EXHIBIT 10.33
[Net Lease]
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 9th day of April, 1996, between Security
Capital Industrial Trust ("Landlord"),and the Tenant named below.
Tenant: IOMEGA Corporation
0000 X. Xxxxxx Xxx
Xxx, Xxxx 00000
Telephone: 801/000-0000
Facsimile: 801/778-4100
Premises: That portion of the Building, containing approximately 100,000
rentable square feet, as determined by Landlord, as shown on
Exhibit A.
Project: NCR Facility
Building: 0000 X. Xxxxxxxx Xxxxxx, Xxxxx, Xxxx
Tenant's
Proportionate
Share of Project: 100%
Lease Terms: Beginning on the Commencement Date and ending on the last day
of the 120th full calendar month thereafter.
Commencement
Date: The later of (a) June 1, 1996, (b) one day after Landlord
purchases the Building, or (c) the date Landlord delivers to
Tenant occupancy of the Premises. Tenant shall not be charged
Base Rent for the first 14 days following the Commencement
Date, provided that Tenant shall fulfill on the Commencement
Date all requirements under this Lease relating to Tenant's
occupancy (including without limitation all insurance
requirements).
Initial Monthly
Base Rate: $40,000
Initial Estimated 1. Utilities: To be paid directly by Tenant.
Monthly Operating
Expense Payments: 2. Common Area Charges: To be paid directly by Tenant
(estimates only
and subject to
adjustment 3. Taxes: $4,590 (To be paid by Tenant to Landlord)
to actual costs
and expenses
according 4. Insurance: $334 (To be paid by Tenant to Landlord)
to the provisions
of this Lease) 5. Others: To be paid directly by Tenant
Initial Estimated
Monthly Operating
Expense Payments
Payable by Tenant
Directly to Landlord: $5,024
Initial Monthly Base
Rent and Operating
Expense Payments
(Payable by Tenant
Directly to Landlord): $45,024
Security Deposit: $43,134
Broker: Xxx & Associates
Addenda: Exhibit A (Premises); Addendum A (CPI Adjustment); Addendum B
(Storage and Use of Permitted Hazardous Materials): Addendum C
(Construction Allowance)
1. Granting Clause. In consideration of the obligation of Tenant to pay
rent as herein provided and in consideration of the other terms, covenants,
and conditions hereof, Landlord leases to Tenant, and Tenant takes from
Landlord, the Premises, to have and to hold for the Lease Term, subject to
the terms, covenants and conditions of this Lease. Tenant acknowledges that,
as of the date of this Lease Agreement, Landlord does not own the Building.
Landlord and Tenant agree that if Landlord is unable to consummate its
purchase of the Building by July 15, 1996, then this Lease shall become null
and void and of no further effect.
2. Acceptance of Premises. Tenant shall accept the Premises in its
condition as of the Commencement Date, subject to all applicable laws,
ordinances, regulations, covenants and restrictions. Landlord has made no
representation or warranty as to the suitability of the Premises
for the conduct of Tenant's business, and Tenant waives any implied warranty
that the Premises are suitable for Tenant's intended purposes. Except as
provided in Paragraph 10, in no event shall Landlord have any obligation for
any defects in the Premises (other than material defects for which
Tenant provides Landlord with written notice within the first 30 days of the
Commencement Date) or any limitation on its use. The taking of possession of
the Premises shall be conclusive evidence that Tenant accepts the Premises
and that the Premises were in good condition at the time possession
was taken except for items that are Landlord's responsibility under Paragraph
10, any punchlist items agreed to in writing by Landlord and Tenant, and any
material defects for which Tenant has notified Landlord within the first 30
days of the Commencement Date.
3. Use. The Premises shall be used only for the purpose of receiving,
manufacturing, storing, shipping and selling products, materials and
merchandise made and/or distributed by Tenant and for such other lawful
purposes as may be incidental thereto. In connection with Tenant's
manufacturing operations, Tenant shall construct a clean room in the Premises
to local, state and federal requirements, as applicable. Tenant shall not
conduct or give notice of any auction, liquidation, or going out of business
sale on the Premises. Tenant will use the Premises in a careful,
safe and proper manner and will not commit waste, overload the floor or
structure of the Premises or subject the Premises to use that would damage
the Premises. Tenant shall not permit any objectionable or unpleasant odors,
smoke, dust, gas, noise, or vibrations to emanate from the Premises, or take
any other action that would constitute a nuisance or would disturb, unreasonably
interfere with, or endanger Landlord. Tenant, at its sole expense, shall use
and occupy the Premises in compliance with all laws, including, without
limitation, the Americans With Disabilities Act, orders, judgments,
ordinances, regulations, codes, directives, permits, licenses, covenants and
restrictions now or hereafter applicable to the Premises (collectively,
"Legal Requirements"). The Premises shall not be used as a place of public
accommodation under the Americans With Disabilities Act or similar state
statutes or local ordinances or any regulations promulgated thereunder, all
as may be amended from time to time. Tenant shall, at its expense make any
alterations or modifications, within or without the Premises, that are required
by Legal Requirements related to Tenant's use or occupation of the Premises.
Tenant will not use or permit the Premises to be used for any purpose or in
any manner that would void Tenant's or Landlord's insurance, increase the
insurance risk, or cause the disallowance of any sprinkler credits. If any
increase in the cost of any insurance on the Premises or the Project is
caused by Tenant's use or occupation of the Premises, or because Tenant
vacates the Premises, then Tenant shall pay the amount of such increase
to Landlord. Any occupation of the Premises by Tenant prior to the
Commencement Date shall be subject to all obligations of Tenant under this
Lease.
4. Base Rent. Tenant shall pay Base Rent in the amount set forth
above. The first month's Base Rent, the Security Deposit, and the first
monthly installment of estimated Operating Expenses (as hereafter defined)
shall be due and payable on the date hereof, and Tenant promises to pay to
Landlord in advance, without demand, deduction or set-off, monthly installments
of Base Rent on or before the first day of each calendar month succeeding the
Commencement Date. Payments of Base Rent for any fractional calendar month
shall be prorated. All payments required to be made by Tenant to Landlord
hereunder shall be payable at such address as Landlord may specify from time
to time by written notice delivered in accordance herewith. The obligation of
Tenant to pay Base Rent and other sums to Landlord and the obligations of
Landlord under this Lease are independent obligations. Tenant shall have no
right at any time to xxxxx, reduce, or set-off any rent due hereunder except
as may be expressly provided in this Lease. If Tenant is delinquent
in any monthly installment of Base Rent or of estimated Operating Expenses for
more than 5 days, Tenant shall pay to Landlord on demand a late charge equal
to 5 percent of such delinquent sum. The provision for such late charge
shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as a penalty.
5. Security Deposit. The Security Deposit shall be held by Landlord
as security for the performance of Tenant's obligations under this Lease.
The Security Deposit is not an advance rental deposit or a measure of
Landlord's damages in case of Tenant's default. Upon each occurrence of
an Event of Default (hereinafter defined), Landlord may use all or part of the
Security Deposit to pay delinquent payments due under this Lease, and the
cost of any damage, injury, expense or liability caused by such Event of
Default, without prejudice to any other remedy provided herein or provided
by law. Tenant shall pay Landlord on demand the amount that will restore the
Security Deposit to its original amount. Landlord's obligation respecting
the Security Deposit is that of a debtor, not a trustee; no interest shall
accrue thereon. The Security Deposit shall be the property of Landlord, but
shall be paid to Tenant when Tenant's obligations under this Lease have been
completely fulfilled. Landlord shall be released from any obligation with
respect to the Security Deposit upon transfer of this Lease and the Premises
to a person or entity assuming Landlord's obligations under this
Paragraph 5.
