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EXHIBIT 10.2
STANDARD INDUSTRIAL/COMMERCIAL MULTI TENANT LEASE GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
RECORDING OF THIS LEASE PROHIBITED
1. Basic Provisions ("Basic Provisions").
1.1 Parties:
This Lease ("Lease"), dated for reference purposes only,
SEPTEMBER 23, 2005 is made by and between FULLERTON
BUSINESS CENTER ("Lessor")
and ALLIED MED, INC., AN OREGON CORPORATION
(collectively the "Parties," or
individually a "Party").
1.2(a)
Premises: That certain portion of the Building,
including all
Improvements therein or to be provided by Lessor under the
terms of this Lease,
commonly known by the street address of 2500 E.
FENDER AVENUE, UNITS "I & J'
located In the City of FULLERTON County of ORANGE, State of
CALIFORNIA, with zip
code 92831, as outlined on
Exhibit B attached hereto
("Premises"). The
"Building" is that certain building
containing the Premises and generally
described as (describe briefly the nature of the Building):
APPROXIMATELY 1,600
SQUARE FEET OF RENTABLE SPACE INCLUDING OVERHANG AS OUTLINED IN
EXHIBITS "A" AND
"B" ATTACHED HERETO AND INCORPORATED HEREIN. In
addition to Lessee's rights to
use and occupy the Premises as
hereinafter specified, Lessee shall
have
non-exclusive rights to the Common Areas (as defined In
Paragraph 2.7 below) as
hereinafter specified, but shall not have any rights to the roof,
exterior walls
or utility raceways of the Building or to any other buildings
In the Industrial
Center. The Premises, the Building, the Common Areas,
the land upon which they
are located, along with all other buildings and Improvements
thereon, are herein
collectively referred to as the "Industrial Center." (Also see
Paragraph 2.)
1.2(b)
Parking: TWO (2) unreserved vehicle parking spaces
("Unreserved
Parking Spaces"); and N/A reserved vehicle parking
spaces ("Reserved Parking
Spaces"). (Also see Paragraph 2.6.)
1.3 Term:
ONE (1) years and 0months ("Original
Term") commencing
OCTOBER 1, 2005 ("Commencement Date") and ending SEPTEMBER 30, 2006
("Expiration
Date"). (Also see Paragraph 3.)
1.4
Early Possession: N/A ("Early
Possession Date"). (Also see
Paragraphs 3.2 and 3.3.)
1.5 Base Rent:
$1,152.00 per month ("Base Rent"), payable on the FIRST
day of each month commencing OCTOBER 1, 2005.
(Also see Paragraph 4.) [ ] If
this box is checked, this Lease provides for the
Base Rent to be adjusted per
Addendum , attached hereto.
1.6(a) Base Rent
Paid Upon Execution: $1,152.00 (as Base Rent for
the
period OCTOBER 1, 2005 - OCTOBER 31, 2005.
1.6(b)
Lessee's Share of Common Area Operating
Expenses: 0.0069559
percent (_____%) ("Lessee's Share") as determined by
[X]
prorate square footage of the Premises as
compared to the total
square footage of the Building or [ ] other
criteria as described in Addendum
__.
1.7
Security Deposit: $3,456.00
("Security Deposit"). (Also see
Paragraph 5.)
1.8
Permitted Use: OFFICE/WAREHOUSE
USED FOR PHARMACEUTICAL
MANUFACTURING & DISTRIBUTION ("Permitted Use") (Also see
Paragraph 6.)
1.9 Insuring
Party. Lessor Is the "Insuring Party." (Also see Paragraph
8.)
1.10(a) Real
Estate Brokers. The following real
estate broker(s)
(collectively, the "Brokers") and
brokerage relationships exist in this
transaction and are consented to by the Parties (check applicable
boxes):
[ ] N/A represents
Lessor exclusively ("Lessor's Broker");
[ ] N/A represents
Lessee exclusively ("Lessee's Broker"); or
[ ] N/A represents
both Lessor and Lessee ("Dual Agency"). (Also
see
Paragraph 15.)
1.10(b)
Payment to Brokers. Upon the execution of this Lease by
both
Parties, Lessor shall pay to said Broker(s) jointly, or In
such separate shares
as they may mutually designate In
writing, a fee as set forth In a separate
written agreement between Lessor and said Broker(s) (or In the
event there is no
separate written agreement between Lessor and said
Broker(s), the sum of ($-0)
for brokerage services rendered by said
Broker(s) in connection with this
transaction.
1.11
Guarantor. The obligations of the Lessee under this Lease are
to
be guaranteed by N/A ("Guarantor"). (Also see Paragraph 37.)
1.12 Addenda
and Exhibits. Attached hereto is an Addendum or
Addenda
consisting of Paragraphs 1 through 37, and
Exhibits A through C, all of which
constitute a part of this Lease.
2. Premises, Parking and Common Areas.
2.1 Letting.
Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Premises, for the term, at
the rental, and upon all of the
terms, covenants and conditions set forth
in this Lease. Unless otherwise
provided herein, any statement of square footage
set forth In this Lease, or
that may have been used in calculating rental
and/or Common Area Operating
Expenses, Is an approximation which Lessor and
Lessee agree Is reasonable and
the rental and Lessee's Share (as defined in Paragraph
1.6(b)) based thereon is
not subject to revision whether or not the
actual square footage Is more or
less.
2.2
Condition. Lessor shall deliver the Premises to Lessee
clean and
free of debris on the Commencement Date and warrants to Lessee that
the existing
plumbing, electrical systems, fire sprinkler system,
lighting, air conditioning
and heating systems and loading doors, If any, In the Premises,
other than those
constructed by Lessee, shall be In good operating condition
on the Commencement
Date. If a non-compliance with said warranty exists as of the
Commencement Data,
Lessor shall, 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 Lessee does
not give Lessor written notice of a
non-compliance with this warranty within
thirty (30) days after the Commencement Date, correction of
that non-compliance
shall be the obligation of Lessee at Lessee's sole cost and
expense.
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2.3 Compliance
with Covenants, Restrictions and Building Code.
Lessor
warrants that any Improvements (other than those
constructed by Lessee or at
Lessee's direction) on or in the Premises
which have been constructed or
Installed by Lessor or with Lessor's consent or
at Lessor's direction shall
comply with all applicable covenants or
restrictions of record and applicable
building codes, regulations and ordinances In effect on the
Commencement Date.
