Exhibit 10.2
IOMEGA PARK
ROY, UTAH
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Lease between the
Landlord and Tenant named below. Other Articles, Sections and Paragraphs of
the Lease referred to in this Article One explain and define the Basic Terms
and are to be read in conjunction with the Basic Terms.
Section 1.01. Date of Lease: August 14, 1995
Section 1.02. Landlord: DAMSON/XXXXXXXX REALTY INCOME FUND-II, LIMITED
PARTNERSHIP
Address of Landlord: 00000 Xx Xxx Xxxx, Xxxxxx Xxxxxx, XX 00000.
Section 1.03. Tenant: IOMEGA Corporation
Address of Tenant: 0000 Xxxx 0000 Xxxxx, Xxx, Xxxx 00000
Section 1.04. Property: The Property is part of Xxxxxxxx's multi-tenant
real property development known as Iomega Park, Roy, Utah, and
described or depicted in Exhibit "A" (the "Project"). The Project includes
the land, the buildings and all other improvements located on the land, and
the common areas described in Paragraph 4.05(a). The Property is Building 2,
consisting of approximately 19,400 square feet and cross-hatched on Exhibit
"A".
Section 1.05. Lease Term Five (5) years, three (3) months and
seventeen (17) days beginning on August 15, 1995, or such other date as is
specified in this Lease, and ending on November 30, 2000.
Section 1.06. Permitted Uses: (See Article Five) Manufacturing,
research, development and distribution of Tenants and Tenant's affiliate
products for desktop computers.
Section 1.07. Brokers: (See Article Fourteen)
Landlord's Broker: Xxxxxxxx Investments
Tenant's Broker: None
Section 1.08. Initial Security Deposit: (See Section 3.03) $0.00
Section 1.09. Rent and Other Charges Payable by Tenant:
(a) BASE RENT: Five Hundred Six Thousand One Hundred Sixty-Nine and
28/100 Dollars ($506,169.28) payable in monthly installments as follows:
Period Monthly Base Rent
August 15, 1995 through and including September 30, 1995 $ 0.00
October 1, 1995 through and including November 30, 1996 $7,678.52
December 1, 1996 through and including November 30, 1997 $8,002.50
December 1, 1997 through and including November 30, 1998 $8,148.00
December 1, 1997 through and including November 30, 1999 $8,439.00
December 1, 1999 through and including November 30, 2000 $8,633.00
(b) OTHER PERIODIC PAYMENTS: (I) Real Property Taxes (See Section
4.02); (ii) Utilities (See Section 4.03); (iii) Insurance Premiums (See
Section 4.04); (iv) Tenant's Pro Rata Share of Common Area Expenses 11.42%
(See Section 4.05); (v) Impounds for Insurance Premiums and Property Taxes
(See Section 4.08); (vi) Maintenance, Repairs and Alterations (See Article
Six).
ARTICLE TWO: LEASE TERM
Section 2.01. Lease of Property For Lease Term. Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the Lease
Term. The Lease Term is for the period stated in Section 1.05 above and shall
begin and end on the date specified in Section 1.05 above, unless the
beginning or end of the Lease Term is changed under any provision of this
Lease. The "Commencement Date" shall be the date specified in Section 1.05
above for the beginning of the Lease Term, unless advanced or delayed under
any provision of this Lease.
Section 2.02. Holding Over. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse
Landlord for and indemnify Landlord against all damages which Landlord incurs
from Xxxxxx's delay in vacating the Property. If Tenant does not vacate the
Property upon the expiration or earlier termination of the Lease and Landlord
thereafter accepts rent from Tenant, Xxxxxx's occupancy of the Property shall
be a "month-to-month" tenancy, subject to all of the terms of this Lease
applicable to a month-to-month tenancy, except that the Base Rent then in
effect shall be increased by twenty-five percent (25%).
ARTICLE THREE: BASE RENT
Section 3.01. Time and Manner of Payment. Upon execution of this
Lease, Tenant shall pay Landlord the Base Rent in the amount stated in
Paragraph 1.09(a) above for the first month of the Lease Term. On the first
day of the second month of the Lease Term and each month thereafter, Tenant
shall pay Landlord the Base Rent, in advance, without offset, deduction or
prior demand. The Base Rent shall be payable at Landlord's address or at such
other place as Landlord may designate in writing.
Section 3.03. Security Deposit. Tenant has deposited with Landlord a
cash Security Deposit in the amount set forth in Section 1.08 above. Landlord
may apply all or part of the Security Deposit to any unpaid rent or other
charges due from Tenant or to cure any other defaults of Tenant. If Landlord
uses any part of the Security Deposit, Tenant shall restore the Security
Deposit to its full amount within ten (10) days after Landlord's written
request. Tenant's failure to do so shall be a material default under this
Lease. No interest shall be paid on the Security Deposit. Landlord shall not
be required to keep the Security Deposit separate from its other accounts and
no trust relationship is created with respect to the Security Deposit.
Section 3.04. Termination; Advance Payments. Upon termination of this
Lease under Article Seven (Damage or Destruction), Article Eight
(Condemnation) or any other termination not resulting from Xxxxxx's default,
and after Tenant has vacated the Property in the manner required by this
Lease, Landlord shall refund or credit to Tenant (or Xxxxxx's successor) the
unused portion of the Security Deposit, any advance rent or other advance
payments made by Tenant to Landlord, and any amounts paid for real property
taxes and other reserves which apply to any time periods after termination of
the Lease.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
Section 4.01. Additional Rent. All charges payable by Tenant other
than Base Rent are called "Additional Rent". Unless this Lease provides
otherwise, Tenant shall pay all Additional Rent then due with the next monthly
installment of Base Rent. The term "rent" shall mean Base Rent and Additional
Rent.
Section 4.02. Property Taxes.
(a) Real Property Taxes. As long as Tenant is the only tenant in the
Project, Tenant shall pay all real property taxes on the Property (including
any fees, taxes or assessments against, or as a result of, any tenant
improvements installed on the Property by or for the benefit of Tenant) during
the Lease Term. Subject to Paragraph 4.02(c) and Section 4.08 below, such
payment shall be made at least ten (10) days prior to the delinquency date of
the taxes. Within such ten (10) day period, Tenant shall furnish Landlord
with satisfactory evidence that the real property taxes have been paid.
Landlord shall reimburse Tenant for any real property taxes paid by Tenant
covering any period of time prior to or after the Lease Term. If Tenant fails
to pay the real property taxes when due, Landlord may pay the taxes and Tenant
shall reimburse Landlord for the amount of such tax payment as Additional
Rent.
(b) Definition of "Real Property Tax". "Real property tax" means: (i)
any fee, license fee, license tax, business license fee, commercial rental
tax, levy, charge, assessment, penalty or tax imposed by any taxing authority
against the Property; (ii) any tax on the Landlord's right to receive, or the
receipt of, rent or income from the Property or against landlord's business
of leasing the Property; (iii) any tax or charge for fire protection, streets,
sidewalks, road maintenance, refuse or other services provided to the Property
by any governmental agency; (iv) any tax imposed upon this transaction or
based upon a re-assessment of the Property due to a change of ownership, as
defined by applicable law, or other transfer of all or part of Landlord's
interest in the Property; and (v) any charge or fee replacing any tax
previously included within the definition of real property tax. "Real
property tax" does not, however, include Landlord's federal or state income,
franchise, inheritance or estate taxes. Any "taxing authority" means any
authority having the direct or indirect power to tax, including, but not
limited to, any city, county, state or federal government, or any school,
agricultural, sanitary, fire, street, drainage or other improvement district
thereof, as against any legal or equitable interest of Landlord in the Project
or in any portion thereof.
(c) Joint Assessment. If the Property is not separately assessed, or
if another tenant leases premises within the Project, Landlord may reasonably
determine Tenant's share of the real property tax payable by Tenant under
Paragraph 4.02(a) from the assessor's worksheets or prorated in accordance
with the formula in Paragraph 4.05(e). Xxxxxxxx's determination of Tenant's
share of the real property tax payable by Tenant shall be conclusive. Tenant
shall pay such share to Landlord within fifteen (15) days after receipt of
Landlord's written statement.
(d) Personal Property Taxes.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to Xxxxxx.
Tenant shall try to have personal property taxed separately from the Property.
Tenant shall pay such personal property taxes prior to delinquency.