6. Operating Expense Payments. During each month of the Lease Term,
on the same date that Base Rent is due, Tenant shall pay Landlord an amount
equal to 1/12 of the annual cost, as estimated by Landlord from time to time,
of Taxes (as set forth in Paragraph 8) and Insurance (as set forth in
Paragraph 9) for the Project. Payments thereof for any fractional calendar
month shall be prorated. Tenant shall replace, repair and maintain all
aspects of the Project contemplated in the Operating Expenses (as defined
below) and timely pay for all such aspects of Operating Expenses directly to
the applicable entity, and send evidence of all such payments made to
Landlord when such payments are made. If Tenant fails to timely perform any
such replacements, repairs or maintenance, or to timely make payments for
such replacements, repairs or maintenance, or to provide timely
evidence of such payments, Landlord shall have the right to perform such
replacements, repairs or maintenance and/or make such payments, as the case
may be, and charge such costs to Tenant as additional rent, to be paid by
Tenant with the next due installment of Base Rent. The term "Operating
Expenses" means all costs and expenses incurred by Landlord with respect to the
ownership, maintenance, and operation of the Project including, but not
limited to costs of: Taxes (hereinafter defined) and reasonable fees payable
to tax consultants and attorneys for consultation and contesting taxes;
insurance; utilities; maintenance, repair and replacement of all portions of the
Project, including without limitation, paving and parking areas, roads, roofs,
alleys, and driveways, mowing, landscaping, exterior painting, utility lines,
heating, ventilation and air conditioning systems, lighting, electrical
systems and other mechanical and building systems; amounts paid to
contractors and subcontractors for work or services performed in connection
with any of the foregoing; charges or assessments of any association to which
the Project is subject; security services, if any; trash collection, sweeping
and removal; and additions or alterations made by Landlord to the Project or
the Building in order to comply with Legal Requirements (other than those
expressly required herein to be made by Tenant). Operating Expenses do not
include costs, expenses, depreciation or amortization for capital repairs and
capital replacements required to be made by Landlord under Paragraph 10 of
this Lease, debt service under mortgages or ground rent under ground leases,
costs of restoration to the extent of net insurance proceeds received by
Landlord with respect thereto, leasing commissions, or the costs of
renovating space for tenants.
If Tenant's total payments of Operating Expenses for any year are less
than Tenant's Proportionate Share of actual Operating Expenses for such year,
then Tenant shall pay the difference to Landlord within 30 days after demand,
and if more, then Landlord shall retain such excess and credit it against
Tenant's next payments. For purposes of calculating Tenant's Proportionate
Share of Operating Expenses, a year shall mean a calendar year except the first
year, which shall begin on the Commencement Date, and the last year, which
shall end on the expiration of this Lease. With respect to Operating
Expenses which Landlord allocates to the entire Project, Tenant's
"Proportionate Share" shall be the percentage set forth on the first page of
this Lease. The estimated Operating Expenses for the Premises set forth on
the first page of this Lease are only estimates, and Landlord makes no
guaranty or warranty that such estimates will be accurate.
7. Utilities. Tenant shall pay for all water, gas, electricity, heat,
light, power, telephone, sewer, sprinkler services, refuse and trash
collection, and other utilities and services used on the Premises, all
maintenance charges for utilities, and any storm sewer charges or other
similar charges for utilities imposed by any governmental entity or utility
provider, together with any taxes, penalties, surcharges or the like
pertaining to Tenant's use of the Premises. Landlord may cause at
Tenant's expense any utilities to be separately metered or charged directly to
Tenant by the provider. No interruption or failure of utilities shall result
in the termination of this Lease or the abatement of rent. Tenant agrees to
limit use of water and sewer for normal restroom use, production processes
and outside landscape watering.
8. Taxes. Landlord shall pay all taxes, assessments and governmental
charges (collectively referred to as "Taxes") that accrue against the Project
during the Lease Term, which shall be included as part of the Operating
Expenses charged to Tenant. Landlord may contest by appropriate legal
proceedings the amount, validity, or application of any Taxes or liens
thereof. All capital levies or other taxes assessed or imposed on Landlord
upon the rents payable to Landlord under this Lease and any franchise tax,
any excise, transaction, sales or privilege tax, assessment, levy or charge
measured by or based, in whole or in part, upon such rents from the Premises
and/or the Project or any portion thereof shall be paid by Tenant to Landlord
monthly in estimated installments or upon demand, at the option of Landlord,
as additional rent; provided, however, in no event shall Tenant be liable for
any net income taxes imposed on Landlord unless such net income taxes are in
substitution for any Taxes payable hereunder. If any such tax or excise is
levied or assessed directly against Tenant, then Tenant shall be responsible
for and shall pay the same at such times and in such manner as the taxing
authority shall require. Tenant shall be liable for all taxes levied or
assessed against any personal property or fixtures placed in the Premises,
whether levied or assessed against Landlord or Tenant.
9. Insurance. Landlord shall maintain all risk property insurance
covering the full replacement cost of the Building. Landlord may, but is not
obligated to, maintain such other insurance and additional coverages as it
may deem necessary, including, but not limited to, commercial liability
insurance and rent loss insurance. All such insurance shall be included as part
of the Operating Expenses charged to Tenant. The Project or Building may be
included in a blanket policy (in which case the cost of such insurance
allocable to the Project or Building will be determined by Landlord based
upon the insurer's cost calculations). Tenant shall also reimburse
Landlord for any increased premiums or additional insurance which Landlord
reasonably deems necessary as a result of Tenant's use of the Premises.
Tenant, at its expense, shall maintain during the Lease Term: all risk
property insurance covering the full replacement cost of all property and
improvements installed or placed in the Premises by Tenant at Tenant's
expense; worker's compensation insurance with no less than the minimum limits
required by law; employer's liability insurance with such limits as required
by law; and commercial liability insurance, with a minimum limit of
$1,000,000 per occurrence and a minimum umbrella limit of $1,000,000, for a
total minimum combined general liability and umbrella limit of $2,000,000
(together with such additional umbrella coverage as Landlord may reasonably
require) for property damage, personal injuries, or deaths of persons
occurring in or about the Premises. Landlord may from time to time require
reasonable increases in any such limits. The commercial liability policies
shall name Landlord as an additional insured, insure on an occurrence
and not a claims-made basis, be issued by insurance companies which are
reasonably acceptable to Landlord, not be cancelable unless 30 days prior
written notice shall have been given to Landlord, contain a hostile fire
endorsement and a contractual liability endorsement and provide primary
coverage to Landlord (any policy issued to Landlord providing duplicate or
similar coverage shall be deemed excess over Tenant's policies). Such
policies or certificates thereof shall be delivered to Landlord by Tenant
upon commencement of the Lease Term and upon each renewal of said insurance.
The all risk property insurance obtained by Landlord and Tenant shall
include a waiver of subrogation by the insurers and all rights based upon an
assignment from its insured, against Landlord or Tenant, their officers,
directors, employees, managers, agents, invitees and contractors, in
connection with any loss or damage thereby insured against. Neither party
nor its officers, directors, employees, managers, agents, invitees or
contractors shall be liable to the other for loss or damage caused by any
risk coverable by all risk property insurance, and each party waives any
claims against the other party, and its officers, directors, employees,
managers, agents, invitees and contractors for such loss or damage. The
failure of a party to insure its property shall not void this waiver.
Landlord and its agents, employees and contractors shall not be liable for,
and Tenant hereby waives all claims against such parties for, business
interruption and losses occasioned thereby sustained by Tenant or any person
claiming through Tenant resulting from any accident or occurrence in or upon
the Premises or the Project from any cause whatsoever, including without
limitation, damage caused in whole or in part, directly or indirectly, by the
negligence of Landlord or its agents, employees or contractors.
10. Landlord's Repairs. Landlord shall maintain, at its expense, the
structural soundness of the roof, foundation, and exterior walls of the
Building in good repair, reasonable wear and tear and uninsured losses and
damages caused by Tenant, its agents and contractors excluded.
The term "walls" as used in this Paragraph 10 shall not include windows, glass
or plate glass, doors or overhead doors, special store fronts, dock bumpers,
dock plates or levelers, or office entries. Tenant shall promptly give
Landlord written notice of any repair required by Landlord pursuant to
this Paragraph 10, after which Landlord shall have a reasonable opportunity
to repair provided, however, that if Landlord fails to make such repairs
within a reasonable amount of time, Tenant may make such repairs and be
reimbursed within 10 days of providing Landlord with written documentation of
expenses incurred and demand therefor.
