ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, THE NATURAL PATH WELLNESS CENTER, LLC, a California limited liability company ("'Assignor"), hereby assigns, conveys, and transfers to HOLISTIC SYNERGY, LLC, a California limited liability company ("Assignee"), all of Assignor's right, title and interest in and to that certain lease and security deposits) set forth on Exhibit A, attached hereto and incorporated herein by this reference ("Lease"), pertaining to the real property owned by the City of Ripon ("Landlord") as described on Exhibit B attached hereto and incorporated herein by this reference (Premises"), effective as of 12/15 _, 2022 ("Effective Date"). The Effective Date shall be as of Closing pursuant to that certain written Business Purchase and Sale Agreement by and between Assignor and Assignee. If such Closing does not occur, this Assignment shall be null and void and of no force or effect.
Assignee hereby accepts the Lease and the Premises as of the Effective Date in their current AS-IS and WHERE-IS condition, and hereby assumes the performance of all of the terms, covenants, and conditions imposed upon Assignor under the Lease accruing or arising on or after the Effective Date. On that basis, and based upon Assignee's covenants set forth herein, Landlord hereby consents to the assignment and assumption referenced herein, and hereby releases Assignor from any further liability or obligation with regard to the Lease from and after the Effective Date.
Assignor hereby agrees to indemnify, defend and hold harmless Assignee from and against any claims (including reasonable attorneys' fees and costs, and court costs) with regard to the Lease by reason of Assignor's failure to perform its obligations under the Lease accruing prior to the Effective Date of this assignment.
Assignee hereby agrees to indemnify, defend and hold harmless Assignor from and against any claims (including reasonable attorneys' fees and costs, and court costs) with regard to the Lease by reason of Assignee's failure to perform its obligations under the Lease accruing from and after to the Effective Date of this assignment.
In the event of the bringing of any action or suit by a party hereto against another party hereto by reason of any breach of any of the covenants, conditions, agreements or provisions on the part of the other party arising out of this assignment, then in that event the prevailing party shall be entitled to have and recover of and from the other party all costs and expenses of the action or suit, including reasonable attorneys' fees and costs, and court costs.
This assignment shall be binding upon and inure to the benefit of the successors, assigns, personal representatives and heirs of the respective parties hereto.
This assignment shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State of California. This assignment may be executed in one or more counterparts, each of which shall be an original, and all of which when taken together shall constitute one in the same instrument.
IN WITNESS WHEREOF. Assignor and Assignee executed and delivered this assignmen as of this 30 lay of November , 2022.
ASSIGNOR:
THE NATURAL PATH WELLNESS CENTER, LLC,
A California Limited Liability Company
By:
NIFER S. KOMATSU
Its: Manager QUNER
ASSIGNEE:
HOLISTIC SYNERGY, LLC, A California Limited
Liability Company
By: Lewis a Will
BELINDA J. WİLLIAMSON
Its: Manager Owner
LANDLORD:
CITY OF RIPON
By: _
(signature)
(printed name)
Its:
(title)
2 EXHIBIT A
LEASE
3 AIR
AIR COMMERCIAL REAL ESTATE ASSOCIATION
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE -- GROSS (DO NOT USE THIS FORM FOR MULTI-TENANT BUILDINGS)
1. Basic Provisions ("Basic Provisions").
1.1 Partios: This Lease ("Lease"), dated for reference purposes only October 11, 2012 is made by and between City of Ripon
("Lessor")
and Jennifer Komatsu, a married woman, dba The Natural Path Wellness Center ("Lessee").
(collectively the "Parties," or individually a "Party").
1.2 Premises: That certain real property, including all improvements therein or to be provided by Lessor under the terms of this Lease. and commonly known as 303 W. Main Street, Ripon
located in the County of San Joaquin , Stale of California and generally described as (describe briefly the nature of the property and, if applicable, the "Project", if the property is localed within a Project) approximately 4,000 sf of conmercial space
('Premises"). (See also Paragraph 2)
1.3 Term: Five (5) years and ten (10) months (Original Term") commencing upon completion of Lessor's Work (see Addendum) and delivery of Premises to Lessee (Commencement Data) and ending on the seventieth (70th) full calendar month following the Commencement Date (Expiration Date"). (See also Paragraph 3)
1.4- Early Possescion: If tho Premices-ara-availablo Lessee may-hava-non exclusive poccascion-of-the Premiceo commencing -("Early Possoscion Date"). - (See-also Paragraphs 3.2-and 3.3)
1.5 Base Rent: $2, 400.00 per month ("Base Rent"), payable on the first day of each month commencing on the Commencement Date (to be determined) • (See also Paragraph 4)
I If this box is checked, there are provisions in this Lease for the Base Rent to be adjusted, See Paragraph 1.5 (A)
1.5 (A) Base Rent Schedule:
Months 01 through 10: No Base Rant Due
Months 11 through 34: $2,400.00 per month
Montha 35 through 46: $2,472.00 per month
Monthe 47 through 58: $2,546.00 per month
Months 59 enrough 70: $2,622.00 per month
1.6 Base Rent and Other Monies Paid Upon Execution:
Base Rent: $2, 400.00 for the period first months Base Rent (b) Security Deposit: $2, 400.00 ("Security Deposit"). (See also Paragraph 5) (c) Association Fees: $ None for the period
(d) Other: SNone for
(e) Total Due Upon Execution of this Lease: $4, 200.00
Agreed Use: Wellness center including retail sales vitamins and supplements and for no other purpose without Lessor's prior written consent. "Wellness Center", as used herein, is defined as a business that provides personal care services and products that promote wellness, good health and enhance physical appearance to include, without limitation, massage therapy, aesthetician, acupuncture, holistic health, chiropratic services, NLP, hydro-colon therapy, yoga, facials, body wrap, tanning, laser treatments, waxing and the retail sale of body creams, lotions, facial masks, vitamins, nutritional supplements and counseling, diet food and programs.
(See also Paragraph 6)
Insuring Party: Lessor is the "Insuring Party". The annual "Base Premium" is S Real Estate Brokers: (See also Paragraph 15 and 25)
(a) Representation: The following real estate brokers (the "Brokers") and brokerage relationships exist in this transaction (check Ø Brekke Real Estate, Inc. represents Lessor exclusively ("Lessor's Broker"):
• None represents Lessee exclusively ("Lessee's Broker'): or PAGE 1 OF 13
INITIALS INITIALS
©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STG-14-3/10E represents both Lessor and Lessee ("Dual Agency")
(b) Payment to Brokers: Upon execution and delivery of this Lease by both Parties, Lessor shall pay to the Brokers for the brokerage services rendered by the Brokers the fee agreed to in the attached separate written agreement-or if no such agreement is allached, the sum of so of the total Base-Reni-payable for tho Original Term, the sum-of- —of the totat-Base Rent payable during any period of time that the Lessee occupies the Premises subsequent to the Original Term, andier the cum of % of tho purchaso prico in the event-that-the Lessee or anyone affiliated with-Lessee acquires from Lessor any rights to the Premises.
1.10 Guarantor. The obligations of the Lessee under this Leace are to bo guaranteed by (Guarantor"). (See-also-Paragraph 37)
1.11 Attachments. Altached hereto are the following, all of which constitute a part of this Lease:
El an Addendum consisting of Paragraphs 51 through_53
• a plot plan depicting the Premises;
• a current set of the Rules and Regulations;
• a Work Lelter;
• other (specify):
Lessor hereby leases lo Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the rental, and upon all of the lerms, covenants and conditions set forth in this Lease. While the approximate square foolage of the Premises may have been used in the markeling of the Premises for purposes of comparison. the Base Rent stated herein is NOT tied to square footage and is not subject to adjustment should the actual size be determined to be different. Note: Lessee is advised to verify the actual size prior to executing this Lease.
Condition. Lessor shall deliver the Premises to Lessee broom clean and free of debris on the Commencement Date or the Early Possession Date, whichever first occurs ('Start Date"), and, so long as the required service contracts described in Paragraph 7.1(b) below are obtained by Lessee and in effect within thirty days following the Start Date, warrants that the existing electrical, plumbing, fire sprinkler, lighting, heating. ventilating and air conditioning systems ("HVAC"'), loading doors, sump pumps, if any, and all other such elements in the Premises, other than those constructed by Lessee, shall be in good operating condition on said date and that the surface and structural elements of the roof, bearing walls and foundation of any buildings on the Premises (the "Building) shall be free of material defects, and that the Unit does not contain hazardous levels of any mold or fungi defined as toxic under applicable state or federal law. Pursuant to Paragraph 52(c) or the Addendum, Lassea, at its sole expense, shall be responsible for painting the exterior of the Promises. Lassor, at les expense, is responsible for maintaining and repairing the roof and bearing walls as stated in this Paragrapn 2.2. Lessor and Las Daco of thie Loose, dry ros exista on the rool of the Premises that may nead to be during the Tarm of thie Loose, or any time during the Tarm of this Le thereto, the conditlon of the roof dry rot Worsens or there are water leaka into the Premises due to the dry rot, then Lossor, at les sole expense, shall promptly topair the dri rot and any consequential damage to the interior of the Pramises upon receipe of written notice from Lossos. If a non-compliance with said warranty exists as of the Start Date, or if one of such systems or elements should malfunction or fail within the appropriale warranty period, Lessor shall, as Lessor's sole obligation with respect to such matter, except as otherwise provided in this Lease, promply after receipt of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance. malfunction or failure, rectify same al Lessors expense. warranty periods shall be as follows: () 6 12 months as to the HVAC systems, and (il) 30-days 6 months as to the remaining systems and other If Lessee does not give Lessor the required notice within the appropriate warranty period, correction of any such non-compliance, malfunction or failure shall be the obligation of Lessee at Lessee's sole cost and expense, except for the roof, foundations, and bearing walls which are handled as provided in paragraph 7 Compliance. Lessor warrants that lo the best of its knowledge the improvements on the Premises comply with the building codes. applicable laws, covenants or restrictions of record, regulalions, and ordinances ("Applicable Requirements") that were in effect at the time that each improvement, or portion thereof, was constructed. Said warranty does not apply to the use to which Lessee will put the Premises, modifications which may be required by the Americans with Disabilities Act or any similar laws as a result of Lessee's use (see Paragraph 50), or to any Alterations or Utility Installations (as defined in Paragraph 7.3(a)) made or to be made by Lessee NOTE: Lessee is responsible for determining whether or not the Applicable Requirements, and especially the zoning, are appropriate for Lessee's intended use, and acknowledges that past uses of the Premises may no longer be allowed. If the Premises do not comply with said warranty, Lessor shall, except as otherwise provided, promply after receipt of written nolice from Lessee setting forth with specificity the nature and extent of such non-compliance, rectify the same at Lessor's expense.
Lessee does not give Lessor written notice of a non-compliance with this warranty within 6 months following the Start Date, correction of that non-compliance shall be the obligation of Lessee at Lessee's sole cost and expense. If the Applicable Requirements are hereafter changed so as to require during the term of this Lease the construction of an addition to or an alleration of the Premises and/or Building, the remediation of any Hazardous Substance, or the reinforcement or olher physical modification of the Unit, Premises and/or Building ("Capital Expenditure"), Lessor and Lessee shall allocate the cost of such work as follows
(a) Subject to Paragraph 2.3(c) below, if such Capital Expenditures are required as a result of the specific and unique use of the Premises by Lessee as compared with uses by tenants in general, Lessee shall be fully responsible for the cost thereof, provided, however that if such Capital Expenditure is required during the last 2 years of this Lease and the cost thereof exceeds 6 months' Base Rent. Lessee may instead terminate this Lease unless Lessor notifies Lessee, in writing, within 10 days after receipt of Lessee's termination notice that Lessor has elected lo pay the difference between the actual cost thereof and an amount equal to 6 months* Base Rent. If Lessee elects termination, Lessee shall immediately cease the use of the Premises which requires such Capital Expenditure and deliver to Lessor written notice specifying a termination date at least 90 days Such termination date shall, however, in no event be earlier than the last day that Lessee could legally utilize the Premises without commencing such Capital Expenditure.
(b) If such Capital Expenditure is not the result of the specific and unique use of the Premises by Lessee (such as, govermentally mandated seismic modifications), then Lessor shall pay for such Capital Expenditure and Lessee shall only be obligated to pay, each month during the remainder of the tem of this Lease or any extension thereof, on the date that on which the Base Rent is due, an amount equal to 1/144th of the portion of such costs reasonably attributable to the Premises. Lessee shall pay Interest on the balance but may prepay its obligation at any time, If. however. such Capital Expenditure is required during the last 2 years of this Lease or if Lessor reasonably determines that it is not economically feasible to pay its share thereof, Lessor shall have the option lo terminate this Lease upon 90 days prior written notice to Lessee unless Lessee notifies Lessor, in writing, within 10 days after receipt of Lessor's termination notice that Lessee will pay for such Capital Expenditure. If Lessor does not elect to terminate, and fails to tender its share of any such Capital Expenditure, Lessee may advance such funds and deduct same, with Interest, from Rent until Lessor's share of such costs have been fully paid. If Lessee is unable to finance Lessor's share, or if the balance of the Rent due and payable for the remainder of this Lease is not sufficient lo fully reimburse Lessee on an offset basis, Lessee shall have the right to terminate this Lease upon 30 days written notice lo Lessor.
Notwithstanding the above, the provisions concerning Capital Expenditures are intended to apply only to non-voluntary. unexpected, and new Applicable Requirements. If the Capital Expenditures are instead triggered by Lessee as a result of an actual or proposed change in use, change in intensity of use, or modification to the Premises then, and in that event, Lessee shall either: (i) immediately cease such changed use or intensity of use and/or take such other steps as may be necessary lo eliminate the requirement for such Capital Expenditure, or (i) complete such Capital Expenditure at its own expense. Lessee shall not, however, have any right to terminate this Lease.