(ii) If any of Tenant's personal property is taxed with the
Property, Tenant shall pay Landlord the taxes for the personal property within
fifteen (15) days after Xxxxxx receives a written statement from Landlord for
such personal property taxes.
Section 4.03. Utilities. Tenant shall pay, directly to the
appropriate supplier, the cost of all natural gas, heat, light, power, sewer
service, telephone, water, refuse disposal and other utilities and services
supplied to the Property. However, if any services or utilities are jointly
metered with other property, Landlord shall make a reasonable determination
of Tenant's proportionate share of the cost of such utilities and services and
Tenant shall pay such share to Landlord within fifteen (15) days after receipt
of Landlord's written statement.
Section 4.04. Insurance Policies.
(a) Liability Insurance. During the Lease Term, Tenant shall maintain
a policy of commercial general liability insurance (sometimes known as broad
form comprehensive general liability insurance) insuring Tenant against
liability for bodily injury, property damage (including loss of use of
property) and personal injury arising out of the operation, use or occupancy
of the Property and the Project. Tenant shall name Landlord as an additional
insured under such policy. The initial amount of such insurance shall be One
Million Dollars ($1,000,000) per occurrence and shall be subject to periodic
increase based upon inflation, increased liability awards, recommendation of
Landlord's professional insurance advisors and other relevant factors. The
liability insurance obtained by Tenant under this Paragraph 4.04(a) shall (i)
be primary and non-contributing; (ii) contain cross-liability endorsements;
and (iii) insure Landlord against Tenant's performance under Section 5.05.
The amount and coverage of such insurance shall not limit Tenant's liability
nor relieve Tenant of any other obligation under this Lease. Landlord may
also obtain comprehensive public liability insurance in an amount and with
coverage determined by Landlord insuring Landlord against liability arising
out of ownership, operation, use or occupancy of the Property. The policy
obtained by Landlord shall not be contributory and shall not provide primary
insurance.
(b) Property and Rental Income Insurance. During the Lease Term,
Tenant shall maintain policies of insurance covering loss of or damage to the
property, including fixtures or equipment or building improvements installed
by Tenant on the Property, but not Tenant's personal property, in an amount
not to exceed the full replacement value thereof, as the same may exist from
time to time. Such policy shall contain an Inflation Guard Endorsement and
shall provide protection against all perils included within the classification
of fire, extended coverage, vandalism, malicious mischief, special extended
perils (all risk), sprinkler leakage and any other perils which Landlord deems
reasonably necessary. Tenant shall not do or permit anything to be done which
invalidates any such insurance policies.
(c) Payment of Premiums. Subject to Section 4.08, as long as Tenant
is the only tenant in the Project, Tenant shall pay all premiums for the
insurance policies described in Paragraphs 4.04(a) and (b). Landlord shall
pay all premiums for non-primary comprehensive public liability insurance
which Landlord elects to obtain as provided in Paragraph 4.04(a). If another
tenant leases premises within the Project, Landlord may maintain the insurance
policies described in Paragraph 4.04(b) and Tenant shall pay Tenant's prorated
share of the premiums, in accordance with the formula in Paragraph 4.05(e)
for determining Tenant's share of Common Area costs. If such insurance
policies maintained by Landlord cover improvements on real property other than
the Project, Landlord shall deliver to Tenant a statement of the premium
applicable to the Property showing in reasonable detail how Tenant's share of
the premium was computed. If the Lease Term expires before the expiration of
an insurance policy maintained by Landlord, Tenant shall be liable for
Tenant's prorated share of the insurance premiums. Before the Commencement
Date, Tenant shall deliver to Landlord a copy of any policy of insurance which
Tenant is required to maintain under this Section 4.04. At least thirty (30)
days prior to the expiration of any such policy, Tenant shall deliver to
Landlord a renewal of such policy. As an alternative to providing a policy
of insurance, Tenant shall have the right to provide Landlord a certificate
of insurance, executed by an authorized officer of the insurance company,
showing that the insurance which Tenant is required to maintain under this
Section 4.04 is in full force and effect and containing such other information
which Landlord reasonably requires.
(d) General Insurance Provisions.
(i) Any insurance which Tenant is required to maintain under this
Lease shall include a provision which requires the insurance carrier to give
Landlord not less than thirty (30) days' written notice prior to any
cancellation or modification of such coverage.
(ii) If Tenant fails to deliver any policy, certificate or renewal
to Landlord required under this Lease within the prescribed time period of if
any such policy is canceled or modified during the Lease Term without
Landlord's consent, Landlord may obtain such insurance, in which case Tenant
shall reimburse Landlord for the cost of such insurance within fifteen (15)
days after receipt of a statement that indicates the cost of such insurance.
(iii) Tenant shall maintain all insurance required under this
Lease with companies acceptable to landlord. Landlord and Tenant acknowledge
the insurance markets are rapidly changing and that insurance in the form and
amounts described in this Section 4.04 may not be available in the future.
Tenant acknowledges that the insurance described in this Section 4.04 is for
the primary benefit of Landlord. Xxxxxxxx makes no representation as to the
adequacy of such insurance to protect Xxxxxxxx's or Xxxxxx's interests.
Therefore, Tenant shall obtain any such additional property or liability
insurance which Tenant deems necessary to protect Landlord and Tenant.
(iv) Unless prohibited under any applicable insurance policies
maintained, Landlord and Tenant each hereby waive any and all rights of
recovery against the other, or against the officers, employees, agents or
representatives of the other, for loss of or damage to its property or the
property of others under its control, if such loss or damage is covered by any
insurance policy in force (whether or not described in this Lease) at the time
of such loss or damage. Upon obtaining the required policies of insurance,
Landlord and Tenant shall give notice to the insurance carriers of this mutual
waiver of subrogation.
Section 4.05. Common Areas; Use, Maintenance and Costs.
(a) Common Areas. As used in this Lease, "Common Areas" shall mean all
areas within the Project which are available for the common use of tenants of
the Project and which are not leased or held for the exclusive use of Tenant
or other tenants, including, but not limited to, parking areas, driveways,
sidewalks, loading areas, access roads, corridors, landscaping and planted
areas. Landlord, from time to time, may change the size, location, nature and
use of any of the Common Areas, convert Common Areas into leasable areas,
construct additional parking facilities (including parking structures) in the
Common Areas, and increase or decrease Common Area land and/or facilities.
Tenant acknowledges that such activities may result in inconvenience to
Tenant. Such activities an changes are permitted if they do not materially
affect Tenant's use of the Property.
(b) Use of Common Areas. Tenant shall have the nonexclusive right (in
common with other tenants and all others to whom Landlord has granted or may
grant such rights) to use the Common Areas for the purposes intended, subject
to such reasonable rules and regulations as Landlord may establish from time
to time. Tenant shall abide by such rules and regulations and shall use its
best effort to cause others who use the Common Areas with Xxxxxx's express or
implied permission to abide by Landlord's rules and regulations. Under no
circumstances shall Tenant's right to use the Common Areas be deemed to
include the right to store any property, temporarily or permanently, in the
Common Areas, without the prior consent of Landlord. At any time, Landlord
may close any Common Areas to perform any acts in the Common Areas as, in
Landlord's judgment, are desirable to improve the Project. Tenant shall not
interfere with the rights of Landlord, other tenants or any other person
entitled to use the Common Areas. Landlord shall not be responsible to Tenant
for the Project's other tenants' non-compliance with Landlord's rules and
regulations with respect to the use of Common Areas.
(c) Specific Provision re: Vehicle Parking. Tenant shall be entitled
to use Tenant's pro rate share of vehicle parking spaces in the Project
without paying any additional rent. Tenant's parking shall not be reserved
and shall be limited to vehicles no larger than standard size automobiles or
pickup utility vehicles. Tenant shall not cause large trucks or other large
vehicles to be parked within the Project for any unreasonable period of time
or on the adjacent public streets. Temporary parking of large delivery
vehicles in the Project shall be permitted by the rules and regulations
established by Landlord. Temporary parking of large delivery vehicles in the
Project may be permitted by the rules and regulations established by Landlord.
Vehicles shall be parked only in striped parking spaces and not in driveways,
loading areas or other locations not specifically designated for parking.
Handicapped spaces shall only be used by those legally permitted to use them.