11. Tenant's Repairs. Landlord, at Tenant's expense as provided in
Paragraph 6, shall maintain in good repair and condition the parking areas
and other common areas of the Building, including, but not limited to
driveways, alleys, landscape and grounds surrounding the Premises. Subject
to Landlord's obligation in Paragraph 10 and subject to Paragraphs 9 and 15,
Tenant, at its expense, shall repair, replace and maintain in good condition
all portions of the Premises and all areas, improvements and systems
exclusively serving the Premises including, without limitation, dock and
loading areas, truck doors, plumbing, water and sewer lines up to points of
common connection, fire sprinklers and fire protection systems, entries,
doors, ceilings and roof membrane, windows, interior walls, and the interior
side of demising walls, and heating, ventilation and air conditioning systems.
Such repair and replacements include capital expenditures and repairs whose
benefit may extend beyond the Term. Heating, ventilation and air conditioning
systems and other mechanical and building systems serving the Premises shall
be maintained at Tenant's expense pursuant to maintenance service contracts
entered into by Tenant or, at Landlord's election, by Landlord. The scope of
services and contractors under such maintenance contracts shall be reasonably
approved by Landlord. At Landlord's request, Tenant shall enter into a joint
maintenance agreement with any railroad that services the Premises. If
Tenant fails to perform any repair or replacement for which it is responsible,
Landlord may perform such work and be reimbursed by Tenant within 10 days
after demand therefor. Subject to Paragraphs 9 and 15, Tenant shall bear the
full cost of any repair or replacement to any part of the Building or Project
that results from damage caused by Tenant, its agents, contractors, or
invitees and any repair that benefits only the Premises.
12. Tenant-Made Alterations and Trade Fixtures. Any alterations,
additions, or improvements made by or on behalf of Tenant to the Premises
("Tenant-Made Alterations") shall be subject to Landlord's prior written
consent. Tenant shall cause, at its expense, all Tenant-Made Alterations to
comply with insurance requirements and with Legal Requirements and shall
construct at its expense any alteration or modification required by Legal
Requirements as a result of any Tenant-Made Alterations. All Tenant-Made
Alterations shall be constructed in a good and workmanlike manner by
contractors reasonably acceptable to Landlord and only good grades of
materials shall be used. All plans and specifications for any Tenant-Made
Alterations shall be submitted to landlord for its approval. Landlord may
monitor construction of the Tenant-Made Alterations. Landlord's right to
review plans and specifications and to monitor construction shall be solely
for its own benefit, and Landlord shall have no duty to see that such plans and
specification or construction comply with applicable laws, codes, rules and
regulations. Landlord may post on and about the Premises notices of
non-responsibility pursuant to applicable law. Tenant shall provide
certificates of insurance for worker's compensation and other coverage in
amounts and from an insurance company satisfactory to Landlord protecting
Landlord against liability for personal injury or property damage during
construction. Upon completion of any Tenant-Made Alterations, Tenant shall
deliver to Landlord, if in Tenant's possession, final lien waivers from all such
contractors and subcontractors. Upon surrender of the Premises, all
Tenant-Made Alterations and any leasehold improvements constructed by
Landlord or Tenant shall remain on the Premises as Landlord's property,
except to the extent Landlord requires removal at Tenant's expense of any such
items or Landlord and Tenant have otherwise agreed in writing in connection
with Landlord's consent to any Tenant-Made Alterations. Tenant shall repair
any damage caused by such removal.
Tenant, at its own cost and expense and without Landlord's prior approval,
may erect such shelves, bins, machinery and trade fixtures (collectively
"Trade Fixtures") in the ordinary course of its business provided that such
items do not alter the basic character of the Premises, do not overload
or damage the Premises, and may be removed without injury to the Premises,
and the construction, erection, and installation thereof complies with all
Legal Requirements and with Landlord's requirements set forth above. Tenant
shall remove its Trade Fixtures and shall repair any damage caused by such
removal.
13. Signs. Tenant shall not make any changes to the exterior of the
Premises without Landlord's prior written consent. Upon surrender or
vacation of the Premises, Tenant shall have removed all signs and repair,
paint, and/or replace the building facia surface to which its signs are
attached. Tenant shall obtain all applicable governmental permits and
approvals for sign and exterior treatments. All signs, decorations,
advertising media, blinds, draperies and other window treatment
or bars or other security installations visible from outside the Premises
shall be subject to Landlord's approval and conform in all respects to
Landlord's requirements.
14. Parking. Tenant shall be entitled to park in areas designated for
nonreserved parking. Landlord shall not be responsible for enforcing Tenant's
parking rights against any third parties.
15. Restoration. If at any time during the Lease Term the Premises are
damaged by a fire or other casualty, Landlord shall notify Tenant within 60
days after such damage as to the amount of time Landlord reasonably estimates
it will take to restore the Premises. If the restoration time is estimated
to exceed 6 months, either Landlord or Tenant may elect to terminate this Lease
upon notice to the other party given no later than 30 days after Landlord's
notice. If neither party elects to terminate this Lease or if Landlord
estimates that restoration will xxxx 0 months or less, then, subject to
receipt of sufficient insurance proceeds, Landlord shall promptly restore the
Premises excluding the improvements installed by Tenant or by Landlord and
paid by Tenant, subject to delays arising from the collection of insurance
proceeds or from Force Majeure events. Tenant at Tenant's expense shall
promptly perform, subject to delays arising from the collection of insurance
proceeds, or from Force Majeure events, all repairs or restoration not
required to be done by Landlord and shall promptly re-enter the Premises and
commence doing business in accordance with this Lease. Notwithstanding the
foregoing, either party may terminate this Lease if the Premises are damaged
during the last year of the Lease Term and Landlord reasonably estimates that
it will take more than one month to repair such damage. Tenant shall pay to
Landlord with respect to any damage to the Premises the amount of the
commercially reasonably deductible under Landlord's insurance policy
(currently $10,000) within 10 days after presentment of Landlord's invoice.
If the damage involves the premises of other tenants, Tenant shall pay the
portion of the deductible that the cost of the restoration of the Premises
bears to the total cost of restoration, as determined by Landlord. Base
Rent and Operating Expenses shall be abated for the period of repair and
restoration in the proportion which the areas of the Premises, if any, which
is not usable by Tenant bears to the total area of the Premises. Such
abatement shall be the sole remedy of Tenant, and except as provided herein,
Tenant waives any right to terminate the Lease by reason of damage or
casualty loss.
16. Condemnation. If any part of the Premises or the Project should
be taken for any public or quasi-public use under governmental law, ordinance,
or regulation, or by right of eminent domain, or by private purchase in lieu
thereof (a "Taking" or "Taken"), and the Taking would prevent or materially
interfere with Tenant's use of the Premises or in Landlord's judgment would
materially interfere with or impair its ownership or operation of the Project,
then upon written notice by Landlord this Lease shall terminate and Base Rent
shall be apportioned as of said date. If part of the Premises shall be Taken,
and this Lease is not terminated as provided above, the Base Rent payable
hereunder during the unexpired Lease Term shall be reduced to such extent as
may be fair and reasonable under the circumstances. In the event of any such
Taking, Landlord shall be entitled to receive the entire price or award from
any such Taking without any payment to Tenant, and Tenant hereby assigns to
Landlord Tenant's interest, if any, in such award. Tenant shall have the
right, to the extent that same shall not diminish Landlord's award, to make a
separate claim against the condemning authority (but not Landlord) for such
compensation as may be separately awarded or recoverable by Tenant for moving
expenses and damage to Tenant's Trade Fixtures, if a separate award for such
items is made to Tenant.