Lessee acknowledges that: (a) it has been given an opportunity to inspect and measure the Premises, (b) it has been advised by Lessor and/or Brokers to salisty itself with respect to the size and condition of the Premises (including but not limited to the electrical, HVAC and fire sprinkler systems, security, environmental aspects, and compliance with Applicable Requirements and the Americans with Disabilities Acl), and their suitabitty for Lessee's intended use. (c) Lessee has made such investigation as it deems necessary with reference to such matters and assumes all responsibility therefor as the same relate 1o its occupancy of the Premises, (d) it is not relying on any representation as to the PAGE 2 OF 13
INITIALS INIT
©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STO-11-3/10E size of the Premises made by Brokers or Lessor, (e) the square footage of the Premises was not material to Lessee's decision to lease the Premises and pay the Rent stated herein, and (f) neither Lessor, Lessor's agents, nor Brokers have made any oral or written representations or warranties with respect to said matters other than as set forth in this Lease. In addition, Lessor acknowledges that: (i) Brokers have made no representations. promises or warranties concering Lessee's ability to honor the Lease or suitability to occupy the Premises, and (i) it is Lessor's sole responsibility to investigate the financial capability and/or suitability of all proposed tenants.
The warranties made by Lessor in Paragraph 2 shall be of no force or effect if immediately prior to the Start Date Lessee was the owner or occupant of the Premises. In such event, Lessee shall be responsible for any necessary corrective Term. The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3.
Early Possession. Any provision herein granting Lessee Earty Possession of the Premises is subject lo and conditioned upon the Premises being available for such possession prior to the Commencement Date. Any grant of Earty Possession Only conveys a non-exclusive right to If Lessee totally or partially occupies the Premises prior to the Commencement Date, the obligation to pay Base Rent shall be abated for the period of such Earty Possession. All other terms of this Lease (including but not limited to the obligations to pay Real Property Taxes and insurance premiums and to maintain the Premises) shall be in effect during such period. Any such Early Possession shall nol affect the Expiration Lessor agrees to use its best commercially reasonable efforts to deliver possession of the Premises to If, despite said efforts, Lessor is unable to deliver possession by such date. Lessor shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease or change the Expiration Date. Lessee shall not, however, be obligated to pay Rent or perform its other obligations until Lessor delivers possession of the Premises and any period of rent abatement that Lessee would otherwise have enjoyed shall run from the date of delivery of possession and continue for a period equal lo what Lessee would otherwise have enjoyed under the terms hereof, but minus any days of delay caused by the acts or omissions of Lessee. If possession is not delivered within 60 days after the Commencement Date, as the same may be extended under the lems of any Work Letter executed be Parties. Lessee may, at its oplion, by notice in writing within 10 days after the end of such 60 day period, cancel this Lease, in which event the Parties shall be discharged from all obligations hereunder. If such written notice is not received by Lessor within said 10 day period, Lessee's right to cancel shall terminate. If possession of the Premises is not delivered within 120 days after the Commencement Date, this Lease shall terminate unless other agreements are reached between Lessor and Lessee.
Lessor shall not be required to deliver possession of the Premises to Lessee until Lessee complies with its obligation to provide evidence of insurance (Paragraph 8.5). Pending delivery of such evidence. Lessee shall be required to perform all of its obligations under this Lease from and after the Start Date, including the payment of Rent, notwithstanding Lessor's election to withhold possession pending receipt of such evidence of insurance. Further, if Lessee is required to perform any other conditions prior to or concurrent with the Start Dale, the Start Date shall occur but Lessor may elect lo withhold possession until such conditions are satisfied.
All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States, without offset or deduction (except as specifically permitted in this Lease), on or before the day on which it is due. Alt monetary amounts shall be rounded to the nearest whole doltar. In the event that any invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated to pay the amount set forth in this Lease. Rent for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from time to time designate in writing. Acceptance of a payment which is less than the amount then due shall nol be a waiver of Lessor's rights to the balance of such Rent, regardless of Lessor's endorsement of any check so stating. In the event that any check, draft, or other instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25 in addition to any Late Charge and Lessor, at its option, may require all future payments to be made by Lessee lo be by cashier's check. Payments will be applied first to accrued late charges and altomey's fees, second to accrued interest, then to Base Rent, Insurance and Real Property Taxes, and any remaining amount lo any other outstanding charges or costs.
In addition to the Base Rent, Lessee shall pay to Lessor each month an amount equal to any owner's association or condominium fees levied or assessed against the Premises. Said monies shall be paid at the same time and in the same manner as the Security Deposit. Lessee shall deposil with Lessor upon execution hereof the Security Deposit as security for Lessee's faithful performance of ils obligations under this Lease, If Lessee fails to pay Rent, or otherwise Defaults under this Lease, Lessor may use, apply or retain all or any portion of said Security Deposit for the payment of any amount already due Lessor, for Rents which will be due in the future, and/ or to reimburse or compensale Lessor for any liability, expense, loss or damage which Lessor may suffer or incur by reason thereof. If Lessor uses or applies all or any portion of the Security Deposit, Lessee shall within 10 days after written request therefor deposit monies with Lessor sufficient lo restore said Security Deposit to the full amount required by this Lease. If the Base Rent increases during the term of this Lease, Lessee shall, upon written request from Lessor, deposit additional monies with Lessor so that the lotal amount of the Security Deposit shall at all times bear the same proportion to the increased Base Rent as the initial Security Deposit bore to the initial Base Rent. Should the Agreed Use be amended to accommodate a material change in the business of Lessee or to accommodate a sublessee or assignee, Lessor shall have the right lo increase the Security Deposit to the extent necessary, in Lessor's reasonable judgment, to account for any increased wear and tear that the Premises may suffer as a result thereof. If a change in control of Lessee occurs during this Lease and following such change the financial condition of Lessee is, in Lessor's reasonable judgment, significantly reduced, Lessee shall deposit such additional monies with Lessor as shall be sufficient to cause the Security Deposit to be at a commercially reasonable level based on such change in financial condition. Lessor shall not be required to keep the Security Deposit separate from its general accounts. Within 90 days after the expiration or termination of this Lease, Lessor shall retum that portion of the Security Deposit not used or applied by Lessor. No part of the Security Deposit shall be considered lo he held in trust, lo bear interest or to be prepayment for any monies to be paid Use. Lessee shall use and occupy the Premises only for the Agreed Use, or any other legal use which is reasonably comparable thereto, and for no other purpose. Lessee shall not use or permit the use of the Premises in a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs occupants of or causes damage to neighboring premises or properties. Other than guide, signal and seeing eye dogs. Lessee shall not keep or allow in the Premises any pels, animals, birds, fish, or reptiles. Lessor shall not unreasonably withhold or delay its consent to any written request for a modification of the Agreed Use, so long as the same will not impair the structural integrity of the improvements on the Premises or the mechanical or electrical systems therein, and/or is not significantly more burdensome to the Premises. If Lessor elects to withhold consent, Lessor shall within 7 days after such request give written notification of same, which notice shall include an explanation of Lessor's objections to the change in (a) Reportable Uses Require Consent. The term "Hazardous Substance" as used in this Lease shall mean any product. subslance, or waste whose presence, use, manufacture, disposal, transportation, or release, 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, (i) regulated or monitored by any govemmental authority, or (ili) a basis for polential liability of Lessor to any govemmental agency or third party under any applicable statute or common law theory, Hazardous Substances shall include, but not be limited to, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, by-products or fractions thereof. Lessee shall not engage in any activity in or on the Premises which constitutes a Reportable Use of Hazardous Substances without the express prior written consent of Lessor and timely compliance (at Lessee's expense) with all Applicable "Reportable Use" shall 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 govermental authority, and/or (iii) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises or neighboring properties.
Notwithstanding the foregoing. Lessee may use any ordinary and customary materials reasonably required to be used in the normal course of the ordinary office supplies (copier toner, liquid paper, glue, etc.) and common household cleaning materials, so long as such use is in compliance with all Applicable Requirements, is not a Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contamination or damage or expose Lessor to any liability therefor. In addition. Lessor may condition its consent to any Reportable Use upon receiving such additional assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against damage, contamination, injury andlor liability, including, but not limited to, the installation (and removal on or before Lease expiration or termination) of prolective modifications (such as concrete encasements) and/or increasing the Security Deposit. (b) Duty to Inform Lessor. If Lessee knows, or has reasonable cause to believe, that a Hazardous Substance has come to be PAGE 3 OF 13
INITIALS
©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STG-14-3/10E located in, on, under or about the Prettu.-s, other than as previously consented to by Lessor, Lessee shall imme ely give written notice of such fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation which it has concerning the presence of such Hazardous (c) Lessee Remediation. Lessee shall not cause or permit any Hazardous Subslance to be spilled or released in, on, under, or about the Premises (including through the plumbing or sanitary sewer system) and shall promptly, at Lessee's expense, comply with all Applicable Requirements and take all investigatory and/or remedial action reasonably recommended, whether or not formally ordered or required, for the cleanup of any contamination of, and for the maintenance, security and/or monitoring of the Premises or neighboring properties, that was caused or materially contributed to by Lessee, or pertaining lo or involving any Hazardous Substance brought onto the Premises during the term of this Lease, by or for Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, claims, expenses, penalties, and atlomeys' and consultants' fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee, or any third party (provided however, that Lessee shall have no liabilly under this Lease with respect to underground migration of any Hazardous Substance under the Premises from adjacent properties not caused or contributed to by Lessee). Lessee's obligations shall include, but not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by Lessee, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or lermination 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.
Lessor and its successors and assigns shall indemnify, defend, reimburse and hold Lessee, its employees and lenders, harmless from and against any and all environmental damages, including the cost of remediation, Hazardous Subslances which existed on the Premises prior to Lessee's occupancy or which are caused by the gross negligence or willful misconduct of Lessor, its agents or employees. Lessor's obligations, as and when required by the Applicable Requirements, shall include, but not be limited to, the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease. (D) Investigations and Remediations. Lessor shall retain the responsibility and pay for any investigations or remediation measures required by govemmental entities having jurisdiction with respect to the existence of Hazardous Substances on the Premises prior to Lessee's occupancy, unless such remediation measure is required as a result of Lessee's use (including "Alterations", as defined in paragraph 7.3(a) below) of the Premises, in which event Lessee shall be responsible for such payment. Lessee shall cooperate fully in any such activities at the request of Lessor, including allowing Lessor and Lessor's agents to have reasonable access to the Premises at reasonable times in order to carry out Lessor's investigative and remedial responsibilities.
(g) Lessor Termination Option. If a Hazardous Subslance Condition (see Paragraph 9.1(e)) occurs during the term of this Lease, unless Lessee is legally responsible therefor (in which case Lessee shall make the investigation and remediation thereof required by the Applicable Requirements and this Lease shall continue in full force and effect, but subject to Lessor's rights under Paragraph 6.2(d) and Paragraph 13), Lessor may, at Lessor's option, either (i) investigate and remediate such Hazardous Substance Condition, if required, as soon as reasonably possible at Lessor's expense, in which event this Lease shall continue in full force and effect, or (ii) if the estimated cost to remediate such condition exceeds 12 times the then monthly Base Rent or $100,000, whichever is greater, give written notice to Lessee, within 30 days after receipt by Lessor of knowledge of the occurrence of such Hazardous Substance Condition, of Lessor's desire to terminale this Lease as of the date 60 days following the date of such In the event Lessor elects to give a termination notice, Lessee may, within 10 days thereafter, give written notice lo Lessor of Lessee's commitment to pay the amount by which the cost of the remediation of such Hazardous Subslance Condition exceeds an amount equal to 12 limes the then monthly Base Rent or $100,000, whichever is greater. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days following such commitment. In such event, this Lease shall continue in full force and effect, and Lessor shall proceed to make such remediation as soon as reasonably possible after the required funds are available. If Lessee does not give such nolice and provide the required funds or assurance thereof within the time provided, this Lease shall terminate as of the date specified in Lessor's nolice of termination.
Lessee's Compliance with Applicable Requirements. Except as otherwise provided in this Lease, Lessee shall, at Lessee's sole expense, fully, diligently and in a timely manner, malerially comply with all Applicable Requirements, the requirements of any applicable fire insurance underwriler or rating bureau, and the recommendations of Lessor's engineers and/or consultants which relate in any manner to the such Requirements, without regard to whether such Requirements are now in effect or become effective after the Start Date. after receipt of Lessor's written request, provide Lessor with copies of all permits and other documents, and other information evidencing Lessee's compliance with any Applicable Requirements specified by Lessor, and shall immediately upon receipt, nolify Lessor in writing (with copies of any documents involved) of any threatened or actual claim, notice, cilation, warning, complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable Requirements. Likewise, Lessee shall immediately give writen notice to Lessor of: (i) any waler damage to the Premises and any suspected seepage, pooling, dampness or other condition conducive to the production of mold; or (i) any mustiness or other odors that might indicate the presence of mold in the Premises.