Lessor further warrants to Lessee that Lessor has
no knowledge of any claim
having been made by any governmental agency that a
violation or violations of
applicable building codes, regulations, or ordinances
exist with regard to the
Premises as of the Commencement Dale. Said
warranties shall not apply to any
Alterations or Utility Installations (defined Initials: (C)
American Industrial
Real Estate Association 1993 MULTI-TENANT-- GROSS in
Paragraph 7.3(a)) made or
to be made by Lessee. If the Premises do not comply with bald
warranties, Lessor
shall, except as otherwise provided in this
Lease, promptly after receipt of
written notice from Lessee
given within six (6) months
following the
Commencement Dale and setting forth with
specificity the nature and extent of
such non-compliance, take such action, at Lessor's expense, as may
be reasonable
or appropriate to rectify the non-compliance. Lessor makes no
warranty that the
Permitted Use in Paragraph 1.8 is permitted for the
Premises under Applicable
Laws (as defined in Paragraph 2.4).
2.4 Acceptance of
Premises. Lessee hereby acknowledges: (a) that It has
been advised by the Broker(s) to satisfy Itself with respect to the
condition of
the Premises (including but not limited to the
electrical and fire sprinkler
systems, security, environmental aspects, seismic and
earthquake requirements,
and compliance with the Americans with Disabilities Act and
applicable zoning,
municipal, county, state and federal laws,
ordinances and regulations and any
covenants or restrictions of record (collectively,
"Applicable Laws") and the
present and future suitability of the Premises for
Lessee's Intended use; (b)
that Lessee has. made such investigation as it deems necessary with
reference to
such matters, is satisfied
with reference thereto,
and assumes all
responsibility therefore as the same
relate to Lessee's occupancy of the
Premises and/or the terms of this Lease; and (c) that neither
Lessor, nor any of
Lessor's agents, has made any oral or written representations or
warranties with
respect to said matters other than as set forth In this Lease.
2.5 Lessee as
Prior Owner/Occupant. The warranties made by
Lessor In
this Paragraph 2 shall be of no force or effect if immediately
prior to the date
set forth In Paragraph 1.1 Lessee was the owner or occupant of the
Premises. In
such event, Lessee shall, at
Lessee's sole cost and expense, correct any
non-compliance of the Premises with said warranties.
2.6
Vehicle Parking. Lessee shall be entitled
to use the number of
Unreserved Parking Spaces and Reserved Parking
Spaces specified in Paragraph
1.2(b) on those portions of the Common Areas
designated from time to time by
Lessor for parking. Lessee shall not use more parking
spaces than said number.
Said parking spaces shall be used for
parking by vehicles no larger than
lull-size passenger automobiles or pick-up trucks, herein called
"Permitted Size
Vehicles." Vehicles other than Permitted
Size Vehicles shall be parked and
loaded or unloaded as directed by
Lessor in the Rules and Regulations (as
defined In Paragraph 40) issued by Lessor. (Also see Paragraph
2.9.)
(a) Lessee shall
not permit or allow any vehicles that belong to or are
controlled by Lessee or Lessee's employees,
suppliers, shippers, customers,
contractors or Invitees to be loaded, unloaded,
or parked In areas other than
those designated by Lessor for such activities.
(b) If
Lessee permits or allows any of the
prohibited activities
described in this Paragraph 2.6, then
Lessor shall have the right, without
notice, In addition to such other rights and remedies that timey
have, to remove
or low away the vehicle Involved and charge the cost to Lessee,
which cost shall
be immediately payable upon demand by Lessor.
(c) Lessor shall
at the Commencement Dale of this Lease, provide
the
parking facilities required by Applicable Law.
2.7 Common
Areas--Definition. The term "Common Areas" is defined as all
areas and facilities outside the Premises and within the
exterior boundary line
of the Industrial Center and Interior utility raceways within
the Premises that
are provided and designated by the
Lessor from time to time for the general
nonexclusive use of Lessor, Lessee and other lessees of
the Industrial Center
and their respective employees, suppliers, shippers,
customers, contractors and
Invitees, including parking areas, loading and
unloading areas, trash areas,
roadways, sidewalks, walways, parkways, driveways and landscaped
areas.
2.8 Common
Areas--Lessee's Rights. Lessor hereby grants to Lessee,
for
the benefit of Lessee and Its employees,
suppliers, shippers, contractors,
customers and Invitees, during the term of this Lease, the
non-exclusive right
to use, In common with others entitled to such
use, the Common Areas as they
exist from time to time, subject to any rights, powers, and
privileges reserved
by Lessor under the terms hereof or under the terms of any rules
and regulations
or restrictions governing the
use of the Industrial Center.
Under no
circumstances shall the right herein granted to use the
Common Areas be deemed
to include the right to store any properly, temporarily or
permanently, In the
Common Areas. Any such storage shall be
permitted only by the prior written
consent of Lessor or Lessor's designated agent, which consent
may be revoked at
any time. In the even) that any unauthorized
storage shall occur than Lessor
shall have the right, without notice, In
addition to such other rights and
remedies that It may have, to remove the properly and charge the
cost to Lessee,
which cost shall be Immediately payable upon demand by Lessor.
2.9 Common
Areas--Rules and Regulations. Lessor or such other person(s)
as Lessor may appoint shall have the exclusive
control and management of the
Common Areas and shall have the right, from time to time, to
establish, modify,
amend and enforce reasonable Rules and
Regulations with respect thereto In
accordance with Paragraph 40. Lessee agrees to abide by and
conform to all such
Rules and Regulations, and to
cause its employees, suppliers,
shippers,
customers, contractors and Invitees to so abide and conform. Lessor
shall not be
responsible to Lessee for the non-compliance with said rules
and regulations by
other lessees of the Industrial Center.
2.10 Common
Areas--Changes. Lessor shall have the right, In
Lessor's
sole discretion, from time to time:
(a) To make
changes to the Common Areas, Including, without limitation,
changes in the location, size, shape and number of driveways,
entrances, parking
spaces, parking areas, loading and unloading areas, Ingress,
egress, direction
of traffic, landscaped areas, walkways and utility raceways;
(b) To
close temporarily any of the Common
Areas for maintenance
purposes so long as reasonable access to the Premises remains
available;
(c) To
designate other land outside the boundaries of
the Industrial
Center to be a part of the Common Areas;
(d) To add
additional buildings and improvements to the Common Areas;
(e) To
use the Common Areas while
engaged In making additional
Improvements, repairs or alterations to the industrial
Center, or any portion
thereof;
(f) To do and
perform such other acts and make such other changes
in,
to or with respect to the Common Areas and Industrial
Center as Lessor may, in
the exercise of sound business judgment, deem to be
appropriate.
