragraph 6.2.6 below (b) to the extent that such contamination precludes
Lessee's us and enjoyment of any material portion of the Premises or operation
of Lessee's business thereon, Lessee's obligations to pay Base Rent and other
charges payable hereunder shall abate (on a basis proportionate to the scope
and degree of such interference) for the duration of such interference, and
(c) if such contamination does preclude Lessee's use and enjoyment of a
substantial portion of the Premises or the operation of Lessee's business at
the Premises and has continued for a period in excess of six (6) months (or
under the circumstances is likely to continue for such period), Lessee shall
have the right to terminate this Lease at any time prior to the cessation of
such interference by delivery of thirty (30) days prior written notice to
Lessor. Lessor shall promptly notify Lessee (I) of any release of Hazardous
Substances in, on, at, under, above or about the Premised, the Building or
the Project an (ii) of any notice received by Lessor from any applicable
regulatory agency, any tenant of the Premises or any owner or tenant of any
adjacent property, regarding the existence or release or suspected existence
or release of any Hazardous Substances in, on at under, above or about the
Premises, the Building or the Project. In connection with any notice given
by Lessor to Lessee pursuant to this Paragraph 6.2.3, Lessor shall grant to
Lessee, with charge, full and complete access during normal business hours to
all files, books and records of Lessor regarding, or otherwise relating to,
the existence or release or suspected existence or release, and the use,
storage, handling, manufacture, transport and remediation of Hazardous
Substances in, on at, under, above or about the Premises, the Building or
the Project.
6.2.4 Lessor's Obligations. Lessor hereby agrees that it will
remediate during the Term, to the satisfaction of the applicable governmental
and regulatory agencies and, to the extent the same are not inconsistent with
applicable Laws, any release into the environment (or contamination) of any
Hazardous Substance which is required to be remediated under applicable Laws
(a) to the extent such release results or resulted from the acts or omissions
of Lessor or any Lessor Party (defined below) or (b) if and to the extent such
release or contamination exists as of the Commencement Date (or results from
the existence of any storage tank, in, on, or under the Premises or the
Project as of the Commencement Date). In those instances where Lessor or any
Lessor Party has a duty to remediate pursuant to the immediately preceding
sentence, Lessor shall commence the process necessary for such remediation
with reasonable promptness following the receipt of written notice from Lessee
or any applicable governmental or regulatory agency of the governmental
requirement for such remediation, and thereafter shall pursue such remediation
to completion with reasonable promptness. Lessor hereby Agrees that any such
remediation required under this Paragraph 6.2.4 shall be conducted in a manner
consistent with the standard of remediation applied to similar contamination
with respect tot comparable commercial projects in California. Notwithstanding
any provision of this Paragraph 6.2.4 to the contrary, Lessor shall not be
responsible for any future contamination of the Premises, the Building or the
Project by Hazardous Substances to the extent such contamination results from
the use of (or activities on) the Premises by Lessee or any Lessee Party.
6.2.5 Indemnification.
(a) Subject to the provisions of this Paragraph 6.2, Lessee
shall indemnify, defend and hold Lessor and Lessor's partners,
directors, members, officers, employees and agents ("Lessor
Parties") harmless from all liability, damage, loss, cost,
expense, causes of action, suits, claims, or judgements,
including reasonable attorneys' fees (collectively, "Claims,
Damages and Expenses"), incurred by Lessor to the extent the
same result from any release into the environment of any
Hazardous Substance in, on, under or at the Premises as a
direct result of any use of (or activities on) the Premises
by Lessee or any Lessee Party; provided, however that:
(i) Claims, Damages and Expenses shall not include
any form of damage for lost profits, lost
opportunities, delay or any form of consequential
damage;
(ii) the foregoing indemnity shall not apply if and to
the extent the Claims, Damages and Expenses described
above result from the acts or omissions of any third
party other than Lessee or any Lessee Party.
(b) Subject to the provisions of this Paragraph 6.2, Lessor
shall indemnify, defend and hold Lessee and Lessee's partners,
directors, members, officers, employees and agents ("Lessee
Parties") harmless from all Claims, Damages and Expenses
incurred by Lessee and Lessee parties resulting from any
release (or contamination) into the environment of any
Hazardous Substance (I) as a result of any act or omission of
Lessor or any Lessor Party or (ii) existing as of the
Commencement Date (or resulting form the existence of any
storage tank in, on, or about the Premises or the Project as
of the Commencement Date; provided, however that:
(i) Claims, Damages and Expenses shall not include any
form of damage for lost profits, lost opportunities,
delay or any form of consequential damage; and
(ii) the foregoing indemnity shall not apply if and to
the extent the Claims, Damages and Expenses described
above result from the use of (or activities on) the
Premises by Lessee or any Lessee Party.
6.2.6 Third Party Release. Notwithstanding any provision of
this Lease to the contrary, in the event that during the Term of this Lease
(a) any release (or contamination) into the environment of any Hazardous
Substance occurs as the result of acts or omissions of any third party other
than (I) Lessee, Lessee's invitees or any Lessee Party and/or (ii) Lessor,
Lessor's invitees or any Lessor Party (a "Third Party Release") and (b) Lessor
shall be required to remediate such Third Party Release (or contamination)
under applicable Laws, Lessee shall reimburse Lessor for an amount equal to
fifty percent under applicable Laws, Lessee shall reimburse Lessor for an
amount equal to fifty percent (50%) of the costs and expense incurred by
Lessor in connection with such remediation; provided, however that Lessee
shall only be required to reimburse Lessor in accordance with this Paragraph
6.2.6 to the extent such Third Party Release did not result from (A) the acts
or omissions of Lessor or any Lessor Party, (B) to the extent such release or
contamination exists as of the Commencement Date, the existence of any storage
tank, in, on or under the Premises or Project as of the Commencement Date
and/or (C) the migration of any Hazardous Substance in, on, or under the
Premises and Project from any property adjacent to the Property.
6.2.7 Survival. Notwithstanding any provisions to the contrary
contained in this Lease, the provisions of this Paragraph 6.2 shall survive
the expiration or earlier termination of this Lease."
6.3 Inspection; Compliance. Upon 48 hours prior notice (except in
the case of emergency) and with Tenant representative present, Lessor and
Lessor's "Lender" (as defined in Paragraph 30 below) and consultants shall
have the right to enter into Premises at any time, in the case of an
emergency, and otherwise at reasonable time, for the purpose of inspecting
the condition of the Premises and for verifying compliance by Lessee with
this Lease. The cost of any such inspections shall be paid by Lessor, unless
a violation of Applicable Requirements, or a contamination is found to exist
or be Imminent, or the inspection is requested or ordered by a governmental
authority. In such case, Lessee shall upon request reimburse Lessor for the
cost of such Inspections, so long as such inspection is reasonably related to
the violation or contamination.
7. Lessee's Obligations. (check addendum)
(a) In General. Subject to the provision of Paragraph 2.2
(Condition), 2.3 (Compliance), 6.3 (Lessee's Compliance with
Applicable Requirements) (check addendum), 7.2 (Lessor's
Obligations), 9 (Damage or Destruction), and 14
(Contamination), Lessee shall, at Lessee's sole expense,
keep the Premises, Utility Installations, and Alterations in
good order, condition and repair (whether or not the portion
of the Premises requiring repairs, or the means of reaping
the same, are reasonably or readily accessible to Lessee, and
whether or not the need for such repairs occurs as a result of
Lessee's use, any prior use, the elements or the age of such
portion of the Premises), including, but not limited to , all
equipment or facility, such as plumbing, heating, ventilating,
air-conditioning, electrical, lighting facilities, boilers,
pressure vessels, fire protection system, fixtures, walls
(interior ), ceilings, floors, windows, doors, plate glass,
skylights, signs, located in, on, or adjacent to the Premises.
Lessee, in keeping the Premises in good order, condition and
repair, shall exercise an perform good maintenance practices,
specifically including the procurement and maintenance of the
service contracts required by Paragraph 7.1(b) below.
Subject to section 7.1(e), Lessee's obligations shall include
restorations, replacements or renewals when necessary to
keep the Premises and all improvements thereon or a part
thereof in good order, condition and state of repair.
Lessee shall, during the term of this Lease, keep the exterior
appearance of the building in a first-class condition
consistent with the exterior appearance or other similar
facilities of comparable age and size in the vicinity.
(b) Service Contracts. Lessee shall, at Lessee's sole
expense, procure and maintain contracts, with copies to
Lessor, in customary form and substance for, and with
contractors specializing and experienced in the maintenance
of the following equipment and improvements, if any, if and
when installed on he Premises: (i) HVAC equipment, (ii) boiler,
and pressure vessels, (iii) fire extinguishing systems,
including fire alarm and/or smoke detection.(Iv) roof covering
and drains, (v) driveways and parking lots, (vi) clarifiers,
(vii) basic utility feed to the perimeter of the Building.
(c) Replacement. Subject to Lessee's indemnification of
Lessor as set forth in Paragraph 8.7 below, and without
relieving Lessee of liability resulting from Lessee's
failure to exercise and perform good maintenance practices,
if the Basic Elements described in Paragraph 7.1(b) cannot
be repair other than at a cost which is in excess of 50% of
the cost of replacing such Basic Elements, then such Basic
Elements shall be replaced by Lessor, and the cost thereof
shall be prorated between the Parties and Lessee shall only
be obligated to pay, each month during the remainder of the
term of this Lease, on the date on which Base Rent is due,
an amount equal to the product of multiplying the cost of
such replacement by a fraction, the numerator of which is
one, and the denominator of which is he number of months of
the useful life of such replacement as such useful life is
specified pursuant to Federal income tax regulations or
guidelines for depreciation thereof (including interest on
the unamortized balance as is then commercially reasonable
in the judgement of Lessor's accountants), with Lessee
reserving the right to prepay its obligation at any time.
7.2 Lessor's Obligations. Subject to the provisions of Paragraph
2.2 (Condition), 2.3 (Compliance), 9 (Damage or Destruction) and 14
(Condemnation), it is intended by the Parties hereto that Lessor have no
obligation, in any manner whatsoever, to repair and maintain the Premises, or
the equipment therein, all of which obligation are intended to be that of the
Lessee. It is the intention of the Parties that the terms of this Lease
govern the respective obligations of the Parties as to maintenance and repair
of the Premises, and they expressly wave the benefit of any statute now or
hereafter in effect to the extent it is inconsistent with the terms of this
Lease.
7.3 Utility Installations; Trade Fixtures; Alterations.
(a) Definitions; Consent Required. The term "Utility
Installations" refers to all floor and window coverings,
air lines, power panels, electrical distribution, security
and fire protection systems, communication systems, lighting
fixtures, HVAC equipment, plumbing, and fencing in or on the
Premises. The term "Trade Fixtures" shall mean Lessee's
machinery and equipment that can be removed without doing
material damage to the Premises. The term "Alterations"
shall mean any modification of the improvements, other than
Utility Installations or Trade Fixtures, whether by addition
or deletion. "Lessee Owned Alterations and/or Utility
Installations: are defined as Alterations and/or Utility
Installation made by Lessee that are not yet owned by Lessor
pursuant to Paragraph 7.4(a). Lessee shall not make any
Alterations or Utility Installations to the Premises without
Lessor's prior written consent which consent shall not be
(see lease) withheld or delayed. Lessee may, however
non-structural/Utility Installations to the interior of the
Premises (excluding the roof) without such consent but upon
notice to Lessor, as long as they are not visible from the
outside, do not involve puncturing, relocating or removing
the roof or any existing walls, and the cumulative cost
thereof during this Lease as extended does not exceed $50,000
in the aggregate or $10,000 in any year.