Lessor and Lessor's "Lender" (as defined in Paragraph 30) and consultants shall have the right to enter into Premises at any time, in the case of an emergency, and otherwise at reasonable times after reasonable notice, for the purpose of inspecting the condition of the Premises and for verifying compliance by Lessee with this Lease. The cost of any such inspections shall be paid by Lessor, unless a violation of Applicable Requirements, or a Hazardous Substance Condition (see paragraph 9.1) is found to exist or be imminent, or the inspection is requested or ordered by a governmental authonty. in such case, Lessee shall upon request reimburse Lessor for the cost of such inspection, so long as such inspection is reasonably related to the violation or contamination. In addition, Lessee shall provide copies of all relevant material safety data sheets (MSDS) to Lessor within 10 days of the receipt of a writlen request therefor Maintenance; Repairs; Utility Installations; Trade Fixtures and Alterations. (a) In General. Subject to the provisions of Paragraph 2.2 (Condition), 2.3 (Compliance), 6.3 (Lessee's Compliance with Applicable Requirements), 7.2 (Lessor's Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee shall, at Lessee's sole expense, keep the remises, Utility Inslallations (intended for Lessee's exclusive use, no matter where located), and Alterations in good order, condition and repai whether or not the portion of the Premises requiring repairs, or the means of repairing the same, are reasonably or readily accessible to Lessee, an whether or not the need for such repairs occurs as a result of Lessee's use, any prior use, the elements or the age of such portion of the Premises). including, but not limited to, all equipment or facilities, such as plumbing, HVAC equipment, electrical, lighting facilities, boilers, pressure vessels, fire protection system, fixtures, walls (interior and exterior), ceilings, floors, windows, doors, plate glass, skylighis, landscaping, driveways, parking lots. fences, retaining walls, signs, sidewalks and parkways located in, on, or adjacent to the Premises. Lessee is also responsible for keeping the roof and roof drainage clean and free of debris. Lessor shall keep the surface and structural elements of the roof, foundations, and bearing walls in good repair (see paragraph 72). Lessee, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices. specifically including the procurement and maintenance of the service contracts required by Paragraph 7.1(b) below. Lessee's obligations shall include storations, replacements or renewals when necessary to keep the Premises and all improvements thereon or a part thereof in good order, conditi id state of repair. Lessee shall, during the term of this Lease, keep the exterior appearance of the Building in a first-class condition (including, e graffiti removal) consistent with the exterior appearance of other similar facilities of comparable age and size in the vicinity, including, when necessary.
Lessee shall, at Lessee's sole expense, procure and maintain contracts, with copies to Lessor, in and with contractors specializing and experienced in the maintenance of the following equipment and improvements, if any, if and when instalted on the Premises: (i) HVAC equipmen, (ii) boiler, and pressure vessels, (iii) fire extinguishing systems. including fire alarm and/or smoke detection. (iv) landscaping and irigation systems, and (v) darifiers. However, Lessor reserves the right, upon notice to Lessee, to procure and maintain any or all of such service contracts, and Lessee shall reimburse Lessor, upon demand, for the cost thereof.
If Lessee fails to perform Lessee's obligations under this Paragraph 7.1, Lessor may enter upon the Premises after 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, and Lessee shall promptly pay to Lessor a sum equal to 115% of the cost thereof.
(d) Replacement. Subject to Lessee's indemnification of Lessor as set forth in Paragraph 8.7 below, and without relieving Lessee of liability resulting from Lessee's failure to exercise and perform good maintenance practices, if an item described in Paragraph 7.1(b) cannot be repaired other than at a cost which is in excess of 50% of the cost of replacing such item, then such item shall be replaced by Lessor, and the cost thereof shall be prorated between the Parties and Lessee shall only be obligated to pay, each month during the remainder of the term of this Lease, on the date on which Base Rent is due, an amount equal to the product of multiplying the cost of such replacement by a fraction, the numerator of which is one, and the denominator of which is 144 (ie. 1/144th of the cost per month). Lessee shall pay Interest on the unamortized balance but may prepay its Lessor's Obligations. Subject to the provisions of Paragraphs 2.2 (Condition), 2.3 (Compliance), 9 (Damage or Destruction) and 14 (Condemnation), it is intended by the Parties hereto that Lessor have no obligation, in any manner whatsoever, to repair and maintain the Premises, PAGE 4 OF 13
INITIALS INI
©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STG-14-3/10E or the equipment therein, all of whicli vulgations are intended to be that of the Lessee, except for the surfac foundations and bearing walls, the repair of which shall be the responsibility of Lessor upon receipt of written nolice that such a repair is necessary. It is the intention of the Parties that the terms of this Lease govern the respective obligations of the Parties as to maintenance and repair of the Premises. and they expressly waive the benefit of any statute now or hereafter in effect to the extent it is inconsistent with the terms of this Lease.
Utility Installations; Trade Fixtures; Alterations.
The term "Utility Installations" refers to all floor and window coverings, air and/or vacuum lines, power panels, electrical distribution, security and fire protection systems, communication cabling, lighting fixtures, HVAC equipment, plumbing, and fencing in or on the Premises. The term "Trade Fixtures" shall mean Lessee's machinery and equipment that can be removed without doing material damage to the Premises. The term "Alterations" shall mean any modification of the improvements, other than Utility Installations or Trade Fixtures, whether by addition or deletion. "Lessee Owned Alterations and/or Utility Installations" are defined as Alterations and/or Utility Installations made by Lessee that are not yet owned by Lessor pursuant lo Paragraph 7.4(a).
Lessee shall not make any Alterations or Utility Installations to the Premises without Lessor's prior written consent.
Lessee may, however, make non-structural Alterations or Utility Installations to the interior of the Premises (excluding the roof) without such consent but upon notice to Lessor, as long as they are not visible from the outside, do not involve puncturing, relocating or removing the roof or any existing walls. will not affect the electrical, plumbing, HVAC, and/or life safety systems, and the cumulative cost thereof during this Lease as extended does not in any one year. Notwithslanding the
foregoing, Lessee shall not make or permit any roof penetrations and/or install anything on the roof without the prior written approval of Lessor. Lessor may. as a precondition to granting such approval, require Lessee to utilize a contractor chosen and/or approved by Lessor. Any Alterations or Utility Installations that Lessee shall desire to make and which require the consent of the Lessor shall be presented to Lessor in written form with detailed plans. Consent shall be deemed conditioned upon Lessee's: (i) acquiring all applicable governmenlal permits, (i) fumishing Lessor with copies of both the permits and the plans and specifications prior to commencement of the work, and (iii) compliance with all conditions of said permits and other Applicable Requirements in a prompt and expeditious manner. Any Alterations or Utility Installations shall be performed in a workmanlike manner with good and sufficient materials. Lessee shall promply upon completion furnish Lessor with as-built plans and specifications. For work which costs an amount in excess of one month's Base Rent, Lessor may condition its consent upon Lessee providing a lien and completion bond in an amount equal to 150% of the estimaled cost of such Alteration or Utility Installation and/or upon Lessee's posting an additional Security Deposit with Lessor. (C) Liens; Bonds. Lessee shall pay, when due, all daims for labor or materials fumished or alleged to have been fumished 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 10 days notice 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. if Lessee shall contest the validity of any such lien, daim or demand, then Lessee shall, at its sole expense defend and protect itself, Lessor and the Premises against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof. If Lessor shall require, Lessee shall fumish a surety bond in an amount equal to 150% of the amount of such contested lien, claim or demand, indemnifying Lessor against liability for the same. If Lessor elects to participate in any such action, Lessee shall pay Lessor's attomeys' fees and costs.
7.4 Subject to Lessor's right to require removal or elect ownership as hereinafter provided, all Alterations and Ulility Lessor may, at any time, elect in writing to be the
owner of all or any specified part of the Lessee Owned Alterations and Utility Installations. Unless otherwise instructed per paragraph 7.4(b) hereof, all Lessee Owned Alterations and Utility Installations shall, at the expiration or termination of this Lease, become the property of Lessor and be surrendered by Lessee with the Premises.
(b) Removal. By delivery to Lessee of written nolice from Lessor not earlier than 90 and not later than 30 days prior to the end of the term of this Lease, Lessor may require that any or all Lessee Owned Alterations or Utility Installations be removed by the expiration or termination of Lessor may require the removal at any time of all or any part of any Lessee Owned Allerations or Ulility Installations made without the Lessee shall surrender the Premises by the Expiration Date or any earlier termination date, wilh all of the improvements, parts and surfaces thereof broom clean and free of debris, and in good operating order, condition and state of repair, ordinary wear "Ordinary wear and tear shall not include any damage or deterioration that would have been prevented by good maintenance Notwithstanding the foregoing, if this Lease is for 12 months or less, then Lessee shall surrender the Premises in the same condition as delivered to Lessee on the Start Date with NO allowance for ordinary wear and tear. Lessee shall repair any damage occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee owned Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank installed by or for Lessee. Lessee shall completely remove from the Premises any and all Hazardous Subslances brought onto the Premises by or for Lessee, or any third party (except Hazardous Substances which were deposited via underground migration from areas outside of the Premises) even if such removal would require Lessee to perform or pay for work that exceeds statutory requirements. property of Lessee and shall be removed by Lessee Any personal property of Lessee not removed on or before the Expiration Date or any earlier termination date shall be deemed to have been abandoned by Lessee and may be disposed of or retained by Lessor as Lessor may desire. by Lessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) without the express wrillen consent of Lessor shall constitute a holdover under the provisions of Paragraph 26 below.
(a) Lessee shall pay to Lessor any insurance cost increase ("Insurance Cost Increase") occuming during the term of this Lease.
Insurance Cost Increase is defined as any increase in the actual cost of the insurance required under Paragraph 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 increases resulting from the nature of Lessee's occupancy, any act or omission of Lessee, requirements of the holder of mortgage or deed of trust covering the Premises, increased valuation of the Premises and/or a premium rate increase. The parties are encouraged to fill in the Base Premium in paragraph 1.8 with a reasonable premium for the Required Insurance based on the Agreed Use of the Premises. If the parties fail to insert a dollar amount in Paragraph 1.8, then the Base Premium shall be the lowest annual premium reasonably oblainable for the Required Insurance as of the commencement of the Original Term for the Agreed Use of the Premises. In no event, however, shall Lessee be responsible for any portion of the increase in the premium cost attributable to liability insurance carried by Lessor under Paragraph 8.2(b) in excess of $2,000,000 per occurence. (b) Lessee shall pay any such Insurance Cost Increase to Lessor within 30 days after receipt by Lessee of a copy of the premium statement or other reasonable evidence of the amount due. If the insurance policies mainlained hereunder cover other property besides the Premises.
Lessor shall also deliver to Lessee a statement of the amount of such Insurance Cost Increase altribulable only to the Premises showing in reasonable detail the manner in which such amount was computed, Premiums for policy periods commencing prior to, or extending beyond the term of this Lease. shall be prorated to correspond to the term of this Lease. (a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial General Liability policy of insurance protecting Lessee and Lessor as an additional insured against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership. use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000. Lessee shall add Lessor as an additional insured by means of an endorsement at least as broad as the Insurance Service Organization's "Additional Insured Managers or Lessors of Premises" Endorsement. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, but shalt include coverage for hability assumed under this Lease as an "insured contract" for the performance of Lessee's indemnity obligations under this Lease. limits of said insurance shall not, however, limit the liability of Lessee nor relieve Lessee of any obligation hereunder. endorsement on its liability policy(ies) which provides that its insurance shall be primary to and not contributory with any similar insurance carried by Lessor, whose insurance shall be considered excess insurance only. (b) Carried by Lessor. Lessor shall maintain liability insurance as described in Paragraph 8.2(a), in addition to, and not in lieu of. the insurance required to be maintained by Lessee. Lessee shall not be named as an additional insured therein.
Property Insurance - Building, Improvements and Rental Value. (a) Building and Improvements. The Insuring Party shall obtain and keep in force a policy or policies in the name of Lessor, with loss payable to Lessor, any ground-lessor, and to any Lender insuring loss or damage to the Premises. The amount of such insurance Shall be equal to the full insurable replacement cost of the Premises, as the same shall exist from time to time, or the amount required by any Lender, but in no event more than the commercially reasonable and available insurable value thereof. Lessee Owned Alterations and Ulility Installations, Trade Fixtures, and Lessee's personal property shall be insured by Lessee not by Lessor. If the coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unless required by a Lender or included in the Base Premium, including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed ©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STONELSE valuation provision in lieu of any coinsurance clause, waiver of subrogation, and inflation guard protection causily an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located. If such insurance coverage has a deductible clause, the deductible amount shall not exceed $5,000 per occurrence, and Lessee shall be liable for such deductible amount in the event of an Insured Loss The insuring Party shall obtain and keep in force a policy or policies in the name of Lessor with loss payable to Lessor and any Lender, insuring the loss of the full Rent for one year with an extended period of indemnity for an additional 180 days ("Rental Value an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period. Lessee shall be liable for any deductible (c) Adjacent Premises. If the Premises are part of a larger building, or of a group of buildings owned by Lessor which are adjacent to the Premises, the Lessee shall pay for any increase in the premiums for the property insurance of such building or buildings if said increase is caused by Lessee's acts, omissions, use or occupancy of the Premises.
Lessee's Property; Business Interruption Insurance; Worker's Compensation Insurance.
Lessee shall obtain and maintain insurance coverage on all of Lessee's personal property. Trade Fixtures. and Lessee Owned Alterations and Utility Installations. Such insurance shall be full replacement cost coverage with a deductible of not to exceed The proceeds from any such insurance shall be used by Lessee for the replacement of personal property, Trade Fixtures and Lessee Owned Aiterations and Utility Installations. Lessee shall provide Lessor with written evidence that such insurance is in force.
Lessee shall obtain and maintain loss of income and extra expense insurance in amounts as will reimburse Lessee for direct or indirect loss of earings attributable lo all perils commonly insured against by prudent lessees in the business of Lessee or attributable to prevention of access to the Premises as a result of such penis. (c) Worker's Compensation Insurance. Lessee shall obtain and maintain Worker's Compensation Insurance in such amount as may be required by Applicable Requirements.
