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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, UNIT "K"
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 3,520 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: FIVE (5) 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: $2,534.00 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: $2,534.00 (as
Base Rent for the
period OCTOBER
1, 2005 - OCTOBER 31, 2005.
1.6(b) Lessee's Share
of
Common Area Operating Expenses: 0.015303
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: $7,602.00 ("Security Deposit"). (Also see
Paragraph
5.)
1.8 Permitted Use: OFFICE/WAREHOUSE USED FOR PHARMACEUTICAL
MANUFACTURING
& DISTRIBUTION ("Permitted Use") (Also see Paragraph
6.)
1.9
Insuring Party. Lessor Is the "Insuring Party." (Also see
Paragraph
8.)
1.10(a) Real
Estate Brokers. The following real estate broker(s)
(collectively, the "Brokers") and brokerage relationships exist in this
transaction and
are consented to by the Parties (check applicable
boxes):
[
] N/A represents Lessor exclusively ("Lessor's Broker");
[
] N/A represents Lessee exclusively ("Lessee's Broker");
or
[
] N/A represents both Lessor and Lessee
("Dual Agency"). (Also see
Paragraph
15.)
1.10(b) Payment
to Brokers. Upon the execution of this Lease
by both
Parties, Lessor shall pay to said
Broker(s) jointly, or In such separate shares
as they
may mutually designate In writing, a
fee as set forth In a separate
written
agreement between Lessor and said Broker(s) (or In the event there
is no
separate
written agreement between Lessor and said
Broker(s), the sum of ($-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.
1
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.
2
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.
3
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
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
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
(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
(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 such damage
of Lessor's desire to
terminate this Lease as of the date
sixty (60) days following the date of such
notice. In the
event Lessor elects to give such notice of
Lessor's Intention to
terminate this
Lease, Lessee shall have the right within ten (10) days after
the
receipt of such
notice to give written notice to Lessor of
Lessee's commitment
to pay for the
repair of such damage totally
al Lessee's expense and without
reimbursement from
Lessor. Lessee shall provide Lessor with the required
funds
or satisfactory assurance thereof within thirty (30)
days following such
commitment from Lessee. 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 alter
the required funds
are available. If Lessee does not give
such
notice and
provide the funds or assu