(b) Consent. Any Alterations or Utility Installations that
Lessee shall desire to make and which require the consent of
the Lessor shall be presented to Lessor in written form with
detailed plans. Consent shall be granted or withheld within
20 days following request deemed conditioned upon Lessee's:
(i) acquiring all applicable governmental permits,
(ii) furnishing Lessor with copies of both the permits and
the plans and specifications prior to commencement of the
work, and (iii) compliance with all conditions of said
permits and other Applicable Requirements in the prompt and
expeditious manner. Any Alterations or Utility Installations
shall be performed in a workmanlike manner with good and
sufficient materials. Lessee shall promptly upon completion
furnish Lessor with as built plans and specifications. For
work which cost an amount equal to the greater of one month's
Base Rent, or $10,000, Lessor may Lessor may condition its
consent upon Lessee providing a lien and completion bond in
an amount equal to the estimated cost of such Alteration or
Utility Installation.
(c) Indemnification. Lessee shall pay, when due, all claims
for labor or materials furnished or alleged to have been
furnished to or for Lessee at or for use on the Premises,
which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises or any interest
therein. Lessee shall give Lessor not less the ten (10) days
notice prior to the commencement of any work, on or about the
Premises, and Lessor shall have the right to post notices of
non-responsibility. If Lessee shall contest the validity of
any such lien, claim or demand, then the Lessee shall, at its
sole expense defend and protect itself, Lessor and the Premises
against the same and shall pay and satisfy any such adverse
judgement that may be rendered thereon before the enforcement
thereof. If Lessor shall require, Lessee shall furnish a
surety bond in an amount equal to one and one-half times the
amount of such contested lien, claim or demand, indemnifying
Lessor against liability for the same. If Lessor elects to
participate in any such action, Lessee shall pay Lessor's
attorneys' fees and costs.
7.4 Ownership; Removal; Surrender; and Restoration.
(a) Ownership. Subject to Lessor's right to require removal
or elect ownership as hereinafter provided, all Alterations
and Utility Installations made by Lessees shall be the
property of Lessee, but considered a part of the Premises.
Lessor may, at any time, elect in writing to be the owner of
all or any specified part of the Lessee Owned Alterations and
Utility Installations. Unless otherwise instructed per
Paragraph 7.4(b) hereof, all Lessee Owned Alteration and
Utility Installations shall, at the expiration of this Lease,
become the property of Lessor and be surrendered by Lessee
with the Premises.
(b) Removal. By delivery to Lessee of written notice from
Lessor not earlier than ninety (90) days and not later than
thirty (30) days prior to the and the end of the term of this
Lease, Lessor may require that any or all Lessee Owned
Alterations or Utility Installations be removed by the
expiration or termination of this Lease. Lessor may require
the removal at any time of all or any part of any Lessee Owned
Alterations or Utility Installations made without the required
consent. Lessor shall inform Lessee at time of consent whether
Lessor shall require removal upon expiration of Lease.
(c) Surrender/Restoration. Lessee shall surrender the
Premises by the Expiration Date or any earlier termination
date, with all of the improvements, parts and surfaces thereof
broom clean and free of debris, and in good operating order,
condition and state of repair, ordinary wear and tear and
damage due to or caused by the negligence of Lessor excepted.
"Ordinary wear and tear" shall not include any damage or
deterioration that would have been prevented by good
maintenance practice. Lessee shall repair any damage
occasioned by the installation, maintenance or removal of
Trade Fixtures, Lessee Owned Alterations and/or Utility
Installations, furnishings, and equipment as well as the
removal of any storage tank installed by or for Lessee, and
the removal, replacement, or remediation of any soil, material
or groundwater contaminated by Lessee. Trade fixtures shall
remain the property of Lessee and shall be removed by Lessee.
The failure by Lessee to timely vacate the Premises pursuant
to this Paragraph 7.4(c) without the express written consent
of Lessor shall constitute a holdover under the provisions of
Paragraph 26 below.
8. Insurance; Indemnity.
8.1 Payment For Insurance. Lessee shall pay for all insurance
required under Paragraph 8 except to the extent of the cost attribute to
liability Insurance carried by Lessor under Paragraph 8.2(b) in excess of
$2,000,000 per occurrence. Premiums for policy periods commencing prior to
or extending beyond the Lessee term shall be prorated to correspond to the
Lease term. Payment shall be made by Lessee to Lessor within ten (10) days
following receipt of an invoice.
8.2 Liability Insurance.
(a) Carried by Lessee. Lease shall obtain and keep in force
a Commercial General Liability Policy of Insurance protecting
Lessee and Lessor against claims for bodily injury, personal
injury and property damage based upon or (see lease) out of
the ownership, use, occupancy or maintenance of the Premises
and all areas appurtenant thereto. Such insurance shall be on
an occurrence basis providing single limit coverage in an
amount not less than $2,000,000 per occurrence with an
"Additional Insured-Managers or Lessors of Premises
Endorsement" and contain the "Amendment of the Pollution
Exclusion Endorsement" for damage caused by heat, smoke or
fumes from a hostile fire. The policy shall not contain any
intra-insured exclusions as between insured persons or
organizations, but shall include coverage for liability
assumed under this Lease as an "insured contract" for the
performance of Lessee's Indemnity obligations under this
Lease. The limits of said insurance shall not, however,
limit the liability of Lessee nor relieve Lessee of any
obligation hereunder. All insurance carried by Lessee shall
be primary to and not contributory with any similar insurance
carried by Lessor, whose insurance shall be considered excess
insurance only.
(b) Carried by Lessor. Lessor shall maintain liability
insurance as described in Paragraph 8.2(a), in addition to,
and not in lieu of, the insurance required to be maintained
by Lessee. Lessor shall not be named as an additional
insured therein.
8.3 Property Insurance - Building, Improvements and Rental Value.
(a) Building and Improvements. The insuring Party shall
obtain and keep in force a policy or policies in the name of
Lessor, with loss payable to Lessor, any ground Lessor, and
to any Lender(s) insuring loss or damage to the Premises.
The amount of such insurance shall be equal to the full
replacement cost of the Premises, as the same shall exist
from time to time, or the amount required by any Lenders,
but in no event more than the commercially reasonable and
available insurable value thereof. If Lessor is the insuring
party, however, Lessee Owned Alterations and Utility
installations, Trade Fixtures, and Lessee's personal property
shall be insured by Lessee under Paragraph8.4 rather than by
Lessor. If the coverage is available and commercially
appropriate, such policy or policies shall insure against all
risks of direct physical loss or damage (except the perils of
flood and /or earthquake), including coverage for debris
removal and the enforcement of any Applicable Requirements
requiring the upgrading, demolition, reconstruction or
replacement of any portion of the Premises as the result to
covered loss. Said policy shall also contain an agreed
valuation provision in lieu of any coinsurance clause, waiver
of subrogation, and inflation guard protection causing an
increase in the annual property insurance coverage amount by a
factor of not less than the adjusted U.S. Department of Labor
Consumer Price Index for All Urban Consumers for the city
nearest to where the Premises are located. If such insurance
coverage has a deductible clause, the deductible amount shall
not exceed $5,000 per occurrence, and Lessee shall be liable
for such deductible amount in the event of an insured Loss.
(b) Rental Value. The insuring Party shall obtain and keep
in force a policy or policies in the name of Lessor with loss
payable to Lessor and any Lender, insuring the loss of the full
Rent for one (1) year. Said insurance shall provide that in
the event the Lease is terminated by reason of an insured loss,
the period of indemnity for such coverage shall be extended
beyond the date of the completion of repairs or replacement of
the Premises, to provide for one full ear's loss of Rent from
the date of any such loss. Said insurance shall contain an
agreed valuation provision in lieu of any coinsurance clause,
and the amount to coverage shall be adjusted annually to
reflect the projected Rent otherwise payable by Lessee, for
the next twelve (12) month period. Lessee shall be liable for
any deductible amount in the event of such loss.
(c) Adjacent Premises. If the Premises are part of a larger
building, or of a group of building owned by Lessor which are
adjacent to the Premises, the Lessee shall pay for any increase
in the Premiums for the property insurance of such buildings
if said increase is caused by Lessee's acts, omissions, use or
occupancy of the Premises.
8.4 Lessee's Property/Business Interruption Insurance.
(a) Property Damage. Lessee shall obtain and maintain
insurance coverage on all of Lessee's personal property,
Trade Fixtures, and Lessee Owned Alterations and Utility
Installations. Such insurance shall be full replacement
cost coverage with the deductible of not to exceed $1,000
per occurrence. The proceeds form any such insurance shall
not be Lessee for the replacement of personal property, Trade
Fixtures and Lessee Owned Alterations and Utility
Installations. Lessee shall proved Lessor with written
evidence that such insurance is in force.
(b) Business Interruption. Lessee shall obtain and maintain
loss of income and extra expense insurance in amounts as will
reimburse Lessee for direct or indirect loss of earnings
attribute to all perils commonly insured against by prudent
lessees in he business of Lessee or attributable to prevention
of access to the Premises as a result of such perils.
(c) No Representation of Adequate Coverage. Lessor makes no
representation that the limits or forms of coverage of
insurance specified herein are adequate to cover Lessee's
property, business operations or obligation under the Lease.
8.5 Insurance Policies. Insurance required herein shall be by
companies duly licensed or admitted to transact business in the state where
the Premises are located, and maintaining during the policy term a "General
Policyholders Rating" of at least B+, V. as set forth in the most current
issue of "Best's Insurance Guide", or such other rating as may be required by
a Lender. Lessee shall not do or permit to be done anything which invalidates
the required insurance policies. Lessee shall, prior to the Start Date,
deliver to Lessor certificates evidencing the existence and amounts of the
required insurance. No such policy shall be cancelable or subject to
modification except after thirty (30) days prior written notice to Lessor.
Lessee shall, at least thirty (30) days prior to the expiration of such
policies, furnish Lessor with evidence of renewals or "insurance binders"
evidencing renewal thereof, or Lessor may order such insurance and charge the
cost thereof to Lessee, which amount shall be payable by Lessee to Lessor
upon demand. Such policies shall be for a term of at least one-year, or the
length of the remaining term of this Lease, which amount shall be payable by
Lessee to Lessor upon demand. Such policies shall be for a term of at least
one year, or the length of the remaining term of this Lease, which ever is
less. If either Party fail to procure and maintain the insurance required
to be carried by it, the other Party may, but shall not be required to,
procure and maintain the same.
8.6 Waiver of Subrogation. Without affecting any other rights or
remedies, Lessee and Lessor each hereby release and relieve the other, and
waive their entire right to recover damages against the other, for loss of or
damage to its property arising out of or incident to the perils required to be
insured against herein. The effect of such releases and waivers is not
limited by the amount to insurance carried or required, or by any deductibles
applicable hereto. The Parties agree to have their respective property damage
insurance carriers waive any right to subrogation that such companies may have
against Lessor or Lessee, as the case may be, so long as the insurance is not
invalidated thereby.
8.7 Indemnity. Except for Lessor's gross negligence or willful
misconduct, Lessee shall indemnify, protect, defend and hold harmless the
Premises, Lessor and its agents, Lessor's master or ground Lessor, partners
and Lenders, from and against any and all claims, and/or damages, liens,
judgments, penalties, attorneys' and consultants' fees, expenses and/or
liabilities arising out of, involving or in connection with, the use and/or
occupancy of the Premises by Lessees. If any action or proceeding is brought
against Lessor by reason of any of the foregoing matter, Lessee shall upon
notice defend the same at Lessee's expense by counsel reasonably satisfactory
to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need
not have first paid any such claim in order to be defended or indemnified.
8.8 Exemption of Lessor from Liability. Except for Lessor or Lessors
agents, gross negligence or (see lease). Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other property
of Lessee, Lessee's employees, contractors, invitees, customers, or any other
person in or about the Premises, whether such damage or injury is caused by
or results form fire, stream, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, fire sprinklers,
wires, appliances, plumbing, HVAC or lighting fixtures, or form any other
cause, whether the said injury or damage results form conditions arising
upon the Premises or upon other portions of the Building of which the Premises
are a part, or form other sources or places. Notwithstanding either party's
negligence or broach of this Lease. Neither party shall be liable for injury
to such other party's business or for any loss of income or profit therefrom.