3. Term.
3.1 Term. The
Commencement Date, Expiration Data and Original Term
of
this Lease are as specified in Paragraph 1.3.
3.2 Early
Possession. If an Early Possession Date Is
specified In
Paragraph 1.4 and If Lessee totally or partially occupies the
Premises after the
Early Possession Date but prior to the Commencement Date, the
obligation to pay
Base Rent shall be abated for the period of such
early occupancy. All other
terms of this Lease, however, (including but not
limited to the obligations to
pay Lessee's Share ol Common Area Operating Expenses and to
carry the Insurance
required by Paragraph 8) shall be In effect during such
period. Any such early
possession shall not affect nor advance the
Expiration Date of the Original
Term.
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3.3 Delay
in Possession. If for any reason
Lessor cannot deliver
possession of the Premises to Lessee by the Early
Possession Dale, If one Is
specified in Paragraph 1.4, or if no Early Possession Dale Is
specified, by the
Commencement Data, Lessor shall not be subject to any
liability therefor, nor
shall such failure affect the validity of this
Lease, or the obligations of
Lessee hereunder, or extend the term hereof, but In such case,
Lessee shall not,
except as otherwise provided herein, be
obligated to pay rent or perform any
other obligation of Lessee under the terms of this Lease
until Lessor delivers
possession of the Premises to Lessee. II
possession of the Premises Is not
delivered to Lessee within sixty (60) days after the
Commencement Dale, Lessee
may, at its option, by notice in writing to
Lessor within ten (10) days after
the and of said sixty (60) day period, cancel
this Lease, In which event the
parties shall be discharged from all obligations
hereunder; provided further,
however, that If such written notice of Lessee Is not
received by Lessor within
said ten (10) day period, Lessee's right to cancel this
Lease hereunder shall
terminate and be of no further force or
effect. except as may be otherwise
provided, and regardless of when the
Original Term actually commences, If
possession is not tendered to Lessee when required by this Lease
and Lessee does
not terminate this Lease, as aforesaid, the period free of the
obligation to pay
Base Rent, II any, that Lessee would otherwise have
enjoyed shall run from the
date of delivery of possession and continue
for a period equal to the period
during which the Lessee would have otherwise enjoyed under the
terms hereof, but
minus any days of delay caused by the acts, changes or omissions of
Lessee.
4. Rent.
4.1. Base
Rent. Lessee shall pay Base Rent and other rent or
charges,
as the same may be adjusted from time to time, to Lessor in
lawful money of the
United States, without offset or deduction, on or before the
day on which It Is
due under the terms of this Lease. Base Rent and all other
rent and charges for
any period during the term hereof which is for less than one full
month shall be
prorated based upon the actual number of days of the month
involved. Payment of
Base Rent and other charges shall be made to Lessor at its address
staled herein
or to such other persons or at such other addresses as
Lessor may from time to
time designate in writing to Lessee.
4.2 Common Area
Operating Expenses. Lessee shall pay to Lessor
during
the term hereof, In addition to the Base Rent, Lessee's
Share (as specified in
Paragraph 1.6(b)) of all Common Area Operating Expenses, as
hereinafter defined,
during each calendar year of the term of this
Lease, In accordance with the
following provisions:
(a) "Common Area
Operating Expenses" are defined, for purposes of this
Lease, as all costs Incurred by Lessor relating to the
ownership and operation
of the industrial Center, Including, but not limited lo, the
following:
(i) The operation, repair and maintenance, In
neat, clean, good
order and condition, of the following:
(aa) The Common Areas, Including parking
areas, loading
and unloading areas,
trash areas, roadways,
sidewalks, walkways, parkways, driveways, landscaped
areas, striping, bumpers, Irrigation systems, Common
Area lighting facilities, fences and gales, elevators
and roof.
(bb) Exterior signs and any tenant directories.
(cc) Fire detection and sprinkler systems.
(ii) The cost of water, gas,
electricity and telephone to
service the Common Areas.
(iii)
Trash disposal, property management and security
services
and the costs of any environmental inspections.
(iv) Reserves set aside for
maintenance and repair of Common
Areas.
(v) Any Increase above the Base Real Property
Taxes (as defined
In Paragraph 10.2(b)) for the
Building and the Common
Areas.
(vi) Any "Insurance Cost
Increase" (as defined In Paragraph
8.1).
(vii) The cost of Insurance carried by Lessor with respect to
the
Common Areas.
(viii) Any deductible portion of an Insured loss
concerning the
Building or the
Common Areas.
(ix) Any other services to be provided by Lessor that
are slated
elsewhere In this Lease to be a
Common Area Operating
Expense.
(b) Any Common
Area Operating Expenses and Real Properly Taxes that are
specifically attributable to the Building
or to any other building in the
Industrial Center or to the operation, repair and maintenance
thereof, shall be
allocated entirely to the Building or to such
other building. However, any
Common Area Operating Expenses and Real Property Taxes that are not
specifically
attributable to the Building or to any other building or to the
operation repair
and maintenance thereof, shall be equitably allocated by Lessor to
all buildings
in the industrial Center.
(c) The
Inclusion of the Improvements, facilities
and services set
forth In Subparagraph 4.2(e) shall not be deemed to
impose an obligation upon
Lessor to either have said Improvements or
facilities or to provide those
services unless the Industrial Center
already has the same, Lessor already
provides the services, or Lessor has agreed elsewhere
In this Lease to provide
the same or some of them.