17. Assignment and Subletting. Without Landlord's prior written consent,
Tenant shall not assign this Lease or sublease the Premises or any part
thereof or mortgage, pledge, or hypothecate its leasehold interest or grant
any concession or license within the Premises and any attempt to do any of
the foregoing shall be void and of no effect. For purposes of this paragraph,
a transfer of the ownership interests controlling Tenant shall be deemed an
assignment of this Lease unless such ownership interests are publicly traded.
Notwithstanding the above, Tenant may assign or sublet the Premises, or any
part thereof, to (a) any entity controlling Tenant, controlled by Tenant or
under common control with Tenant (a "Tenant Affiliate"), or (b) to any person
or entity which shall acquire not less than 51% of the stock or assets of
Tenant as a result of a consolidation, merger or sale, provided that in the
case of this Subparagraph 17(b), (x) such consolidation, merger or sale is for a
good business purpose and not principally for the purpose of transferring
Tenant's leasehold estate, and (y) the assignee or successor entity has a net
worth at least equal to the net worth of Tenant immediately prior to such
consolidating merger or sale without the prior written consent of Landlord.
Tenant shall reimburse Landlord for all of Landlord's reasonable out-of-pocket
expenses in connection with any assignment or sublease. Upon Landlord's
receipt of Tenant's written notice of a desire to assign or sublet the
Premises, or any part thereof (other than to a Tenant Affiliate), Landlord
may, by giving written notice to Tenant within 30 days after receipt of
Tenant's notice, terminate this Lease with respect to the space described in
Tenant's notice, as of the date specified in Tenant's notice for the
commencement of the proposed assignment or sublease.
Notwithstanding any assignment or subletting, Tenant and any guarantor or
surety of Tenant's obligations under this Lease shall at all times remain
fully responsible and liable for the payment of the rent and for compliance
with all of Tenant's other obligations under this Lease (regardless of
whether Landlord's approval has been obtained for any such assignments or
sublettings). In the event that the rent due and payable by a sublessee or
assignee (or a combination of the rental payable under such sublease or
assignment plus any bonus or other consideration therefor or incident thereto)
exceeds the rental payable under this Lease, then Tenant shall be bound
and obligated to pay Landlord as additional rent hereunder all such excess
rental and other excess consideration within 10 days following receipt
thereof by Tenant.
If this Lease be assigned or if the Premises be subleased (whether in
whole or in part) or in the event of the mortgage, pledge, or hypothecation
of Tenant's leasehold interest or grant of any concession or license within
the Premises or if the Premises be occupied in whole or in part by anyone
other than Tenant, then upon a default by Tenant hereunder Landlord may
collect rent from the assignee, sublessee, mortgagee, pledgee, party to whom
the leasehold interest was hypothecated, concessionee or licensee or other
occupant and, except to the extent set forth in the preceding paragraph,
apply the amount immediately forwarded to Landlord. No such transaction or
collection of rent or application thereof by Landlord, however, shall be
deemed a waiver of these provisions or a release of Tenant from the further
performance by Tenant of its covenants, duties, or obligations hereunder.
18. Indemnification. Except for the negligence of Landlord, its agents,
employees or contractors, and to the extent permitted by law, Tenant agrees
to indemnify, defend and hold harmless Landlord, and Landlord's agents,
employees and contractors, from and against any and all losses, liabilities,
damages, costs and expenses (including reasonable attorneys' fees) resulting
from claims by third parties for injuries to any person and damage to or
theft or misappropriation or loss of property occurring in or about the
Project and arising from the use and occupancy of the Premises or from any
activity, work, or thing done, permitted or suffered by Tenant in or about
the Premises or due to any other act or omission of Tenant, its subtenants,
assignees, invitees, employees, contractors and agents. The furnishing of
insurance required hereunder shall not be deemed to limit Tenant's
obligations under this Paragraph 18.
Landlord covenants and agrees to indemnify and save Tenant, its
employees and agents harmless of and from any and all claims, costs, expenses
and liabilities, including, without limitation, attorneys' fees, arising on
account of or by misconduct of Landlord or its agents, employees, or
contractors, to the extent not attributable to any negligence of Tenant, any
assignee or subtenant of Tenant, or their respective employees, agents, or
contractors. If a claim under the foregoing indemnity is made against the
indemnitee which the indemnitee believes to be covered by an indemnitor's
indemnification obligations hereunder, the indemnitee shall promptly notify the
indemnitor of the claim and, in such notice shall offer to the indemnitor the
opportunity to assume the defense of the claim within 10 business days after
receipt of the notice (with counsel reasonably acceptable to the indemnitee).
If the indemnitor timely elects to assume the defense of the claim,
the indemnitor shall have the right to settle the claim on any terms it
considers reasonable and without the indemnitee's prior written consent, as
long as the settlement shall not require the indemnitee to render any
performance or pay any consideration, and the indemnitee shall not have
the right to settle any such claim. If the indemnitor fails timely to elect
to assume the defense of the claim, the indemnitor shall have the right to
settle the claim on any terms it considers reasonable and without the
indemnitee's prior written consent, as long as the settlement shall not
require the indemnitee to render any performance or pay any consideration,
and the indemnitee shall not have the right to settle any such claim. If the
indemnitor fails timely to assume the defense of the claim or fails to defend
the claim with diligence, then the indemnitee shall have the right to take
over the defense of the claim and to settle the claim on any terms the
indemnitee considers reasonable. Any such settlement shall be valid as
against the indemnitor. If the indemnitor assumes the defense of a claim,
the indemnitee may employ its own counsel but such employment shall be at
the sole expense of the indemnitee. If any such claim arises out of the
negligence of both Landlord and Tenant, responsibility for such claim shall
be allocated between Landlord and Tenant based on their respective degrees of
negligence. This indemnity does not cover claims arising from the presence
or release of Hazardous Materials.
19. Inspection and Access. Landlord and its agents, representatives,
and contractors may enter the Premises at any reasonable time upon reasonable
notice to inspect the Premises and to make such repairs as may be required or
permitted pursuant to this Lease and for any other business purpose.
Landlord and Landlord's representatives may enter the Premises during
business hours for the purpose of showing the Premises to prospective
purchasers and, during the last year of the Lease Term, to prospective
tenants. Landlord may erect a suitable sign on the Premises stating the
Premises are available to let or that the Project is available for sale.
Landlord may grant easements, make public dedications, designate common areas
and create restrictions on or about the Premises, provided that no such
easement, dedication, designation or restriction materially interferes with
Tenant's use or occupancy of the Premises. At Landlord's request, Tenant
shall execute such instrument as may be necessary for such easements,
dedications or restrictions.
20. Quiet Enjoyment. If Tenant shall substantially perform all of the
covenants and agreements herein required to be performed by Tenant, Tenant
shall, subject to the terms of this Lease, at all times during the Lease Term,
have peaceful and quiet enjoyment of the Premises against any person claiming
by, through or under Landlord; provided, that substantial performance of
Tenant's rent-payment obligations shall be nothing less than full payment of
all amounts owed when due.
21. Surrender. Upon termination of the Lease Term or earlier
termination of Tenant's right of possession, Tenant shall surrender the
Premises to Landlord in the same condition as received, broom clean, ordinary
wear and tear and casualty loss and condemnation covered by Paragraphs 15 and
16 excepted. Any Trade Fixtures, Tenant-Made Alterations and property not so
removed by Tenant as permitted or required herein shall be deemed abandoned
and may be stored, removed, and disposed of by Landlord at Tenant's expense,
and Tenant waives all claims against Landlord for any damages resulting from
Landlord's retention and disposition of such property. All obligations of
Tenant hereunder not fully performed as of the termination of the Lease Term
shall survive the termination of the Lease Term, including without limitation,
indemnity obligations, payment obligations with respect to Operating Expenses
and obligations concerning the condition and repair of the Premises.