9. Damage or Destruction.
9.1 Definitions
(a) Premises Partial Damage" shall mean damage or destruction
to the improvements on the Premises, other than Lessee Owned
Alterations and Utility Installations, which can reasonably
be repaired in six (6) months or less from the date of the
damage or destruction. Lessor shall notify Lessee in writing
within thirty (30) days from the date of the damage or
destruction as to whether or not the damage is Partial or
Total.
(b) "Premises Total Destruction" shall mean damage or
destruction to the Premises, other than Lessee Owned
Alterations and Utility Installation and Trade Fixtures,
which cannot reasonably be repaired in six (6) months or
less from the date of the damage or destruction. Lessor
shall notify Lessee in writing within thirty (30) days from
the date of the damage or destruction as to whether or no
the damage is Partial or Total.
(c) "Insured Loss" Shall mean damage or destruction to
improvements on the Premises, other than Lessee Owned
Alterations and Utility Installations and Trade Fixtures,
which was caused by an event required to be covered by the
insurance described in Paragraph 8.3(a), irrespective of any
deductible amounts or coverage limits involved.
(d) "Replacement Cost" shall mean the cost to repair or
rebuild the improvements owned by Lessor at the time of the
occurrence to their condition existing immediately prior
thereto, including demolition, debris removal and upgrading
required by the operation of Applicable Requirements, and
without deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence
of discovery of a condition involving the presence of, or a
contamination by a hazardous Substance as defined in Paragraph
6.2(a)m in, on, or under the Premises.
9.2 Partial Damage - Insured Loss. If a Premises Partial Damage that
is an insured Loss occurs, then Lessor shall, at Lessor's expense, repair such
damage (but not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility
Installations) as soon as reasonably possible and this Lease shall continue in
full force and effect; provided, however, that Lessee shall, at Lessor's
election, make the repair of any damage or destruction the total cost to
repair of which is $10,000 or less, and, in such event, Lessor shall make any
applicable insurance proceeds available to Lessee on a reasonable basis for
that purpose. Notwithstanding the foregoing, if the required insurance was
not in force or the insurance proceeds are not sufficient to effect such
repair, the insuring Party shall promptly contribute the shortage in proceeds
(except as to the deductible which is Lessee's responsibility) as and when
required to complete said repairs. Lessee shall not be entitled to
reimbursement of any funds contributed by Lessee to repair any such damage or
destruction. Premises Partial Damage due to flood or earthquake shall be
subject to Paragraph 9.3, notwithstanding that there may be some insurance
coverage, but the net proceeds of any such insurance shall be made available
for the repairs if made by either party.
9.3 Partial Damage - Uninsured Loss. If a Premises Partial Damage
that is not an insured Loss occurs, unless caused by a negligent or willful
act of Lessee (In which event Lessee shall make the repairs at Lessee's
expense). Lessor may either: (1) repair such damage as soon as reasonably
possible at Lessor's expense, in which event this Lease shall continue in
full force and effect, or (ii) if the replacement cost is greater then
$500,000.00, terminate this Lease by giving written notice to Lessee within
thirty (30) days after receipt by Lessor of knowledge of the occurrence of
such damage. Such termination shall be effective sixty (60) days following
he date of such notice. In the event Lessor elects to terminate this Lease,
Lessee shall have the right within ten (10) days after receipt of the
termination notice date of such notice to give written notice to Lessor of
Lessee's commitment to pay for the repair of such damage without
reimbursement from Lessor. Lessee shall provide Lessor with said funds or
satisfactory assurance thereof within thirty (30) days after making such
commitment. In such event this Lease shall continue in full force and effect,
and Lessor shall proceed to make such repairs as soon as reasonably possible
after the required funds are available. If Lessee does not make the required
commitment, this Lease shall terminate as of the date specified in the
termination notice
9.4 Total Destruction. Notwithstanding any other provisions hereof,
if a Premises Total Destruction occurs, this Lease shall terminate thirty (30)
days following such Destruction. Subject to the rights and liabilities of the
parties which would otherwise survive termination.
9.5 Damage Near End of Term. If at any time during the last six (6)
months of this Lease there is damage for which the cost to repair exceeds two
(2) months Base Rent, whether or not an insured Loss, either party may
terminate the Lease effective sixty (60) days following the date of
occurrence of such damage by giving a written termination notice to the
other party within thirty (30) days after the date of occurrence of such
damage. Notwithstanding the foregoing, if Lessee a that time has an
exercisable option to extend this Lease or to purchase the Premises, then
Lessee may preserve this Lease by, (a) exercising such option and (b)
providing Lessor with any shortage in insurance proceeds (or adequate
assurance thereof) needed to make the repairs on or before the earlier of
(I) the date which is ten days after Lessee's receipt of Lessor's written
notice purporting to terminate this Lease, or (II) the day prior to the date
upon which such option expires. If Lessee duly exercises such option during
such period and provides Lessor with funds (or adequate assurance thereof)
to cover any shortage in insurance proceeds, Lessor shall continue in full
force and effect. If Lessee falls to exercise such option and provide such
funds or assurance during such period, then this Lease shall terminate on
the date specified in the termination notice an Lessee's option shall be
extinguished.
9.6 Adjustment of Rent; Lessee's Remedies
(a) Abatement. In the event of Premises Partial Damage or
Premises Total Destruction or a Hazardous Substance
Condition for which Lessee is not responsible under this
Lease, the Rent Payable by Lessee for the period required
for the repair, remediation or restoration of such damage
shall be abated in proportion to the degree to which Lessee's
use of the Premises is impaired from the date such damage
occurred until the date the date the Premises is fully
restored. All other obligations of Lessee hereunder shall
be performed by Lessee, and Lessor shall have no liability
for any such damage, destruction, remediation, repair or
restoration except as provided herein.
(b) Remedies. If Lessor shall be obligated to repair or
restore the Premises and does not commence. In a substantial
and meaningful way, such repair or restoration within sixty
(60) days after such obligation shall accrue, Lessee may, at
any time prior to the commencement of such repair for
restoration, give written notice to Lessor an to any Lenders
of which Lessee has actual notice, of Lessee's election to
terminate the Lease on a date not less then (thirty (30) days
following the giving of such notice. If Lessee gives such
notice an such repair or restoration is not commenced within
thirty (30) days thereafter, this Lease shall terminate as of
the date specified in said notice. If the repair or
restoration is commenced within said thirty (30) days, this
Lease shall continue in full force and effect. "Commence"
shall mean either the unconditional authorization of the
preparation of the required plans or the beginning of the
actual work on the Premises, whichever first occurs.
9.7 Termination - Advance Payments. Upon termination of this
Lease pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment
shall be made concerning advance Base Rent and any other advance payments
made by Lessee to Lessor. Lessor shall, in addition, return to Lessee so
much of Lessee's Security Deposit as has not been, or is not then required
to be, used by Lessor.
9.8 Waive Statutes. Lessor and Lessee agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the Premises
with respect to the termination of this Lease and hereby waive the provisions
of any present or future stature to the extent inconsistent herewith.
10. Real Property Taxes.
10.1 Definition of "Real Property Taxes." As used herein, the term
"Real Property Taxes" shall include any form of assessment; real estate,
general, special, ordinary or extraordinary, or rental levy or tax (other
than inheritance, personal income or estate taxes): improvement bond: and/or
License fee imposed upon or levied against any legal or equitable interest of
Lessor in the Premises. Lessor's right to other income therefrom, and/or
Lessor's business of leasing, by any authority having the direct or indirect
power to tax and where the funds are generated with reference to the Building
address and where the proceeds so generated are to be applied by the city,
county or other local taxing authority of a jurisdiction within which the
Premises are located. The term "Real Property Taxes" shall also include any
tax, fee, levy assessment or charge, or any increase therein, imposed by
reason of events occurring during the term of the Lease, including but not
limited to, a change in the ownership of the Premises. Notwithstanding any
provision of this Lease to the contrary, the term "Real Property Taxes"
shall not include (see lease) on and such incurred by Lessor.
10.2 (a) Payment of Taxes. Lessee shall pay the Real Property Taxes
applicable to the Premises during the term of this Lease and upon reasonable
advance notice form Lessor. Subject to Paragraph 10.2(b), all such payments
shall be made at least ten (10) days prior to any delinquency date. Lessee
shall promptly furnish Lessor with satisfactory evidence that such taxes have
been paid. If any such taxes shall cover any period of time prior to or after
the expiration or termination of his Lease, Lessee's share of such taxes shall
be prorated to cover only that portion of the tax bill applicable to the period
that this Lease is in effect, and Lessor shall reimburse Lessee for any
overpayment. If Lessee shall fail to pay any required Real Property Taxes,
Lessor shall have the right to pay the same, and Lessee shall reimburse
Lessor therefor upon demand. (c) Advance Payment. In the event Lessee incurs
a late charge on any Rent payment, Lessor may, at Lessor's option, estimate
the current Real Property Taxes, and require that such taxes be paid in
advance to Lessor by Lessee, either; (I) In lump sum amount equal to the
installment due, at least twenty (20) days prior to the applicable
delinquency date, or (II) monthly in advance with the payment of the Base
Rent. If Lessor elects to require payment monthly in advance, the monthly
payment shall be an amount equal tot he amount to the estimated installment
to taxes divided by the number of months remaining before the month in which
said installment becomes delinquent. When the actual amount o the applicable
tax bill is known, the amount of such equal monthly advance payments shall be
adjusted as required to proved the funds needed to pay the applicable taxes.
If the amount collected by Lessor is insufficient tot pay such Real Property
Taxes when due. Lessee shall pay Lessor, upon demand, such additional sums
as are necessary to pay such obligations. All monies paid to Lessor under
this Paragraph may be intermingled with other monies of Lessor and shall not
bear interest. In the event of a Breach by Lessee in the performance of its
obligations under this Lease, then any balance of funds paid to Lessor under
the provisions of this Paragraph may, at the option of the Lessor, be treated
as an additional Security Deposit.
10.3 Joint Assessment. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the Real Property Taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be conclusively determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information
as may be reasonably available.
10.4 Personal Property Taxes. Lessee shall pay, prior to delinquency,
all taxes assessed against and levied upon Lessee Owned Alterations, Utility
Installation, Trade Fixtures, furnishings, equipment and all personal property
of Leases. When possible, Lessee shall cause such property to be assessed and
billed separately form the real property of Lessor. If any of Lessee said
personal property shall be assessed with Lessor's real property, Lessee shall
pay Lessor the taxes attributable to Lessee's property within ten (10) days
after receipt of a written statement.
11. Utilities. Lessee shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to the
Premises, together with any taxes thereon. If any such services are not
separately metered to Lessee, Lessee shall pay a reasonable proportion, to
be determined by Lessor, of all charges jointly metered.
12. Assignment and Subletting.
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operation of law
assign, transfer, mortgage or encumber (collectively. "assign
or assignment") or sublet all or any part of Lessee's interest
in this Lease or in the Premises without Lessor's Prior written
consent which consent shall not be unreasonably withheld,
conditioned or delayed.
(b) The involvement of Lessee or its assets in any transaction,
or series of transactions (by way of merger, sale, acquisition,
financing, transfer, leveraged buy-out or otherwise), whether
or not a formal assignment or hypothecation of this Lease or
Lessee's assets occurs, which results or will result in a
reduction of the Net worth of Lease by an amount equal to or
amount that is less than all sums due Lessor (payable by
Lessee) under this Lease for the two (2) year period of the
term immediately following the transaction or transactions,
shall be considered an assignment of this Lease to which
Lessor may withhold its consent. "Net Worth of Lessee" shall
mean the net worth of Lessee (excluding any guarantors)
established under generally accepted accounting principles.