(d) Lessee's Share
of Common Area Operating Expenses shall be payable
by Lessee within ten (10) days after a reasonably
detailed statement of actual
expenses Is presented to Lessee by Lessor. At
Lessor's option, however, an
amount may be estimated by Lessor from time to time of
Lessee's Share of annual
Common Area Operating Expenses and the
same shall be payable monthly or
quarterly, as Lessor shall designate, during each
12-month period of the Lease
term, on the same day as the Base Rent is due hereunder. Lessor
shall deliver to
Lessee within sixty (60) days after the
expiration of each calendar year a
reasonably detailed statement showing Lessee's Share of
the actual Common Area
Operating Expenses Incurred during the
preceding year. If Lessee's payments
under this Paragraph 4.2(d) during said preceding year exceed
Lessee's Share as
indicated on said statement. Lessor shall be
credited the amount of such over
payment against Lessee's Share of Common Area Operating
Expenses next becoming
due. If Lessee's payments under this Paragraph 4.2(d) during said
preceding year
were less than Lessee's Share as Indicated on said
statement, Lessee shall pay
to Lessor the amount of the deficiency within ten (10)
days after delivery by
Lessor to Lessee of said statement.
5. Security Deposit. Lessee shall deposit with Lessor
upon Lessee's execution
hereof the Security Deposit set forth In Paragraph 1.7 as
security for Lessee's
faithful performance of Lessee's obligations under This
Lease. II Lessee falls
to pay Base Rent or other rent or charges due hereunder, or
otherwise Defaults
under this Lease (as defined in Paragraph 13.1), 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, cost, expense,
loss or damage (Including attorneys' fees) 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 therefore
deposit monies with Lessor sufficient to restore said
Security Deposit to the
lull amount required by this Lease. Any time the Base Rent
Increases during the
term of this Lease, Lessee shall, upon
written request from Lessor, deposit
additional monies with Lessor as an addition to the Security
Deposit so that the
total amount of the Security Deposit shall at all times bear the
same proportion
to the then current Base Rent as the
Initial Security Deposit bears to the
Initial Base Rent set forth In Paragraph 1.5.
Lessor shall not be required to
keep all or any part of the Security Deposit separate from Its
general accounts.
Lessor shall, at the expiration or earlier
termination of the term hereof and
alter Lessee has vacated the Premises, return to Lessee (or, at
Lessor's option,
to the last assignee, if any, of Lessee's Interest herein),
that portion of the
Security Deposit not used or applied by
Lessor. Unless otherwise expressly
agreed in writing by Lessor, no part of the Security Deposit shall
be considered
to be held in trust, to bear Interest or other
Increment for Its use, or to be
prepayment for any monies to be paid by Lessee under this
Lease.
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6. Use.
6.1 Permitted
Use.
(a) Lessee shall use and occupy
the Premises only for the
Permitted Use set forth In Paragraph
1.8, 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 waste or a
nuisance, or that disturbs owners and/or occupants of,
or causes damage to the
Premises or neighboring premises or properties.
(b) Lessor hereby agrees to not unreasonably withhold or delay
Its
consent to any written request by Lessee, Lessee's assignees or
subtenants, and
by prospective assignees and subtenants of Lessee, Its assignees
and subtenants,
for a modification of said Permitted Use, so long
as the same will not Impair
the structural integrity of the Improvements on the Premises
or In the Building
or the mechanical or electrical systems therein, does not
conflict with uses by
other lessees, is not significantly
more burdensome to the Premises or the
Building and the Improvements thereon, and is otherwise
permissible pursuant to
this Paragraph 6. If Lessor elects to withhold such consent, Lessor
shall within
five (5) business days after such request give a written
notification of same,
which notice shall include an explanation of Lessor's
reasonable objections to
the change in use.
6.2 Hazardous
Substances.
(a) Reportable Uses Require
Consent. The term "Hazardous
Substance" as used In this Lease shall mean any
product, substance, chemical,
material or waste whose
presence, nature, quantity and/or
intensity of
existence, use, manufacture, disposal, transportation, spill,
release or effect,
either by Itself or in combination with other
materials expected to be on the
Premises, Is either: (i) potentially Injurious to the
public health, safety or
welfare, the environment, or the Premises; (ii)
regulated or monitored by any
governmental authority; or (iii) a basis for
potential liability of Lessor to
any governmental agency or third party under any
applicable statute or common
law theory. Hazardous Substance
shall Include, but not be
limited to,
hydrocarbons, petroleum, gasoline, crude oil or
any products or by-products
thereof. Lessee shall not engage In any activity in or about
the Premises which
constitutes a Reportable Use (as hereinafter defined)
of Hazardous Substances
without the express prior written consent of Lessor and
compliance In a timely
manner (at Lessee's sole cost and expense) with all
Applicable Requirements (as
defined In Paragraph 6.3). "Reportable Use" shell mean
(i) the Installation or
use of any above or below ground storage tank, (ii) the
generation, possession,
storage, use, transportation, or disposal of a Hazardous Substance
that requires
a permit from, or with respect to which a
report, notice, registration or
business plan Is required to be filed with, any
governmental authority, and
(iii) the presence In, on or about the Premises of a
Hazardous Substance with
respect to which any Applicable Laws require that a
notice be given to persons
entering or occupying the Premises or neighboring
properties. Notwithstanding
the foregoing, Lessee may, without Lessor's prior
consent, but upon notice to
Lessor and In compliance with all Applicable Requirements,
use any ordinary and
customary materials reasonably required to
be used by Lessee in the normal
course of the Permitted Use, so long as such use Is not
a Reportable Use and
does not expose the Premises or neighboring properties to any
meaningful risk of
contamination or damage or expose Lessor to any liability therefor.
In addition,
Lessor may (but without any obligation to do so)
condition Its consent to any
Reportable Use of any Hazardous Substance by Lessee upon
Lessee's giving Lessor
such additional assurances as Lessor, In
Its reasonable discretion, deems
necessary to protect Itself, the public,
the Premises and the environment
against damage, contamination or Injury and/or liability therefor,
Including but
not limited to the Installation (and, at Lessor's
option, removal on or before
Lease expiration or earlier termination) of
reasonably necessary protective
modifications to the Premises (such as concrete encasements)
and/or the deposit
of an additional Security Deposit under Paragraph 5 hereof.
(b) Duty to Inform Lessor. If Lessee knows,
or has reasonable
cause to believe, that a Hazardous
Substance has come to be located In, on,
under or about the Premises or the Building, other than as
previously consented
to by Lessor, Lessee shall Immediately give
Lessor written notice thereof,
together with a copy of any
statement, report, notice,
registration,
application, permit, business plan, license, claim, action,
or proceeding given
to, or received from, any governmental authority or private party
concerning the
presence, spill, release, discharge of, or exposure to, such
Hazardous Substance
including but not limited to all such
documents as may be involved In any
Reportable Use Involving the
Premises. Lessee shall not cause or permit any
Hazardous Substance to be spilled or
released in, on, under or about the
Premises (Including, without limitation, through the plumbing
or sanitary sewer
system).