If Tenant parks more than Tenant's pro rate share of vehicles in the parking
area, such conduct shall be a material breach of this Lease. If Tenant
permits any of the prohibited parking activities described herein at the
Project, then Landlord shall have the right, without notice, in addition to
such other rights and remedies that it may have, to remove or tow away the
vehicle involved and charge the cost to Tenant, which costs shall be
immediately payable on demand by Landlord. In addition to Landlord's other
remedies under the Lease, Tenant shall pay a daily charge determined by
Landlord for each such additional vehicle.
(d) Maintenance of Common Areas. As long as Tenant is the only tenant
in the Project, Tenant shall, at Tenant's expense, maintain the Common Areas
in good order, condition and repair, except that Landlord shall perform all
major pavement repairs, and shall operate the Project, in Landlord's sole
discretion, as a first-class industrial/commercial real property development.
If another tenant leases premises within the Project, Landlord reserves the
right to maintain the Common Areas in good order, condition and repair and
shall operate the Project, in Landlord's sole discretion, as a first-class
industrial/commercial real property development. In such event, Tenant shall
pay Tenant's pro rata share (as determined below) of all costs incurred by
Landlord for the operation and maintenance of the Common Areas. Common Area
costs include, but are not limited to, costs and expenses for the following:
gardening and landscaping; utilities, water and sewage charges; maintenance
of signs (other than tenants' signs); premiums for liability, property damage,
fire and other types of casualty insurance on the Common Areas and worker's
compensation insurance; all property taxes and assessments levied on or
attributable to the Common Areas and all Common Area improvements; all
personal property taxes levied on or attributable to personal property used
in connection the Common Areas; straight-line depreciation on personal
property owned by Landlord which is consumed in the operation or maintenance
of the Common Areas; rental or lease payments paid by Landlord for rented or
leased personal property used in the operation or maintenance of the Common
Areas; fees for required licenses and permits; repairing, resurfacing,
repaving, maintaining, painting, lighting, cleaning, refuse removal, security
and similar items; reserves for exterior painting and other appropriate
reserves; and all components of electrical, mechanical, plumbing, heating and
air conditioning systems and facilities located in the Property which are
concealed or used in common by tenants of the Project. Landlord may cause any
or all of such services to be provided by third parties and the cost of such
services shall be included in Common Area costs. Common Areas costs shall not
include depreciation of real property which forms part of the Common Areas.
(e) Tenant's Share and Payment. In the event that Landlord maintains
the Common Areas pursuant to Paragraph 4.05(d), Tenant shall pay Tenant's
annual pro rata share of all Common Areas costs (prorated for any fractional
month) upon written notice from Landlord that such costs are due and payable,
and in any event prior to delinquency. Tenant's pro rata share of Building
Common Area costs shall be calculated by dividing the square foot area of the
Property, as set forth in Section 1.04 of the Lease, by the aggregate square
foot area of the Building. Tenant's pro rata share of Project Common Area
costs shall be calculated by dividing the square foot area of the Property,
as set forth in Section 1.04 of the Lease, by the aggregate square foot area
of the Project. Tenant's pro rata share is set out in Paragraph 1.09(b). Any
changes in the Common Area costs and/or the aggregate area of the Project
leased or held for lease during the Lease Term shall be effective on the first
day of the month after such change occurs. If applicable, Landlord may, at
Landlord's election, estimate in advance and charge to Tenant as Common Area
costs, all real property taxes for which Tenant is liable under Section 4.02
of the Lease, all insurance premiums for which Tenant is liable under Section
4.04 of the Lease, all maintenance and repair costs for which Tenant is liable
under Section 6.04 of the Lease, and all other Common Area costs payable by
Tenant hereunder. At Landlord's election, such statements of estimated Common
Area costs shall be delivered monthly, quarterly or at any other periodic
intervals to be designated by landlord. Landlord may adjust such estimates
at any time based upon Xxxxxxxx's experience and reasonable anticipation of
costs. Such adjustments shall be effective as of the next rent payment date
after notice to Tenant. Within one hundred twenty (120) days after the end
of each calendar year of the Lease Term, Landlord shall deliver to Tenant a
statement prepared in accordance with generally accepted accounting principles
setting forth, in reasonable detail, the Common Area costs paid or incurred
by Landlord during the preceding calendar year and Xxxxxx's pro rata share.
Upon receipt f such statement, there shall be an adjustment between Landlord
and Tenant, with payment to or credit given by Landlord (as the case may be)
so that Landlord shall receive the entire amount of Tenant's share of such
costs and expenses for such period.
Section 4.06. Late Charges. Xxxxxx's failure to pay rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs
are impractical or extremely difficult to ascertain. Such costs may include,
but are not limited to, processing and accounting charges and late charges
which may be imposed on Landlord by any ground lease, mortgage or trust deed
encumbering the Property. Therefore, if Landlord does not receive any rent
payment within five (5) days after it becomes due, Tenant shall pay Landlord
a late charge equal to five percent (5%) of the overdue amount. The parties
agree that such late charge represents a fair and reasonable estimate of the
costs Landlord will incur by reason of such late payment. Xxxxxxxx's
acceptance of any late payment charge shall in no event constitute a waiver
of Xxxxxx's default with respect to any overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted to Landlord
hereunder.
Section 4.07. Interest on Past Due Obligations. Any amount owed by
Tenant to Landlord which is not paid when due shall bear interest at the rate
of fifteen percent (15%) per annum from the due date of such amount. However,
interest shall not be payable on late charges to be paid by Tenant under this
Lease. The payment of interest on such amounts shall not excuse or cure any
default by Tenant under this Lease. If the interest rate specified in this
Lease is higher than the rate permitted by law, the interest rate is hereby
decreased to the maximum legal interest rate permitted by law.
Section 4.08. Impounds for Insurance Premiums and Real Property Taxes.
If requested by any ground lessor or lender to whom Landlord has granted a
security interest in the Property, or if Tenant is more than ten (10) days
late in the payment of rent more than once in any consecutive twelve (12)
month period, Tenant shall pay Landlord a sum equal to one-twelfth (1/12) of
the annual real property taxes and insurance premiums payable by Tenant under
this Lease, together with each payment of Base Rent. Landlord shall hold such
payments in a non-interest bearing impound account. If unknown, Landlord
shall reasonably estimate the amount of real property taxes and insurance
premiums when due. Tenant shall pay any deficiency of funds in the impound
account to Landlord upon written request. If Tenant defaults under this
Lease, Landlord may apply any funds in the impound account to any obligation
then due under this Lease.
ARTICLE FIVE: USE OF PROPERTY
Section 5.01. Permitted Uses. Tenant may use the Property only for
the Permitted Uses set forth in Section 1.06 above.
Section 5.02. Manner of Use. Tenant shall not cause or permit the
Property to be used in any way which constitutes a violation of any law,
ordinance, or governmental regulation or order, which annoys or interferes
with the rights of tenants of the Project, or which constitutes a nuisance or
waste. Tenant shall obtain and pay for all permits, including a Certificate
of Occupancy, required for Tenant's occupancy of the Property and shall
promptly take all actions necessary to comply with all applicable statutes,
ordinances, rules, regulations, orders and requirements regulating the use by
Tenant of the Property, including the Occupational Safety and Health Act.
Tenant acknowledges that neither Xxxxxxxx nor any agent of Landlord has made
any representations to Tenant relative to the suitability of the Property or
Project for Xxxxxx's intended use.
Section 5.03. Hazardous Materials. As used in this Lease, the term
"Hazardous Material" means any flammable items, explosives, radioactive
materials, hazardous or toxic substances, material or waste or related
materials, including any substances defined as or included in the definition
of "hazardous substances", "hazardous wastes", "hazardous materials" or "toxic
substances" now or subsequently regulated under any applicable federal, state
or local laws or regulations, including without limitation petroleum-based
products, paints, solvents, lead, cyanide, DDT, printing inks, acids,
pesticides, ammonia compounds and other chemical products, asbestos, PCBs and
similar compounds, and including any different products and materials which
are subsequently found to have adverse effects on the environment or the
health and safety of persons. Tenant shall not cause or permit any Hazardous
Material to be generated, produced, brought upon, used, stored, treated or
disposed of in or about the Property by Tenant, its agents, employees,
contractors, sublessees or invitees without the prior written consent of
Landlord. Landlord shall be entitled to take into account such other factors
or facts as Landlord may reasonably determine to be relevant in determining
whether to grant or withhold consent to Tenant's proposed activity with
respect to Hazardous Material. In no event, however, shall Landlord be
required to consent to the installation or use of any storage tanks on the
Property. Notwithstanding anything herein to the contrary, Landlord
acknowledges that Tenant may bring Hazardous Material onto the Property in the
context of Tenant's use, and further that Tenant will use the following
substances on the Property, provided any such use, storage and disposal by
Tenant shall be in compliance with all applicable statutes, ordinances, rules,
regulations, orders and requirements regulating such use:
Substance Quantity Per Year
.032 P3 Alpha Metal Solder 6 lbs.