22. Holding Over. If Tenant retains possession of the Premises after
the termination of the Lease Term, unless otherwise agreed in writing, such
possession shall be subject to immediate termination by Landlord at any time,
and all of the other terms and provisions of this Lease (excluding any
expansion or renewal option or other similar right or option) shall be
applicable during such holdover period, except that Tenant shall pay Landlord
from time to time, upon demand, as Base Rent for the holdover period, an
amount equal to double the Base Rent in effect on the termination date,
computed on a monthly basis for each month or part thereof during such holding
over. All other payments shall continue under the terms of this Lease. In
addition, Tenant shall be liable for all damages incurred by Landlord as a
result of such holding over. No holding over by Tenant, whether with or
without consent of Landlord, shall operate to extend this Lease except as
otherwise expressly provided, and this Paragraph 22 shall not be construed
as consent for Tenant to retain possession of the Premises.
23. Events of Default. Each of the following events shall be an event
of default ("Event of Default") by Tenant under this Lease:
(i) Tenant shall fail to pay any installment of Base Rent or any other
payment required herein when due, and such failure shall continue for a
period of 5 days from receipt of notice therefor from Landlord (provided,
however, that if Landlord shall have provided notice of Tenant's failure to
pay rent once during any calendar year or three times during the Lease Term,
thereafter, as the case may be, Tenant's failure to pay rent within 5 days after
the due date thereof shall constitute an Event of Default without any
requirement of notice from Landlord).
(ii) Tenant or any guarantor or surety of Tenant's obligations hereunder
shall (A) make a general assignment for the benefit of creditors;
(B) commence any case, proceeding or other action seeking to have an order
for relief entered on its behalf as a debtor or to adjudicate it a bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts or seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or
of any substantial part of its property (collectively a "proceeding for
relief"); (C) become the subject of any proceeding for relief which is not
dismissed within 60 days of its filing or entry; or (D) die or suffer a legal
disability (if Tenant, guarantor, or surety is an individual) or be dissolved
or otherwise fail to maintain its legal existence (if Tenant, guarantor or
surety is a corporation, partnership or other entity).
(iii) Any insurance required to be maintained by Tenant pursuant to
this Lease shall be canceled or terminated or shall expire or shall be
reduced or materially changed, except, in each case, as permitted in this Lease.
(iv) Tenant shall not occupy or shall vacate the Premises or shall fail to
continuously operate its business at the Premises for the permitted use set
forth herein, whether or not Tenant is in monetary or other default under
this Lease.
(v) Tenant shall attempt or there shall occur any assignment, subleasing
or other transfer of Tenant's interest in or with respect to this Lease
except as otherwise permitted in this Lease.
(vi) Tenant shall fail to discharge any lien placed upon the Premises in
violation of this Lease within 30 days after any such lien or encumbrance is
filed against the Premises.
(vii) Tenant shall fail to comply with any provision of this Lease
other than those specifically referred to in this Paragraph 23, and except as
otherwise expressly provided herein, such default shall continue for more
than 30 days after Landlord shall have given Tenant written notice of such
default.
24. Landlord's remedies. Upon each occurrence of an Event of Default and
so long as such Event of Default shall be continuing, Landlord may at any
time thereafter at its election: terminate this Lease or Tenant's right of
possession, (but Tenant shall remain liable as hereinafter provided) and/or
pursue any other remedies at law or in equity. Upon the termination of this
Lease or termination of Tenant's right of possession, it shall be lawful for
Landlord, without formal demand or notice of any kind, to re-enter the
Premises by summary dispossession proceedings or any other action or
proceeding authorized by law and to remove Tenant and all persons and
property therefrom. If Landlord re-enters the Premises, Landlord shall have
the right to keep in place and use, or remove and store, all of the furniture,
fixtures and equipment at the Premises.
If Landlord terminates this Lease, Landlord may recover from Tenant the sum
of: all Base Rent and all other amounts accrued hereunder to the date of
such termination; the cost of reletting the whole or any part of the Premises,
including without limitation brokerage fees and/or leasing commissions
incurred by Landlord, and costs of removing and storing Tenant's or any other
occupant's property, repairing, altering, remodeling, or otherwise putting the
Premises into condition acceptable to a new tenant or tenants, and all
reasonable expenses incurred by Landlord in pursuing its remedies, including
reasonable attorneys' fees and court costs; and the excess of the then present
value of the Base Rent and other amounts payable by Tenant under this Lease as
would otherwise have been required to be paid by Tenant to Landlord during
the period following the termination of this Lease measured from the date of
such termination to the expiration date stated in this Lease, over the present
value of any net amounts which Tenant establishes Landlord can reasonably
expect to recover by reletting the Premises for such period, taking into
consideration the availability of acceptable tenants and other market
conditions affecting leasing. Such present values shall be calculated at a
discount rate equal to the 90-day U.S. Treasury xxxx rate at the date of such
termination.
If Landlord terminates Tenant's right of possession (but not this Lease),
Landlord may, but shall be under no obligation to, relet the Premises for the
account of Tenant for such rent and upon such terms as shall be satisfactory
to Landlord without thereby releasing Tenant from any liability hereunder and
without demand or notice of any kind to Tenant. For the purpose of such
reletting Landlord is authorized to make any repairs, changes, alterations,
or additions in or to the Premises as Landlord deems reasonably necessary or
desirable. If the Premises are not relet, then Tenant shall pay to Landlord
as damages a sum equal to the amount of the rental reserved in this Lease for
such period or periods, plus the cost of recovering possession of the
Premises (including attorneys' fees and costs of suit), the unpaid Base Rent
and other amounts accrued hereunder at the time of repossession, and the costs
incurred in any attempt by Landlord to relet the Premises. If the Premises
are relet and a sufficient sum shall not be realized from such reletting
[after first deducting therefrom, for retention by landlord, the unpaid Base
Rent and other amounts accrued hereunder at the time of reletting, the cost
of recovering possession (including attorneys' fees and costs of suit),
all of the costs and expense of repairs, changes, alterations, and additions,
the expense of such reletting (including without limitation brokerage fees
and leasing commissions) and the cost of collection of the rent accruing
therefrom] to satisfy the rent provided for in this Lease to be paid, then
Tenant shall immediately satisfy and pay any such deficiency. Any such
payments due Landlord shall be made upon demand therefor from time to time
and Tenant agrees that Landlord may file suit to recover any sums falling
due from time to time. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect in writing to
terminate this Lease for such previous breach.
Exercise by Landlord of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of
the Premises and/or a termination of this Lease by Landlord, whether by
agreement or by operation of law, it being understood that such surrender
and/or termination can be effected only by the written agreement of Landlord
and Tenant. Any law, usage, or custom to the contrary notwithstanding,
Landlord shall have the right at all times to enforce the provisions of this
Lease in strict accordance with the terms hereof; and the failure of Landlord
at any time to enforce its rights under this Lease strictly in accordance
with same shall not be construed as having created a custom in any way or
manner contrary to the specific terms, provisions, and covenants of this
Lease or as having modified the same. Tenant and Landlord further agree that
forbearance or waiver by Landlord to enforce its rights pursuant to this
Lease or at law or in equity, shall not be a waiver of Landlord's right to
enforce one or more of its rights in connection with any subsequent default.
A receipt by Landlord of rent or other payment with knowledge of the, breach
of any covenant hereof shall not be deemed a waiver of such breach, and no
waiver by Landlord of any provision of this Lease shall be deemed to have
been made unless expressed in writing and signed by Landlord. To the
greatest extent permitted by law, Tenant waives the service of notice of
Landlord's intention to re-enter as provided for in any statute, or to
institute legal proceedings to that end, and also waives all right of
redemption in case Tenant shall be dispossessed by a judgment or by warrant
of any court or judge. The terms "enter," "re-enter," "entry" or "re-entry,"
as used in this Lease, are not restricted to their technical legal meanings.
Any reletting of the Premises shall be on such terms and conditions as
Landlord in its sole discretion may determine (including without limitation a
term different than the remaining Lease Term, rental concessions, alterations
and repair of the Premises, lease of less than the entire Premises to any tenant
and leasing any or all other portions of the Project before reletting the
Premises). Landlord shall not be liable, nor shall Tenant's obligations
hereunder be diminished because of, Landlord's failure to relet the Premises
or collect rent due in respect of such reletting.