(c) Indemnification. Lessee shall Indemnity, protect,
defend and
hold Lessor, its agents, employees, lenders and ground
lessor, if any, and the
Premises, harmless from and against any and all damages,
liabilities, judgments,
costs, claims, liens, expenses, penalties, loss
of permits and attorneys' and
consultants' fees arising out of or Involving any
Hazardous Substance brought
onto the Premises by or for Lessee or by anyone under Lessee's
control. Lessee's
obligations under this Paragraph 6.2(c) shall
Include, but not be limited to,
the effects of any contamination
or Injury to person, properly
or the
environment created or suffered by
Lessee, and the cost of Investigation
(including consultants' and attorneys' fees and testing),
removal, remediation,
restoration and/or abatement thereof, or of any contamination
therein Involved,
and shall survive the expiration or earlier
termination of this Lease. No
termination, cancellation or release agreement entered into by
Lessor and Lessee
shall release Lessee from Its
obligations under this Lease with respect to
Hazardous Substances, unless specifically so agreed by Lessor
In writing at the
time of such agreement.
6.3 Lessee's
Compliance with Requirements. Lessee shall, at
Lessee's
sole cost and expense, fully, diligently and In a timely manner,
comply with all
"Applicable Requirements," which term Is used In
this Lease to mean all laws,
rules, regulations, ordinances,
directives, covenants,
easements and
restrictions of record, permits, the
requirements of any applicable fire
Insurance underwriter or rating bureau, and
the recommendations of Lessor's
engineers and/or consultants, relating in any manner to the
Premises (Including
but not limited to matters
pertaining to (i) Industrial
hygiene, (ii)
environmental conditions on, in, under or about the Premises,
including soli and
groundwater conditions, and (iii) the use, generation,
manufacture, production,
Installation, maintenance, removal, transportation,
storage, spill, or release
of any Hazardous Substance), now In effect or
which may hereafter come Into
elect. Lessee shall, within live (5) days
after receipt of Lessor's written
request, provide Lessor with copies of all documents and
Information, Including
but not limited to permits, registrations, manifests,
applications, reports and
certificates, evidencing Lessee's compliance with any
Applicable Requirements
specified by Lessor, and shall immediately
upon receipt, notify Lessor in
writing (with copies of any documents Involved)
of any threatened or actual
claim, notice, citation, warning, complaint or report pertaining to
or involving
failure by Lessee or the Premises to comply with any Applicable
Requirements.
4
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6.4
Inspection; Compliance with
Law. Lessor, Lessor's agents,
employees, contractors and designated
representatives, and the holders of any
mortgages, deeds of trust or ground teases on the
Premises ("Lenders") 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
inspecting the condition
of the Premises and for verifying compliance by Lessee
with this Lease and all
Applicable Requirements (as defined In
Paragraph 6.3), and Lessor shall be
entitled to employ experts and/or consultants in connection
therewith to advise
Lessor with respect to Lessee's
activities, Including but not limited to
Lessee's Installation, operation, use, monitoring,
maintenance, or removal of
any Hazardous Substance on or tram the Premises. The
costs and expenses of any
such Inspections shall be paid by the party requesting same, unless
a Default or
Breach of this Lease by Lessee or a violation of
Applicable Requirements or a
contamination, caused or materially contributed to by Lessee,
is found to exist
or to be imminent, or unless the
inspection Is requested or ordered by a
governmental authority as the result of any such existing or
Imminent violation
or contamination. In such case, Lessee shall upon
request reimburse Lessor or
Lessor's Lender, as the case may be,
for the costs and expenses of such
Inspections.
7. Maintenance, Repairs, Utility Installations, Trade
Fixtures and Alterations.
7.1 Lessee's
Obligations.
(a) Subject to the provisions of Paragraphs 2.2
(Condition), 2.3
(Compliance with Covenants, Restrictions
and Building Code), 7.2 (Lessor's
Obligations), 9 (Damage or Destruction), and 14 (Condemnation),
Lessee shall, at
Lessee's sole cost and expense and at all times, keep the Premises
and every pan
thereof in good order, condition and repair (whether or not
such portion of the
Premises requiring repair, or the means of repairing 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, without limiting the
generality of the
foregoing, all equipment or facilities specifically
serving the Premises, such
as plumbing, heating, air
conditioning, ventilating, electrical,
lighting
facilities, boilers, fired or unfired pressure vessels, fire hose
connections if
within the Premises, fixtures, Interior walls,
interior surfaces of exterior
walls, ceilings, floors, windows,
doors, plate glass, and skylights, but
excluding any Items which are the responsibility of Lessor pursuant
to Paragraph
7.2 below. Lessee, in keeping the Premises in good order,
condition and repair,
shall exercise and perform good maintenance
practices. 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.
(b) Lessee shall, al Lessee's sole cost and expense, at
Lessee's
option, procure and maintain a contract, with
copies to Lessor, In customary
form and substance for and with a contractor specializing and
experienced In the
Inspection, maintenance and service of
the healing, air conditioning and
ventilation system for the Premises. However,
Lessor reserves the right, upon
notice to Lessee, to procure and maintain the
contract for the heating, air
conditioning and ventilating systems, and
it Lessor so elects, Lessee shall
reimburse Lessor, upon demand, for the cost (hereof.
(c) If Lessee fails to perform Lessee's
obligations under this
Paragraph 7.1, Lessor may enter upon the
Premises after ten (10) days' prior
written notice to Lessee (except in the case of an
emergency, in which case no
notice shall be required), perform such obligations on
Lessee's behalf, and put
the Premises in good order, condition and repair, in
accordance with Paragraph
13.2 below.