(c) An assignment or subletting without consent shall, at
Lessor's option, be a Default curable after notice per
Paragraph 13.1(c) or, if Lessee shall not cure such default
following 30 days advance written notice form Lessor, a breach.
If Lessor elects to treat such unapproved assignment or
subletting as a Breach (following the 30-day notice and (see
lease) Lessor may either, (I) terminate this Lease, Or (ii)
upon thirty (30) days written notice, increase the monthly Base
Rent to one hundred ten percent (110%) of the Base Rent then
in effect.
(d) Lessee's remedy for any breach of Paragraph 12.1 by Lessor
shall be limited to compensatory damages and/or injunctive
relief.
12.2 Terms and Conditions Applicable and Subletting.
(a) Regardless of Lessor's consent, any assignment or
subletting shall not: (I) be effective without the express
written assumption by such assignee or sublessee of the
obligations of Lessee under this Lease; (ii) release Lessee
of any obligations hereunder; or (iii) alter the primary
liability of Lessee for the payment of Rent or for the
performance of any other obligations to be performed by
Lessee.
(b) Lessor may accept Rent or performance of Lessee's
obligations from any person other than Lessee pending
approval or disapproval of an assignment. Neither a delay in
the approval or disapproval of such assignment nor the
acceptance of Rent or performance shall constitute a waiver or
estoppel of Lessor's right to exercise its remedies for
Lessee's Default or Breach.
(c) Lessor's consent to any assignment or subletting shall
not constitute a consent to any subsequent assignment or
subletting.
(d) In the event of any Default or Breach by Lessee, Lessor
may proceed directly against Lessee, Lessor may proceed
directly against Lessee, any Guarantors or anyone else
responsible for the performance of Lessee's obligations under
this Lease, including any assignee or sublessee, without first
exhausting Lessor's remedies against any other person or
entity responsible therefore to Lessor, or any security held
by Lessor.
(e) Each request for consent to an assignment or subletting
shall be in writing, accompanied by information relevant to
Lessor's determination as to the financial and operational
responsibility and appropriateness of the proposed assignee or
sublessee, including but not limited to the intended use and/or
required modification of the Premises, if any, together with a
fee for Lessor's review and processing of such request, not to
exceed $1,500.00. Lessor agrees to provide Lessor with such
other or additional information and/or documentation as may be
reasonably requested.
(e) Any assignee of, or sublessee under, this Lease shall, by
reason of accepting such assignment or entering into such
sublease, be deemed to have assumed and agreed to conform and
comply with each and ever term, covenant, condition and
obligation herein to be observed or performed by Lessee during
the term of said assignment of sublease, other than such
obligations as are contrary to or inconsistent with provisions
of an assignment or sublease, other than such obligations as
are contrary to or inconsistent with provisions of an
assignment or sublease to which Lessor has specifically
consented to in writing.
12.3 Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Lessee of all
or any part of the Premises and shall be deemed included in all subleases
under this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of
Lessee's interest in all Rent payable on any sublease, and
Lessor may collect such Rent and apply same toward Lessee's
obligations under this Lease; provided, however, that until
a Breach shall occur in the performance of Lessee's
obligations, Lessee may collect said Rent. Lessor shall
not, by reason of the foregoing or any assignment of such
sublease, nor by reason of the collection or Rent, be deemed
liable to the sublease for any failure of Lessee to perform
and comply with any of Lessee's obligations to such sublessee.
Lessee hereby irrevocably authorizes and directs any such
sublessee, upon receipt of a written notice from Lessor
stating that a Breach exists in the performance of Lessee's
obligations under this Lease, to pay to Lessor all Rent due
and to become due under the sublease. Sublessee shall rely
upon any such notice from Lessor and shall pay all Rents to
Lessor without any obligation or right to inquire as to
whether such Breach exists, notwithstanding any claim from
Lessee to the contrary.
(b) In the event of a Breach by Lessee, Lessor may, at its
option, require sublessee to attorn to Lessor, in which event
Lessor shall undertake the obligations of the sublessor under
such sublease from the time of the exercise of said option to
the expiration of such sublease; provided, however, Lessor
shall not be liable for any prepaid rents or security deposit
paid by such sublessee to such sublessor or for any prior
Defaults or Breaches of such sublessor.
(c) Any matter requiring the consent of the sublessor under
a sublease shall also require the consent of Lessor which
consent shall not be unreasonably withheld.
(d) No sublessee shall further assign or sublet all or any
part of the Premises without Lessor's Prior written consent.
(f) Lessor shall deliver a copy of any notice of Default or
Breach by Lessee to the sublessee, who shall have the right
to cure the Default of Lessee within the grace period, if
any, specified in such notice. The sublessee shall have a
right to reimbursement and offset from and against Lessee
for any such Defaults cured by the sublessee.
13. Default; Breach; Remedies.
13.1 Default; Breach. A. "Default) is defined as a failure by the
Lessee to comply with or perform any of the terms, covenants, conditions or
rules under this Lease. A "Breach" is defined as the occurrence of one or
more of the following Defaults, and the failure of Lessee to cure such
Default within any applicable grace period:
(a) The abandonment of the Premises; or the vacating of the
Premises without providing a commercially reasonable level of
security, or where the coverage of the property insurance
described in Paragraph 8.3 is jeopardized as a result thereof,
or without providing reasonable assurances to minimize
potential vandalism.
(b) The failure to Lessee to make any payment of Rent or any
Security Deposit required to be make by Lessee hereunder,
whether to Lessor or to a third party, when due, to provide
reasonable evidence of insurance or surety bond, or to fulfill
any obligation under this Lease which endangers or threatens
life of property, where such failure continues for a period of
five (5) business days following written notice to Lessee (or,
in the case of an endangerment or threat to life or property,
3 business days).
(c) The failure by Lessee to proved (I) reasonable written
evidence of compliance with Applicable Requirements, (ii) the
service contract, (iii) the rescission of an unauthorized or
subletting, (iv) a Estoppel Certification, (v) a requested
subordination, (vi) evidence concerning any guaranty and/or
Guarantor, (vii) any document requested under Paragraph 42
(easements), or (viii) any other documentation of information
which Lessor may reasonably require of Lessee under the terms
of this Lease, where any such failure continues for a period
of ten (10) days following written notice to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions
or provision of this Lease, or of the rules adopted under
Paragraph 40 hereof, other than those described in
subparagraphs 13.1(a), (b) or (c), above, where such Default
continues for a period of thirty (30) days after written
notice; provided, however, that if the nature of Lessee's
Default is such that more than thirty (30) days are reasonably
required for its cure, then it shall not be deemed to be a
Breach if Lessee commences such cure within said thirty (30)
day period and thereafter diligently prosecutes such cure to
completion.
(e) The occurrence of any of the following event: (I) the
making of any general arrangement or assignment for the
benefit of creditors; (ii) becoming a "debtor" as defined in
11 U.S.C. section 101 or any successor statute thereto (unless, in
the case of petition filed against Lessee, the same is
dismissed within sixty (60) days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of
Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to
Lessee within thirty (30) days; or (iv) the attachment,
execution or other judicial seizure of substantially all of
Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged
within thirty (30) days; provided, however, in the event that
any provision of this subparagraph 13.1 is contrary to any
applicable law, such provision shall be of no force or effect,
and not effect the validity of the remaining provisions.
(f) The discovery that any financial statement of Lessee or
of any Guarantor given to Lessor was materially false.
(g) If the performance of Lessee's obligations under this
Lease is guaranteed: (i) the death of a Guarantor; (ii) the
termination of a Guarantor's liability with respect to this
Lease other than in accordance with the terms of such
guaranty; (iii) a Guarantor's becoming insolvent or the
subject of bankruptcy filing; (iv) a Guarantor's refusal to
honor the guaranty; or (v) a Guarantor's breach of its
guaranty obligation on an anticipatory basis , and Lessee's
failure, within sixty (60) days following written notice of
any such event, to provide written alternative assurance or
security, which, when coupled with the then existing resources
of Lessee, equals or exceeds the combined financial resources
of Lessee and the Guarantors that existed a the time of
execution of this Lease.
13.2 Remedies. If either party fails to perform any of its
affirmative duties or obligations, within fifteen (15) days after written
notice (or in case of an emergency, without notice), either party may, at
its option, perform such duty or obligation on such other party's behalf,
including but not limited to the obtaining of reasonably required bonds,
insurance policies, or governmental licenses, permits or approvals. The
cost and expenses of any such performance by such party shall be due and
payable by the other party upon receipt of invoice therefor. If any check
given to Lessor by Lessee shall not be honored by the bank upon which it is
drawn, Lessor, at its option, may require all future payments to be made by
Lessee to be by cashier's check. In the event of a Breach, Lessor may,
with or without further notice or demand, and without limiting Lessor in
the exercise of any right or remedy which Lessor may have by reason of such
Breach:
(a) Terminate Lessee's right to possession of the Premises
by any lawful means, in which case this Lease shall
terminate and Lessee shall immediately surrender possession
to Lessor. In such event Lessor shall be entitled to
recover from Lessee; (i) the unpaid Rent which had been
earned at the time of termination; (ii) the worth at the
time of the amount by which the unpaid rent which would
have been earned after termination until the time of award
exceeds the amount of such rental loss that the Lessee
proves could have been reasonably avoided; (iii) the worth
at the time of award of the amount by which the unpaid rent
for the balance of he term after the time of award exceeds
the amount of such rental loss that the Lessee proves could
be reasonably avoided; and (iv) any other amount necessary
to compensate Lessor for all the detriment proximately
caused by the Lessee's failure to perform its obligations
under this Lease or which in the ordinary course of things
would be likely to result therefrom, including but not
limited to the cost of recovering possession of the
Premises, expenses of reletting, including necessary renovation
and alteration of the Premises, reasonable attorneys' fees ,
and that portion of any leasing commission paid by Lessor in
connection with this Lease applicable to the unexpired term of
this Lease. The worth at the time of award of the amount
referred to in provision (iii) of the immediately preceding
sentence shall be computed by discounting such amount at the
discount rate of the Federal Reserve Bank of the District with
in which the Premises are located at the time of award plus
one percent (1%). Efforts by Lessor to mitigate damages
caused by Lessee's Breach of this Lease shall not waive
Lessor's right to recover damages under Paragraph 12. If
termination of this Lease is obtained through the provisional
remedy of unlawful detainer, Lessor shall have the right to
recover in such proceeding any unpaid Rent and damages as are
recoverable therein or Lessor may reserve the right to recover
all or any part thereof in separate suit. If a notice and
grace period required under Paragraph 13.1 was not previously
given, a notice o pay rent or quit, or to perform or quit
given to Lessee under the unlawful detainer statute shall
also constitute the notice required by Paragraph 13.1. In
such case, the applicable grace period required by Paragraph
13.1 and the unlawful detainer statute shall run concurrently,
and the failure of Lessee to cure the Default within the
greater of the two such grace periods shall constitute both
and unlawful detainer and a Breach of this Lease entitling
Lessor to the remedies provided for in this Lease and/or by
said stature.
(b) Continue the Lease and Lessee's right to possession and
recover the Rent as it becomes due, in which event Lessee may
sublet or assign, subject only to reasonable limitations.
Acts of maintenance, efforts to relet, and/or the appointment
of a receiver to protect the Lessor's interest, shall not
constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available under
the laws or judicial decisions of the state wherein the
Premises are located. The expiration or termination of this
Lease and/or the termination of Lessee's right to possession
shall not relieve Lessee from liability under any indemnity
provision of this Lease as to matters occurring or accruing
during the term hereof or by reason of Lessee's occupancy of
the Premises.
