EXHIBIT 10.16
STANDARD INDUSTRIAL LEASE
ARTICLE I
PARTIES
This Lease, dated October 14, 1997, is made by and between Springs
Industrial Group, LLC, owner of the premises (the "Lessor") and Microlink
Technologies Corp. (the "Lessee").
ARTICLE II
PREMISES
In consideration of the rents, covenants and agreements hereinafter
reserved and contained on the part of the Lessee to be observed and performed,
Lessor hereby leases to Lessee and Lessee hereby rents from Lessor, those
certain Premises (the "Premises") known as 0000-X & X Xxxxxxx Xxxx, Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000, consisting of a space having measurements of
approximately 50 feet in width and 80 feet in depth, totaling approximately
4,000 square feet, for the term and upon the conditions and agreements
hereinafter set forth, and Lessor and Lessee hereby agree as follows:
ARTICLE III
TERM
The term of this Lease shall be for three years, commencing on November 1,
1997 and ending on October 31, 2000 unless sooner terminated pursuant to any
provision hereof.
DELAY IN COMMENCEMENT. Notwithstanding said commencement date, if for any
reason Lessor cannot deliver possession of the Premises to Lessee on said date,
Lessor shall not be subject to any liability thereof, nor shall failure affect
the validity of the Lease or the obligations of Lessee hereunder or extend the
term hereof, but in such case Lessee shall not be obligated to pay rent until
possession of the Premises is tendered to Lessee; provided, however, that Lessor
shall not have delivered possession of the Premises within 10 days from said
commencement date. Lessee may, at Lessee's option, by notice in writing to
Lessor within 10 days thereafter, cancel this Lease, in which event the parties
shall be discharged from all obligations hereunder. If Lessee occupies the
Premises prior to said commencement date, such occupancy shall be subject to all
provisions hereof; such occupancy shall not advance the termination date, and
Lessee shall pay rent for such period at the initial monthly rates set forth
below. If Lessor, by reason outside the reasonable control of Lessor, cannot
deliver said Premises within 10 days from said commencement date, Lessor may, at
Lessor's option, by notice in writing within 10 days thereafter, cancel this
Lease.
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ARTICLE IV
RENT
Lessee shall pay Lessor, without any prior demand thereof and without any
right of deduction or set-off whatsoever, a monthly rental of $1,833.33, in
advance, upon the first day of each calendar month during the first 12 months of
the term. The rental amount for years two and three of the lease shall increase
5% over the previous year's rental. The Lessee further agrees to pay, in
addition to the rent as provided herein, all privilege, sales, excise and other
taxes (except income taxes) imposed by state, federal or municipal authorities
upon the rentals herein provided to be paid by the Lessee to the Lessor. Said
payment shall be in addition to and accompanying each rental payment made by
Lessee to Lessor.
ARTICLE V
SECURITY DEPOSIT
Lessee shall deposit with Lessor, upon execution hereof, $1,833.33 as
security for Lessee's faithful performance of Lessee's obligations hereunder.
If Lessee fails to pay rent or other charges due hereunder or otherwise defaults
with respect to any provision of this Lease, Lessor may use, apply or retain all
or any portion of said deposit for the payment of any rent or other charge in
default or the payment of any other sum to which Lessor may become obligated by
reason of Lessee's default, or to compensate Lessor for any loss or damage which
Lessor may suffer thereby. If Lessor so uses or applies all of or any portion
of said deposit, Lessee shall, within 10 days after written demand thereof,
deposit cash with Lessor in an amount sufficient to restore said deposit to the
full amount herein above stated, and Lessee's failure to do so shall be a
material breach of this Lease. Lessor shall not be required to keep said
deposit separate from its general accounts. If Lessee performs all of Lessee's
obligations hereunder, said deposit, or so much thereof as has not theretofore
been applied by Lessor, shall be returned without payment of interest or other
increment for its use, to Lessee (or, at Lessor's option, the last assignee, if
any, of Lessee's interest hereunder) at the expiration of the term hereof, as it
may be altered or amended and after Lessee has vacated the Premises.
ARTICLE VI
USE
Section 6.01. USE. The Premises shall be used and occupied only for
Office, Warehouse and Light Manufacturing Facility and Lessee shall not use of
occupy the Premises or permit the same to be used for any other purpose.