25. Tenant's Remedies/Limitation of Liability. Landlord shall not be in
default hereunder unless Landlord fails to perform any of its obligations
hereunder within 30 days after written notice from Tenant specifying such
failure (unless such performance will, due to the nature of the obligation,
require a period of time in excess of 30 days, then after such period of
time as is reasonably necessary). All obligations of Landlord hereunder
shall be construed as covenants, not conditions; and, except as may be
otherwise expressly provided in this Lease, Tenant may not terminate this
Lease for breach of Landlord's obligations hereunder. All obligations of
Landlord under this Lease will be binding upon Landlord only during the
period of ownership of the Premises and not thereafter. The term "Landlord"
in this Lease shall mean only the owner, for the time being of the Premises,
and in the event of the transfer by such owner of its interest in the
Premises, such owner shall thereupon be released and discharged from all
obligations of Landlord thereafter accruing, but such obligations shall be
binding during the Lease Term upon each new owner for the duration of such
owner's ownership. Any liability of Landlord under this Lease shall be limited
solely to its interest in the Project, and in no event shall any personal
liability be asserted against Landlord in connection with this Lease nor
shall any recourse be had to any other property or assets of Landlord.
26. Waiver of Jury Trial. TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL
BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND
TENANT ARISING OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED HERETO.
27. Subordination. This Lease and Tenant's interest and rights hereunder
are and shall be subject and subordinate at all times to the lien of any
first mortgage, now existing or hereafter created on or against the Project
or the Premises, and all amendments, restatements, renewals, modifications,
consolidations, refinancing, assignments and extensions thereof, without the
necessity of any further instrument or act on the part of Tenant. Tenant
agrees, at the election of the holder of any such mortgage, to attorn to any
such holder. Tenant agrees upon demand to execute, acknowledge and deliver
such instruments, confirming such subordination and such instruments of
attornment as shall be requested by any such holder. Tenant hereby appoints
Landlord attorney in fact for Tenant irrevocably (such power of attorney
being coupled with an interest) to execute, acknowledge and deliver any such
instrument and instruments for and in the name of the Tenant and to cause any
such instrument to be recorded. Notwithstanding the foregoing, any such
holder may at any time subordinate its mortgage to this Lease, without
Tenant's consent, by notice in writing to Tenant, and thereupon this Lease
shall be deemed prior to such mortgage without regard to their respective
dates of execution, delivery or recording and in that event such holder shall
have the same rights with respect to this Lease as though this Lease had been
executed prior to the execution, delivery and recording of such mortgage and
had been assigned to such holder. The term "mortgage" whenever used in this
Lease shall be deemed to include deeds of trust, security assignments and any
other encumbrances, and any reference to the "holder" of a mortgage shall be
deemed to include the beneficiary under a deed of trust.
28. Mechanic's Liens. Tenant has no express or implied authority to create
or place any lien or encumbrance of any kind upon, or in any manner to bind
the interest of Landlord or Tenant in, the Premises or to charge the rentals
payable hereunder for any claim in favor of any person dealing with Tenant,
including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work performed
on the Premises and that it will save and hold Landlord harmless from all
loss, cost or expense based on or arising out of asserted claims or liens
against the leasehold estate or against the interest of Landlord in the
Premises or under this Lease. Tenant shall give Landlord immediate written
notice of the placing of any lien or encumbrance against the Premises and
cause such lien or encumbrance to be discharged within 30 days of the filing
or recording thereof; provided, however, Tenant may contest such liens or
encumbrances as long as such contest prevents foreclosure of the lien or
encumbrance and Tenant causes such lien or encumbrance to be bonded or
insured over in a manner satisfactory to Landlord within such 30 day period.
29. Estoppel Certificates. Tenant agrees, from time to time, within 10
days after request of Landlord, to execute and deliver to Landlord, or
Landlord's designee, any estoppel certificate requested by Landlord, stating
that this Lease is in full force and effect, the date to which rent has
been paid, that Landlord is not in default hereunder (or specifying in detail
the nature of Landlord's default), the termination date of this Lease and
such other matters pertaining to this Lease as may be requested by Landlord.
Tenant's obligation to furnish each estoppel certificate in a timely fashion
is a material inducement for Landlord's execution of this Lease. No cure or
grace period provided in this Lease shall apply to Tenant's obligations to
timely deliver an estoppel certificate. Tenant hereby irrevocably appoints
Landlord as its attorney in fact to execute on its behalf and in its name
any such estoppel certificate if Tenant fails to execute and deliver the
estoppel certificate within 10 days after Landlord's written request thereof.
30. Environmental Requirements. Except for Hazardous Material contained
in products used by Tenant in de minimis quantities for ordinary cleaning and
office purposes, Tenant shall not permit or cause any party to bring any
Hazardous Material upon the Premises or transport, store, use, generate,
manufacture or release any Hazardous Material in or about the Premises without
Landlord's prior written consent. Tenant, at its sole cost and expense,
shall operate its business in the Premises in strict compliance with all
Environmental Requirements and shall remediate in a manner satisfactory to
Landlord any Hazardous Materials released on or from the Project by Tenant,
its agents, employees, contractors, subtenants or invitees. Tenant shall
complete and certify to disclosure statements as requested by Landlord from
time to time relating to Tenant's transportation, storage, use, generation,
manufacture or release of Hazardous Materials on the Premises. The term
"Environmental Requirements" means all applicable present and future statutes,
regulations, ordinances, rules, codes, judgments, orders or other similar
enactments of any governmental authority or agency regulating or relating to
health, safety, or environmental conditions on, under, or about the Premises
or the environment, including without limitation, the following: the
Comprehensive Environmental Response, Compensation and Liability Act; the
Resource Conservation and Recovery Act; and all state and local counterparts
thereto, and any regulations or policies promulgated or issued thereunder.
The term "Hazardous Materials" means and includes any substance, material,
waste, pollutant, or contaminant listed or defined as hazardous or toxic, under
any Environmental Requirements, asbestos and petroleum, including crude oil
or any fraction thereof, natural gas liquids, liquified natural gas, or
synthetic gas usable for fuel (or mixtures of natural gas and such synthetic
gas). As defined in Environmental Requirements, Tenant is and shall be deemed
to be the "operator" of Tenant's "facility" and the "owner" of all Hazardous
Materials brought on the Premises by Tenant, its agents, employees,
contractors or invitees, and the wastes, by-products, or residues generated,
resulting, or produced therefrom.
Tenant shall indemnify, defend, and hold Landlord harmless from and against
any and all losses (including, without limitation, diminution in value of the
Premises or the Project and loss of rental income from the Project), claims,
demands, actions, suits, damages (including, without limitation, punitive
damages), expenses (including, without limitation, remediation, removal, repair,
corrective action, or cleanup expenses), and costs (including, without
limitation, actual reasonable attorneys' fees, consultant fees or expert
fees and including, without limitation, removal or management of any asbestos
brought into the property or disturbed in breach of the requirements of this
Paragraph 30, regardless of whether such removal or management is required by
law) which are brought or recoverable against, or suffered or incurred by
Landlord as a result of any release of Hazardous Materials for which Tenant
is obligated to remediate as provided above or any other breach of the
requirements under this Paragraph 30 by Tenant, its agents, employees,
contractors, subtenants, assignees or invitees, regardless of whether Tenant
had knowledge of such noncompliance. The obligations of Tenant under this
Paragraph 30 shall survive any termination of this Lease. Tenant shall not
be liable, under this Paragraph 30, for any Hazardous Materials existing on
the Premises prior to the Commencement Date.
Landlord shall have access to, and a right to perform inspections and tests
of, the Premises to determine Tenant's compliance with Environmental
Requirements, its obligations under this Paragraph 30, or the environmental
condition of the Premises. Access shall be granted to Landlord upon
Landlord's prior notice to Tenant and at such times so as to minimize, so
far as may be reasonable under the circumstances, any disturbance to Tenant's
operations. Such inspections and tests shall be conducted at Landlord's
expense, unless such inspections or tests reveal that Tenant has not complied
with any Environmental Requirement, in which case Tenant shall reimburse
Landlord for the reasonable cost of such inspection and tests. Landlord's
receipt of or satisfaction with any environmental assessment in no way waives
any rights that Landlord holds against Tenant.