13.3 Inducement Recapture. Any agreement for free or abated rent
or other charges, or for the giving or paying by Lessor to or for Lessee of
any cash or other bonus, inducement or consideration for Lessee's entering
into this Lease, all of which concessions are hereinafter referred to as
"Inducement Provisions," shall be deemed conditioned upon Lessee's full and
faithful performance of all of the terms, covenants and conditions of this
Lease. Upon Breach of this Lease by Lessee, any such inducement Provision
shall automatically be deemed deleted from this Lease and of no further
force or effect, and any rent, other charge, bonus, inducement or
consideration theretofore abated, given or paid by Lessor under such and
inducement Provision shall be immediately due and payable by Lessee to
Lessor, notwithstanding any subsequent cure of said Breach by Lessee. The
acceptance by Lessor of Rent or the cure of the Breach which initiated the
operation of this paragraph shall not be deemed a waiver by Lessor of the
provisions of this paragraph unless specifically so stated in writing by
Lessor at the time of such acceptance.
13.4 Late Charges. Lessee hereby acknowledges that late payment
by Lessee of Rent will cause Lessor to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting
charges, and late charges which may be imposed upon Lessor by any Lender.
Accordingly, if any Rent shall not be received by Lessor within five (5)
business days after such amount shall be due, then, without any requirement
for notice to Lessee, Lessee shall pay to Lessor a one-time late charge
equal to five percent (5%) of each such overdue amount. The Parties hereby
agree that such late charge represents a fair and reasonable estimate of the
costs Lessor will incur by reason of such late payment. Acceptance of such
late charge by Lessor shall in no event constitute a waiver of Lessee's
Default or Breach with respect to such overdue amount, nor prevent the
exercise of any of the other rights and remedies granted hereunder. In the
event that a late charge is payable hereunder, whether or not collected, for
three (3) consecutive installments of Base Rent, then notwithstanding any
provision of this Lease to the contrary, Base Rent shall, at Lessor's option,
become due and payable quarterly in advance.
13.5 Interest. Any monetary payment due Lessor hereunder, other
than late charges, not received by Lessor within ten (10) days following,
when due as to scheduled payments (such as Base Rent) or within thirty (30)
days following the date on which it was due for non-scheduled payment, shall
bear interest from the date when due, as to scheduled payments, or the
thirty-first (31st) day after it was due as to non-scheduled payments. The
interest ("Interest") charged shall be equal to the prime rate reported in
the Wall Street Journal as published closest prior to the date when due plus
four percent (4%), but shall not exceed the maximum rate allowed by law.
Interest is payable in addition to the potential late charge provided for in
Paragraph 13.4.
13.6 Breach by Lessor.
(a) Notice of Breach. Lessor shall not be deemed in breach
of this Lease unless Lessor fails within a reasonable time
to perform an obligation required to be performed by Lessor.
For purpose of this Paragraph, a reasonable time shall in no
event be less than thirty (30) days after receipt by Lessor,
and any Lender whose name and address shall have been
furnished Lessee in writing for such purpose, of written
notice specifying wherein such obligation of Lessor has not
been performed; provided, however, that if the nature of
Lessor's obligation is such that more than thirty (30) days
period and thereafter diligently pursued to completion.
(b) Performance by Lessee on Behalf of Lessor. In the
event that neither Lessor nor Lender cures said breach
within thirty (30) days after receipt of said notice, or if
having commenced said cure they do not diligently pursue it
to completion, then Lessee may elect to cure said breach at
Lessee's expense and offset from Rent an amount equal to the
greater of one month's Base Rent or the Security Deposit,
and to pay an excess of such expense under protest, reserving
Lessee's right to reimbursement from Lessor. Lessee shall
document the cost of said cure and supply said documentation
to Lessor.
14. Condemnation. If the Premises or any portion thereof are taken under
the power of eminent domain or sold under the threat of the exercise of said
power (collectively "Condemnation"), this Lease shall terminate as to the
part taken as of the date the condemning authority takes title or possession,
whichever first occurs. If more than ten percent (10%) of any building
portion of the Premises, or more then twenty-five percent (25%) of the land
area portion of the Premises not occupied by any building, is taken by
Condemnation, Lessee may, at Lessee's option, to be exercised in writing
within ten (10) days after Lessor shall have given Lessee written notice of
such taking (or in the absence of such notice, within ten (10) days after
the condemning authority shall have taken possession) terminate this Lease
as of the date the condemning authority takes such possession. If Lessee
does not terminate this Lease in accordance with the foregoing , this Lease
shall remain in full force and effect as tot he portion of the Premises
remaining, except that the Base Rent shall be reduces in proportion to the
reduction in utility of the Premises caused by such Condemnation.
Condemnation awards and/or payments shall be he property of Lessor, whether
such award shall be made as compensation for diminution in value of the
leasehold, the value of the part taken, or for severance damages; provided,
however, that Lessee shall be entitled to any compensation for Lessee's
relocation expenses, loss of business goodwill and/or Trade Fixtures,
without regard to whether or not this Lease is terminated pursuant to the
provisions of this Paragraph. All Alterations and Utility Installations made
to the Premises by Lessee, for purposes of Condemnation only, shall be
considered the property of the Lessee and Lessee shall be entitled to any
and all compensation which is payable therefor. In the event that this
Lease is not terminated by reason of the Condemnation, Lessor shall repair
any damage to the Premises caused by such Condemnation.
15. Brokers' Fee.
15.3 Representations and Indemnities of Broker Relationships. Lessee
and Lessor each represent and warrant to the other that it has had no dealings
with any person, firm, broker or finder (other than the Broker, if any) in
connection with this Lease, and that no one other than said named Brokers is
entitled to any commission or finder's fee in connection herewith. Lessee
and Lessor do each hereby agree to indemnify, protect, defend and hold the
other harmless from and against liability for compensation or charges which
may be claimed by any such unnamed broker, finder or other similar party by
reason of any dealings or actions of the indemnifying Party, including any
costs, expenses, and/or attorneys' fees reasonably incurred with respect
thereto.
16. Estoppel Certificates.
(a) Each Party (as "Responding Party" shall within ten (10)
days after written notice from the other Party (the
"Requesting Party") execute, acknowledge and deliver to the
Requesting Party a statement in writing in form similar to
the then more current "Estoppel Certificate" form published
by the American Industrial Real Estate Association, plus such
additional information, confirmation and/or statements as may
be reasonably requested by the Requesting Party.
(b) If the Responsible Party shall fail to execute or deliver
the Estoppel Certificate within such ten day period, the
Requesting Party may execute an Estoppel Certificate stating
that: (i) the Lease is in full force and effect without
modification except as may be represented by the Requesting
by the Party, (ii) there are no uncured defaults in the
Requesting Party performance, and (iii) if Lessor is the
Requesting Party, not more than one month's Rent has been
paid in advance. Prospective purchasers and encumbrancers
may rely upon the Requesting Party's Estoppel Certificate,
and the Responding Party shall be estopped from denying the
truth of the facts contained in said Certificate.
(c) If Lessor desires to finance, refinance, or sell the
Premises, or any part thereof, Lessee and all Guarantors shall
deliver to any potential lender or purchaser designated by
Lessor such financial statements as may be reasonably requires
by such lender or purchaser, including, but not limited to,
Lessee's financial statements for the past three (3) years.
All such financial statements shall be received by Lessor and
such lender or purchaser in confidence and shall be used only
for purposes herein set forth.
17. Definition of Lessor. The term "Lessor" as used herein shall mean the
owner or owners at the time in question of the fee title to the Premises, or,
if this is a sublease of the Lessee's interest in the prior lease. In the
event of a transfer of Lessor's title or interest in the Premises or this
Lease, Lessor shall deliver as of (or Prior to) the date of such transfer to
the transferee or assignee ( in cash or by credit) any unused Security Deposit
held by Lessor. Except as provided in Paragraph 15, upon such transfer or
assignment and delivery of the Security Deposit, as aforesaid, the prior
Lessor shall be relieved of all liability with respect to the obligations
and/or covenants under this Lease thereafter to be performed by the Lessor
accruing following the date of such transfer. Subject to the foregoing, the
obligations and/or convents in this Lease to be performed by the Lessor shall
be binding only upon the Lessor as hereinabove defined. Notwithstanding the
above, and subject to the provisions of Paragraph 20 below, the original
Lessor under this Lease, and all subsequent holders of the Lessor's interest
in this Lease shall remain liable and responsible with regard to the
potential duties and liabilities of Lessor pertaining to Hazardous Substances
as outlined in Paragraph 6 above.
18. Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. Days. Unless otherwise specifically indicated to the contrary, the
work "days" as used in this Lease shall mean and refer to calendar days.
20. Limitation on Liability. Subject to the provisions of Paragraph 17
above, the obligations of Lessor under this Lease shall not constitute
personal obligations of Lessor, the individual partners of the Lessor or its
or their individual partners, directors, officers or shareholders, and Lessee
shall look to the Premises, and to no other asset of Lessor, for the
satisfaction of any liability of Lessor with respect tot his Lease, and shall
not seek recourse against the individual partners of Lessor, or its or their
individual partners, directors, officers or shareholders, or any of their
personal assets for such satisfaction.
21. Time of Essence. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the Parties
under this Lease.
22. No Prior or Other Agreements; Broker Disclaimer. This Lease contains
all agreements between the Parties with respect to any matter mentioned
herein, and no other prior or contemporaneous agreement or understanding
shall be effective. Lessor and Lessee each represents and warrants to the
Brokers that it has made, and is relying solely upon, its own investigation
as to the nature, quality, character and financial responsibility of the
other Party to this Lease and as to the nature, quality and character of the
Premises. Brokers have no responsibility with respect thereto or with
respect to any default or breach hereof by either Party. The liability
(including court costs and Attorney's fees), of any Broker with respect to
negotiation, execution, delivery or performance by either Lessor or Lessee
under this Lease or any amendment or modification hereto shall be limited to
an amount up to the fee received by such Broker pursuant to this Lease;
provided, however, that the foregoing limitation on each Broker's liability
shall not be applicable to any gross negligence or willful misconduct of such
Broker.
23. Notices.
23.1 Notice Requirements. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand or by
courier) or may be sent by regular, certified or registered mail or U.S.
Postal Service Express Mail, with postage prepaid, or by facsimile
transmission, and shall be deemed sufficiently given if served in a manner
specified in this Paragraph 23. The addresses noted in Paragraph 16 of the
addendum shall be that Party's address for delivery or mailing of notices.
Either Party may be written notice to the other specify a different address
for notice, except that upon Lessee's taking possession of the Premises, the
Premises shall constitute Lessee's address for notice. A copy of all notices
to Lessor shall be concurrently transmitted to such party or parties at such
addresses as Lessor may from time to time hereafter designate in writing.
23.2 Date of Notice. Any notice sent by registered or certified
mail, return receipt requested, shall be deemed given on the date of delivery
show on the receipt card, or if no delivery date is shown, the postmark
thereon. If sent by regular mail the notice shall be deemed given
forty-eight (48) hours after the same is addressed as required herein and
mailed with postage prepaid. Notices delivered by United States Express
Mail or overnight courier that guarantee next day delivery shall be deemed
given twenty-four 924) hours after delivery of the same to the Postal
Service or courier. Notices transmitted by facsimile transmission or
similar means shall be deemed delivered upon telephone confirmation of
receipt, provided a copy is also delivered via delivery or mail. If
notice is received on a Saturday, Sunday, or legal holiday, it shall be
deemed received on the next business day.
24. Waivers. No waivers by Lessor of the Default or Breach of any term,
covenant or condition hereof by Lessee, shall be deemed a waiver of any other
term, covenant or condition hereof. Lessor's consent to, or approval of, any
act shall not be deemed to render unnecessary the obtaining of Lessor's
consent to, or approval of , any subsequent or similar act by Lessee, or be
construed as the basis of an estoppel to enforce the provision or provisions
of this Lease requiring such consent. The acceptance of Rent by Lessor shall
not be a waiver of any Default or Breach by Lessee. Any payment by Lessee may
be accepted by Lessor on account of monies or damages due Lessor,
notwithstanding any qualifying statements or conditions made by Lessee in
connection therewith, which such statements and/or conditions shall be of no
force or effect whatsoever unless specifically agreed to in writing by Lessor
at or before the time of deposit of such payment.