Section 6.02. COMPLIANCE WITH LAW. Lessee shall, at Lessee's expense,
comply promptly with all applicable statutes, ordinances, rules, regulations,
orders and requirements in effect during the term or any part of the term hereof
regulating the use by Lessee of the Premises. Lessee shall not use or permit
the use of the Premises in any manner that will tend
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to create waste or a nuisance or, if there shall be more than one tenant of the
building containing the Premises, which shall tend to disturb such other
tenants.
Section 6.03. CONDITION OF PREMISES. Lessee hereby accepts the Premises
in their condition existing as of the date of the execution hereof, subject to
all applicable zoning, municipal, county and state laws, ordinances and
regulations governing and regulating the use of the Premises, and accepts this
lease subject thereto and to all matters disclosed thereby and by any exhibits
attached hereto. Lessee acknowledges that neither Lessor not Lessor's Agent has
made any representation or warranty as to the suitability of the Premises for
the conduct of Lessee's business.
Section 6.04. LANDLORD'S IMPROVEMENTS TO THE SPACE. The space shall be
leased to the Tenant in as-is condition.
ARTICLE VII
MAINTENANCE, REPAIRS AND ALTERATIONS
Section 7.01. LESSOR'S OBLIGATIONS. Subject to the provisions of Article
IX and except for damage caused by any negligent or intentional act or omission
of Lessee, Lessee's Agents, employees or invitees, Lessor, at Lessor's expense,
shall keep in good order, condition and repair the foundations, exterior walls
and the exterior roof of the Premises. The Lessee shall give the Lessor prompt
notice of any defects or breakage in the structure, equipment, fixture or any
unsafe conditions upon or within the Premises. Lessee expressly waives the
benefits of any statute now or hereafter in effect which would otherwise afford
Lessee the right to make repairs at Lessor's expense or to terminate this Lease
because of Lessor's failure to keep the Premises in good order, condition and
repair.
Section 7.02. LESSEE'S OBLIGATIONS.
(a) Lessee shall, at its expense throughout the term of this Lease,
maintain, service, replace and keep in good repair the interior structures
and mechanical equipment, including such items as floors, ceilings, walls,
doors, glass, partitions and surrender same upon the expiration of the term
herein or renewal thereof in the same condition as received, ordinary wear
and tear excepted.
(b) On the last day of the term hereof, or on any sooner termination,
Lessee shall surrender the Premises to Lessor in the same condition as
received, broom clean, ordinary wear and tear excepted. Lessee shall
repair any damage to the Premises occasioned by the removal of its trade
fixtures, furnishings and equipment pursuant to Section 7.03, which repair
shall include the patching and filling of holes and repair of structural
damage.
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Section 7.03. ALTERATIONS AND ADDITIONS.
(a) Alterations may not be made to the Premises without the prior
written consent of the Lessor, and any alterations of the Premises,
excepting movable furniture and machinery and trade fixtures, shall become
part of the realty and belong to the Lessor upon termination of this Lease.
However, this shall not prevent the Lessee from installing trade fixtures,
machinery or other trade equipment in conformance with the local ordinances
provided the Premises are not damaged by the removal thereof. The Lessee
shall keep the Premises, the building and the property in which the
Premises are situated free from any liens arising out of any work performed
for, material furnished to or obligations incurred by the Lessee. It is
further understood and agreed that under no circumstance is the Lessee to
be deemed the Agent of the Lessor for any alteration, repair or operation
of the building upon the Premises, the same being done at the sole expense
of the Lessee, and all contractors, materialmen, mechanics and laborers are
hereby charged with notice that they must look to the Lessee only for the
payment of any charge for work done and materials furnished upon the
Premises during the term of this Lease.
(b) Lessor shall have the right to require removal of alterations and
additions but absent such demand, all improvements, additions and utility
installations, except trade fixtures and machines, shall remain the
property of Lessor. The above notwithstanding, Lessee shall have the right
to remove all improvements placed in the Premises other than plumbing,
electrical, walls, carpets and other like permanent improvements. Lessee
shall also have the right to install, at Lessee's expense, a vent through
the roof provided it is done in a xxxxxxx like manner.