Acetone 12 gal.
Acrylic Ass. Paint 24 oz.
Alcohol 100 gal.
Aluminum Solder 6 lbs.
Black Max 14 oz.
Depend (Loctite) 120 oz.
Freon TF 93 gal.
Xxxxxx Flux 2800 2 gal.
Xxxxxx Xxxxx Core Solder 6 lbs.
Xxxxxx Flux 4800 4 gal.
Kleen-All 64 oz.
Loctite Output Accelerator 1168 oz.
Loctite 410 58 oz.
Loctite 416 42 oz.
Loctite 420 227 oz.
Peerless Spray and Wipe 41 qts.
Spray Paint 32 oz.
Tac Pac 710 580 oz.
Tac Pac 444 2400 oz.
Tra-Bond 260 oz.
X-NMS Clean-Up Solvent 33 oz.
Section 5.04. Signs and Auctions. Tenant shall not place any signs or
window coverings on the Property without Landlord's prior written consent,
which consent shall not be unreasonably withhold. Tenant shall not conduct
or permit any public auctions or sheriff's sales at the Property. Tenant may
have employee sales or auctions at the Property if such are permitted by
applicable laws.
Section 5.05. Indemnity. Tenant shall indemnify Landlord against and
hold Landlord harmless from any and all costs, claims or liability arising
from: (a) Tenant's use of the Property; (b) the conduct of Tenant's business
or anything else done or permitted by Tenant to be done in or about the
Property, including any contamination of the Property or any other property
resulting from the presence or use of Hazardous Material caused or permitted
by Tenant; (c) any breach or default in the performance of Tenant's
obligations under this Lease; (d) any misrepresentation or breach of warranty
by Tenant under this Lease; or (e) other acts or omissions of Tenant. Tenant
shall defend Landlord against any such cost, claim or liability at Tenant's
expense with counsel reasonably acceptable to Landlord or, at Landlord's
election, Tenant shall reimburse Landlord for any reasonable legal fees or
costs incurred by Landlord in connection with any such claim. As a material
part of the consideration to Landlord, Xxxxxx assumes all risk of damage to
property or injury to persons in or about the Property arising from any cause,
and Tenant hereby waives all claims in respect thereof against Landlord,
except for any claim arising out of Landlord's gross negligence or willful
misconduct. As used in this Section, the term "Tenant" shall include Tenant's
employees, agents, contractors and invitees, if applicable.
Section 5.06. Landlord's Access. Landlord or its agents may enter the
Property during reasonable business hours, subject to security obligations
reasonably required by Tenant, to show the Property to potential buyers,
investors, or tenants or other parties; to do any other act or to inspect and
conduct tests in order to monitor Tenant's compliance with all applicable
environmental laws and all laws governing the presence and use of Hazardous
Material; or for any other purpose Landlord deems necessary. Landlord shall
give Tenant prior notice of such entry, except in the case of an emergency.
landlord may place customary "For Sale" or "For Lease" signs on the Property
during the last one hundred eighty (180) days of the Lease Term.
Section 5.07. Quiet Possession. If Tenant pays the rent and complies
with all other terms of this Lease, Tenant may occupy and enjoy the Property
for the full Lease Term, subject to the provisions of this Lease.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.01. Existing Conditions. Tenant accepts the Property in its
condition as of the execution of the Lease, subject to all recorded matters,
laws, ordinances, and governmental regulations and orders. Except as provided
herein, Xxxxxx acknowledges that neither Landlord nor any agent of Landlord
has made any representation as to the condition of the Property. Tenant
represents and warrants that Tenant has made its own inspection of and inquiry
regarding the condition of the Property and is not relying on any
representations of Landlord or any Broker with respect thereto.
Section 6.02. Exemption of Landlord from Liability. Landlord shall
not be liable for any damage or injury to the person, business (or any loss
of income therefrom), goods, wares, merchandise or other property of Tenant,
Tenant's employees, invitees, customers or any other person in or about the
Property, whether such damage or injury is caused by or results from: (a)
fire, steam, electricity, water, gas or rain; (b) the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wire, appliances, plumbing,
air conditioning or lighting fixtures or any other cause; (c) conditions
arising in or about the Property or upon other portions of the Project, or
from other sources or places; or (d) any act or omission of any other tenant
of the Project. Landlord shall not be liable for any such damage or injury
even though the cause of or the means of repairing such damage or injury are
not accessible to Tenant. The provisions of this Section 6.02 shall not,
however, exempt Landlord from liability for Landlord's gross negligence or
willful misconduct.
Section 6.03. Landlord's Obligations.
(a) Except as provided in Article Seven (Damage or Destruction) and
Article Eight (Condemnation), Landlord shall keep the following in good order,
condition and repair: the foundation, exterior walls and roof of the Property
(including painting the exterior surface of the exterior walls of the Property
not more often than once every five (5) years, if necessary). However,
Landlord shall not be obligated to maintain or repair windows, doors, plate
glass or the interior surfaces of exterior walls. Landlord shall make repairs
under this Section 6.03 within a reasonable time after receipt of written
notice from Tenant of the need for such repairs.
(b) Tenant waives the benefit of any statute in effect now or in the
future which might give Tenant the right to make repairs at Landlord's expense
or to terminate this Lease due to Landlord's failure to keep the Property in
good order, condition and repair.
Section 6.04. Tenant's Obligations.
(a) Except as provided in Section 6.03, Article Seven (Damage or
Destruction) and Article Eight (Condemnation), Tenant shall keep all portions
of the Property (including structural, nonstructural, interior, systems and
equipment) in good order, condition and repair (including interior repainting
and refinishing, as needed). If any portion of the Property or any system or
equipment in the Property which Tenant is obligated to repair cannot be fully
repaired or restored, Tenant shall promptly replace such portion of the
Property or system or equipment in the Property, regardless of whether the
benefit of such replacement extends beyond the Lease Term; but if the benefit
or useful life of such replacement extends beyond the Lease Term (as such term
may be extended by exercise of any options), the useful life of such
replacement shall be prorated over the remaining portion of the Lease Term (as
extended), and Tenant shall be liable only for that portion of the cost which
is applicable to the Lease Term (as extended). Tenant shall, at Tenant's
expense provide for the regular inspection and maintenance of the heating and
air conditioning system by a licensed heating and air conditioning contractor
or its own qualified technician, unless Landlord maintains such equipment
under Section 6.03 above. If any part of the Property or the Project is
damaged by any act or omission of Tenant, Tenant shall pay Landlord the cost
of repairing or replacing such damaged property, whether or not Landlord would
otherwise be obligated to pay the cost of maintaining or repairing such
property. It is the intention of Landlord and Tenant that at all times Tenant
shall maintain the portions of the Property which Tenant is obligated to
maintain in an attractive, first-class and fully operative condition.
(b) Tenant shall fulfill all of Tenant's obligations under this Section
6.04 at Tenant's sole expense. If Tenant fails to maintain, repair or replace
the Property as required by this Section 6.04, Landlord may, upon ten (10)
days' prior notice to Tenant (except that no notice shall be required in the
case of an emergency), enter the Property and perform such maintenance or
repair (including replacement, as needed) on behalf of Tenant. In such case,
Tenant shall reimburse Landlord for all costs incurred in performing such
maintenance or repair immediately upon demand.
Section 6.05. Alterations, Additions, and Improvements.
(a) Tenant shall not make any alterations, additions, or improvements
to the Property without Landlord's prior written consent, which consent shall
not be unreasonably withheld, except for non-structural alterations which do
not exceed Five Thousand Dollars ($5,000) in cost or which does not materially
alter the basic character of the Property or Project, weaken any structure on
the Property, or reduce the value of the Property or Project and which are not
visible from the outside of any building of which the Property is part.
Landlord may require Tenant to provide demolition and/or lien and completion
bonds in form and amount satisfactory to Landlord. Landlord may, at any time
during the Lease Term, require Tenant to promptly remove any alterations,
additions, or improvements constructed in violation of this Paragraph 6.05(a).