25. Recording. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees applicable thereto.
26. No Right To Holder. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or termination of this
Lease. In the event that Lessee holds over, then the Base Rent shall be
increased tot he on hundred fifty percent (150%) of the Base Rent applicable
during the month immediately preceding the expiration or termination.
Nothing contained herein shall be construed as consent by Lessor to any
holding over by Lessee.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
at law or in equity.
28. Covenants and Conditions: Construction of Agreement. All provisions
of this Lease to be observed or performed by Lessee are both covenants and
conditions. In construing this Lease, all headings and titles are for the
convenience of the Parties only and shall not be considered a part of this
Lease. Whenever required by the context, the singular shall include the
plural and vice versa. This Lease shall not be construed as if prepared by
one of the Parties, but rather according to its fair meaning as a whole, as
if both Parties had prepared it.
29. Binding Effect: Choice of Law. This Lease shall be binding upon the
parties, their personal representatives, successors and assigns and be
governed by the laws of the State in which the Premises are located. Any
litigation between the Parties hereto concerning this Lease shall be
initiated in the county in which the Premises are located.
30. Subordination; Attornment; Non-Disturbance.
30.1 Subordination. This Lease an any Option granted hereby
shall be subject and subordinate to any ground lease, mortgage, deed of
trust, or other hypothecation or security device (collectively "Security
Device"), now or hereafter placed upon the Premises, to any and all advances
made on the security thereof, and to all renewals, modification, and
extensions thereof. Lessee agrees that the holders of any such Security
Devices (in their Lease together referred to as "Lessor's Lender") shall have
no liability or obligation to perform any of the obligations of Lessor under
this Lease. Any Lender may elect to have this Lease and/or any Option
granted hereby superior to the lien of its Security Device by giving
written notice thereof to Lessee, whereupon this Lease and such Options
shall be deemed prior to such Security Device, notwithstanding the relative
dates of the documentation or recordation thereof.
30.2 Attornment. Subject to the non-disturbance provisions of
Paragraph 30.3, Lessee agrees to attorn to a Lender or any other party who
acquires ownership of the Premises by reason of a foreclosure of a Security
Device, and that in the event of such foreclosure, such new owner shall not:
(I) be liable for any act or omission of any prior lessor or with respect to
events occurring prior to acquisition of ownership; (ii) be subject to any
offsets or defenses which Lessee might have against any prior lessor; or
(iii) be bound by repayment of more than one (1) month's rent.
30.3 Non-Disturbance. With respect to Security Devices entered
into by Lessor after the execution of this Lease, Lessee's subordination of
this Lease shall be subject to receiving a commercially reasonable
non-disturbance agreement (a "Non-Disturbance Agreement") from the Lender
which Non-Disturbance Agreement provides that Lessee's possession of the
Premises, and this Lease, including any options to extend the term hereof,
will not be disturbed so long as Lessee is not in Breach hereof and attorns
to the record to the record owner of the Premises. Further, within sixty
(60) days after the execution of this Lease, Lessor shall use its
commercially reasonable efforts to obtain a Non-Disturbance Agreement from
the holder of any pre-existing Security Device which is secured by the
Premises. In the event that Lessor is unable to provide the Non-Disturbance
Agreement within said sixty (60) days, then Lessee may, Lessee's option,
directly contact Lessor's lender and attempt to negotiate for the execution
and delivery of a Non-Disturbance Agreement.
30.4 Self-Executing. The agreements contained in the this
Paragraph 30 shall be effective without the execution of any further
documents; provided, however, that, upon written request form Lessor or a
Lender in connection with a sale, financing or refinancing of the Premises,
Lessee and Lessor shall execute such further writings as may be reasonably
required to separately document any subordination, attornment and/or
Non-Disturbance Agreement provided for herein.
31. Attorney's Fees. If any Party or Broker brings an action or
proceeding involving the Premises to enforce the terms hereof or to declare
rights hereunder, the Prevailing Party (as hereafter defined) in any such
proceeding, action, or appeal thereon, shall be entitled to reasonable
attorney's fees. Such fees may be awarded in the same suit or recovered
in a separate suit, whether or not such action or proceeding is pursued to
decision or judgement. The term, "Prevailing Party" shall include, without
limitation, a Party or Broker who substantially obtains or defeats the relief
sought, as the case may be, whether by compromise, settlement, judgement, or
the abandonment by the other Party or Broker of its claim nor defense. The
attorneys' fees award shall not be computed in accordance with any court fee
schedule, but shall be such as to fully reimburse all attorneys' fees
reasonably incurred. In addition, Lessor shall be entitled to attorneys'
fees, costs and expenses incurred in the preparation and service of notices
of Default and consultations in connection therewith, whether or not legal
action is subsequently commenced in connection with such Default or resulting
Breach.
32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's
agents shall have the right to enter the Premises at any time, in the case
of an emergency, and otherwise at reasonable times for the purpose of showing
the same to prospective purchasers, lenders, or lessees, and making such
alterations, repairs, improvements or additions to the Premises as Lessor
may deem necessary. All such activities shall be without abatement of rent
or liability to Lessee. Lessor may at any time place on the Premises any
ordinary "For Sale" signs and Lessor may during the last six (6) months of
the term hereof place on the Premises any ordinary "For Lease" signs. Lessee
may at any time place on or about the Premises any ordinary "For Sublease"
sign.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, any
auction upon the Premises without Lessor's prior written consent no to be
unreasonably withheld. Lessor shall not be obligated to exercise any
standard of reasonableness in determining whether to permit an auction.
34. Signs. Except for ordinary "For Sublease" signs, Lessee shall not
place any sign upon the Premises without Lessor's prior written consent.
All sign must comply with all Applicable Requirements.
35. Termination; Merger. Unless specifically stated otherwise in writing
by Lessor, the voluntary or other surrender of this Lease by Lessee, the
mutual termination or cancellation hereof, or a termination hereof by Lessor,
or a termination hereof by Lessor for Breach by Lessee, shall automatically
terminate any sublease or lesser estate in the Premises; provided, however,
that Lessor may elect to continue any one or all existing subtenancies.
Lessor's failure within ten (10) days following any such event to elect to
the contrary by written notice to the holder of any such lesser interest,
shall constitute Lessor's election to have such event constitute the
termination of such interest.
36. Consents. Except as otherwise provided herein, wherever in this
Lease the consent of a Party is required to an act by or for the other Party,
such consent shall not be unreasonably withheld or delayed. Lessor's actual
reasonable costs and expenses (including, but not limited to, architects',
attorneys', engineers' and other consultants' fees) incurred in the
consideration of, or response to, a request by Lessee for any Lessor consent,
including, but not limited to, consents to an assignment, a subletting or the
presence or use of a Hazardous Substance, shall be paid by Lessee upon receipt
of an invoice and supporting documentation therefor. Lessor's consent to any
act, assignment or subletting shall not constitute an acknowledgment that no
Default or Breach by Lessee of this Lease exists, nor shall such consent be
deemed a waiver of any then existing Default or Breach, except as may be
otherwise specifically stated in writing by Lessor at the time of such
consent. The failure of specify herein any particular condition to Lessor's
consent shall not preclude the imposition by Lessor at the time of consent of
such further or other conditions as are then reasonable with reference to the
particular matter for which consent is being given. In the event that either
Party disagrees with any determination made by the other hereunder and
reasonably requests the reasons for such determination, the determining
party shall furnish its reasons in writing and in reasonable detail within
ten (10) business days following such request.
37. Guarantor.
37.1 Execution. The Guarantors, if any, shall each execute a
guaranty in the form most recently published by the American Industrial Real
Estate Association, and each such Guarantor shall have the same obligations
as Lessee under this Lease.
37.2 Default. It shall constitute a Default of the Lessee if any
Guarantor fails or refuses, upon request to provide: (a) evidence of the
execution of the guaranty, including the authority of the party signing on
Guarantor's behalf to obligate Guarantor, and in the case of a corporate
Guarantor a certified copy of a resolution of its board of directors
authorizing the making of such guaranty, (b) current financial statements,
(c) a Tenancy Statement, or (d) written confirmation that the guaranty is
still in effect.
38. Quiet Possession. Subject to payment by Lessee of the Rent and
performance or all of the covenants, condition and provisions on Lessee's
part to be observed and performed under this Lease, Lessee shall have quiet
possession and quiet enjoyment of the premises during the term hereof.
39. Options.
39.1 Definition. "Option" shall mean: (a) the right to extend the
term of or renew this Lease or to extend or renew any lease that Lessee has
on other property of Lessor; (b) the right of first refusal or first offer
to lease wither the Premises or the other property of Lessor; (c) he right
to purchase or the right of first refusal to purchase the Premises or other
property of Lessor.
39.2 Options Personal To Original Lessee. Each Option granted to
Lessee in this Lease is persona to the original Lessee, and cannot be
assigned or exercised by anyone other than said original Lessee and only
while the original Lessee is in full possession of the Premises and, if
requested by Lessor, with Lessee certifying that Lessee has no intention of
thereafter assigning or subletting.
39.3 Multiple Options. In the event that Lessee has any multiple
Options to extend or renew this Lease, a later Option cannot be exercised
unless the prior Options have been validly exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an option; (I)
during the period commencing with the giving of any notice
of Default and coninuing until said Default is cured, (ii)
during the period of time any Rent is unpaid (without regard
to whether notice thereof is given Lessee), (iii) during the
time Lessee is in Breach of this Lease (following expiration
of any applicable notice an cure periods), or (iv) in the
event that Lessee has been given three (3) or more notices
of separate Default, whether or not the Defaults are cured,
during the twelve (12) month period immediately preceding
the exercise of the Option.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarge by reason of Lessee's
inability to exercise an Option because of the provisions of
Paragraph 39.4(a).
(c) An Option shall terminate and be of no further force or
effect, notwithstanding Lessee's due and timely exercise of the
option, if, after such exercise and prior tot he commencement
of the extended term, (I) Lessee fails to pay Rent for a period
of thirty (30) days after such Rent becomes due (without any
necessity of Lessor to give notice thereof), (ii) Lessor gives
to Lessor gives to Lessee three (3) or more notices of separate
Default during any twelve (12) month period, whether or not
the Defaults are cured, or (iii) if Lessee commits a Breach
of this Lease.
40. Multiple Buildings. If the Premises are a part of a group of buildings
controlled by Lessor, Lessee agrees that it will observe all reasonable rules
and regulations which Lessor may make from time to time for the management,
safety, and care of said properties, including the care and cleanliness of
the grounds and including the parking , loading and unloading of vehicles,
and that Lessee will pay its fair share of common expenses incurred in
connection therewith.
41. Security Measures. Lessee hereby acknowledges that the rental payable
to Lessor hereunder does not include the cost of guard service or other
security measures, and the Lessor shall have no obligation whatsoever to
provide same. Lessee assumes all responsibility for the protection of the
Premises, Lessee, its agents and invitees and their property from the acts
of third parties.
42. Reservations. Lessor reserves to itself the right, from time to time,
to grant, without the consent or joinder of Lessee, such easements, rights and
dedication that Lessor deems necessary, and to cause the recordation of parcel
maps and restrictions, so long as such easements, rights, dedications, maps
and restrictions do not unreasonably interfere with the use of the Premises
by Lessee. Lessee agrees to sign any documents reasonably requested by
Lessor to effectuate any such easement rights, dedication, map or
restrictions.
43. Performance Under Protest. If at any time a dispute shall arise as
to any amount or sum of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such
payment shall not be regarded as a voluntary payment and there shall survive
the right on the part of said Party to institute suit for recovery of such
sum. If it shall be adjudged that there was no legal obligation on the part
of said Party to pay such sum or any part thereof, said Party shall be
entitled to recover such sum or so much thereof as it was not legally
required to pay.