ARTICLE VIII
INDEMNITY
Section 8.01. LIABILITY INSURANCE. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease, a policy of
comprehensive public liability insurance insuring Lessor and Lessee against any
liability arising out of the Ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such Insurance shall be in an
amount not less than $100,000 for injury to or death of one person in any one
accident or occurrence and in any amount of not less than $300,000 for injury to
or death of more than one person in any one accident or occurrence. Such
insurance shall further insure Lessor and Lessee against liability for property
damage of at least $50,000. The limits of said Insurance shall not, however,
limit the liability of Lessee hereunder. In the event that the Premises
constitute a part of a larger property, said Insurance shall have a Lessor's
Protective Liability endorsement attached thereto. If Lessee shall fail to
procure and maintain said Insurance, Lessor may, but shall not be required to,
procure and maintain the same, but at the expense of Lessee.
Section 8.02. INSURANCE POLICIES. Insurance required hereunder shall be
in companies rated "AAA" or better in "Best's Insurance Guide." Lessee shall
deliver to Lessor copies of policies of liability insurance required under
Section 8.01 or certificates evidencing the existence
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and amounts of such Insurance with loss payable clauses satisfactory to Lessor.
No such policy shall be cancellable or subject to reduction of coverage or other
modification, except after the expiration of such policies at which time Lessee
must furnish Lessor with renewals or "binder" thereof, or Lessor may order such
Insurance and charge the cost thereof to Lessee, which amount shall be payable
by Lessee upon demand. Lessee shall not do or permit to be done anything which
shall invalidate the Insurance policies referred to in Section 8.03.
Section 8.03. PROPERTY INSURANCE. Lessor shall obtain and keep in force
during the term of this Lease policy or policies of Insurance covering loss or
damage to the Premises in the amount of the full replacement value thereof,
providing protection against all perils included within the classification of
fire, extended coverage, vandalism, malicious mischief and special extended
perils (all risk).
Section 8.04. WAIVER OF SUBROGATION. Lessee and Lessor each hereby waives
any and all lights of recovery against the other or against the officers,
employees, Agents and representatives of the other for loss of or damage to such
waiving party or its property of others under its control, where such loss or
damage is insured under any Insurance policy in force at the time of such loss
or damage. Lessee and Lessor shall, upon obtaining the policies of Insurance
required hereunder, give notice to the Insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.
Section 8.05. INDEMNITY. Lessee shall indemnify and hold harmless Lessor
from and against any and all claims arising from Lessee's use of the Premises or
from the conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere, and shall
further indemnify and hold harmless Lessor from and against any and all claims
arising from any breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of the Lease or arising from any
negligence of the Lessee or any of the Lessee's Agents, contractors or
employees, and from and against all costs, attorneys' fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon and in case any action or proceeding be brought
against Lessor by reason of any such claim. Lessee, upon written notice from
Lessor, shall defend the same at Lessee's expense with counsel satisfactory to
Lessor. Lessee, as a material part of the consideration to Lessor, hereby
assumes all risk of damage to property or injury to persons in, upon or about
the Premises arising from any cause and Lessee hereby waives all claims in
respect thereof against Lessor.
Section 8.06. EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees
that Lessor shall not be liable for injury to Lessee's business or for any loss
of income therefrom or for damage to the goods, wares, merchandise or other
property of Lessee, Lessee's employees, invitees, customers or any other person
in or about the Premises, nor shall Lessor be liable for injury to the person of
Lessee, Lessee's employees, Agents or contractors, whether such damage or injury
is caused by or results from fire, steam, electricity, gas, water or rain, or
from the breakage, leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or light fixtures or from any
other cause whether the said damage or injury results from conditions arising
upon the Premises or upon other portions of the building of which the Premises
are a part or from other sources or places, and regardless of whether the cause
of
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such damage or injury or the means of repairing the same is inaccessible to
Lessee. Lessor shall not be liable for any damages arising from any act or
neglect of any other tenant, occupant, if any, of the building in which the
Premises are located. It shall be the sole obligation of Lessee to insure its
property, trade fixtures and equipment located on the Premises from any and all
loss or damage.