All alterations, additions, and improvements shall be done in a good and
workmanlike manner, in conformity with all applicable laws and regulations,
and by a contractor selected by Tenant subject to Landlord's reasonable
approval. Upon completion of any such work, Tenant shall provide Landlord
with "as built" plans, copies of all construction contracts, and proof of
payment for all labor and materials.
(b) Tenant shall pay when due all claims for labor and material
furnished to the Property. Tenant shall give Landlord prior written notice
of the commencement of any work on the Property, regardless of whether
Xxxxxxxx's consent to such work is required. Landlord may elect to record and
post notices of non-responsibility on the Property. If Tenant shall, in good
faith, contest the validity of any mechanics' or materialmens' liens against
the Property, then Tenant shall, at its sole expense, defend itself and
Landlord against the same and shall pay and satisfy any adverse judgment that
may be rendered thereon before the enforcement thereof against Landlord or the
Property or the Project, upon the condition that if Landlord shall require,
Tenant shall furnish to Landlord a surety bond satisfactory to Landlord in an
amount equal to such contested lien claim or demand indemnifying Landlord
against liability for the same and holding the Property and the Project free
from the effect of such lien or claim. In addition, Landlord may require
Tenant to pay Landlord's attorneys' fees and costs incurred in participating
in such action.
Section 6.06. Condition Upon Termination. Upon the termination of the
Lease, Xxxxxx shall surrender the Property to Landlord, broom clean and in the
same condition as received except for ordinary wear and tear which Tenant was
not otherwise obligated to remedy under any provision of this Lease. In
addition, Tenant shall be obligated to clean up and remove any Hazardous
Materials present at the Property as a result of Tenant's use thereof.
However, Tenant shall not be obligated to repair any damage which Landlord is
required to repair under Article Seven (Damage and Destruction). In addition,
Landlord may require Tenant to remove any alterations, additions or
improvements (whether or not made with Xxxxxxxx's consent) prior to the
expiration of the Lease and to restore the Property to its prior condition,
all at Tenant's expense. All alterations, additions and improvements which
Landlord has not required Tenant to remove shall become Landlord's property
and shall be surrendered to Landlord upon the expiration of earlier
termination of the Lease, except that Tenant may remove any of Tenant's
machinery or equipment which can be removed without material damage to the
Property. Tenant shall repair, at Tenant's expense, any damage to the
Property caused by the removal of any such machinery or equipment. In no
event, however, shall Tenant remove any of the following materials or
equipment (which shall be deemed Landlord's property) without Landlord's prior
written consent: any power wiring or power panels; lighting or lighting
fixtures; wall coverings; drapes, blinds or other winder coverings; carpets
or other floor coverings; heaters, air conditions or any other heating or air
conditioning equipment; fencing or security gates; or other similar building
operating equipment and decorations.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
Section 7.01. Partial Damage to Property.
(a) Tenant shall notify Landlord in writing immediately upon the
occurrence of any damage to the Property. If the Property is only partially
damaged i.e., less than fifty percent (50%) of the Property is untenantable
as a result of such damage or less than fifty percent (50%) of Tenant's
operations are materially impaired and if the proceeds received by Landlord
from the insurance policies described in Paragraph 4.04(b) are sufficient to
pay for the necessary repairs, this Lease shall remain in effect and Landlord
shall repair the damage as soon as reasonably possible. Landlord may elect
(but is not required) to repair any damage to Tenant's fixtures, equipment,
or improvements.
(b) If the insurance proceeds received by Landlord are not sufficient
to pay the entire cost of repair, or if the cause of the damage is not covered
by the insurance policies which Landlord maintains under Paragraph 4.04(b),
Landlord may elect either to (i) repair the damage as soon as reasonably
possible, in which case this Lease shall remain in full force and effect, or
(ii) terminate this Lease as of the date the damage occurred. Landlord shall
notify Tenant within thirty (30) days after receipt of notice of the
occurrence of the damage whether Landlord elects to repair the damage or
terminate the Lease. If Landlord elects to repair the damage, Tenant shall
pay Landlord the "deductible amount" (if any) under Landlord's insurance
policies and, if the damage was due to an act or omission of Tenant, or
Tenant's employees, agents, contractors or invitees, the difference between
the actual cost of repair and any insurance proceeds received by Landlord.
If Landlord elects to terminate this Lease, Tenant may elect to continue this
Lease in full force and effect, in which case Tenant shall repair any damage
to the Property and the Building. Tenant shall pay the cost of such repairs,
except that upon satisfactory completion of such repairs, Landlord shall
deliver to Tenant any insurance proceeds received by Landlord for the damage
repaired by Tenant. Tenant shall give Landlord written notice of such
election within ten (10) days after receiving Landlord's termination notice.
(c) If the damage to the Property occurs during the last six (6) months
of the Lease Term and such damage will require more than thirty (30) days to
repair, either Landlord or Tenant may elect to terminate this Lease as of the
date the damage occurred, regardless of the sufficiency of any insurance
proceeds. The party electing to terminate this Lease shall given written
notification to the other party of such election within thirty (30) days after
Xxxxxx's notice to Landlord of the occurrence of the damage.
Section 7.02. Substantial or Total Destruction. If the Property is
substantially or totally destroyed by any cause whatsoever (i.e., the damage
to the Property is greater than partial damage as described in Section 7.01),
and regardless of whether Landlord receives any insurance proceeds, this Lease
shall terminate as of the date the destruction occurred. Notwithstanding the
preceding sentence, if the Property can be rebuilt within six (6) months after
the date of destruction, Landlord may elect to rebuild the Property at
Landlord's own expense, in which case this Lease shall remain in full force
and effect. Landlord shall notify Tenant of such election within sixty (60)
days after Xxxxxx's notice of the occurrence of total or substantial
destruction. If Landlord so elects, Landlord shall rebuild the Property at
Landlord's sole expense, except that if the destruction was caused by an act
or omission of Tenant, Tenant shall pay Landlord the difference between the
actual cost of rebuilding and any insurance proceeds received by Landlord.
Section 7.03. Temporary Reduction of Rent. If the Property is
destroyed or damaged and Landlord or Tenant repairs or restores the Property
pursuant to the provisions of this Article Seven, any rent payable during the
period of such damage, repair and/or restoration shall be reduced according
to the degree, if any, to which Xxxxxx's use of the Property is impaired.
However, the reduction shall not exceed the sum of one year's payment of Base
Rate, insurance premiums and real property taxes. Except for such possible
reduction in Base Rent, insurance premiums and real property taxes, Tenant
shall not be entitled to any compensation, reduction, or reimbursement from
Landlord as a result of any damage, destruction, repair, or restoration of or
to the Property.
Section 7.04. Waiver. Tenant waives the protection of any statute,
code or judicial decision which grants a tenant the right to terminate a lease
in the event of the substantial or total destruction of the leased property.
Tenant agrees that the provisions of Section 7.02 above shall govern the
rights and obligations of Landlord and Tenant in the event of any substantial
or total destruction to the Property.
ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Property is taken under the power of eminent
domain or sold under the threat of that power (all of which are called
"Condemnation"), this Lease shall terminate as to the part taken or sold on
the date the condemning authority takes title or possession, whichever occurs
first. If more than twenty-five percent (25%) of the Building, or the
Property, is taken, either Landlord or Tenant may terminate this Lease as of
the date the condemning authority takes title or possession, by delivering
written notice to the other within ten (10) days after receipt of written
notice of such taking (or in the absence of such notice, within ten (10) days
after the condemning authority takes title or possession). If neither
Landlord nor Tenant terminates this Lease this Lease shall remain in effect
as to the portion of the Property not taken, except that the Base Rent and
Additional Rent shall be reduced in proportion to the reduction of the
Property not taken, except that the Base Rent and Additional Rent shall be
reduced in proportion to the deduction in the floor area of the Property. Any
Condemnation award or payment shall be distributed in the following order:
(a) first, to any ground lessor, mortgagee or beneficiary under a deed of
trust encumbering the Property, the amount of its interest in the Property;
(b) second, to Tenant, only the amount of any aware specifically designated
for loss of or damage to Tenant's trade fixtures or removable personal
property; and (c) third, to Landlord, the remainder of such award, whether as
compensation for reduction in the value of the leasehold, the taking of the
fee, or otherwise. If this Lease is not terminated, Landlord shall repair any
damage to the Property caused by the Condemnation, except that Landlord shall
not be obligated to repair any damage for which Tenant has been reimbursed by
the condemning authority. If the severance damages received by Landlord are
not sufficient to pay for such repair, Landlord shall have the right to either
terminate this Lease or make such repair at Landlord's expense.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. Xxxxxxxx's Consent Required. No portion of the Property
or of Tenant's interest in this Lease may be acquired by any other person or
entity, whether by sale, assignment, mortgage, sublease, transfer, option of
law, or act of Tenant, without Xxxxxxxx's prior written consent, except as
provided in Section 9.02 below. Landlord has the right to grant or withhold
its consent as provided in Section 9.05 below. Any attempted transfer without
consent shall be void and shall constitute a non-curable breach of this Lease.