7.2 Lessor's
Obligations. Subject to the provisions of Paragraphs 2.2
(Condition), 2.3 (Compliance with Covenants,
Restrictions and Building Code),
4.2 (Common Area Operating Expenses), 6 (Use), 7.1
(Lessee's Obligations), 9
(Damage or Destruction) and 14 (Condemnation), Lessor,
subject to reimbursement
pursuant to Paragraph 4.2, shall keep in good
order, condition and repair the
foundations, exterior walls, structural condition
of interior bearing walls,
exterior roof, fire sprinkler and/or standpipe and hose In good
order, condition
and repair (if located in the
Common Areas) the other
automatic fire
extinguishing system including fire alarm and/or
smoke detection systems and
equipment, tire hydrants, parking
lots, walkways, parkways,
driveways,
landscaping, lances, signs and utility systems serving the
Common Areas and all
parts thereof, as well as providing the
services for which there Is a Common
Area Operating Expense pursuant to Paragraph 4.2, Lessor
shall not be obligated
to paint the exterior or Interior surfaces of exterior walls nor
shall Lessor be
obligated to maintain, repair or replace windows,
doors or plate glass of the
Premises. Lessee expressly waives the benefit of any statute now or
hereafter in
effect which would otherwise afford Lessee the right to make
repairs at Lessor's
expense or to terminate this Lease because
of Lessor's failure to keep the
Building, Industrial Center or Common Areas In good order,
condition and repair.
7.3 Utility
Installations, Trade Fixtures, Alterations.
(a) Definitions; Consent
Required. The term
"Utility
Installations" Is used in this Lease to refer to all air
lines, power panels,
electrical distribution, security, tire
protection systems, communications
systems, lighting fixtures, healing, ventilating and air
conditioning equipment,
plumbing, and fencing in, on or about the Premises. The
term "Trade Fixtures"
shall mean Lessee's machinery and equipment which can
be removed without doing
material damage to the Premises.
The term "Alterations" shall mean
any
modification of the Improvements on the Premises
which are provided by Lessor
under the terms of this Lease, other
than Utility Installations or Trade
Fixtures. "Lessee-Owned Alterations and/or Utility Installations"
are defined as
Alterations and/or Utility Installations made by Lessee
that are not yet owned
by Lessor pursuant to Paragraph 7.4(a). Lessee
shall not make nor cause to be
made any Alterations or Utility
Installations In, on, under or about
the
Premises without Lessor's prior written
consent. Lessee May, however, make
non-structural Utility Installations to the Interior of the
Premises (excluding
the roof) without Lessor's consent but upon notice to
Lessor, so long as they
are not visible from the outside of the Premises,
do not Involve puncturing,
relocating or removing the roof
or any existing walls, or
changing or
Interfering with the fire sprinkler or fire detection systems and
the cumulative
cost thereof during the term of this
Lease as extended does not exceed
$2,500.00.
(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. All consents given by
Lessor, whether by virtue of Paragraph 7.3(a) or by subsequent
specific consent,
shall be deemed conditioned upon: (i) Lessee's acquiring all
applicable permits
required by governmental authorities; (ii)
the furnishing of copies of such
permits together with a copy of the plans and specifications
for the Alteration
or Utility Installation to Lessor prior to commencement of the work
thereon; and
(iii) the compliance by Lessee with all conditions of
said permits in a prompt
and expeditious manner. Any Alterations or
Utility Installations by Lessee
during the term of this Lease shall be done in a good
and workmanlike manner,
with good and sufficient materials, and be In
compliance with all Applicable
Requirements. Lessee shall promptly upon completion thereof
furnish Lessor with
as-built plans and specifications therefor. Lessor may, (but
without obligation
to do so) condition Its consent
to any requested Alteration or
Utility
Installation that costs $2,500.00 or more upon Lessee's
providing Lessor with a
lien and completion bond in an amount equal
to one and one-hall times the
estimated cost of such Alteration or Utility Installation.
(c) Lien Protection. 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
than ten (10) days' nonce prior to the
commencement of any work In, on, or about the
Premises, and Lessor shall have
the right to post notices of
non-responsibility In or on the Premises as
provided by law. II Lessee shall, In good faith,
contest the validity of any
such lien, claim or demand, than Lessee shall, al its sole
expense, defend and
protect Itself, Lessor and the
Premises against the same and shall pay and
satiety any such adverse judgment that may
be rendered thereon before the
enforcement thereof against the Lessor or the Premises. If Lessor
shall require,
Lessee shall furnish to Lessor a surety bond satisfactory to Lessor
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, as required by law
for the holding of the Premises free from the effect of such
Ilea or claim. In
addition, Lessor may require Lessee to pay Lessor's attorneys' fees
and costs in
participating in such action if Lessor shall decide It Is to
Its best Interest
to do so.
5
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7.4 Ownership,
Removal, Surrender, and Restoration.
(a) Ownership. Subject to Lessor's right to require their
removal
and to cause Lessee to become the owner thereof as
hereinafter provided in this
Paragraph 7.4, all Alterations and Utility Installations made to
the Premises by
Lessee shall be the property of and owned by Lessee,
but considered a part of
the Premises. Lessor may, at any time and at Its
option, elect In writing to
Lessee to be the owner of all or
any specified part of the Lessee-Owned
Alterations and Utility
Installations. Unless otherwise
Instructed per
Subparagraph 7.4(b) hereof,
all Lessee-Owned Alterations
and Utility
Installations shall, at the expiration or
earlier termination of this Lease,
become the property of Lessor and remain upon the
Premises and be surrendered
with the Premises by Lessee.
(b) Removal. Unless otherwise agreed
In writing, Lessor may
require that any or all Lessee-Owned Alterations or
Utility Installations be
removed by the expiration or earlier termination of this
Lease, notwithstanding
that their Installation may have been consented to by Lessor.
Lessor may require
the removal at any time of all or any
part of any Alterations or Utility
Installations made without the required consent of Lessor.
(c) Surrender/Restoration. Lessee
shall surrender the Premises by
the end of the last day of the Lease term or any earlier
termination dale, clean
and free of debris and in good operating order,
condition and stale of repair,
ordinary wear and tear excepted. Ordinary wear
and tear shall not include any
damage or deterioration that would have
been prevented by good maintenance
practice or by Lessee performing all of its obligations under this
Lease. Except
as otherwise agreed or specified herein, the
Premises, as surrendered, shall
include the Alterations and Utility
Installations. The obligation of Lessee
shall Include the repair of any
damage occasioned by the Installation,
maintenance or removal of Lessee's Trade Fixtures,
furnishings, equipment, and
Lessee-Owned Alterations and Utility
Installations, 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 ground water contaminated by
Lessee, all as
may than be required by Applicable Requirements and/or good
practice. Lessee's
Trade Fixtures shall remain the
property el Lessee and shall be removed by
Lessee subject to its obligation to repair and
restore the Premises per this
Lease.