31. Rules and Regulations. Tenant shall, at all times during the Lease Term
and any extension thereof, comply with all reasonable rules and regulations
at any time or from time to time established by Landlord covering use of the
Premises and the Project. The current rules and regulations are attached
hereto. In the event of any conflict between said rules and regulations and
other provisions of this Lease, the other terms and provisions of this Lease
shall control. Landlordshall not have any liability or obligation for the
breach of any rules or regulations by other tenantsin the Project.
32. Security Service. Tenant acknowledges and agrees that, while Landlord
may patrol the Project, Landlord is not providing any security services with
respect to the Premises and that Landlord shall not be liable to Tenant for,
and Tenant waives any claim against Landlord with respect to, any loss by
theft or any other damage suffered or incurred by Tenant in connection with
any unauthorized entry into the Premises or any other breach of security with
respect to the Premises.
33. Force Majeure. Each of Landlord and Tenant shall not be held
responsible for delays in the performance of its obligations hereunder when
caused by strikes, lockouts, labor disputes, acts of God, inability to obtain
labor or materials or reasonable substitutes therefor, governmental
restrictions, governmental regulations, governmental controls, delay in
issuance of permits, enemy or hostile governmental action, civil commotion,
fire or other casualty, and other causes beyond their respective reasonable
control ("Force Majeure"), provided, however, that Tenant's obligation to pay
rent shall survive any such Force Majeure occurrence.
34. Entire Agreement. This Lease constitutes the complete agreement of
Landlord and Tenant with respect to the subject matter hereof. No
representations, inducements, promises or agreements, oral or written, have
been made by Landlord or Tenant, or anyone acting on behalf of Landlord or
Tenant, which are not contained herein, and any prior agreements, promises,
negotiations, or representations are superseded by this Lease. This Lease
may not be amended except by an instrument in writing signed by both parties
hereto.
35. Severability. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws, then and in that event,
it is the intention of the parties hereto that the remainder of this Lease
shall not be affected thereby. It is also the intention of the parties to this
Lease that in lieu of each clause or provision of this Lease that is illegal,
invalid or unenforceable, there be added, as a part of this Lease, a clause
or provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and be legal, valid and enforceable.
36. Brokers. Landlord and Tenant each represents and warrants that it has
dealt with no broker, agent or other person in connection with this
transaction and that no broker, agent or other person brought about this
transaction, other than the broker, if any, set forth on the first page of this
Lease, and each party agrees to indemnify and hold the other party harmless from
and against any claims by any other broker, agent or other person claiming a
commission or other form of compensation by virtue of having dealt with
Landlord or Tenant, as the case may be, with regard to this leasing transaction.
37. Miscellaneous. (a) Any payments or charges due from Tenant to Landlord
hereunder shall be considered rent for all purposes of this Lease.
(b) If and when included within the term "Tenant", as used in this
instrument, there is more than one person, firm or corporation, each shall
be jointly and severally liable for the obligations of Tenant.
(c) All notices required or permitted to be given under this Lease shall be
in writing and shall be sent by registered or certified mail, return receipt
requested, or by a reputable national overnight courier service, postage
prepaid, or by hand delivery addressed to the parties at their addresses
below, and with a copy sent to Landlord at 00000 Xxxx 00xx Xxxxx, Xxxxxx,
Xxxxxxxx 00000. Either party may by notice given aforesaid change its
address for all subsequent notices. Except where otherwise expressly
provided to the contrary, notice shall be deemed given upon delivery.
(d) Except as otherwise expressly provided in this Lease or as otherwise
required by law, Landlord retains the absolute right to withhold any consent
or approval.
(e) At Landlord's request from time to time Tenant shall furnish Landlord
with true and complete copies of its most recent annual and quarterly
financial statements prepared by Tenant or Tenant's accountants and any other
financial information or summaries that Tenant typically provides to its
shareholders.
(f) Neither this Lease nor a memorandum of lease shall be filed by or on
behalf of Tenant in any public record. Landlord may prepare and file, and
upon request by Landlord Tenant will execute, a memorandum of lease.
(g) The normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the
interpretation of this Lease or any exhibits or amendments hereto.
(h) The submission by Landlord to Tenant of this Lease shall have no binding
force or effect, shall not constitute an option for the leasing of the
Premises, nor confer any right or impose any obligations upon either party
until execution of this Lease by both parties.
(I) Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions
inserted in this Lease are for convenience only and in no way define, limit
or otherwise describe the scope or intent of this Lease, or any provision
hereof, or in any way affect the interpretation of this Lease.
(j) Any amount not paid by Tenant within 5 days after Tenant's receipt of
written notice thereof from Landlord (subject to Paragraph 23(I)) in
accordance with the terms of this Lease shall bear interest from such due
date until paid in full at the lesser of the highest rate permitted by
applicable law or 15 percent per year. It is expressly the intent of
Landlord and Tenant at all times to comply with applicable law governing the
maximum rate or amount of any interest payable on or in connection with this
Lease. If applicable law is ever judicially interpreted so as to render
usurious any interest called for under this Lease, or contracted for, charged,
taken, reserved, or received with respect to this Lease, then it is Landlord's
and Tenant's express intent that all excess amounts therefore collected by
Landlord be credited on the applicable obligation (or, if the obligation has
been or would thereby be paid in full, refunded to Tenant), and the provisions
of this Lease immediately shall be deemed reformed and the amounts thereafter
collectible hereunder reduced, without the necessity of the execution of any
new document, so as to comply with the applicable law, but so as to permit
the recovery of the fullest amount otherwise called for hereunder.
(k) Construction and interpretation of this Lease shall be governed by the
laws of the state in which the Project is located, excluding any principles
of conflicts of laws.
(l) Time is of the essence as to the performance of Tenant's and Landlord's
obligations under this Lease.
(m) All exhibits and addenda attached hereto are hereby incorporated into
this Lease and made a part hereof. In the event of any conflict between such
exhibits or addenda and the terms of this Lease, such exhibits or addenda
shall control.
38. Limitation of Liability of Trustees, Shareholders, and Officers of
Security Capital Industrial Trust. Any obligation or liability whatsoever of
Security Capital Industrial Trust, a Maryland real estate investment trust,
which may arise at any time under this Lease or any obligation or liability
which may be incurred by it pursuant to any other instrument, transaction,
or undertaking contemplated hereby shall not be personally binding upon, nor
shall resort for the enforcement thereof be had to the property of, its
trustees, directors, shareholders, officers, employees or agents, regardless
of whether such obligation or liability is in the nature of contract, tort,
or otherwise.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
TENANT: LANDLORD:
IOMEGA CORPORATION SECURITY CAPITAL INDUSTRIAL TRUST
By: /s/ C. Xxxxx Xxxxxxx By: /s/ Xxx Xxxxx
Title: Director of Corporate Facilities Title: Managing Director
Address: Address:
0000 X. Xxxxxx Xxx 00000 X. 00xx Xxxxx
Attn: Xxxx Xxxxxxx Attn: Managing Director
Xxx, Xxxx 00000 Xxxxxx, Xxxxxxxx 00000
Rules and Regulations
i. The sidewalk, entries, and driveways of the Project shall not be obstructed
by Tenant, or its agents, or used by them for any purpose other than
ingress and egress to and from the Premises.
a)
ii. Except for seeing-eye dogs, no animals shall be allowed in the
offices, halls, or corridors in the Project.
a)
iii.Tenant shall not install or operate any steam or gas engine or
boiler, or other mechanical apparatus in the Premises, except as
specifically approved in the Lease. The use of oil, gas or
inflammable liquids for heating, lighting or any other purpose is
expressly prohibited. Explosives or other articles deemed extra
hazardous shall not be brought into the Project.
a)
iv. In the event that a vehicle is disables, it shall be removed
within 48 hours. All vehicles shall be parked in the designated
parking areas in conformity with all signs and other markings.