If Tenant is a partnership, any cumulative transfer of more than twenty
percent (20%) of the partnership interests shall require Landlord's consent.
If Tenant is a corporation, any change in the ownership of a controlling
interest of the voting stock of the corporation shall require Landlord's
consent.
Section 9.02. Tenant Affiliate. Tenant may assign this Lease or
sublease the Property, without Landlord's consent, to any corporation which
controls, is controlled by or is under common control with Tenant, or to any
corporation resulting from the merger of or consolidation with Tenant
("Tenant's Affiliate"). In such case, any Tenant's Affiliate shall assume in
writing all of Tenant's obligations under this Lease.
Section 9.03. No Release of Tenant. No transfer permitted by this
Article Nine, whether with or without Landlord's consent, shall release Tenant
or change Tenant's primary liability to pay the rent and to perform all other
obligations of Tenant under this Lease. Xxxxxxxx's acceptance of rent from
any other person is not a waiver of any provision of this Article Nine.
Consent to one transfer is not a consent to any subsequent transfer. If
Xxxxxx's transferee defaults under this Lease, Landlord may proceed directly
against Tenant without pursuing remedies against the transferee. Landlord may
consent to subsequent assignments or modifications of this Lease by Xxxxxx's
transferee, without notifying Tenant or obtaining its consent. Such action
shall not relieve Xxxxxx's liability under this Lease.
Section 9.04. Offer to Terminate. If Tenant desires to assign the
Lease or sublease the Property, Tenant shall have the right to offer, in
writing, to terminate the Lease as of a date specified in the offer. If
Landlord elects in writing to accept the offer to terminate within twenty (20)
days after notice of the offer, the Lease shall terminate as of the date
specified and all the terms and provisions of the Lease governing termination
shall apply. If Landlord does not so elect, the Lease shall continue in
effect until otherwise terminated and the provisions of Section 9.05 with
respect to any proposed transfer shall continue to apply.
Section 9.05. Landlord's Consent.
(a) Xxxxxx's request for consent to any transfer described in Section
9.01 shall set forth in writing the details of the proposed transfer,
including the name, business and financial condition of the prospective
transferee, financial details of the proposed transfer (e.g., the term of and
the rent and security deposit payable under any proposed assignment or
sublease), and any other information Landlord deems relevant. Landlord shall
have the right to withhold consent, if reasonable, or to grant consent, based
on the following factors: (i) the business of the proposed assignee or
subtenant and the proposed use of the Property; (ii) the net worth and
financial reputation of the proposed assignee or subtenant; (iii) Tenant's
compliance with all of its obligations under the Lease; and (iv) such other
factors as Landlord may reasonably deem relevant.
(b) If Tenant assigns or subleases, the following shall apply:
(i) Tenant shall pay to Landlord as Additional Rent under the Lease the
Profit (defined below) on such transaction as and when received by
Xxxxxx, unless Xxxxxxxx given written notice to Tenant and the assignee
or subtenant that Landlord shall be paid by the assignee or subtenant
directly. The "Profit" means (A) all amounts paid to Tenant for such
assignment or sublease, including "key" money, monthly rent in excess of
the monthly rent payable under the Lease, and all fees and other
consideration paid for the assignment or sublease, including fees under
any collateral agreements, less (B) cost and expenses directly incurred
by Tenant in connection with the execution and performance of such
assignment or sublease for real estate broker's commissions and costs of
renovation or construction of tenant improvements required under such
assignment of sublease. Tenant is entitled to recover such costs and
expenses before Tenant is obligated to pay Landlord. The Profit in the
case of a sublease of less than all the Property is the rent allocable
to the subleased space as a percentage on a square footage basis.
(ii) Tenant shall provide Landlord a written statement certifying
all amounts to be paid from any assignment or sublease of the Property
within thirty (30) days after the transaction documentation is signed,
and Landlord may inspect Tenant's books and records to verify the
accuracy of such statement. On written request, Tenant shall promptly
furnish to Landlord copies of all the transaction documentation, all of
which shall be certified by Tenant to be complete, true and correct.
Xxxxxxxx's receipt shall not be a consent to any further assignment or
subletting. The breach of Tenant's obligation under this Paragraph
9.05(b) shall be a material default of the Lease.
Section 9.06. No Merger. No merger shall result from Xxxxxx's
sublease of the Property under this Article Nine, Xxxxxx's surrender of this
Lease or the termination of this Lease in any other manner. In any such
event, Landlord may terminate any or all subtenancies or succeed to the
interest of Xxxxxx as sublandlord under any or all subtenancies.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. Covenants and Conditions. Xxxxxx's performance of each
of Tenant's obligations under this Lease is a condition as well as a covenant.
Xxxxxx's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants
and conditions.
Section 10.02. Defaults. Tenant shall be in material default under
this Lease:
(a) If Xxxxxx abandons the Property or if Xxxxxx's vacation of the
Property results in the cancellation of any insurance described in Section
4.04;
(b) If Tenant fails to pay rent or any other charge when due; and any
such default shall continue for a period of ten (10) days after written notice
to Tenant;
(c) If Tenant fails to perform any of Tenant's non-monetary obligations
under this Lease for a period of thirty (30) days after written notice from
Landlord; provided that if more than thirty (30) days are required to complete
such performance Tenant shall not be in default if Tenant commences such
performance within the thirty (30) day period and thereafter diligently
pursues its completion. However, Landlord shall not be required to give such
notice if Xxxxxx's failure to perform constitutes a non-curable breach of this
Lease. The notice required by this Paragraph is intended to satisfy any and
all notice requirements imposed by law on Landlord and is not in addition to
any such requirement.
(d) (i) If Tenant makes a general assignment or general arrangement for
the benefit of creditors; (ii) if a petition for adjudication of bankruptcy
or for reorganization or rearrangement is filed by or against Tenant and is
not dismissed within thirty (30) days; (iii) if a trustee or receiver is
appointed to take possession of substantially all of Tenant's assets located
at the Property or of Tenant's interest in this Lease and possession is not
restored to Tenant within thirty (30) days; or (iv) if substantially all of
Tenant's assets located at the Property or of Tenant's interest in this Lease
is subjected to attachment, execution or other judicial seizure which is not
discharged within thirty (30) days. If a court of competent jurisdiction
determines that any of the acts described in this subparagraph (d) is not a
default under this Lease, and a trustee is appointed to take possession (or
if Tenant remains a debtor in possession) and such trustee or Tenant transfers
Tenant's interest hereunder, then Landlord shall receive, as Additional Rent,
the excess, if any, of the rent (or any other consideration) paid in
connection with such assignment or sublease over the rent payable by Tenant
under this Lease.
(e) If Tenant defaults with respect to any other lease between Landlord
and Tenant, or any parent company or subsidiary company or affiliate or agent
of Landlord or Tenant.