8. Insurance; indemnity.
8.1 Payment of
Premium Increases.
(a) As used herein, the term "Insurance Cost Increase" Is
defined
as any Increase In the actual cost of the Insurance
applicable to the Building
and required to be carried by Lessor pursuant to Paragraphs
8.2(b), 8.3(a) and
8.3(b), ("Required Insurance"), over and above the Base
Premium, as hereinafter
defined, calculated on an annual basis. "Insurance Cost Increase"
shall Include,
but not be limited to, requirements of the holder of a mortgage or
deed of trust
covering the Premises, Increased valuation of the
Premises, and/or a general
premium rate Increase. The term "Insurance Cost
Increase" shall not, however,
include any premium Increases resulting from the nature of
the occupancy of any
other lessee of the Building. II the parties insert a dollar amount
In Paragraph
1.9, such amount shall be considered the "Base Premium." If a
dollar amount has
not been Inserted In Paragraph 1.9 and If
the Building has been previously
occupied during the twelve (12)
month period Immediately preceding
the
Commencement Date, the "Base Premium" shall be the annual
premium applicable to
such twelve (12) month period. If the Building was not
fully occupied during
such twelve (12) month period, the "Base
Premium" shall be the lowest annual
premium reasonably obtainable for the Required Insurance as
of the Commencement
Date, assuming the most nominal use
possible of the Building. In no event,
however, shall Lessee be responsible for
any portion of the premium cost
attributable to liability Insurance coverage In excess
of $1,000,000 procured
under Paragraph 8.2(b).
(b) Lessee shall pay any Insurance
Cost Increase to Lessor
pursuant to Paragraph 4.2. Premiums for policy periods
commencing prior to, or
extending beyond, the term of this Lease shall be prorated to
coincide with the
corresponding Commencement Dale or Expiration Date.
8.2 Liability
Insurance.
(a) Carried by Lessee, Lessee
shall obtain and keep in force
during the term of this Lease a Commercial General Liability policy
of Insurance
protecting Lessee, Lessor and any Lender(s) whose
names have been provided to
Lessee In writing (as additional insureds)
against claims for bodily Injury,
personal injury and property damage based upon, Involving or
arising out of the
ownership, use, occupancy or
maintenance of the Premises and
all areas
appurtenant thereto. Such Insurance shell be on an
occurrence basis providing
single limit coverage In an amount not less than $1,000,000
per occurrence with
an "Additional Insured-Managers or Lessor's 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 required by this Lease or as
carried by Lessee shall
not, however, Iimit the liability of Lessee nor relieve Lessee of
any obligation
hereunder. All Insurance to be 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
also maintain liability
Insurance described In Paragraph 8.2(a) above, in
addition to and not In lieu
of, the insurance required to be maintained by Lessee. Lessee shall
not be named
as an additional Insured therein.
8.3 Property
Insurance-Building, Improvements and Rental Value.
(a) Building and Improvements. Lessor shall
obtain and keep In
force during the term of this Lease a policy or policies In
the name of Lessor,
with loss payable to Lessor and to any
Lender(s), Insuring against loss or
damage to the Premises. Such Insurance shall,be for
full replacement cost, as
the same shall exist from time to time, or the amount required by
any Lender(s),
but In no event more than the commercially reasonable
and available Insurable
value thereof If, by reason of the unique
nature or age of the Improvements
Involved, such latter amount Is less than full
replacement cost. Lessee-Owned
Alterations and Utility Installations,
Trade Fixtures and Lessee's personal
property shall be insured by Lessee pursuant to
Paragraph 8.4. If the coverage
Is available and commercially appropriate,
Lessor's policy or policies shall
Insure against all risks of direct physical loss or damage (except
the perils of
flood end/or earthquake unless
required by a Lender or included In the Base
Premium), Including coverage for any
additional costs resulting from debris
removal and reasonable amounts of coverage for the
enforcement of any ordinance
or law regulating the reconstruction or replacement of any
undamaged sections of
the Building required to be demolished or removed by reason
of the enforcement
of any building, zoning, safety or land use
laws as the result of a covered
loss, but not Including plate glass
insurance. Said policy or policies shall
also contain an agreed valuation provision In lieu of any
co-Insurance 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.
6
<PAGE>
(b) Rental
Value. Lessor shall also obtain and keep in
force
during the term of this Lease a policy or policies In the
name of Lessor, with
loss payable to Lessor and any Lender(s), Insuring the
loss of the full rental
and other charges payable by all lessees of the Betiding to
Lessor for one year
(Including all Real Property Taxes, Insurance costs,
all Common Area Operating
Expenses and any scheduled rental Increases). Said Insurance may
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 lull year's loss
of rental revenues from the date of any such loss. Said
Insurance shall contain
an agreed valuation provision In lieu of any co-Insurance clause,
and the amount
of coverage shall be adjusted annually to reflect the
projected rental Income,
Real Property Taxes, Insurance
premium costs and other expenses, If
any,
otherwise payable, for the next 12-month period. Common Area
Operating Expenses
shall include any deductible amount In the event of such loss.
(c) Adjacent Premises. Lessee shall pay for any
Increase In the
premiums for the property Insurance of the Building and for
the Common Areas or
other buildings in the Industrial Center II said Increase Is
caused by Lessee's
acts, omissions, use or occupancy of the Premises.
(d) Lessee's Improvements. Since Lessor Is the
Insuring Party,
Lessor shall not be required to Insure
Lessee-Owned Alterations and Utility
Installations unless the Item In question has
become the property of Lessor
under the terms of this Lease.
8.4
Lessee's Property Insurance. Subject
to the requirements of
Paragraph 8.5, Lessee at Its cost shall
either by separate policy or, at
Lessor's option, by endorsement to a policy already carried,
maintain Insurance
coverage on all of Lessee's personal property, Trade
Fixtures and Lessee-Owned
Alterations and Utility Installations in, on, or about
the Premises similar In
coverage to that carried by Lessor as the Insuring Party under
Paragraph 8.3(a).