ARTICLE IX
DAMAGE OR DESTRUCTION
Section 9.01. DAMAGE OR DESTRUCTION. If, during the term of this Lease or
extension thereof, all or part of the building or structures now or hereafter
located upon the Premises should be destroyed partially or totally by fire or
other casualty, this Lease shall continue thereafter in full force and effect
except as hereinafter provided, and the Lessor may cause the reconstruction of
said building within 60 days following such destruction days, pending the
availability of labor and construction services, to substantially the same
condition in which it did exist at the time immediately preceding such
destruction. The Lessee's obligation to pay rental to the Lessor hereunder
shall xxxxx from the date of such destruction until completing of such
reconstruction, and the terms hereof shall be automatically extended for a
period of time equivalent to that during which rent is abated as aforesaid. In
the event the Lessor does not commence reconstruction, repair or Replacement of
the improvements within 15 days after loss or damage, this Lease shall be deemed
terminated and of no further force or effect.
Section 9.02. ABATEMENT OF RENT; LESSEE'S REMEDIES. Except for abatement
of rent, if any, Lessee shall have no claim against Lessor for any damage
suffered by reason of any such damage, destruction, repair or restoration.
ARTICLE X
REAL PROPERTY TAXES
Section 10.01. PAYMENT OF TAX. Lessor shall pay all real property taxes
applicable to the Premises; provided, however, Lessee shall pay, as Additional
Rent, its proportionate share of any increase in such taxes and assessments
levied upon the real property for which the Premises are a part during the Lease
Term thereof over the fiscal tax year 1996. Such payment shall be made by
Lessee within 30 days after receipt of Lessor's written statement setting forth
the payment due and the reasonable computation thereof. If the Lease Term shall
not expire concurrently with the expiration of the tax fiscal year, Lessee's
liability for taxes for the last partial Lease Year shall be prorated on an
annual basis. For purposes of this Section 10.01 and otherwise in this Lease,
"Taxes" means real estate taxes, assessments (whether general or special), sewer
rents, rates and charges, transit taxes, taxes based on the receipt of rent, and
any other federal, state or local government charge, general special, ordinary
or extraordinary, that may now or hereafter be levied or assessed against the
Building(s) of which the Premises are a part, or the land on which the
Building(s) stands.
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Section 10.02. LESSEE'S "PROPORTIONAL SHARE" OF REAL PROPERTY TAX.
Lessee's "Pro Rata Share" shall mean a fraction, the numerator of which shall be
the total number of square feet in the Premises and the denominator of which
shall be the total number of square feet of real property in the entire complex
of which the Premises are a part.
Section 10.03. PERSONAL PROPERTY TAXES.
(a) Lessee shall pay prior to delinquency all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises or elsewhere. When
possible, Lessee shall cause said trade fixtures, furnishings, equipment
and all other personal property to be assessed and billed separately from
the real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes attributable to
Lessee within 10 days after receipt of a written statement setting forth
the taxes applicable to Lessee's property.
ARTICLE XI
BUILDING OPERATING EXPENSES
In addition to the rental herein provided to be paid by Lessee to Lessor,
Lessee shall pay to the Lessor, on or before the first day of each month, as
Additional Rent, the amount, if any, by which Lessee's proportionate share (as
hereinafter defined) of Building Operating Expenses has increased over the Base
Year 1996. Lessee's proportionate share of Building Operating Expenses is based
upon a fraction, the numerator of which shall be the total number of square feet
of real property in the entire complex of which the Premises are a part.
This figure shall be adjusted annually based upon Lessor's best estimate of
costs of the then-current year. Within 90 days after the end of each calendar
year, Lessee shall receive an accounting statement showing the adjustment, the
actual Annual Operating Costs for the prior year and the amount actually paid by
Lessee. If the amount paid by Lessee exceeds Lessee's share of actual costs,
the excess shall be credited against Lessee's next payment(s) of Operating
Costs. If the amount paid by Lessee is less than Lessee's proportionate share
of actual costs, Lessee shall pay the deficit within 10 days of Lessee's receipt
of this statement.