(d) No Representation of Adequate Coverage. Lessor makes no representation that the limits or forms of coverage of insurance specified herein are adequate to cover Lessee's property, business operations or obligations under this Lease.
Insurance required herein shall be by companies maintaining during the policy term a "General Policyholders Rating" of at least A., Vil, as set forth in the most current issue of "Best's Insurance Guide", or such other rating as may be required by a Lender.
Lessee shall not do or permit to be done anything which invalidales the required insurance policies. Lessee shall, prior lo the Start Date, deliver to Lessor certified copies of policies of such insurance or certificates with copies of the required endorsements evidencing the existence and amounts of No such policy shall be cancelable or subject to modification except after 30 days prior written notice to Lessor. Lessee shall, at least 10 days prior to the expiration of such pollcies, fumish Lessor with evidence of renewals or "insurance binders" evidencing renewal lhereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee lo Lessor upon demand. Such policies shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever is less, If either Party shall fail to procure and maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same.
Without affecting any other rights or remedies, Lessee and Lessor each hereby release and relieve the other, and waive their entire right lo recover damages against the other, for loss of or damage to its property arising out of or incident to the perils The effect of such releases and waivers is not limited by the amount of insurance carried or required, or by any deductibles applicable hereto. The Parties agree to have their respective property damage insurance carriers waive any right to subrogation that such companies may have against Lessor or Lessee, as the case may be, so long as the insurance is not invalidated thereby.
Indemnity. Except for Lessor's gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents, Lessor's master or ground lessor, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attomeys" and consultants' fees, expenses and/or liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Lessee. If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same al Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified Exemption of Lessor and its Agents from Liability. Notwithstanding the negligence or breach of this Lease by Lessor or its agents, neither Lessor nor its agents shall be liable under any circumstances for: () injury or damage to the person or goods, wares, merchandise or olher property of Lessee, Lessee's employees, contractors, invitees, customers, or any other person in or aboul the Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, indoor air quality, the presence of mold or from the breakage, leakage. obstruction or olher defects of pipes, fire sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures, or from any other cause, whether the said injury or damage results from conditions arising upon the Premises or upon olher portions of the building of which the Premises are a part, or from other sources or places, (i) any damages arising from any act or neglect of any other tenant of Lessor or from the failure of Lessor or its agents to enforce the provisions of any other lease in the Project, or (ill) injury to Lessee's business or for any loss of income or profit therefrom. Instead, it is inlended that Lessee's sole recourse in the event of such damages or injury be to file a claim on the insurance policy(ies) that Lessee is required to maintain pursuant to the provisions of paragraph 8.
Failure to Provide Insurance. Lessee acknowledges that any failure on its part to obtain or maintain the insurance required herein will expose Lessor to risks and polentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, for any month or portion thereof that Lessee does not maintain the required insurance and/or does not provide Lessor with the required binders or certificates evidencing the exislence of the required insurance, the Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater. The parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/ costs that Lessor will incur by reason of Lessee's failure to maintain the required insurance. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to the failure to maintain such insurance, prevent the exercise of any of the other rights and remedies granted hereunder, nor relieve Lessee of its obligation to mainlain the insurance specified in this Lease.
Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction to the improvements on the Premises, olher than Lessee Owned Alterations and Utility Installations, which can reasonably be repaired in 6 months or less from the date of the damage or destruction. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as lo whether or not the damage is Partial or Total.
Notwithstanding the foregoing, Premises Partial Damage shall not include damage to windows, doors, and/or other similar items which Lessee has the responsibility to repair or replace pursuant to the provisions of Paragraph 7.1. (b) "Premises Total Destruction" shall mean damage or destruction to the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which cannot reasonably be repaired in 6 months or less from the date of the damage or destruction. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total. (c) "Insured Loss" shall mean damage or destruction to improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which was caused by an event required lo be covered by the insurance described in Paragraph 8.3(a). irrespective of any deductible amounts or coverage limits involved. (d) "Replacement Cost" shall mean the cost to repair or rebuild the improvements owned by Lessor at the time of the occurrence to their condition existing immediately prior thereto, including demolition, debris removal and upgrading required by the operation of Applicable Requirements, and without deduction for depreciation.
(e) "Hazardous Substance Conditlon" shall mean the occurrence or discovery of a condition involving the presence of, or a contamination by, a Hazardous Substance, in, on, or under the Premises which requires restoration.
9.2 Partial Damage - Insured Loss. If a Premises Partial Damage that is an Insured Loss occurs, then Lessor shall, al Lessor's expense, repair such damage (but not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility Installations) as soon as reasonably possible and this Lease shall continue in full force and effect: provided, however, that Lessee shall, at Lessor's election, make the repair of any damage or destruction the total cost lo repair of which is $10,000 or less, and, in such event. Lessor shall make any applicable insurance proceeds available to Lessee on a reasonable basis for that purpose. Notwithstanding, the foregoing, if the required insurance was not in force or the insurance proceeds are not sufficient to effect such repair, the Insuring Party shall promplly contribule the shortage in proceeds (except as to the deductible which is Lessee's responsibility) as and when required to complete said repairs. In the event, however, such shortage was due to the fact that, by reason of the unique nature of the improvements, full 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 10 days following receipt of written notice of such shortage and request therefor. If Lessor receives said funds or adequate assurance thereof within said 10 day period, the party responsible for making the repairs shall complete them as soon as reasonably possible and this Lease shall remain in full force and effect. If such funds or assurance are not received, Lessor may nevertheless elect by Chey PAGE 6 OF 13
INITIALS INITIA
©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION
written notice lo Lessee within 10 days thereafter to: (i) make such restoration and repair as is commercially seasonable with Lessor paying any shortage in proceeds, in which case this Lease shall remain in full force and effect, or (ii) have this Lease terminate 30 days thereafter. Lessee shall not be entlled to reimbursement of any funds contributed by Lessee lo repair any such damage or destruction. Premises Partial Damage due to flood or earthquake shall be subject lo Paragraph 9.3, notwithstanding that there may be some insurance coverage, but the net proceeds of any such insurance shall be made available for the repairs if made by either Party
9.3 If a Premises Partial Damage that is not an Insured Loss occurs, unless caused by a negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessee's expense), Lessor may either: (i) repair such damage as soon as reasonably possible at Lessor's expense, in which event this Lease shall continue in full force and effect, or (il) terminate this Lease by giving written notice to Lessee within 30 days after receipt by Lessor of knowledge of the occurrence of such damage. Such termination shall be effective 60 days following the date of such notice. In the event Lessor elects to terminate this Lease, Lessee shall have the right within 10 days after receipt of the temination notice to give written notice to Lessor of Lessee's commitment to pay for the repair of such damage without reimbursement from Lessor.
Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days after making such commitment, In such event this Lease shall continue in full force and effect, and Lessor shall proceed to make such repairs as soon as reasonably possible after the required funds are available. If Lessee does not make the required commitment, this Lease shall terminate as of the date specified in the termination notice.
Total Destruction. Notwithstanding any other provision hereof, if a Premises Total Destruction occurs, this Lease shall terminate 60 days following such Destruction. If the damage or destruction was caused by the gross negligence or willful misconduct of Lessee, Lessor shall have the right to recover Lessor's damages from Lessee, except as provided in Paragraph 8.6.
9.5 Damage Near End of Term. if at any time during the last 6 months of this Lease there is damage for which the cost to repair exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may terminate this Lease effective 60 days following the date of occurrence of such damage by giving a written termination notice to Lessee within 30 days after the date of occurrence of such damage. foregoing, if Lessee at that time has an exercisable option to extend this Lease or to purchase the Premises, then Lessee may preserve this Lease by. (a) exercising such option and (b) providing Lessor with any shortage in insurance proceeds (or adequate assurance hereof) needed to make the repairs on or before the earlier of (i) the date which is 10 days after Lessee's receipl of Lessor's written notice purporting to terminate this Lease, or (il) the day prior to the date upon which such option expires. if Lessee duty exercises such option during such period and provides Lessor with funds (of adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor shall, at Lessor's commercially reasonable expense, repair such damage as soon as reasonably possible and this Lease shall continue in full force and effect. If Lessee fails to exercise such option and provide such funds or assurance during such period, then this Lease shall terminate on the date specified in the termination notice and Lessee's option shall be exunaisned
Abatement of Rent; Lessee's Remedies.
In the event of Premises Partial Damage or Premises Total Destruction or a Hazardous Substance Condition for which Lessee is not responsible under this Lease, the Rent payable by Lessee for the period required for the repair, remediation or restoration of such damage shall be abated in proportion to the degree lo which Lessee's use of the Premises is impaired, but not to exceed the proceeds received from All other obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any such damage, destruction, remediation, repair or restoration except as provided herein.
If Lessor is obligated to repair or restore the Premises and does not commence, in a substantial and meaningful way, such repair or restoration within 90 days after such obligation shall accrue, Lessee may, at any time prior lo the commencement of such repair or restoration, give written notice to Lessor and lo any Lenders of which Lessee has actual notice, of Lessee's election to terminate this Lease on a date nol less than 60 days following the giving of such notice. If Lessee gives such notice and such repair or restoration is not commenced within 30 days thereafter, this Lease shall terminate as of the date specified in said notice. If the repair or restoration is commenced within such 30 days, this Lease "Commence" shall mean either the unconditional authorization of the preparation of the required plans, or the beginning of the actual work on the Premises, whichever first occurs Upon termination of this Lease pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be made concering advance Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in addition, retum to Lessee so much of Lessee's Security Deposit as has not been, or is not then required to be, used by Lessor.
Real Property Taxes.
As used herein, the term "Reas Property Taxes" shall include any form of assessment; real estate, general, special, ordinary or extraordinary, or rental levy or lax (other than inheritance, personal income or estate laxes), improvement bond; and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Premises or the Project, Lessor's right to olher income therefrom, and/or Lessor's business of leasing, by any authority having the direct or indirec power to tax and where the funds are generated with reference to the Building address and where the proceeds so generated are to be applied by the city, county or other local taxing authority of a jurisdiction within which the Premises are Real Property Taxes shall also include any tax, fee, levy, assessment or charge, or any increase therein: (i) imposed by reason of events occurring during the term of this Lease, including but not limited to, a change in the ownership of the Premises, and (ii) levied or assessed on machinery or equipment provided by Lessor to Lessee pursuant to this Lease. (a) Payment of Taxes. Lessor shall pay the Real Property Taxes applicable to the Premises provided, however, that Lessee shall pay lo Lessor the amount. if any, by which Real Property Taxes applicable to the Premises increase over the fiscal tax year during which the Commencement Date Occurs ("Tax Increase"). Payment of any such Tax Increase shall be made by Lessee to Lessor within 30 days after receipt of Lessor's written statement setting forth the amount due and computation thereof. If any such laxes shall cover any period of time prior lo or after the expiration or termination of this Lease. Lessee's share of such laxes shall be prorated to cover only that portion of the tax bill applicable to the period In the event Lessee incurs a late charge on any Rent payment. Lessor may estimate the current Real Property Taxes, and require that the Tax Increase be paid in advance to Lessor by Lessee monthly in advance with the payment of the Base Rent. shall be an amount equal to the amount of the estimated installment of the Tax Increase divided by the number of months remaining before the month in which said installment becomes delinquent. When the actual amount of the applicable Tax Increase is known, the amount of such equal monthly advance payments shall be adjusted as required to provide the funds needed to pay the applicable Tax Increase. If the amount collected by Lessor is insufficient to pay the Tax Increase when due. Lessee shall pay Lessor, upon demand, such additional sums as are necessary to pay such obligations.
Advance payments may be intermingled with other moneys of Lessor and shall not bear interest. In the event of a Breach by Lessee in the performance of its obigations under this Lease, then any such advance payments may be treated by Lessor as an additional Security Deposit. (b) Additional improvements.
If the Premises are not separately assessed, Lessee's liability shall be an equitable proportion of the Tax Increase for all of the land and improvements included within the lax parcel assessed, such proportion to be conclusively determined by Lessor from the respective valuations assigned in the assessor's work sheets or such other information as may be reasonably available.
Personal Property Taxes. Lessee shall pay, prior to delinquency, all taxes assessed against and levied upon Lessee Owned Alterations, Utility Installations, Trade Fixtures, fumishings, equipment and all personal property of Lessee When possible, Lessee shall cause its Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Lessor. If any of Lessee's said property shall be assessed with Lessor's real property, Lessee shall pay Lessor the taxes attributable to Lessee's property within 10 days after receipt of a written statement setting forth the taxes applicable lo Lessee's property.
Lessee shall pay for all water, gas, heat, light, power, telephone, trash disposal and other utilities and services Supplied to the Premises, together with any laxes thereon. If any such services are not separately metered or billed to Lessee, Lessee shall pay a reasonable proportion, to be determined by Lessor, of all charges jointly metered or billed. There shail be no abatement of rent and Lessor shall not be liable in any respect whatsoever for the inadequacy, stoppage, interruption or discontinuance of any utility or service due to riot, strike, labor dispute. breakdown, accident, repair or other cause beyond Lessor's reasonable control or in cooperation with govemmental request or directions.
Assignment and Subletting.