Such Insurance shall be lull replacement cost coverage with a
deductible not to
exceed $1,000 per occurrence. The proceeds from any such Insurance
shall be used
by Lessee for the replacement of personal property and the
restoration of Trade
Fixtures and Lessee-Owned Alterations and Utility
Installations. Upon request
tram Lessor, Lessee shall provide
Lessor with written evidence that such
Insurance is in force.
8.5
Insurance Policies. Insurance required
hereunder shall be in
companies duly licensed to transact business in the state where the
Premises are
located, and maintaining during the policy term a "General
Policyholders Rating"
01 at least Be, V, or such other rating as may be required by
a Lender, as set
forth In the most current Issue of "Best's Insurance Guide." Lessee
shall not do
or permit to be done anything which shall
invalidate the Insurance policies
referred to in this Paragraph 8. Lessee shall cause to
be delivered to Lessor,
within seven (7) days after the earlier of the
Early Possession Data or the
Commencement Date, certified copies of, or certificates evidencing
the existence
and amounts of, the Insurance required under Paragraph
6.2(a) and 8.4. 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.
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 (whether in
contract or In tort) against
the other, for loss or damage to their property
arising out of or Incident to
the perils required to be insured against under Paragraph 8.
The effect of such
releases and waivers of the right to recover damages shall not be
limited by the
amount of Insurance carried or
required or by any deductibles applicable
thereto. Lessor and Lessee agree to have their
respective Insurance companies
Issuing property damage Insurance 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 negligence and/or breach of
express
warranties, Lessee shall Indemnity,
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,
loss of rents and/or damages,
costs, liens, judgments, penalties, loss of permits, attorneys' and
consultants'
lees, expenses and/or liabilities arising out of,
Involving, or In connection
with, the occupancy of the Premises by Lessee, the conduct o1
Lessee's business,
any act, omission or neglect of Lessee, Its agents,
contractors, employees or
Invitees, and out of any Default or Breach by Lessee In
the performance in a
timely manner of any obligation on Lessee's
part to be performed under this
Lease. The foregoing shall include,
but not be limited to, the defense or
pursuit of any claim or any action or proceeding Involved
therein, and whether
or not (In the case of claims made against Lessor)
litigated and/or reduced to
Judgment. In case any action or proceeding be brought
against Lessor by reason
of any of the foregoing matters, Lessee upon notice from Lessor
shall 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 so indemnified.
8.8 Exemption of
Lessor from Liability. 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 from fire, steam, electricity, gas, water or rain, or from
the breakage,
leakage, obstruction or other detects
of pipes, fire sprinklers, wires,
appliances, plumbing, air conditioning or lighting
fixtures, or from any other
cause, whether said Injury or damage results from
conditions arising upon the
Premises or upon other portions of the Building
of which the Premises are a
part, from other sources or places, and regardless of whether
the cause of such
damage or Injury or the means of repairing the same Is accessible
or not. Lessor
shall not be liable for any damages arising from any act or neglect
of any other
lessee of Lessor nor from the failure by Lessor to enforce the
provisions of any
other lease In the Industrial Center.
Notwithstanding Lessor's negligence or
breach of this Lease, Lessor shall under no
circumstances be liable for injury
to Lessee'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 Premises, other than Lessee-Owned Alterations and Utility
Installations, the
repair cost of which damage or destruction Is less than
fifty percent (50%) of
the then Replacement Cost (as defined In
Paragraph 9.1(d)) of the Premises
(excluding Lessee-Owned Alterations
and Utility Installations and Trade
Fixtures) immediately prior to such damage or destruction.
(b) "Premises Total Destruction" shall mean damage or
destruction
to the Premises, other than Lessee-Owned Alterations and
Utility Installations,
the repair cost of which damage or destruction Is fifty percent
(50%) or more of
the Then Replacement Cost of the Premises (excluding
Lessee-Owned Alterations
and Utility Installations and Trade Fixtures)
Immediately prior to such damage
or destruction. In addition, damage or destruction to
the Building, other than
Lessee Owned Alterations and Utility
Installations and Trade Fixtures of any
lessees of the Building, the cost of which
damage or destruction Is fifty
percent (50%) or more of the then
Replacement Cost (excluding Lessee-Owned
Alterations and Utility Installations and Trade
Fixtures of any lessees of the
Building) of the Building shall, at
the option of Lessor, be deemed to be
Premises Total Destruction.
7
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(c) "Insured Loss" shall mean
damage or destruction to 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 limns 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 building codes,
ordinances or laws, and without deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the
occurrence or
discovery of a condition Involving the presence of, or
a contamination by, a
Hazardous Substance as defined In
Paragraph 6.2(a), in, on, or under the
Premises.
9.2 Premises
Partial Damage--Insured Loss. If 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 lull force and effect. In
the event, however, that there Is a
shortage of insurance proceeds and such shortage
is due to the fact that, by
reason of the unique nature of
the Improvements In the Premises,
lull
replacement cost Insurance coverage
was not commercially reasonable
and
available, Lessor shall have no obligation to pay for the
shortage In Insurance
proceeds or to fully restore the unique aspects of the
Premises unless Lessee
provides Lessor with the funds to cover same, or
adequate assurance thereof,
within ten (10) days following receipt of written
notice of such shortage and
request therefor. If Lessor receives said funds or
adequate assurance thereof
within said ten (10) day
period, Lessor shall complete them as
soon as
reasonably possible and this Lease shall remain
in full force and effect. If
Lessor does not receive such funds or assurance within said
period, Lessor may
nevertheless elect by written notice to Lessee within ten
(10) days thereafter
to make such restoration and repair as is
commercially reasonable with Lessor
paying any shortage in proceeds, In which case this
Lease shall remain in lull
force and effect. If Lessor does not receive such funds or
assurance within such
ten (10) day period, and If Lessor does not so elect to restore and
repair, then
this Lease shall terminate sixty (60) days
following the occurrence of the
damage or destruction. Unless otherwise agreed,
Lessee shall in no event have
any right to reimbursement from Lessor for 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 rather than Paragraph
9.2,
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 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 and
this Lease shall continue In full force and
effect), Lessor may at Lessor's
option, either (i) repair such damage as soon as reasonably
possible at Lessor's
expense, In which event this Lease shall continue In lull
force and effect, or
(ii) give written notice to Lessee within
thirty (30) days after receipt by
Lessor of knowledge of the occurrence
of