Section 10.03. Remedies. On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have:
(a) Terminate Xxxxxx's right to possession of the Property by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Property to Landlord. In such event,
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including (i) the worth at the time
of the award of the unpaid Base Rent, Additional Rent and other charges which
Landlord has earned at the time of the termination; (ii) the worth at the time
of the aware of the amount by which the unpaid Base Rent, Additional Rent and
other charges which Xxxxxxxx would have earned after termination until the
time of the award exceeds the amount of such rental loss that Tenant proves
Landlord could have reasonably avoided; (iii) the worth at the time of the
award of the amount by which the unpaid Base Rent, Additional Rent and other
charges which Xxxxxx would have paid for the balance of the Lease term after
the time of award exceeds the amount of such rental loss that Tenant proves
Landlord could have reasonably avoided; and (iv) any other amount necessary
to compensate Landlord for all the detriment proximately caused by Xxxxxx's
failure to perform its obligations under the Lease or which in the ordinary
course of things would be likely to result therefrom, including but not
limited to, any costs or expenses Landlord incurs in maintaining or preserving
the Property after such default, the cost of recovering possession of the
Property, expenses of reletting, including necessary renovation or alteration
of the Property, Landlord's reasonable attorneys' fees incurred in connection
therewith, and any real estate commission paid or payable. As used in
subparts (i) and (ii) above, the "worth at the time of the award" is computed
by allowing interest on unpaid amounts at the rate of fifteen percent (15%)
per annum, or such lesser amount as may then be the maximum lawful rate. As
used in subpart (iii) above, the "Worth at the time of the award" is computed
by discounting such amount at the discount rate of the Federal Reserve Bank
of San Francisco at the time of the award, plus one percent (1%). If Tenant
has abandoned the Property, Landlord shall have the option of (i) retaking
possession of the Property and recovering from Tenant the amount specified in
this Paragraph 10.03(a), or (ii) proceeding under Paragraph 10.03(b);
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant has abandoned the Property.
In such event, Landlord shall be entitled to enforce all of Landlord's rights
and remedies under this Lease, including the right to recover the rent as it
becomes due;
(c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Property is
located.
Section 10.04. Automatic Termination. Notwithstanding any other term
or provision hereof to the contrary, the Lease shall terminate on the
occurrence of any act which affirms the Landlord's intention to terminate the
Lease as provided in Section 10.03 hereof, including the filing of any
unlawful detainer action against Tenant. On such termination, Xxxxxxxx's
damages for default shall include all costs and fees, including reasonable
attorneys' fees that Landlord incurs in connection with the filing,
commencement, pursuing and/or defending of any action in any bankruptcy court
or other court with respect to the Lease; the obtaining of relief from any
stay in bankruptcy restraining any action to evict Tenant; or the pursuing of
any action with respect to Landlord's right to possession of the Property.
All such damages suffered (apart from Base Rent and other rent payable
hereunder) shall constitute precuniary damages which must be reimbursed to
Landlord prior to assumption of the Lease by Tenant or any successor to Xxxxxx
in any bankruptcy or other proceeding.
Section 10.05. Cumulative Remedies. Xxxxxxxx's exercise of any right
or remedy shall not prevent it from exercising any other right or remedy.
Section 10.06. Tenant's Remedies. On the occurrence of any material
default by Landlord, Tenant may at any time if not cured within thirty (30)
days after written notice to Landlord, pursue any remedy now or hereafter
available to Tenant under the laws or judicial decisions of the state in which
the property is located, provided, however, that if more than thirty (30) days
are required to complete such cure, Landlord shall not be in default if
Landlord commences such cure within the thirty (30) day period and thereafter
diligently pursues its completion.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01. Subordination. Landlord shall have the right to
subordinate this Lease to any ground lease, deed of trust or mortgage
encumbering the Property, any advances made on the security thereof and any
renewals, modifications, consolidations, replacements or extensions thereof,
whenever made or recorded. Tenant shall cooperate with Landlord and any
lender which is acquiring a security interest in the Property or the Lease.
Tenant shall execute such further documents and assurances as such lender may
require, provided that Tenant's obligations under this Lease shall not be
increased in any material way (the performance of ministerial acts shall not
be deemed material), and Tenant shall not be deprived of its right under this
Lease. Xxxxxx's right to quiet possession of the Property during the Lease
Term shall not be disturbed if Tenant pays the rent and performs all of
Tenant's obligations under this Lease and is not otherwise in default. If any
ground lessor, beneficiary or mortgagee elects to have this Lease prior to the
lien of its ground lease, deed of trust or mortgage and gives written notice
thereof to Tenant, this Lease shall be deemed prior to such ground lease, deed
of trust or mortgage whether this Lease is dated prior or subsequent to the
date of said ground lease, deed of trust or mortgage or the date of recording
thereof.
Section 11.02. Attornment. If Xxxxxxxx's interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee,
or purchaser at a foreclosure sale, Tenant shall attorn to the transferee of
or successor to Xxxxxxxx's interest in the Property and recognize such
transferee or successor as Landlord under this Lease. Tenant waives the
protection of any statute or rule of law which gives or purports to give
Tenant any right to terminate this Lease or surrender possession of the
Property upon the transfer of Landlord's interest.
Section 11.03. Signing of Documents. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such
attornment or subordination or agreement to do so. If Tenant fails to do so
within ten (10) days after written request, Tenant hereby makes, constitutes
and irrevocably appoints Landlord, or any transferee or successor of Landlord,
the attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
Section 11.04. Estoppel Certificates.
(a) Upon Landlord's written request, Tenant shall execute, acknowledge
and deliver to Landlord a written statement certifying: (i) that none of the
terms or provisions of this Lease have been changed (or if they have been
changed, stating how they have been changed); (ii) that this Lease has not
been canceled or terminated; (iii) the last date of payment of the Base Rent
and other charges and the time period covered by such payment; (iv) that
Landlord is not in default under this Lease (or, if Landlord is claimed to be
in default, stating why); and (v) such other representations or information
with respect to Tenant or the Lease as Landlord may reasonably request or
which any prospective purchaser or encumbrancer of the Property may require.
Tenant shall deliver such statement to landlord within fifteen (15) days after
Xxxxxxxx's request. Landlord may give any such statement by Tenant to any
prospective purchaser or encumbrancer of the Property. Such purchaser or
encumbrancer may rely conclusively upon such statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within such
fifteen (15) day period, the failure to deliver such statement within such
time shall be a material default of this Lease by Tenant, without any further
notice to Tenant, or Landlord, and any prospective purchaser or encumbrancer,
may conclusively presume and rely upon the following facts: (i) that the terms
and provisions of this Lease have not been changed except as otherwise
represented by Landlord; (ii) that this Lease has not been canceled or
terminated except as otherwise represented by Landlord; (iii) that not more
than one month's Base Rent or other charges have been paid in advance; and
(iv) that Landlord is not in default under the Lease. In such event, Tenant
shall be estopped from denying the truth of such facts.
Section 11.05. Tenant's Financial Condition. Within ten (10) days
after written request from Landlord, Tenant shall deliver to Landlord its
latest published, audited financial statements to verify the net worth of
Tenant or any assignee, subtenant, or guarantor of Tenant. In addition,
Tenant shall deliver to any lender designated by Landlord any such financial
statements to allow such lender to facilitate the financing or refinancing of
the Property. Tenant represents and warrants to Landlord that each such
financial statement is a true and accurate statement as of the date of such
statement. All financial statements shall be used only for the purposes set
forth in this Lease.
ARTICLE TWELVE: LEGAL COSTS
Section 12.01. Legal Proceedings. If Tenant or Landlord shall be in
breach or default under this Lease, such party (the "Defaulting Party") shall
reimburse the other party (the "Nondefaulting Party") upon demand for any
costs or expenses that the Nondefaulting Party incurs in connection with any
breach or default of the Defaulting Party under this Lease, whether or not
suit is commenced or judgement entered. Such costs shall include reasonable
legal fees and costs incurred for the negotiation of a settlement, enforcement
or rights or otherwise. Furthermore, if any action for breach of or to
enforce the provisions of this Lease is commenced, the court in such action
shall award to the part in whose factor a judgment is entered, a reasonable
sum as attorney's fees and costs. The losing party in such action shall pay
such attorneys' fees and costs. Tenant shall also indemnify Landlord against
and hold Landlord harmless from all costs, expenses, demands and liability
Landlord may incur if Landlord becomes or is made a party to any claim or
action (a) instituted by Tenant against any third party, or by any third party
against Tenant, or by or against any person holding any interest under or
using the Property by license of or agreement with Tenant; (b) for foreclosure
of any lien for labor or material furnished to or for Tenant or such other
person; (c) otherwise arising out of or resulting from any act or transaction
of Tenant or such other person; or (d) necessary to protect Landlord's
interest under this Lease in a bankruptcy proceeding, or other proceeding
under Title 11 of the United States Code, as amended. Tenant shall defend
Landlord against any such claim or action at Tenant's expense with counsel
reasonably acceptable to Landlord or, at Landlord's election, Tenant shall
reimburse Landlord for any legal fees or costs Landlord incurs in any such
claim or action.