Lessor's Consent Required.
operation of law assign, transfer, mortgage or encumber (collectively, "assign or assignment") or sublet all or any part of Lessee's interest in this Lease or in the Premises without Lessor's prior written consent. (b) Unless Lessee is a corporation and its stock is publicly traded on a national stock exchange, a change in the control of Lessee shall constitute an assignment requiring consent. The transfer, on a cumulative basis, of 25% or more of the voling control of Lessee shall constitute a (c) The involvement of Lessee or its assets in any transaction, or series of transactions (by way of merger, sale, acquisition, financing, (ransfer, leveraged buy-out or otherwise), whether or not a formal assignment or hypothecation of this Lease or Lessee's assets occurs. which results or will result in a reduction of the Net Worth of Lessee by an amount greater than 25% of such Net Worth as it was represented at the
INITIALS
62001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STG-14-310E time of the execution of this Lease or at une time of the most recent assignment to which Lessor has consented, or as it exists immediately prior lo said transaction or transactions constitulng such reducuon, whichever was or is grealer, shall be considered an assignment of this Lease to which Lessor may withhold its consent. "Net Worth of Lessee" shall mean the net worth of Lessee (excluding any guarantors) established under generally accepted (d) An assignment or subletting without consent shall, at Lessor's option, be a Default curable after notice per Paragraph 13.1(c), o a noncurable Breach without the necessity of any notice and grace period. If Lessor elects to treat such unapproved assignment or subletting as a noncurable Breach, Lessor may either: (i) terminate this Lease, or (ii) upon 30 days written notice, increase the monthly Base Rent to 110% of the Base Further, in the event of such Breach and rental adjustment, (i) the purchase price of any option to purchase the Premises held by Lessee shall be subject to similar adjustment to 110% of the price previously in effect, and (ii) all fixed and non-fixed rental adjustments scheduled during the remainder of the Lease term shall be increased to 110% of the scheduled adjusled rent. (e) Lessee's remedy for any breach of Paragraph 12.1 by Lessor shall be limited to compensatory damages and/or injunctive relief. (D) Lessor may reasonably withhold consent to a proposed assignment or subletting if Lessee is in Default at the time consent is (g) Notwithstanding the foregoing, allowing a de minimis portion of the Premises, ie. 20 square feet or less, to be used by a third party vendor in connection with the inslallation of a vending machine or payphone shail not constitute a subletting.
12.2 Terms and Conditions Applicable to Assignment and Subletting. (a) Regardless of Lessor's consent, no assignment or subletting shall: (i) be effective without the express wrillen assumplion by such assignee or sublessee of the obligations of Lessee under this Lease, (i) release Lessee of any obligations hereunder, or (iii) alter the primary liability of Lessee for the payment of Rent or for the performance of any other obligations to be performed by Lessee. (b) Lessor may accept Rent or performance of Lessee's obligations from any person other than Lessee pending approval or disapproval of an assignment. Neither a delay in the approval or disapproval of such assignment nor the acceplance of Rent or performance shall constitute a waiver or estoppel of Lessor's right to exercise its remedies for Lessee's Default or Breach. (C) Lessor's consent to any assignment or subletting shall not constute a consent to any subsequent assignment or subletting. d) in the event of any Delault or Breach by Lessee, Lessor may proceed directly against Lessee, any Guarantors or anyone else responsible for the performance of Lessee's obligations under this Lease, including any assignee or sublessee, withoul first exhausting Lessor's remedies against any other person or entty responsible therefor to Lessor, or any security held by Lessor. (e) Each request for consent to an assignment or subletting shall be in writing, accompanied by information relevant to Lessor's de mindid as a to or recidi opiation fe spe remises, lary paine of a prore orderlie or eir or rece Lessee agrees to provide Lessor with such other or additional information and/or documentation as may be reasonably requesled. (See also Paragraph 36)
(1) Any assignee of, or sublessee under, this Lease shall, by reason of accepling such assignment, entering into such sublease, or entering into possession of the Premises or any portion thereof, be deemed to have assumed and agreed to conform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Lessee during the term of said assignment or sublease, other than such obligations as are contrary to or inconsistent with provisions of an assignment or sublease lo which Lessor has specifically consented to in writing. (g) Lessor's consent to any assignment or subletting shall not transfer to the assignee or sublessee any Option granted to the original Lessee by this Lease unless such Iransfer is specifically consented to by Lessor in writing. (See Paragraph 39.2) Additional Terms and Conditions Applicable to Subletting. The following terms and conditions shall apply to any subletting by Lessee of all or any part of the Premises and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's interest in all Rent payable on any sublease, and Lessor may collect such Rent and apply same loward Lessee's obligalions under this Lease; provided, however, that until a Breach shall occur in the performance of Lessee's obligations, Lessee may collect said Rent. In the event that the amount collected by Lessor exceeds Lessee's then outstanding obligations any such excess shall be refunded to Lessee. Lessor shall not, by reason of the foregoing or any assignment of such sublease, nor by reason of the collection of Rent, be deemed liable to the sublessee for any failure of Lessee lo perform and comply with any of Lessee's obligalions to such sublessee. Lessee hereby irrevocably authorizes and directs any such sublessee, upon receipt of a written notice from Lessor staling thal a Breach exists in the performance of Lessee's obligations under this Lease, to pay to Lessor all Rent due and to become due under the sublease. shall rely upon any such notice from Lessor and shall pay all Rents to Lessor wilhout any obligation or right to inquire as to whether such Breach exists, notwithstanding any claim from Lessee to the contrary.
(b) In the event of a Breach by Lessee, Lessor may, at its option, require sublessee to attom to Lessor, in which event Lessor shall undertake the obligations of the sublessor under such sublease from the time of the exercise of said option to the expiration of such sublease: provided however, Lessor shall not be liable for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any prior Defaults or (c) Any matter requiring the consent of the sublessor under a sublease shall also require the consent of Lessor. (d) No sublessee shall further assign or sublet all or any part of the Premises without Lessor's prior written consent. (e) Lessor shall deliver a copy of any notice of Default or Breach by Lessee to the sublessee, who shall have the right to cure the Default of Lessee within the grace period, if any, specified in such notice. The sublessee shall have a right of reimbursement and offset from and against Lessee for any such Defaults cured by the sublessee.
13. Default; Breach; Remedies.
13.1 A "Default" is defned as a failure by the Lessee to comply with or perform any of the terms, covenants, conditions or Rules and Regulations under this Lease. A "Breach" is defined as the occurrence of one or more of the following Defaults, and the failure of Lessee to cure such Default within any applicable grace period:
(a) The abandonment of the Premises; or the vacating of the Premises without providing a commercially reasonable level of security, or where the coverage of the property insurance described in Paragraph 8.3 is jeopardized as a result thereof, or without providing reasonable assurances to minimize potential vandalism.
(b) The failure of Lessee to make any payment of Rent or any Security Deposit required to be made by Lessee hereunder, whether to Lessor or to a third party, when due, to provide reasonable evidence of insurance or surety bond, or to fulfill any obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of 3 business days following written notice to Lessee.
ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF RENT OR SECURITY DEPOSIT SHALL NOT CONSTITUTE A WAIVER OF ANY OF LESSOR'S RIGHTS, INCLUDING LESSOR'S RIGHT TO RECOVER POSSESSION OF THE PREMISES. ) The failure of Lessee to allow Lessor and/or its agents access to the Premises or the commission of waste act or ac nsütuting public or privale nuisance, and/or an illegal activity on the Premises by Lessee, where such actions continue for a period of 3 business da following written notice to Lessee.
(d) The failure by Lessee to provide (i) reasonable written evidence of compliance with Applicable Requirements, fil the service contracis, (iil) the rescission of an unauthorized assignment or sublelting, (iv) an Estoppel Certificate or financial statements, (v) a requested subordination, (vi) evidence conceming any guaranty and/or Guarantor, (vil) any document requested under Paragraph 42, (vili) material safety data sheets (MSDS), or (ix) any other documentation or information which Lessor may reasonably require of Lessee under the lerms of this Lease, where any such failure continues for a period of 10 days following written nolice to Lessee. (e) A Default by Lessee as to the terms, covenants, conditions or provisions of this Lease, or of the rules adopted under Paragraph 40 hereof, other than those described in subparagraphs 13.1(a), (b). (c) or (d), above, where such Default continues for a period of 30 days afler written notice: provided, however, thal if the nature of Lessee's Default is such that more than 30 days are reasonably required for its cure, then it shall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereafter diligently prosecutes such cure lo completion. (f) The occurrence of any of the following events: (i) the making of any general arrangement or assignment for the benefit of creditors: (ii) becoming a "debtor" as defined in 11 U.S.C. §101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within 60 days); (iii) the appointment of a trustee or receiver to lake possession of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where possession is not restored to Lessee within 30 days; or (iv) the attachment, execulion or other judicial seizure of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where such seizure is not discharged within 30 days; provided, however, in the event that any provision of this subparagraph (e) is contrary to any applicable law, such provision shall be of no force or effect, and not affect the validity of the remaining provisions. (g) The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially false. (h) If the performance of Lessee's obligations under this Lease is guaranteed: (i) the death of a Guarantor, (il) the termination of a Guarantor's liability with respect to this Lease other than in accordance with the terms of such guaranty, (ili) a Guarantor's becoming insolvent or the subject of a bankruptcy filing, (iv) a Guarantor's refusal lo honor the guaranty, or (v) a Guarantor's breach of its guaranty obligation on an anticipatory basis, and Lessee's failure, within 60 days following written notice of any such event, to provide written alternative assurance or security, which, when coupled with the then existing resources of Lessee, equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at BRAi PAGE 8 OF 13
INITIALS
©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STS ISSHOE If Lessee fails to perform any of its affirmative duties or obligations, within 10 days after written notice (or in case of an emergency, without nolice), Lessor may, at its option, perform such duty or obligation on Lessee's behalf, including but not limited to the obtaining of reasonably required bonds, insurance policies, or govermental licenses, permits or approvals. Lessee shall pay to Lessor an amount equal to 115% of the costs and expenses incurred by Lessor in such performance upon receipt of an invoice therefor. In the event of a Breach, Lessor may, with or without further notice or demand, and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such Breach:
(a) Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession to Lessor. In such event Lessor shall be entilled to recover from Lessee: (i) the unpaid Rent which had been eamed at the time of termination; (i) the worth at the time of award of the amount by which the unpaid rent which would have been eamed after termination until the time of award exceeds the amount of such rental loss that the Lessee proves could have been reasonably avoided; (iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the lime of award exceeds the amount of such rental loss that the Lessee proves could be reasonably avoided; and (iv) any other amount necessary lo compensate Lessor for all the detriment proximately caused by the Lessee's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including but not limited to the cost of recovering possession of the Premises, expenses of reletting, including necessary renovation and alteration of the Premises. reasonable attomeys' fees, and that portion of any leasing commission paid by Lessor in connection with this Lease applicable lo the unexpired term of The worth at the time of award of the amount referred to in provision iii) of the immediately preceding sentence shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of the District within which the Premises are located at the time of award Efforts by Lessor to mitigate damages caused by Lessee's Breach of this Lease shall not waive Lessor's right to recover damages under Paragraph 12. If lermination of this Lease is obtained through the provisional remedy of unlawful detainer, Lessor shall have the right to recover in such proceeding any unpaid Rent and damages as are recoverable therein, or Lessor may reserve the right to recover all or any part thereof in a separale suit. If a notice and grace period required under Paragraph 13.1 was not previously given, a notice to pay rent or quit, or to perform or quit given to Lessee under the unlawful detainer statute shall also constitule the notice required by Paragraph 13.1. In such case, the applicable grace period required by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and the failure of Lessee to cure the Defaull within the greater of the two such grace periods shall constitute both an unlawful detainer and a Breach of this Lease entitling Lessor to the remedies provided for (b) Continue the Lease and Lessee's right to possession and recover the Rent as it becomes due, in which event Lessee may sublet or assign, subject only to reasonable limitations. Acts of maintenance, efforts to relet, and/or the appointment of a receiver to protect the Lessor's interests, shall not constitule a termination of the Lessee's right to possession. (c) Pursue any other remedy now or hereafter available under the laws or judicial decisions of the state wherein the Premises are located. The expiration or termination of this Lease and/or the termination of Lessee's right to possession shall not relieve Lessee from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the term hereof or by reason of Lessee's occupancy of the Premises. inducement Recapture. Any agreement for free or abated rent or other charges, or for the giving or paying by Lessor to or for Lessee of any cash or other bonus, inducement or consideration for Lessee's entering into this Lease, all of which concessions are hereinafter referred to as "Inducement Provisions," shall be deemed conditioned upon Lessee's full and faithful performance of all of the terms, covenants and conditions of this Lease. Upon Breach of this Lease by Lessee, any such Inducement Provision shall automatically be deemed deleled from this Lease and of no further force or effect, and any rent, other charge, bonus, inducement or consideration heretofore abated, given or paid by Lessor under such an inducement Provision shall be immediately due and payable by Lessee to Lessor, notwithstanding any subsequent cure of said Breach by Lessee. acceptance by Lessor of rent or the cure of the Breach which initiated the operation of this paragraph shall not be deemed a waiver by Lessor of the provisions of this paragraph unless specifically so slated in wriling by Lessor at the time of such acceptance.
Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, bul are not limited to, processing and accounting charges, and late charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent shall not be received by Lessor within 5 days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall immediately pay to Lessor a one-time late charge equal to 10% of each such overdue amount or $100, whichever is greater. The Parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Lessor will incur by reason of such late payment. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee's Default or Breach with respect lo such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for 3 consecutive installments of Base Rent, then notwithstanding any provision of this Lease to the contrary, Base Rent shall, at Lessor's option, become due and payable quarterly in advance.
Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due as to scheduled payments (such as Base Rent) or within 30 days following the date on which it was due for non-scheduled payment, shall bear interest from the date when due, as to scheduled payments, or the 31st day after it was due as to non-scheduled payments. The interest ("Interest") charged shall be compuled at the rate of 10% per annum but shall not exceed the maximum rale allowed by law. Interest is payable in addition to the potential late (a) Notice of Breach. Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable time to perfom an obligation required to be performed by Lessor. For purposes of this Paragraph, a reasonable time shall in no event be less than 30 days after receipt by Lessor, and any Lender whose name and address shall have been fumished Lessee in writing for such purpose, of written notice specifying wherein such obligation of Lessor has not been performed: provided, however, that if the nature of Lessor's obligation is such that more than 30 days are reasonably required for its performance, then Lessor shall not be in breach if performance is commenced within such 30 day period and thereafier (b) Performance by Lessee on Behalf of Lessor. In the event that neither Lessor nor Lender cures said breach within 30 days after receipt of said notice, or if having commenced said cure they do not diligently pursue it lo completion, then Lessee may elect to cure said breach at Lessee's expense and offset from Rent the actual and reasonable cost lo perform such cure, provided however, that such offset shall not exceed an amount equal to the greater of one month's Base Rent or the Security Deposit, reserving Lessee's right lo seek reimbursement from Lessor for any such expense in excess of such offset. Lessee shall document the cost of said cure and supply said documentation to Lessor.
Condemnation. If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collectively "Condemnation), this Lease shall terminate as to the part taken as of the dale the condemning authority takes title or possession, whichever first occurs. If more than 10% of the Building, or more than 25% of that portion of the Premises not occupied by any building, is taken by Condemnation. Lessee may, al Lessee's option, to be exercised in writing within 10 days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within 10 days after the condemning authority shall have taken possession) lerminate this Lease as of the date the condemning authority lakes such possession. If Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as lo the portion of the Premises remaining, except that the Base Rent shall be reduced in proportion to the reduction in utility of the Premises caused by such Condemnation. Condemnation awards and/or payments shall be the property of Lessor, whether such award shall be made as compensation for diminution in value of the leasehold, the value of the part taken, or for severance damages; provided, however, that Lessee shall be entilled to any compensation paid by the condemnor for Lessee's relocation expenses, loss of business goodwill and/or Trade Fixtures. without regard to whether or not this Lease is terminated pursuant to the provisions of this Paragraph. All Alterations and Utility Installations made to the Premises by Lessee, for purposes of Condemnation only, shall be considered the property of the Lessee and Lessee shall be entitled to any and all compensation which is payable therefor. In the event that this Lease is not terminated by reason of the Condemnation, Lessor shall repair any damage to the Premises caused by such Condemnation.
Additional Commission. If a separate brokerage fee agreement is attached then in addition to the payments owed pursuant to and unless Lessor and the Brokers otherwise agree in writing, Lessor agrees that: (a) if Lessee exercises any Option, (b) if Lessee or anyone affliated with Lessee acquires any rights to the Premises or other premises owned by Lessor and located within the same Project, if any, within which the Premises is located, (c) if Lessee remains in possession of the Premises, with the consent of Lessor, after the expiration of this Lease, or (d) if Base Rent is increased, whether by agreement or operation of an escalation clause herein, then, accordance with the schedule altached to such brokerage fee agreement.
Assumption of Obligations. Any buyer or transferee of Lessor's interest in this Lease shall be deemed to have assumed Lessor's obligation hereunder. Brokers shall be third party beneficiaries of the provisions of Paragraphs 1.9, 15, 22 and 31. If Lessor fails to pay to Brokers any amounts due as and for brokerage fees pertaining to this Lease when due, then such amounts shall accrue Interest. In addition, if Lessor fails to pay any amounts to Lessee's Broker when due, Lessee's Broker may send written notice to Lessor and Lessee of such failure and if Lessor fails to pay such amounts within 10 days after said notice, Lessee shall pay said monies 1o its Broker and offset such amounts against Rent. In addition, Lessee's Broker shall be deemed to be a third party beneficiary of any commission agreement entered into by and/or between Lessor and Lessor's Broker for the limited purpose of collecting any brokerage fee owed.
15.3 Representations and Indemnities of Broker Relationships. Lessee and Lessor each represent and warrant to the other that it PAGE 9 OF 13
INITIALS
©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STG:T7-3/10E has had no dealings with any person, till broker or finder (other than the Brokers, if any) in connection with this Lease, and that no one other than said named Brokers is entilled to any commission or finder's fee in connection herewith. Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold the other harmless from and against liability for compensation or charges which may be claimed by any such unnamed broker, finder or olher similar party by reason of any dealings or actions of the indemnifying Party, including any costs, expenses, attomeys' fees reasonably incurred with respect thereto.
16. (a) Each Party (as "Responding Party") shall within 10 days after written nolice from the other Party (the "Requesting Party") execute, acknowledge and deliver to the Requesting Party a statement in writing in form similar to the then most current "Estoppel Certificate" for published by the AIR Commercial Real Estate Association, plus such additional information, confirmation and/or statements as may be reasonably requested by the Requesting Party.
(b) If the Responding Party shall fail to execute or deliver the Estoppel Certificate within such 10 day period, the Requesting Party may execute an Estoppel Certificate stating thal: (i) the Lease is in full force and effect without modification except as may be represented by the Requesting Party, (ii) there are no uncured defaults in the Requesting Party's performance, and (iii) if Lessor is the Requesting Party, not more than one month's rent has been paid in advance. Prospective purchasers and encumbrancers may rely upon the Requesting Party's Estoppel Certificate, and the Responding Party shall be estopped from denying the truth of the facts contained in said Certificate. (c) If Lessor desires to finance, refinance, or sell the Premises, or any part thereof, Lessee and all Guarantors shall within 10 days after writen notice from Lessor deliver to any potential lender or purchaser designated by Lessor such financial statements as may be reasonably required by such lender or purchaser, including but not limited to Lessee's financlai statements for the past 3 years. be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.
17. Definition of Lessor. The term "Lessor" as used herein shall mean the owner or owners at the time in question of the fee tille to the Premises, or, it this is a sublease, of the Lessee's interest in the prior lease. In the event of a transfer of Lessor's title or interest in the Premises or this Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligations and/or covenants under this Lease thereafter to be performed by the Lessor. Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by the Lessor shall be binding only upon the Lessor as hereinabove defined.
18. The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.
Days. Unless otherwise specifically indicaled to the contrary, the word "days" as used in this Lease shall mean and refer to calendar days.
The obligations of Lessor under this Lease shall not constitute personal obligations of Lessor or its partners. members, directors, officers or shareholders, and Lessee shall look to the Premises, and to no other assets of Lessor, for the satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse against Lessor's partners, members, directors, officers or shareholders, or any of their Time of Essence. Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under No Prior or Other Agreements; Broker Disclaimer. This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective. Lessor and Lessee each represents and warrants to the Brokers that it has made, and is relying solely upon, its own investigation as to the nature, quality, character and financial responsibility of the other Party to this Lease and as to the use, nature, quality and character of the Premises. Brokers have no responsibility with respect thereto or with respect lo any default or breach hereof by either Party.
Notice Requirements. All notices required or permitted by this Lease or applicable law shall be in wriling and may be delivered in person (by hand or by courier) or may be sent by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile transmission, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23.
Party's signature on this Lease shall be that Party's address for delivery or mailing of notices. Either Party may by written notice lo the other specify a different address for notice, except that upon Lessee's taking possession of the Premises, the Premises shall constitute Lessee's address for notice. A copy of all notices to Lessor shall be concurrently transmitted to such party or parties at such addresses as Lessor may from time lo time hereafter designate in writing.
Any nolice sent by registered or certified mail, retum receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail the notice shall be deemed given 72 hours afler the same is addressed as required herein and mailed with poslage prepaid. Notices delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given 24 hours after delivery of the same to the Poslal Service or courier. transmitted by facsimile transmission or similar means shall be deemed delivered upon telephone confirmation of receipt (confirmation report from fax machine is sufficient), provided a copy is also delivered via delivery or mail. If nolice is received on a Salurday, Sunday or legal holiday, it shall be deemed received on the next business day.
24. Waivers.
No waiver by Lessor of the Default or Breach of any term, covenant or condition hereof by Lessee, shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or Breach by Lessee of the same or of any other term, covenant or Lessor's consent lo, or approval of, any act shall not be deemed to render unnecessary the obtaining of Lessor's consent to, or approval of, any subsequent or similar act by Lessee, or be consirued as the basis of an esloppel to enforce the provision or provisions of this Lease The acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. may be accepted by Lessor on account of moneys or damages due Lessor, notwithstanding any qualifying statements or conditions made by Lessee in connection therewith, which such statements and/or conditions shall be of no force or effect whatsoever unless specifically agreed to in writing by Lessor al or before the time of deposil of such payment.
THE PARTIES AGREE THAT THE TERMS OF THIS LEASE SHALL GOVERN WITH REGARD TO ALL MATTERS
RELATED THERETO AND HEREBY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT THAT SUCH STATUTE IS INCONSISTENT WITH THIS LEASE.
Disclosures Regarding The Nature of a Real Estate Agency Relationship. en entenng into a discussion with a real estate agent regarding a real estate transaction, a Lessor or Lessee shou m the outsel understand whal type of agency relationshio or representation it has with the agent or agents in the transaction. Lessor and Less acknowledge being advised by the Brokers in this transaction, as follows:
Lessor's Agent. A Lessors agent under a listing agreement with the Lessor acts as the agent for the Lessor only. A Lessor's agent or subagent has the following affimative obligations: Io the Lessor. A fiduciary duty of utmost care, integrity, honesty, and Io the Lessee and the lessor: a. Diligent exercise of reasonable skills and care in performance of the agent's duties. b. A duty of honest and fair dealing and good faith. c. A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not knowm to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above.
Lessee's Agent. An agent can agree to act as agent for the Lessee only. In these situations, the agent is not the Lessor's agent, even if by agreement the agent may receive compensation for services rendered, either in full or in part from the Lessor. acting only for a Lessee has the following affirmative obligations. To the Lessee: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessee. Io the Lessee and the Lessor: a. Diligent exercise of reasonable skills and care in performance of the agent's duties. b A duty of honest and fair dealing and good faith. C. A duty lo disclose all facls known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information oblained from the other Party which does not involve the affimative duties set forth above.
Agent Representing Both Lessor and Lessee. A real estate agent, either acting directly or through one or more associate licenses, can legally be the agent of both the Lessor and the Lessee in a transaction, but only with the knowledge and consent of both the Lessor and the Lessee. In a dual agency situation, the agent has the following affirmative obligations to both the Lessor and the Lessee: a. A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either Lessor or the Lessee. b. Other duties to the Lessor and the Lessee as stated above in subparagraphs (i) or (i). In representing both Lessor and Lessee, the agent may not without the express permission of the respective Party, disclose to the other Party that the Lessor will accept rent in an amount less than that indicated in the listing or that the Lessee is willing to pay a higher rent than that offered. The above duties of the agent in a real estate transaction do not relieve a Lessor or Lessee from the responsibility to protect their own interesis. Lessor and Lessee should carefully read all agreements to assure that they adequately express their understanding of the A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional.
INITIALS
©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM S 10-14-3/10E Brokers nave no responsibiity with respect to any default or breach hereof by einer Party. The Parties agree that no lawsuit or other legal proceeding involving any breach of duty, error or omission relating to this Lease may be brought against Broker more than one year after the Start Date and that the lability (including court coss and altomeys" fees), of any Broker with respect to any such lawsuit and/or legal proceeding shall not exceed the fee received by such Broker pursuant to this Lease: provided, however, that the foregoing limitation on each Broker's lability shall not be applicable to any gross negligence or willful misconduct of such Broker.
Lessor and Lessee agree to identify lo Brokers as "Confidential" any communication or information given Brokers that is considered by such Party to be confidential.
Lessee has no right to relain possession of the Premises or any part thereof beyond the expiration or termination of this Lease. In the event that Lessee holds over, then the Base Rent shall be increased to 150% of the Base Rent applicable immediately preceding the expiration or termination. Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
28. Covenants and Conditions; Construction of Agreement All provisions of this Lease to be observed or performed by Lessee are both covenants and condilions. In construing this Lease. all headings and tilles are for the convenience of the Parlies only and shall not be considered a part of this Lease. Whenever required by the context, the singular shall include the plural and vice versa. This Lease shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.
29. Binding Effect; Choice of Law. This Lease shall be binding upon the Parties, their personal representatives, successors and assigns and be governed by the laws of the State in which the Premises are localed. Any litigation belween the Parties hereto conceming this Lease shall be iniliated in the county in which the Premises are located.
30. Subordination; Attomment; Non-Disturbance.
30.1 Subordination. This Lease and any Option granted hereby shall be subject and subordinate to any ground lease, mortgage, deed of trust, or other hypothecation or security device (collectively, "Security Device"), now or hereafter placed upon the Premises, to any and all advances made on the security thereof, and lo all renewals, modifications, and extensions thereof. Lessee agrees that the holders of any such Security Devices (in this Lease together referred to as "Lender") shall have no lability or obligation to perform any of the obligations of Lessor under this Lease. Any Lender may elect to have this Lease and/or any Option granted hereby superior lo the lien of its Security Device by giving written notice thereof to Lessee. whereupon this Lease and such Options shall be deemed prior lo such Security Device, notwithslanding the relative dates of the documentation or recordation thereof.
30.2 Attomment. In the event that Lessor transfers lite to the Premises, or the Premises are acquired by another upon the foreclosure or termination of a Security Devise to which this Lease is subordinated (i) Lessee shall, subject to the non-disturbance provisions of Paragraph 30.3, attom to such new owner, and upon requesi, enter into a new lease, conlaining all of the terms and provisions of this Lease, with such new owner for the remainder of the term hereof, or, al the election of the new owner, this Lease will automatically become a new lease between Lessee and such new owner, and (ii) Lessor shall thereafter be relieved of any further obligations hereunder and such new owner shall assume all of Lessor's obligations, except thal such new owner shall not: (a) be liable for any act or omission of any prior lessor or with respect to events occurring prior lo acquisition of ownership: (b) be subject to any offsets or defenses which Lessee might have against any prior lessor, (c) be bound by prepayment of more than one month's rent, or (d) be liable for the retum of any security deposit paid lo any prior lessor which was not paid or credited to such new owner.