All parking will be open parking, and no reserved parking
numbering or lettering of individual spaces will be permitted
except as specified by Landlord.
a)
v. Tenant shall maintain the Premises free from rodents, insects and
other pests.
a)
vi. Landlord reserves the right to exclude or expel from the Project any
person who shall in any manner do any act in violation of the
Rules and Regulations of the Project.
a)
vii.Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness or indifference in the preservation of good order and
cleanliness. Unless caused by Landlord's negligence, Landlord
shall not be responsible to Tenant for any loss of property on
the Premises, however occurring, or for any damage done to the
effects of Tenant by the janitors or any other employee or person.
a)
viii.Tenant shall give Landlord prompt notice of any defects in the
water, lawn sprinkler, sewage, gas pipes, electrical lights and
fixtures, heating apparatus, or any other service equipment
affecting the Premises.
a)
ix. Tenant shall not permit dumping of waste or refuse or permit any
harmful materials to be placed in any drainage system or sanitary
system in or about the Premises.
a)
x. All moveable trash receptacles provided by the trash disposal firm
for the Premises must be kept in the trash enclosure areas, if
any, provided for that purpose.
a)
xi. No auction, public or private, will be permitted on the Premises
or the Project.
a)
xxx.Xx awnings shall be placed over the windows in the Premises
except with the prior written consent of Landlord.
a)
xiii.The Premises shall not be used for lodging, sleeping or cooking
or for any immoral or illegal purposes or for any purpose other
than that specified in the Lease.
a)
xiv.Tenant shall ascertain from Landlord the maximum amount of
electrical current which can safely be used in the Premises,
taking into account the capacity of the electrical wiring in the
Project and the Premises, and shall not use more than such safe
capacity. Landlord's consent to the installation of electric
equipment shall not relieve Tenant from the obligation not to use
more electricity than such safe capacity.
a)
xv. Tenant assumes full responsibility for protecting the Premises
from theft, robbery and pilferag
a)
xvi.Tenant shall not install or operate on the Premises any machinery or
mechanical devices of a nature not directly related to Tenant's
ordinary use of the Premises and shall keep all such machinery
free of vibration, noise and air waves which may be transmitted
beyond the Premises.
EXHIBIT A
Premises
0000 X. Xxxxxxxx Xxxxxx, Xxxxx, Xxxx
[Depiction to be attached.]
ADDENDUM A
CPI ADJUSTMENT
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED APRIL 9, 1996 BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST
and
IOMEGA CORPORATION
Base Rent shall increase on the first day of each of the 40th and 80th months
of the Lease Term by an amount equal to 100 percent (100%) of the increase in
the Consumer Price Index during the preceding 40 months; provided, however,
in no event shall the Base Rent each year be increased by more than 6% or by
less than 3% per annum, compounded annually, on a cumulative basis from the
beginning of the Lease term. "Consumer Price Index" means the Utah Wasatch
Front Consumer Price Index for All Urban Consumers (Revised Series) of the
United States Department of Labor, Bureau of Labor Statistics. If the
manner in which the Consumer Price Index is calculated shall be revised,
Landlord shall make an adjustment in such revised index so as to produce
results equivalent, as nearly as possible, to those which would have been
obtained if the Consumer Price Index had not been so revised. If the
Consumer Price Index shall become unavailable to the public because
publication is discontinued or otherwise, Landlord will substitute therefor a
comparable index based upon changes in the cost of living or purchasing power
of the consumer dollar published by any other governmental agency or, if no
such index shall be available, then a comparable index published by a major
bank or other financial institution or by a university or a recognized financial
publication.
ADDENDUM B
STORAGE AND USE OF PERMITTED HAZARDOUS MATERIALS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED APRIL 9, 1996, BETWEEN
IOMEGA CORPORATION
and
SECURITY CAPITAL INDUSTRIAL TRUST
1. Permitted Hazardous Materials and Use.
Tenant has requested Landlord's consent to use the Hazardous Materials listed
below in its business at the Premises (the "Permitted Hazardous Materials").
Subject to the conditions set forth herein, Landlord hereby consents to the
Use (hereinafter defined) of the Permitted Hazardous Materials. Any
Permitted Hazardous Materials on the Premises will be generated, used, received,
maintained, treated, stored, or disposed in a manner consistent with good
engineering practice and in compliance with all Environmental Requirements.
Permitted Hazardous Materials (including maximum quantities):
To be completed within 30 days of Lease Commencement Date.
The storage, uses or processes involving the Permitted Hazardous Materials
(the "Use") are described below.
Use [If limited to receiving and storage, so specify]:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
2. No Current Investigation. Tenant represents and warrants that it is not
subject to an inquiry, regulatory investigation, enforcement order, or any
other proceeding regarding the generation, use, treatment, storage, or
disposal of a Hazardous Material.
3. Notice and Reporting. Tenant immediately shall notify Landlord in
writing of any spill, release, discharge, or disposal of any Hazardous
Material in, on or under the Premises or the Project. All reporting
obligations imposed by Environmental Requirements are strictly the
responsibility of Tenant. Tenant shall supply to Landlord within 5 business
days after Tenant first receives or send the same, copies of all claims,
reports, complaints, notices, warnings or asserted violations relating in any
way to Tenant's use of the Premises.
4. Indemnification. Tenant's indemnity obligation under the Lease with
respect to Hazardous Materials shall include indemnification for the
liabilities, expenses and other losses described therein as a result of the
Use of the Hazardous Materials or the breach of Tenant's obligations or
representations set forth above. It is the intent of this provision that
Tenant be strictly liable to Landlord as a result of the Use of Hazardous
Materials without regard to the fault or negligence of Tenant, Landlord or
any third party.
5. Disposal Upon Lease Termination. At the expiration or earlier
termination of the Lease, Tenant, at its sole cost and expense shall:
(I) remove and dispose off-site any drums, containers, receptacles,
structures, or tanks storing or containing Hazardous Materials (or which have
stored or contained Hazardous Materials) and the contents thereof; (ii)
remove, empty, and purge all underground and above ground storage tank
systems, including connected piping, of all vapors, liquids, sludges and
residues; and (iii) restore the Premises to its original condition. Such
activities shall be performed in compliance with all Environmental
Requirements and to the satisfaction of Landlord. Landlord's satisfaction
with such activities or the condition of the Premises does not waive, or
release Tenant from, any obligations hereunder.
ADDENDUM C
CONSTRUCTION
(ALLOWANCE)
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED APRIL 9, 1996, BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST
and
IOMEGA CORPORATION
(a) Landlord agrees to furnish or perform those items of construction and
those improvements (the "Tenant Improvements") specified below:
Landlord shall diligently pursue to completion the construction of a parking
lot to service the Building. All costs associated with designing, obtaining
approvals for and constructing the parking lot will be deducted from the
$500,000 Tenant Improvement allowance set forth below. Any remaining amounts
of the $500,000 may be used by Tenant to build additional office space in the
Building, which improvements will be made by Tenant.
Landlord shall pay for the Tenant Improvements (as described above) up to a
maximum amount of $500,000, and Tenant shall pay for the cost of the Tenant
Improvements in excess of such amount. If the cost of the Tenant Improvements
is estimated to exceed such amount, such estimated overage shall be paid by
Tenant before Landlord begins construction and a final adjusting payment based
upon the actual costs of the Tenant Improvements shall be made when the Tenant
Improvements are complete.
(b) If Tenant shall desire any changes to the parking lot improvements,
Tenant shall so advise Landlord in writing and Landlord shall determine
whether such changes can be made in a reasonable and feasible manner. Any
and all costs of reviewing any requested changes, and any and all costs
of making any changes to the Tenant Improvements which Tenant may request and
which Landlord may agree to shall be deducted from the Tenant Improvement
allowance.