Section 12.02. Landlord's Consent. Tenant shall pay Landlord's
reasonable attorneys' fees incurred in connection with Xxxxxx's request for
Xxxxxxxx's consent under Article Nine (Assignment and Subletting), or in
connection with any other act which Xxxxxx proposes to do and which requires
Xxxxxxxx's consent.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. Non-Discrimination. Tenant promises, and it is a
condition to the continuance of this Lease, that there will be no
discrimination against, or segregation of, any person or group of persons on
the basis of race, color, sex, creed, national origin or ancestry in the
leasing, subleasing, transferring, occupancy, tenure or use of the Property
or any portion thereof.
Section 13.02. Landlord's Liability; Certain Duties.
(a) As used in this Lease, the term "Landlord" means only the current
owner or owners of the fee title to the Property or Project or the leasehold
estate under a ground lease of the Property or Project at the time in
question. Each Landlord is obligated to perform the obligations of Landlord
under this Lease only during the time such Landlord owns such interest or
title. Any Landlord who transfers its title or interest is relieved of all
liability with respect to the obligations of Landlord under this Lease to be
performed on or after the date of transfer. However, each Landlord shall
deliver to its transferee all funds that Tenant previously paid if such funds
have not yet been applied under the terms of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to
perform any of its obligations under this Lease to Landlord and to any ground
lessor, mortgagee or beneficiary under any deed of trust encumbering the
Property whose name and address have been furnished to Tenant in writing.
Landlord shall not be in default under this Lease unless Landlord (or such
ground lessor, mortgagee or beneficiary) fails to cure such non-performance
within thirty (30) days after receipt of Tenant's notice. However, if such
non-performance reasonably requires more than thirty (30) days to cure,
Landlord shall not be in default if such cure is commenced within such thirty
(30) day period and thereafter diligently pursued to completion.
(c) Notwithstanding any term or provision herein to the contrary, the
liability of Landlord for the performance of its duties and obligations under
this Lease is limited to Landlord's interest in the Property and the Project,
and neither the Landlord nor its partners, shareholders, officers or other
principals shall have any personal liability under this Lease.
Section 13.03. Severability. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal
or unenforceable shall not cancel or invalidate the remainder of such
provision or this Lease, which shall remain in full force and effect.
Section 13.04. Interpretation. The captions of the Articles or
Sections of this Lease are to assist the parties in reading this Lease and are
not a part of the terms or provisions of this Lease. Whenever required by the
context of this Lease, the singular shall include the plural and the plural
shall include the singular. The masculine, feminine and neuter genders shall
each include the other. In any provision relating to the conduct, acts or
omissions of Tenant, the term "Tenant" shall include Tenant's agents,
employees, contractors, invitees, successors or others using the Property with
Xxxxxx's expressed or implied permission.
Section 13.05. Incorporation of Prior Agreements; Modification. This
Lease is the only agreement between the parties pertaining to the lease of the
Property and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
Section 13.06. Notices. All notices required or permitted under this
Lease shall be in writing and shall be personally delivered or sent by
certified mail, return receipt requested, postage prepaid. Notices to Tenant
shall be delivered to the address specified in Section 1.03 above, except that
upon Xxxxxx's taking possession of the Property, the Property shall be
Tenant's address for notice purposes. Notices to Landlord shall be delivered
to the address specified in Section 1.02 above. All notices shall be
effective upon delivery. Either party may change its notice address upon
written notice to the other party.
Section 13.07. Waivers. All waivers must be in writing and signed by
the waiving party. Xxxxxxxx's failure to enforce any provision of this Lease
or its acceptance of rent, notwithstanding Landlord's knowledge of any breach
of this Lease by Tenant, shall not be a waiver and shall not prevent Landlord
from enforcing that provision or any other provision of this Lease in the
future. No statement on a payment check from Tenant or in a letter
accompanying a payment check shall be binding on Landlord. Landlord may, with
or without notice to Tenant, negotiate such check without being bound to the
conditions of such statement.
Section 13.08. No Recordation. Tenant shall not record this Lease
without prior written consent from Landlord. However, either Landlord or
Tenant may require that "Short Form" memorandum of this Lease executed by
both parties be recorded. The party requiring such recording shall pay all
transfer taxes and recording fees.
Section 13.09. Binding Effect; Choice of Law. This Lease binds any
party who legally acquires any rights or interest in this Lease from Landlord
or Tenant. However, Landlord shall have no obligation to Xxxxxx's successor
unless the rights or interests of Xxxxxx's successor are acquired in
accordance with the terms of this Lease. The laws of the state in which the
Property is located shall govern this Lease.
Section 13.10. Corporate Authority; Partnership Authority. If a party
is a corporation, each person signing this Lease on behalf of such party
represents and warrants that he has full authority to do so and that this
Lease finds the corporation. If a party is a partnership, each person or
entity signing this Lease for such party represents and warrants that he or
it is a general partner of the partnership, that he or it has full authority
to sign for the partnership and that this Lease binds the partnership and all
general partners of the partnership.
Section 13.11. Force Majeure. If either party cannot perform any of
its obligations due to events beyond its control, other than Tenant's
obligation to pay rent or any other charge, the time provided for performing
such obligations shall be extended by a period of time equal to the duration
of such events. Events beyond control include, but are not limited to, acts
of God, war, civil commotion, labor disputes, strikes, fire, flood or other
casualty, shortages of labor or material, government regulation or restriction
and weather Conditions.
Section 13.12. Execution of Lease. This lease may be executed in
counterparts and, when all counterpart documents are executed, the
counterparts shall constitute a single binding instrument. Xxxxxxxx's
delivery of this Lease to Tenant shall not be deemed to be an offer to lease
and shall not be binding upon either party until executed and delivered to
both parties.
Section 13.13. Survival. All representations and warranties of
Landlord and Tenant shall survive the termination of this Lease.
Section 13.14. Guarantors. In the event that there is a guarantor of
this Lease, said guarantor shall have the same obligation as Tenant under this
Lease.
Section 13.15. Security Measures. Tenant hereby acknowledges that
Landlord shall have no obligation whatsoever to provide guard service or other
security measures for the benefit of the Property or the Project. Tenant
assumes all responsibility for the protection of Tenant, its agents and
invitees, and the property of Xxxxxx and Xxxxxx's agents and invitees from
acts of third parties. In the event that Tenant is not the only tenant in the
Project, nothing herein contained shall prevent Landlord, at Landlord's sole
option, from providing security protection for the Project or any part
thereof, in which event the cost thereof shall be included within the
definition of Common Area Costs set forth in Section 4.05(d) hereof.
Section 13.16. Easements. Landlord reserves to itself the right, from
time to time, to grant such easements, rights and dedications that Landlord
deems necessary or desirable, and to cause the recordation of Parcel Maps and
restrictions, so long as such easements, rights, dedications, maps and
restrictions do not unreasonably interfere with the use of the Property by
Xxxxxx. Tenant shall execute any of the aforementioned documents upon request
of Landlord and failure to do so shall constitute a material default of this
Lease by Tenant without the need for further notice to Tenant.
ARTICLE FOURTEEN: BROKERS
Section 14.01. Broker's Disclosure of Agency. Xxxxxxxx's Broker hereby
discloses to Landlord and Xxxxxx and Landlord and Tenant hereby consent to
Xxxxxxxx's Broker acting in this transaction as the agent of Landlord
exclusively.
Section 14.02. No Other Brokers. Each party represents and warrants to
the other party that there are no other agents, brokers, finders or other
parties who are or may be entitled to any commission or fee with respect to
this Lease or the Property.
ARTICLE FIFTEEN: LANDLORD'S WORK
Section 15.01. Landlord shall, at its sole cost, not to exceed Two
Thousand Five Hundred and no/100 Dollars ($2,500.00), perform the following
improvements to the Property, as shown on Exhibit "A", attached hereto:
- Paint the exterior of the Property to match the other Buildings in
the Project.
Final plans, specifications and costs are subject to the mutual approval of
Landlord and Tenant.
Landlord and Xxxxxx have signed this Lease on the dates specified adjacent to
their signature below and have initialed all Riders which are attached to or
incorporated by reference to this Lease.
LANDLORD TENANT
XXXXXX/XXXXXXXX REALTY IOMEGA Corporation
INCOME FUND-11,
LIMITED PARTNERSHIP
By: Xxxxxxx Investments
As: Authorized Agent
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxx
Its: Senior Vice President Its: Senior Vice President
Date: 8/28/95 Date: 8/25/95