With respect to Security Devices entered into by Lessor afler the execution of this Lease, Lessee's subordination of this Lease shall be subject lo receiving a commercially reasonable non-disturbance agreement (a "Non-Disturbance Agreement") from the Lender which Non-Disturbance Agreement provides that Lessee's possession of the Premises, and this Lease, including any options to extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and altors to the record owner of the Premises. days after the execution of this Lease, Lessor shall, if requested by Lessee, use its commercially reasonable efforts lo obtain a Non-Disturbance Agreement from the holder of any pre-existing Security Device which is secured by the Premises. In the event that Lessor is unable to provide the Non-Disturbance Agreement within said 60 days, then Lessee may, al Lessee's oplion, direciy contact Lender and altempt to negotiate for the execution and delivery of a Non-Disturbance Agreement.
The agreements contained in this Paragraph 30 shall be effective wilhout the execution of any further documents; provided, however, that, upon written request from Lessor or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and Lessor shall execule such further writings as may be reasonably required lo separately document any subordinalion, attomment and/or Non-Disturbance Agreement provided for herein.
Attomeys' Fees. If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or lo declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entilled lo reasonable altomeys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, "Prevalling Party" shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense.
The atomeys' fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all altomeys' fees reasonably incurred. in addition, Lessor shall be entitled to altomeys fees, costs and expenses incured in the preparation and service of notices of Default and consultalions in connection therewith, whether or nol a legal action is subsequentły commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation). 32 Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents shall have the right to enter the Premises at any lime, in the case of an emergency, and otherwise at reasonable times after reasonable prior notice for the purpose of showing the same to prospective purchasers. lenders, or tenants, and making such alterations, repairs, improvements or additions to the Premises as Lessor may deem necessary or desirable and the erecling, using and maintaining of utilities, services, pipes and conduits through the Premises and/or other premises as long as there is no material adverse effect to Lessee's use of the Premises. All such activities shall be withoul abatement of rent or liability to Lessee.
33. Lessee shall not conduct, nor permit to be conducted, any auction upon the Premises without Lessors prior writen consent.
Lessor shall not be obligated to exercise any standard of reasonableness in delermining whether to permit an auction.
34. Lessor may place on the Premises ordinary "For Sale" signs al any time and ordinary "For Lease" signs during the last 6 months of the term hereof. Except for ordinary "for sublease" signs, Lessee shall not place any sign upon the Premises without Lessor's prior written consent. All signs must comply with all Applicable Requirements.
35. Termination; Merger. Unless specifically stated otherwise in writing by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual termination or cancellation hereof, or a termination hereof by Lessor for Breach by Lessee, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, that Lessor may elect to continue any one or all existing subtenancies. Lessor's failure within 10 days following any such event to elect to the contrary by written notice to the holder of any such lesser interest, shall constitute Lessors election to have such event constilule the termination of such interest.
36. Except as otherwise provided herein, wherever in this Lease the consent of a Party is required to an act by or for the other Party, such consent shall not be unreasonably withheld or delayed. Lessor's actual reasonable costs and expenses (including but not limited to architects". altomeys', engineers" and other consultants' fees) incurred in the consideration of, or response to, a request by Lessee for any Lessor consent, including but not limited to consents to an assignment, a subletting or the presence or use of a Hazardaus Substance, shall be paid by Lessee upon receipt of an invoice and supporting documentation therefor. Lessor's consent to any act, assignment or subletting shall not constitute an acknowedgment that no Default or Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then existing Default or Breach, except as may be othervise specifically stated in writing by Lessor at the time of such consent. The failure lo specify herein any particular condition to Lessor's consent shall not preciude the imposition by Lessor at the lime of consent of such further or other conditions as are then reasonable with reference to the particular matter for which consent is being given. In the event that ether Party disagrees with any determination made by the other hereunder and reasonably requests the reasons for such delermination, the determining party shall fumish its reasons in writing and in reasonable detail within 10 business days following such request.
Execution. The Guarantors, if any, shall each execute a guaranty in the form most recently published by the AIR Commercial Real Default. It shall constitute a Default of the Lessee if any Guarantor fails or refuses, upon request lo provide: (a) evidence of the execution of the guaranty. including the authority of the party signing on Guarantors behalf to obligate Guarantor, and in the case of a corporate Guarantor, a certified copy of a resolution of its board of directors authorizing the making of such guaranty, (b) current financial statements. (c) an Estoppel Certificate, or (d) written confirmation that the guaranty is still in effect.
Subject to payment by Lessee of the Rent and performance of all of the covenants, conditions and provisions on Lessee's part lo be observed and performed under this Lease, Lessee shall have quiet possession and quiel enjoyment of the Premises during the term Options. If-Lessee is-granted an Oplien, as defined below, then the fellowing provisions chall apply; QAyy PAGE 11 OF 13
INITIALS INIT
©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM SFC.14J/0E
38.1 Dofinition, "Optien" chall-mean: (a)-the right to extend or reduce the tom of or-renew this Lease or to extend or reduce the tomm of or renew any lease thal Lessee has on other property of Lessor, (b) the right of firct refucal of first effer to lease eilhor the Premises of olher property ef Lessor: (6) the right-to purchace, the right of frot offer to purchase or the right of first refugal to purchase the Premices or other property of Lesser.
38.2 Options Personal To Original Loscoe. Any Oplion granted to LoG600 in thic Lease is personal-to-ihe original Legsee, and cannot be assigned or exerciced by anyone-olher-than caid original Lessee-and-only while the original Lessee is in full pocescion of the Promisor and, if requested by 40660r, wilh 106680 certifing that Lessee has no intention of thereafter assigning or subletting.
30.3- -Multiple Options. In the event thai tessee has-any multiple Options-le extend or renew this Lease, a later Option cannot be exercised unless the prier Oplions have been validly exercised.
38.4 Effect of Default-on Options.
(a) Lessee shall have no right to exercise an Option: (1) during the period commencing with the giving-of any nolice of Dolault and continuing until said Default-is-cured, (i) during the peried of time-any Ront is unpaid (without regard to whether notice thereo/ 16 given LeGsee), (#) during the lime Lessee is in Breach of this Lease, or (iv) in the avent that Loscoo-hat been given 3 of more notices of separato Default, whether or not tho Defaults-are cured, during the 12 month period immediately preceding the exercice of tho Option. (b) The peried of time within which an Optien may be exercised chall not be extended or enlarged by reason of Lossee's inability to exercise-an-Oplion because of the provisions of Paragraph 30.4(a). (6) An Oplion shall terminate-and bo of no further force or eflect, notwithclanding Lessee's due and timely exercisa of the Option, it:
after cuch exercico and prior to the commencement of the-extended term or completion of the purchase, (i) Lessee fails to pay Rent for a period of 30 days-after-such Rent becomes-due (without any nacessity of Lessor to give nolice thereof), or (ii) if Legsee commite a Breach of this Lease.
40. Multiple Buildings. If the Premises are a part of a group of buildings controlled by Lessor, Lessee agrees that it will abide by and conform to all reasonable rules and regulations which Lessor may make from time to time for the management, safety, and care of said properties, including the care and cleanliness of the grounds and including the parking, loading and unloading of vehicles, and to cause its employees, suppliers, shippers. customers, contractors and invilees to so abide and conform. Lessee also agrees to pay its fair share of common expenses incurred in connection with such rules and regulations.
41. Security Measures. Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other security measures, and that Lessor shall have no obligation whalsoever lo provide same. Lessee assumes all responsibility for the protection of the Premises, Lessee, its agents and invitees and their property from the acts of third parties.
42. Reservations. Lessor reserves to itself the right, from time to time. to grant, wilhout the consent or joinder of Lessee, such easements, nights and dedications that Lessor deems necessary, and to cause the recordation of parcel maps and restrictions, so long as such easements, rights, dedications, maps and restrictions do nol unreasonably interfere with the use of the Premises by Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to effectuate any such easement rights, dedication, map or restrictions.
43. Performance Under Protest. If al any time a dispute shall arise as to any amount or sum of money to be paid by one Party to the other under the provisions hereof, the Party against whom the obligation to pay the money is asserted shall have the right to make payment "under protest" and such payment shall not be regarded as a voluntary payment and there shall survive the right on the part of said Party to institute suit for recovery of such sum. if it shall be adjudged that there was no legal obligation on the part of said Party to pay such sum or any part thereof, said Party shall be entitled to recover such sum or so much thereof as il was not legally required to pay. A Party who does not initiate suit for the recovery of sums paid "under protest" within 6 months shall be deemed to have waived its right to protest such payment.
44. Authority; Multiple Parties; Execution.
If either Party hereto is a corporation, trust, limited liability company. partnership, or similar entity, each individual executing this Lease on behalf of such entity represents and warrants that he or she is duty authorized to execute and deliver this Lease on its behalf.
Each Party shall, within 30 days after request, deliver to the other Party satisfactory evidence of such authority.
If this Lease is executed by more than one person or entity as "Lessee", each such person or entity shall be jointly and severally liable hereunder. It is agreed that any one of the named Lessees shall be empowered lo execute any amendment to this Lease, or other document ancillary thereto and bind all of the named Lessees, and Lessor may rely on the same as if all of the named Lessees had executed such document.
This Lease may be executed by the Parties in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
45. Any conflict between the printed provisions of this Lease and typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions.
46. Offer. Preparation of this Lease by either Party or their agent and submission of same to the other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended to be binding until executed and delivered by all Parties hereto.
Amendments. This Lease may be modified only in writing, signed by the Parties in interest al the time of the modification. As long as they do not materially change Lessee's obligations hereunder, Lessee agrees to make such reasonable non-monetary modifications to this Lease as may be reasonably required by a Lender in connection with the obtaining of normal financing or refinancing of the Premises.
THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT.
49. Arbitration of Disputes. An Addendum requiring the Arbilration of dispules between the Parties and/or Brokers arising out of this Lease O is @ is not attached to this Lease.
50. Americans with Disabilitles Act. Since compliance with the Americans with Disabilities Act (ADA) is dependent upon Lessee's specific use of the Premises, Lessor makes no warranty or representation as to whether or not the Premises comply with ADA or any similar legislation. In the event that Lessee's use of the Premises requires modifications or additions to the Premises in order to be in ADA compliance, Lessee agrees to make any such necessary modifications and/or additions at Lessee's expense.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO.
THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AIR COMMERCIAL REAL ESTATE ASSOCIATION OR BY ANY
BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH PAGE 12 OF 13
INITIALS INIT
©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STG1A210E The parties hereto have executed this Lease at the place and on the dales specified above their respective signatures.
Executed at: Executed at: Kupon Us
On: Оп: 101812
By LESSOR: By LESSEE:
City of Ripon Jennifer Komatsu, a married woman, dba
The Natural Wellness Center
Bda2n/5l mass
By: By:
Name Printed: Elden R. Nutt Name Conted Jennifer Komatsu Tile: Mayor Tite:
By: By:
Name Printed: Name Printed:
Tille: Title:
Address: 949 John Roos Avenue, Ripon, CA 95366
Address: 259 N. Wilma Avenue, Ripon, CA 95366
Telephone: (209) 595-6620
Telephone: (209) 599-2108 Facsimile: (
Facsimile: (209) 599-2685 Email:
Email: Email:
Email: Federal ID No
Federal ID No.
BROKER: BROKER:
Brekke Real Estate, Inc., a California S None
corporation
All: Randall G. Brekke Att:
Title: President Title:
Address: 1500 Standiford Avenue, Building D Address:
Modesto, California 95350
Telephone:(209)_571-7230 Telephone: (
Facsimile: (209)_529-0538 Facsimile:(
Email: [email protected] Email:
Federal ID No. Federal ID No.
Broker/Agent DRE License #: 01208688 Broker/Agent DRE License #:
Telephone No. (213) 687-8777. Fax No.: (213) 687-8616
Daug PAGE 13 OF 13
INITIALS INHALS
©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STG-14/3/10E AIR
ADDENDUM
Date: October 11, 2012
By and Between (Lessor) city of Ripon
(Lessee) Jennifer Komatsu, a married woman, dba The Natural Path Wellness Center
Address of Premises: 303 W. Main Street, Ripon, California 95366 Paragraph 51 - 53
In the event of any conflict between the provisions of this Addendum and the printed provisions of the Lease, this Addendum shall control.
51. LESSOR'S WORK: Lessor, at its sole expense, shall perform the following work in the Premises prior to delivery of the Premises to Lessee:
(a) Inspect, service and repair (If needed) existing heating and air conditioning system to ensure good working condition;
(b) Electrical outlets, switches, ballasts and bulbs shall be in good working condition. Replace any damaged or missing outlets, bulbs or ballast;
(C) Replace damaged or stained ceiling tiles and ensure Premises is free of roof leaks. Repair any damage or holes to the hard lid ceiling; and
(d) Lessor shall repair the building fascia as needed.