44. Authority. If either Party hereto is a corporation, trust, limited
liability company, partnership, or similar entity, each individual executing
this Lease on behalf of such entity represents and warrants that he or she
is duly authorized to execute and deliver this Lease on its behalf. Each
Party shall, within thirty (30) days after request, deliver to the other
Party satisfactory evidence of such authority.
45. Conflict. Any conflict between the printed provisions of the Lease
and the typewritten or handwritten provision shall be controlled by the
typewritten provision.
46. Offer. Preparation of this Lease by either Party or their agent and
submission of same to the other Party shall not be deemed an offer to lease
to the other Party. This Lease is not intended to be binding until executed
and delivered by all Parties hereto.
47. Amendments. This Lease may be modified only in writing, signed by
the Parties in interest at the time of the modification. As long as they do
not materially change Lessee's obligation hereunder, Lessee agrees to make
such reasonable non-monetary modifications to this Lese as may be reasonably
required by a Lender in connection with the obtaining of normal financing or
refinancing of the Premises.
48. Multiple Parties. If more than one person or entity is named herein
as either Lessor or Lessee, such multiple Parties shall have joint and
several responsibility to comply with the terms of this Lease.
49. Mediation and Arbitration of Disputes. An addendum requiring the
Mediation and/or the Arbitration of all disputes between the Parties and/or
Brokers arising out of this Lease -- is -- is not attached to this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH
TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE
SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY
AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE
COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR
AND LESSEE WITH RESPECT TO THE PREMISES.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN REAL
ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT,
OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES. THE
PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF
THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT TO BE LIMITED TO: THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND
THE SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE.
WARNING: IF THE PREMISES IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN
PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE
STATE IN WHICH THE PREMISES IS LOCATED.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at: Brea, Executed at: Rancho Cucamonga,
California California
on: April 26, 2000 on: April 26, 2000
By LESSOR: By LESSEE:
Slate Enterprises, Inc. LifePoint, Inc.
A California limited liability company a Delaware corporation
By: /s/ Larry Bann By: /s/ Linda H. Masterson
Name Printed: Larry Bann Name Printed: Linda H. Masterson
Title: President Title: President/CEO
Address: 2923 Saturn Street Address: 10400 Trademark Street
Brea, CA 92821 Rancho Cucamonga, CA 91730
Telephone: 714/985-0117 Telephone: 909/446-8047
Facsimile: 714/985-9956 Facsimile: 909/948-3591
Federal ID No. 33-0849834 Federal ID No. 33-0539168
NOTE: These forms are often modified to meet the changing requirements of law
and industry needs. Always write or call to make sure you are utilizing the
most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 700 So. Flower
Street, Suite 600, Los Angeles, California 90017. (213) 687-8777. Fax No.
(213) 687-8616
OPTION(S) TO EXTEND
STANDARD LEASE ADDENDUM
Dated April 6, 2000
By and Between (Lessor) Slater Properties, LLC
(Lessee) LifePoint Inc.
Address of Premises: 1205 Dupont Street, Ontario
Paragraph 55
A. OPTION(S) TO EXTEND:
Lessor hereby grants to Lessee the option to extend the term of this Lease
for 2 additional 24 month period(s) commencing when the prior term expires
upon each and all terms and conditions:
(i) In order to exercise an option to extend, Lessee must give
written notice of such election to Lessor and Lessor must receive
the same at lease 6 but not more than 9 months prior to the date
that the option period would commence, time being of the essence.
If proper notification of the exercise of an option is not given
and/or received. Such option shall automatically expire. Options
(if there are more than one) may only be exercised consecutively.
(ii) The provisions of paragraph 39, including those relating to
Lessee's Default set forth in paragraph 39.4 of this Lease, are
conditions of this Option.
(iii) Except for the provisions of this Lease granting an option
or options to extend the term, all of the terms and conditions of
this Lease except where specifically modified by this option shall
apply.
(iv) This Option is personal to the original Lessee, and cannot
be assigned or exercised by anyone other than said original Lessee
and only while the original Lessee is in full possession of the
Premises and without the intention of thereafter assigning or
subletting.
(v) The monthly rent for each month of the option period shall
be calculated as follows, using the method(s) indicated below:
(Check Method(s) to be Used and Fill in Appropriately)
-- I. Cost of Living Adjustment(s) (COLA)
a. On (Fill in COLA Dates): --------- the Base Rent shall be
adjusted by the change, if any, from the Base Month specified below,
in the Consumer Price Index of the Bureau of Labor Statistics of the
U.S. Department of Labor for (select one):
-- CPI W (Urban Wage Earners and Clerical Workers) or
-- CPI U (All Urban Consumers) for (Fill in Urban Area):
All terms (1982 - 1984 = 100), herein referred to as "CPI".
b. The monthly Rent payable in accordance with paragraph A.I.a. of
this Addendum shall be calculated as follows: the Base Rent set for
the in paragraph 1.5 of the attached Lease, shall be multiplied by
a fraction the numerator of which shall be the CPI of the calendar
month two months prior to the month(s) specified in paragraph A.I.a.
above during which the adjustment is to take effect, and the
denominator of which shall be the CPI of the calendar month which
is tow months prior to (select on):
__the first month of the term of this Lease as set forth in paragraph
1.3 ("Base Month") or __ (Fill in Other "Base Month"): The sum so
calculated shall constitute the new monthly rent hereunder, but in
no event, shall any such new monthly rent be less than the rent
payable for the month immediately preceding the rent adjustment.
c. In the event the compilation and/or publication of the CPI
shall be transferred to any other governmental department or bureau
or agency or shall be discontinued, then the index most nearly the
same as the CPI shall be used to make such calculation. In the event
that the Parties cannot agree on such alternative index, then the
matter shall be submitted for decision to the American Arbitration
Association in accordance with the then rules of said Association and
the decision of the arbitrators shall be binding upon the parties.
The cost of said Arbitration shall be paid equally by the Parties.
II. Market Rental Value Adjustment(s) (MRV)
a. On (Fill in MRV Adjustment Date(s)) August 1, 2005 the Base
Rent shall be adjusted to the "Market Rental Value" of the property
as follows:
1)Four months prior to each Market Rental Value Adjustment Date
described above, the Parties shall attempt to agree upon what the
new MRV will be on the adjustment date. If agreement cannot be
reached, within thirty days, then:
(a) Lessor and Lessee shall immediately appoint a mutually
acceptable appraiser or broker to establish the new MRV within
the next thirty days. Any associated costs will be split equally
between the Parties, or
(b) Both Lessor and Lessee shall each immediately make a reasonable
determination of the MRV and submit such determination, in writing
to arbitration in accordance with the following provisions:
(i) Within fifteen days thereafter, Lessor and Lessee shall
each select an appraiser or broker ("Consultant" - check one)
of their choice to act as an arbitrators so appointed shall
immediately select a third mutually acceptable Consultant to
act as a third arbitrator.
(ii) The three arbitrators shall within thirty days of the
appointment of the third arbitrator reach a decision as to
what the actual MRV for the Premises is, and whether Lessor's
or Lessee's submitted MRV is the closest thereto. The
decision of a majority of the arbitrators shall be binding on
the Parties. The submitted MRV which is determined to be the
closest to the actual MRV shall thereafter be used by the
Parties.
(iii) If either of the Parties to appoint an arbitrator with
in the specified fifteen days, the arbitrator timely appointed
by one of them shall reach a decision on his or her own, and
said decision shall be binding on the Parties.
(iv) The entire cost of such arbitration shall be paid by the
party whose submitted MRV is not selected, ie. The one that is
NOT the closest to the actual MRV.
2) Notwithstanding the foregoing, the new MRV shall not be less than
the rent payable for the month immediately preceding the rent
adjustment.
b. Upon the establishment of each New Market Value:
1) the new MRV will become the new "Base Rent" for the purpose of
calculating any further Adjustments, and
2) the first month of each Market Rental Value term shall become the
new "Base Month" for the purpose of calculating any further
Adjustments.
3) the new MRV Rent shall be additionally increased two percent (2%)
each year in the option period.
III. Fixed Rental Adjustment(s) (FRA)
The Base Rent shall be increased to the following amounts on the date
set forth below:
On (Fill in FRA Adjustment Date(s)):
The New Base Rent Shall be:$
B. NOTICE.
Unless specified otherwise herein, notice of any rental adjustments, other
than Fixed Rental Adjustments, shall be made as specified in paragraph 23 of
the Lease.
C. BROKER'S FEE:
The Brokers specified in paragraph 1.10 of the lease shall be paid a
Brokerage Fee for each adjustment above in accordance with paragraph 15 of
the Lease. Lessor shall be solely responsible for brokerage fee in the event
of an exercise/option.
34. Signs. Except for ordinary "For Sublease" signs, Lessee shall not
place any sign upon the Premises without Lessor's prior written consent.
All sign must comply with all Applicable Requirements.
35. Termination; Merger. Unless specifically stated otherwise in writing
by Lessor, the voluntary or other surrender of this Lease by Lessee, the
mutual termination or cancellation hereof, or a termination hereof by Lessor,
or a termination hereof by Lessor for Breach by Lessee, shall automatically
terminate any sublease or lesser estate in the Premises; provided, however,
that Lessor may elect to continue any one or all existing subtenancies.
Lessor's failure within ten (10) days following any such event to elect to
the contrary by written notice to the holder of any such lesser interest,
shall constitute Lessor's election to have such event constitute the
termination of such interest.
36. Consents. Except as otherwise provided herein, wherever in this
Lease the consent of a Party is required to an act by or for the other Party,
such consent shall not be unreasonably withheld or delayed. Lessor's actual
reasonable costs and expenses (including, but not limited to, architects',
attorneys', engineers' and other consultants' fees) incurred in the
consideration of, or response to, a request by Lessee for any Lessor consent,
including, but not limited to, consents to an assignment, a subletting or the
presence or use of a Hazardous Substance, shall be paid by Lessee upon receipt
of an invoice and supporting documentation therefor. Lessor's consent to any
act, assignment or subletting shall not constitute an acknowledgment that no
Default or Breach by Lessee of this Lease exists, nor shall such consent be
deemed a waiver of any then existing Default or Breach, except as may be
otherwise specifically stated in writing by Lessor at the time of such
consent. The failure of specify herein any particular condition to Lessor's
consent shall not preclude the imposition by Lessor at the time of consent of
such further or other conditions as are then reasonable with reference to the
particular matter for which consent is being given. In the event that either
Party disagrees with any determination made by the other hereunder and
reasonably requests the reasons for such determination, the determining
party shall furnish its reasons in writing and in reasonable detail within
ten (10) business days following such request.
37. Guarantor.
37.1 Execution. The Guarantors, if any, shall each execute a
guaranty in the form most recently published by the American Industrial Real
Estate Association, and each such Guarantor shall have the same obligations
as Lessee under this Lease.
37.2 Default. It shall constitute a Default of the Lessee if any
Guarantor fails or refuses, upon request to provide: (a) evidence of the
execution of the guaranty, including the authority of the party signing on
Guarantor's behalf to obligate Guarantor, and in the case of a corporate
Guarantor a certified copy of a resolution of its board of directors
authorizing the making of such guaranty, (b) current financial statements,
(c) a Tenancy Statement, or (d) written confirmation that the guaranty is
still in effect.
38. Quiet Possession. Subject to payment by Lessee of the Rent and
performance or all of the covenants, condition and provisions on Lessee's
part to be observed and performed under this Lease, Lessee shall have quiet
possession and quiet enjoyment of the premises during the term hereof.
39. Options.
39.1 Definition. "Option" shall mean: (a) the right to extend the
term of or renew this Lease or to extend or renew any lease that Lessee has
on other property of Lessor; (b) the right of first refusal or first offer
to lease wither the Premises or the other property of Lessor; (c) he right
to purchase or the right of first refusal to purchase the Premises or other
property of Lessor.
39.2 Options Personal To Original Lessee. Each Option granted to
Lessee in this Lease is persona to the original Lessee, and cannot be
assigned or exercised by anyone other than said original Lessee and only
while the original Lessee is in full possession of the Premises and, if
requested by Lessor, with Lessee certifying that Lessee has no intention of
thereafter assigning or subletting.
39.3 Multiple Options. In the event that Lessee has any multiple
Options to extend or renew this Lease, a later Option cannot be exercised
unless the prior Options have been validly exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an option; (I)
during the period commencing with the giving of any notice
of Default and coninuing until said Default is cured, (ii)
during the period of time any Rent is unpaid (without regard
to whether notice thereof is given Lessee), (iii) during the
time Lessee is in Breach of this Lease (following expiration
of any applicable notice an cure periods), or (iv) in the
event that Lessee has been given three (3) or more notices
of separate Default, whether or not the Defaults are cured,
during the twelve (12) month period immediately preceding
the exercise of the Option.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarge by reason of Lessee's
inability to exercise an Option because of the provisions of
Paragraph 39.4(a).
(c) An Option shall terminate and be of no further force or
effect, notwithstanding Lessee's due and timely exercise of the
option, if, after such exercise and prior tot he commencement
of the extended term, (I) Lessee fails to pay Rent for a period
of thirty (30) days after such Rent becomes due (without any
necessity of Lessor to give notice thereof), (ii) Lessor gives
to Lessor gives to Lessee three (3) or more notices of separate
Default during any twelve (12) month period, whether or not
the Defaults are cured, or (iii) if Lessee commits a Breach
of this Lease.
40. Multiple Buildings. If the Premises are a part of a group of buildings
controlled by Lessor, Lessee agrees that it will observe all reasonable rules
and regulations which Lessor may make from time to time for the management,
safety, and care of said properties, including the care and cleanliness of
the grounds and including the parking , loading and unloading of vehicles,
and that Lessee will pay its fair share of common expenses incurred in
connection therewith.
41. Security Measures. Lessee hereby acknowledges that the rental payable
to Lessor hereunder does not include the cost of guard service or other
security measures, and the Lessor shall have no obligation whatsoever to
provide same. Lessee assumes all responsibility for the protection of the
Premises, Lessee, its agents and invitees and their property from the acts
of third parties.
42. Reservations. Lessor reserves to itself the right, from time to time,
to grant, without the consent or joinder of Lessee, such easements, rights and
dedication that Lessor deems necessary, and to cause the recordation of parcel
maps and restrictions, so long as such easements, rights, dedications, maps
and restrictions do not unreasonably interfere with the use of the Premises
by Lessee. Lessee agrees to sign any documents reasonably requested by
Lessor to effectuate any such easement rights, dedication, map or
restrictions.
43. Performance Under Protest. If at any time a dispute shall arise as
to any amount or sum of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such
payment shall not be regarded as a voluntary payment and there shall survive
the right on the part of said Party to institute suit for recovery of such
sum. If it shall be adjudged that there was no legal obligation on the part
of said Party to pay such sum or any part thereof, said Party shall be
entitled to recover such sum or so much thereof as it was not legally
required to pay.
44. Authority. If either Party hereto is a corporation, trust, limited
liability company, partnership, or similar entity, each individual executing
this Lease on behalf of such entity represents and warrants that he or she
is duly authorized to execute and deliver this Lease on its behalf. Each
Party shall, within thirty (30) days after request, deliver to the other
Party satisfactory evidence of such authority.
45. Conflict. Any conflict between the printed provisions of the Lease
and the typewritten or handwritten provision shall be controlled by the
typewritten provision.
46. Offer. Preparation of this Lease by either Party or their agent and
submission of same to the other Party shall not be deemed an offer to lease
to the other Party. This Lease is not intended to be binding until executed
and delivered by all Parties hereto.
47. Amendments. This Lease may be modified only in writing, signed by
the Parties in interest at the time of the modification. As long as they do
not materially change Lessee's obligation hereunder, Lessee agrees to make
such reasonable non-monetary modifications to this Lese as may be reasonably
required by a Lender in connection with the obtaining of normal financing or
refinancing of the Premises.
48. Multiple Parties. If more than one person or entity is named herein
as either Lessor or Lessee, such multiple Parties shall have joint and
several responsibility to comply with the terms of this Lease.
49. Mediation and Arbitration of Disputes. An addendum requiring the
Mediation and/or the Arbitration of all disputes between the Parties and/or
Brokers arising out of this Lease -- is -- is not attached to this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH
TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE
SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY
AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE
COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR
AND LESSEE WITH RESPECT TO THE PREMISES.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN REAL
ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT,
OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES. THE
PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF
THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT TO BE LIMITED TO: THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND
THE SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE.
WARNING: IF THE PREMISES IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN
PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE
STATE IN WHICH THE PREMISES IS LOCATED.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at: Brea, Executed at: Rancho Cucamonga,
California California
on: April 26, 2000 on: April 26, 2000
By LESSOR: By LESSEE:
Slate Enterprises, Inc. LifePoint, Inc.
A California limited liability company a Delaware corporation
By: /s/ Larry Bann By: /s/ Linda H. Masterson
Name Printed: Larry Bann Name Printed: Linda H. Masterson
Title: President Title: President/CEO
Address: 2923 Saturn Street Address: 10400 Trademark Street
Brea, CA 92821 Rancho Cucamonga, CA 91730
Telephone: 714/985-0117 Telephone: 909/446-8047
Facsimile: 714/985-9956 Facsimile: 909/948-3591
Federal ID No. 33-0849834 Federal ID No. 33-0539168
NOTE: These forms are often modified to meet the changing requirements of law
and industry needs. Always write or call to make sure you are utilizing the
most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 700 So. Flower
Street, Suite 600, Los Angeles, California 90017. (213) 687-8777. Fax No.
(213) 687-8616
OPTION(S) TO EXTEND
STANDARD LEASE ADDENDUM
Dated April 6, 2000
By and Between (Lessor) Slater Properties, LLC
(Lessee) LifePoint Inc.
Address of Premises: 1205 Dupont Street, Ontario
Paragraph 55
A. OPTION(S) TO EXTEND:
Lessor hereby grants to Lessee the option to extend the term of this Lease
for 2 additional 24 month period(s) commencing when the prior term expires
upon each and all terms and conditions:
(i) In order to exercise an option to extend, Lessee must give
written notice of such election to Lessor and Lessor must receive
the same at lease 6 but not more than 9 months prior to the date
that the option period would commence, time being of the essence.
If proper notification of the exercise of an option is not given
and/or received. Such option shall automatically expire. Options
(if there are more than one) may only be exercised consecutively.
(ii) The provisions of paragraph 39, including those relating to
Lessee's Default set forth in paragraph 39.4 of this Lease, are
conditions of this Option.
(iii) Except for the provisions of this Lease granting an option
or options to extend the term, all of the terms and conditions of
this Lease except where specifically modified by this option shall
apply.
(iv) This Option is personal to the original Lessee, and cannot
be assigned or exercised by anyone other than said original Lessee
and only while the original Lessee is in full possession of the
Premises and without the intention of thereafter assigning or
subletting.
(v) The monthly rent for each month of the option period shall
be calculated as follows, using the method(s) indicated below:
(Check Method(s) to be Used and Fill in Appropriately)
-- I. Cost of Living Adjustment(s) (COLA)
a. On (Fill in COLA Dates): --------- the Base Rent shall be
adjusted by the change, if any, from the Base Month specified below,
in the Consumer Price Index of the Bureau of Labor Statistics of the
U.S. Department of Labor for (select one):
-- CPI W (Urban Wage Earners and Clerical Workers) or
-- CPI U (All Urban Consumers) for (Fill in Urban Area):
All terms (1982 - 1984 = 100), herein referred to as "CPI".
b. The monthly Rent payable in accordance with paragraph A.I.a. of
this Addendum shall be calculated as follows: the Base Rent set for
the in paragraph 1.5 of the attached Lease, shall be multiplied by
a fraction the numerator of which shall be the CPI of the calendar
month two months prior to the month(s) specified in paragraph A.I.a.
above during which the adjustment is to take effect, and the
denominator of which shall be the CPI of the calendar month which
is tow months prior to (select on):
__the first month of the term of this Lease as set forth in paragraph
1.3 ("Base Month") or __ (Fill in Other "Base Month"): The sum so
calculated shall constitute the new monthly rent hereunder, but in
no event, shall any such new monthly rent be less than the rent
payable for the month immediately preceding the rent adjustment.
c. In the event the compilation and/or publication of the CPI
shall be transferred to any other governmental department or bureau
or agency or shall be discontinued, then the index most nearly the
same as the CPI shall be used to make such calculation. In the event
that the Parties cannot agree on such alternative index, then the
matter shall be submitted for decision to the American Arbitration
Association in accordance with the then rules of said Association and
the decision of the arbitrators shall be binding upon the parties.
The cost of said Arbitration shall be paid equally by the Parties.
II. Market Rental Value Adjustment(s) (MRV)
a. On (Fill in MRV Adjustment Date(s)) August 1, 2005 the Base
Rent shall be adjusted to the "Market Rental Value" of the property
as follows:
1)Four months prior to each Market Rental Value Adjustment Date
described above, the Parties shall attempt to agree upon what the
new MRV will be on the adjustment date. If agreement cannot be
reached, within thirty days, then:
(a) Lessor and Lessee shall immediately appoint a mutually
acceptable appraiser or broker to establish the new MRV within
the next thirty days. Any associated costs will be split equally
between the Parties, or
(b) Both Lessor and Lessee shall each immediately make a reasonable
determination of the MRV and submit such determination, in writing
to arbitration in accordance with the following provisions:
(i) Within fifteen days thereafter, Lessor and Lessee shall
each select an appraiser or broker ("Consultant" - check one)
of their choice to act as an arbitrators so appointed shall
immediately select a third mutually acceptable Consultant to
act as a third arbitrator.
(ii) The three arbitrators shall within thirty days of the
appointment of the third arbitrator reach a decision as to
what the actual MRV for the Premises is, and whether Lessor's
or Lessee's submitted MRV is the closest thereto. The
decision of a majority of the arbitrators shall be binding on
the Parties. The submitted MRV which is determined to be the
closest to the actual MRV shall thereafter be used by the
Parties.
(iii) If either of the Parties to appoint an arbitrator with
in the specified fifteen days, the arbitrator timely appointed
by one of them shall reach a decision on his or her own, and
said decision shall be binding on the Parties.
(iv) The entire cost of such arbitration shall be paid by the
party whose submitted MRV is not selected, ie. The one that is
NOT the closest to the actual MRV.
2) Notwithstanding the foregoing, the new MRV shall not be less than
the rent payable for the month immediately preceding the rent
adjustment.
b. Upon the establishment of each New Market Value:
1) the new MRV will become the new "Base Rent" for the purpose of
calculating any further Adjustments, and
2) the first month of each Market Rental Value term shall become the
new "Base Month" for the purpose of calculating any further
Adjustments.
3) the new MRV Rent shall be additionally increased two percent (2%)
each year in the option period.
III. Fixed Rental Adjustment(s) (FRA)
The Base Rent shall be increased to the following amounts on the date
set forth below:
On (Fill in FRA Adjustment Date(s)):
The New Base Rent Shall be:$
B. NOTICE.
Unless specified otherwise herein, notice of any rental adjustments, other
than Fixed Rental Adjustments, shall be made as specified in paragraph 23 of
the Lease.
C. BROKER'S FEE:
The Brokers specified in paragraph 1.10 of the lease shall be paid a
Brokerage Fee for each adjustment above in accordance with paragraph 15 of
the Lease. Lessor shall be solely responsible for brokerage fee in the event
of an exercise/option.