52. LESSEE'S WORK WITH REIMBURSEMENT CREDIT:
The following work as stated in items 52 (a) through (d) below ("Lessee's Work") shall be completed at Lessee's sole expense and prior to Lessee first opening for business in the Premises; however, upon completion of the items Lessee shall receive a credit towards the costs of Lessee's Work in the form of free Base Rent for the fond ten (lo months of to lease ta re Rept rate or to cited rent on and at al costs incurred for Lessee's Work, receipted invoices showing payment(s) thereof and final lien waivers from all contractors, subcontractors and suppliers on all items as stated below. (a) Storefront windows shall be cleaned on the interior and exterior; (b) Paint all interior wall surfaces in Premises with latex paint in an eggshell finish, color to be selected by Lessee and approved, prior to purchase and start of work, by Lessor; (a) Paint the entire exterior of the building in color to be selected by Lessee and approved, prior to purchase and start of work, by Lessor; and
(d) Install new floor covering throughout the Premises in a material(s), finish(es) and color (s) to be selected by Lessee and approved, prior to purchase and installation, by Lessor.
CAN PAGE 1 OF 2
INITIALS
52.1. LESSEE'S EXCLUSIYE WORK (NOT SUBJECT TO REIMBURSEMENT CREDIT):
Lessee, at its sole expense, shall perform the following work:
(a) Lessee shall be responsible for all Interior wall replacement or additions, and all modifications to lighting, electrical, heating/air conditioning, plumbing, suspended ceiling and kitchen facilities. All alterations to be performed by Lessee shall be approved in advance and in writing by Lessor and completed lien-free and in accordance with all applicable building codes. The Lessee shall be responsible for any and all permit fees (b) Lessee shall have the right to use the existing sign cans on the fascia of building and just replace the faces thereof (no sign permit required by City of Ripon) OR if the Lessee elects not to use the existing sign cans, then Lessee, at its sole expense, shall remove the existing signs and replace with new signs of its choice. (c) Lessee shall responsible for submitting plans and obtaining a building permit for any additional work performed to the Premises. Such work shall be completed lien-free by a license and insured contractor. Prior to the commencement of any such additional work, said contractor shall provide Lessor with evidence of its insurance and shall name the City of Ripon as additional insured thereunder.
53. ASSIGNMENT & SUBLETING: Notwithstanding anything to the contrary stated in Paragraph 12.1 (Assignment & Subletting - Lessor's Consent Required), Lessee shall have the right to sublease the individual rooms within the Premises to treatment providers such as a massage therapist, aesthetician, acupuncturist, NLP practitioner, hydro colon therapist, yoga instructor, nutritionist, chiropractor, holistic health practitioner, etc. without obtaining Lessor's prior written consent, however, Lessee shall provide Lessor in advance with a copy of each and every sublease together with each person's contact information which shall be updated from time to time as needed.
PAGE 2 OF 2
INITIALS
AIR
COMMENCEMENT DATE MEMORANDUM
AIR Commercial Real Estate Association
By and Between (Lessor): City of Ripon
And (Lessee): Jennifer Konatsu, a married woman, dba The Natural Path Wellness Center
Address of Premises: 303 W. Main Street, Ripon, California THIS MEMORANDUM, made as of October 22, 2012 _by and between City of Ripon ("Lessor") and Jennifer Komatsu, a married woman, dba The Natural Path wellness Center ('Lessee").
Recitals:
Lessor and Lessee are parties to that certain Lease, dated for reference purposes October 11, 2012 (the "Lease") for certain premises (the "Premises") commonly known as 303 W. Main Street in Ripon, California Lessee is now in possession of the Premises and the Term of the Lease has commenced Lessor and Lessee desire to enter into this Memorandum confirming the Commencement Date, the Termination Date and other matters under the Lease.
NOW. THEREFORE, Lessor and Lessee agree as follows:
1. The actual Commencement Date is November 1, 2012
2. The actual Expiration Date is August 31, 2018
The Base Rent shall be adjusted on the dates indicated as follows: September 1, 2015; September 1, 2016 and September 1, 2017. Lessee's obligation to pay Base Rent shall commence on September 1, 2013. Lessee has paid Base Rent for September 2013 in advance and at lease signing. Lessee's next Base Rent payment shall be due. on October 1, 2013. (strike if not applicable) Other: Lessee may have non exclusive possession of the Premises commencing October 22, 2012. (strike if not applicable)
5. Capitalized terms not defined herein shall have the same meaning as set forth in the Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written.
By LESSOR: By LESSEE:
City of Ripon Jennifer Komatsu, a married woman, dba The Natural Path Wellnges Center
mad
By:
Name Printed: Elden R. Name Pricka Jennifer Komatsu
Title: Mayor Title:
By:
Name Printed: Name Printed:
Title: Title:
Address: 259 N. Wilma Avenue, Ripon, CA 95366 Address: 949 John Roos Avenue, Ripon, CA 95366 Telephone: (209) 599-2108 Telephone: (209) 595-6620
Facsimile: (209) 599-2685 Facsimile:
Federal ID No.: Federal ID No.:
PAGE 1 OF 2
INITIALS IN THAL
©2006 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM COM-0-07/06E
AMENDMENT TO COMMERCIAL LEASE ACREEMENT
This Amendment to Standard Industrial/Commercial Single-Tenant Lease dated October 11, 2012 ("LEASE") is made and entered into this 14'" day of March, 2017, by and between the CITY OF RIPON ("LESSOR") and the JENNIFER KOMATSU, a married woman, dba The Natural Path Wellness Center ("LESSEE").
1. TERM. The term of the LEASE is hereby extended by five years. Thus, the LEASE shall expire on August 31, 2023.
2. PREMISES. The LEASE is hereby amended to include both premises at 303 W.
Main Street and the adjacent building at 307 W. Main Street located in the City of Ripon, County of San Joaquin, State of California and generally described as approximately 600 square feet of commercial space.
RENT FOR 307 W. MAIN STREET. The base rent for premises located at 307 W. Main Street shall be THREE HUNDRED NINETY-THREE dollars ($393) per month, which will be in addition to the base rent for the premises located at 303 W. Main Street and shall commence on September 1, 2017.
3(A). - Base Rent Schedule for 307 W. Main Street (see attached rent schedule):
Months 54 - 58: no rent
Months 59 - 70: $393.00 per month
Months 71 - 82: $405.00 per month
Months 83 - 94: $417.00 per month
Months 95 - 106: $430.00 per month
Months 107 - 118: $443.00 per month
Months 119 - 130: $456.00 per month
RENT FOR 303 W. MAIN STREET. The Base Rent Schedule for 303 W. Main Street as described in sections 1.5 and 1.5(A) of the LEASE, is modified to reflect the 5-year LEASE extension as follows:
4(A). - Base Rent Schedule for 303 W. Main Street (see attached rent schedule):
Months 71 - 82: $2,701.00
Months 83 - 94: $2,782.00
Months 95 - 106: $2,865.00
Months 107 - 118: $2,951.00
Months 119 - 130: $3,040.00
5. CAPITAL IMPROVEMENTS. LESSEE shall complete capital improvements to the premises located at 307 W. Main Street as stated in Attachment B. Upon completion of the items, LESSEE shall be reimbursed, or shall receive credit toward the cost of LESSEE's work in the form of credit toward rent due ("Rent Credit"), or such other arrangement as may be agreed between the parties, up to the amount of FORTY FIVE THOUSAND dollars ($45,000). Prior to 1 receiving such reimbursement or Rent Credit and as a condition precedent thereto, LESSEE shall promptly provide LESSOR with an itemized breakdown of the total cost incurred for LESSEE's work, receipted invoices showing payments) thereof, and final lien waivers from all contractors, subcontractors and suppliers on all items as stated in Attachment B.
6. REMAINING TERMS AND CONDITIONS NOT AFFECTED. Unless
expressly amended herein, the remaining terms and conditions of the Standard Industrial/Commercial Single-Tenant Lease dated October 11, 2012, shall remain in full force and effect.
Dated: 3/24/17 LESSOR: City of Ripon
By:
3|24|17
Dated: LESSEE: Jennifer Komatsu
on Amato
2 Attachment A
303 Main St 307 Main St TOTAL
Nov-12 n/a
n/a
n/a
n/a
_ n n Mar-13 n/a
Apr-13 n/a
May- 13 n/a
Jun-13 n/a
Jul-13 n/a
10 Aug-l3 n/a
Sep-13 $2,400 n/a $2,400
Oct-13 $2,400 n/a $2,400
13 Nov-13 $2,400 n/a $2,400
14 Dec-13 $2,400 n/a $2,400
15 Jan-14 $2,400 n/a $2,400
16 Feb-14 $2,400 n/a $2,400
Mar-14 $2,400 n/a $2,400
Apr-14 $2,400 n/a $2.400
May-14 $2,400 n/a $2,400
$2,400
$2,400
$2,400
$2,400
$2,400
$2,400
$2,400
$2,400
$2,400
$2,400
$2,400
$2,400
$2,400
$2,400
$2,400
$2 ,472
$2. 2,472
$2,472
52. ,472
$2,472
$2. ,472
$2,546
n/a $2,546
n/a $2,546
n/a $2,546
n/a $2,546
$2,546
$2.546
$2,546
$2,546
$2,546
$393 $3,015
$393 $3.015
$393 $3.015
$393 $3,015
$393 $3,015
$393 $3.015
$393 $3.015
$393 $3.015
$393 $3,015
$393 $3.015
$393 $3.015
$393 $3.015
S405 $3,106
$405 $3,106
3 ,701 $405 $3,106
$405 $3,106
:70L $405 $3,106
76 $405 $3,106
,701 $405 $3,106
1.70] $405 $3,106
$405 $3,106
.70] $405 $3,106
,701 $405 $3,106
,701 $405 $3,106
,782 $417 $3,199
,782 $417 $3,199
$417 $3,199
$417 $3,199
$417 $3,199
$417 $3,199
$417 $3,199
$417 $3,199
$417 $3,199
$417 $3,199
$417 $3,199
-20 $417 $3,199
$430 $3,295
$430 $3,295
$430 $3,295
$430 $3,295
$430 $3,295
100 $430 $3,295
101 $430 $3,295
102 $430 $3,295
103 - $430 $3,295
104 $430 $3,295
105 $430 $3,295
$430 $3,295
$443 $3,394
$443 $3.394
109 $443 $3,394
110 $443 $3,394
$443 $3,394
$443 $3,394
$443 $3,394
$443 $3.394
$443 $3,394
116 $443 $3,394
117 $443 $3,394
118 $443 $3.394
119 $456 $3,496
120 $456 $3,496
121 $456 $3,496
122 $456 $3,496
123 $456 $3,496
124 $456 $3,496
125 $456 $3,496
126 $456 $3,496
$456 $3.496
$456 $3,496
129 $456 $3,496
130 $456 $3,496
4 Attachment B
Description of Capital Improvements -
a. New air conditioner and furnace to be installed with the necessary duct work, supply registers, and programmable thermostat.
b. Cut 3'-6" × 7'-0" opening in existing adjoining wall in front room. The opening to be cased with no door.
c. Demolition of existing restroom and sink. Utilities to be capped. Repair remaining dry wall as needed.
d. Existing interior wall with door to remain.
e. Extend utilities for sink on the north side of existing interior wall that is to remain for a future sink to be done by tenant.
f. Walls and ceiling to be painted
g. Demolish existing metal roof, install 2x6 rafters between existing rafters. Install dens deck roofing with cricket from front of building to back of building to divert water to existing gutter and downspout.
h. Install T-bar ceiling throughout and paint.
i. Insulate back wall and attic space with R30. Replace back door and remove existing roll up door.
j. Drywall to be installed on back wall, taped and light knock down texture. k. Flooring to be determined by tenant. City to provide $2,000 toward the cost of flooring.
1. Provide and install LED dimmable can lights at various locations, dimmer switches, ceiling mount occupancy sensors, and duplex receptacles. All new wiring to be installed in flexible metal conduit.
m. Relocate water heater to north side of interior wall. *Contractor shall conduct a pre-construction meeting with City staff to determine necessary permits and inspections needed.
AMENDMENT No. 2 TO COMMERCIAL LEASE AGREEMENT
Natural Path Wellness Center
This Amendment to Standard Industrial/Commercial Single-Tenant Lease dated October 11, 2012 ("LEASE") is made and entered into this //& day of December, 2018, by and between the CITY OF RIPON ("LESSOR") and the JENNIFER KOMATSU, a married woman, dba The Natural Path Wellness Center ("LESSEE").
1. CAPITAL IMPROVEMENTS. LESSEE shall complete improvements in order to repair dry rot that has occurred on the outside of the PREMISES as defined in Amendment No. 1 of the LEASE. The scope of this work shall include removing the wood overhang, rock, and other wood features on the outside of the building and replacing with lath, sheet metal cap on the top of the wall, relocating electrical and lighting, stucco, and painting. LESSEE shall obtain prior approval from LESSOR of the scope and cost of the work. Upon completion of the items, LESSEE shall be reimbursed, or shall receive credit toward the cost of LESSEE's work in the form of credit toward rent due ("Rent Credit"), or such other arrangement as may be agreed between the parties. Prior to receiving such reimbursement or Rent Credit and as a condition precedent thereto, LESSEE shall promptly provide LESSOR with an itemized breakdown of the total cost incurred for LESSEE's work, receipted invoices showing payments) thereof, and final lien waivers from all contractors, subcontractors and suppliers on all items.
2. REMAINING TERMS AND CONDITIONS NOT AFFECTED. Unless
expressly amended herein, the remaining terms and conditions of the Standard Industrial/Commercial Single-Tenant Lease dated October 11, 2012 and Amendment No. 1 dated March 14, 2017, shall remain in full force and effect.
Dated: 12/13/18 LESSOR: City of Ripon
By:
Dated: 12/6,18 LESSEE: Jennifer Komatsu
on smass
1 EXHIBIT B
LEGAL DESCRIPTION OF PREMISES
303 W. Main Street: APN: 259 07 006
307 W. Main Street: APN: 259 07 007