For purposes of this Article XI, Building Operating Expenses, which is
inclusive of common areas, shall mean the sum of all expenses incurred by Lessor
in connection with the operation, management, repair and maintenance of the
building(s) and common areas including, but not limited to, rubbish and snow
removal, window cleaning, utilities, janitorial service, maintenance of all
parking lots, driveways, landscaping, streets and perimeter bears, including any
governmental surcharge, fee or assessment imposed with respect to the parking
facilities to the extent paid by Lessor and not passed on to users of said
parking facilities and all fire and extended supplies, salaries, wages and other
expenses incurred with respect to maintenance, gardening, landscaping, repaving,
repainting, cleaning, security and fire protection and an amount equal to 10% of
all such expenses to cover Lessor's administrative and overhead
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expenses. Lessor may, in addition to any other remedy, impose a reasonable
charge for excess usage of Building(s) facilities and services, which express
usage is occasioned by greater than normal usage or by use of the Premises.
Executive salaries, general overhead and depreciation of improvements shall not
be included in the foregoing expenses.
ARTICLE XII
UTILITIES
Lessee shall pay telephone services and all other utilities metered to the
demised Premises supplied to the Premises, together with any taxes thereon.
ARTICLE XIII
ASSIGNMENT AND SUBLETTING
Section 13.01. LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily,
or by operation of law, assign, transfer, mortgage, sublet or otherwise transfer
or encumber all or any part of Lessee's interest in this Lease or in the
Premises without Lessor's prior written consent, which Lessor shall not
unreasonably withhold. Any attempted assignment, transfer, mortgage,
encumbrance or subletting without such consent shall be void and shall
constitute a breach of this Lease. Lessor may condition its consent to any
subletting upon entering into a lease directly with the proposed subtenant, in
which case the portion of the Premises so leased shall be released from this
Lease and Lessee shall have no other obligations with respect to the released
space.
Section 13.02. NO RELEASE OF LESSEE. Except where Lessor requires a new
Lease directly with the proposed subtenant, as set forth above, no subletting or
assignment shall release Lessee of Lessee's obligation or alter the primary
liability of Lessee to pay the rent and to perform all other obligations to be
performed by Lessee hereunder. The acceptance of rent by Lessor from any other
person shall not be deemed to be a waiver by Lessor of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting.
ARTICLE XIV
DEFAULTS; REMEDIES
Section 14.01. DEFAULTS. The occurrence of any one or more of the
following events shall constitute a default and breach of this Lease by Lessee:
(a) the vacating or abandonment of the Premises by Lessee;
(b) the failure by Lessee to make any payment of rent or other
payment required to be made by Lessee hereunder, as and when due;
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(c) the failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by
Lessee, other than described in paragraph (b) above, where such failure
shall continue for a period of 30 days after written notice hereof from
Lessor to Lessee; provided, however, that if the nature of Lessee's default
is such that more than 30 days are reasonably required for its cure, then
Lessee shall not be deemed to be in default if Lessee commenced such cure
to completion; and
(d) (i) the making by Lessee of any general assignment or general
arrangement for the benefit of creditors; (ii) the filing by or against
Lessee of a petition to have Lessee adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy unless,
in the case of a petition filed against Lessee, the same is dismissed
within 60 days; (iii) the appointment of a trustee or receiver to take
possession of substantially all of Lessee's assets located at the Premises
or of Lessee's interest in this Lease where possession is not restored to
Lessee within 30 days; or (iv) the attachment, execution or other judicial
seizures of substantially all of Lessee's assets located at the Premises or
of Lessee's interest in this Lease where such seizure is not discharged
within 30 days.
Section 14.02. REMEDIES. In the event of any such default or breach by
Lessee, Lessor may, at any time thereafter, with or without notice or demand and
without limiting Lessor in the exercise of any right or remedy which Lessor may
have by reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event,
Lessor shall be entitled to recover from Lessee all damages incurred by
Lessor by reason of Lessee's default including, but not limited to, the
cost of recovering possession of the Premises, expenses of reletting,
including necessary renovation and alteration of the Premises, reasonable
attorneys' fees, and any real estate commission actually paid: the worth at
the time or award by the court having jurisdiction thereof of the amount by
which the unpaid rent for the balance of the term after the time of such
award exceeds the amount of such rental loss for the same period that
Lessee provides could be reasonably avoided and that portion of the leasing
commission paid by Lessor applicable to the unexpired term of this Lease.
In the event Lessee shall have abandoned the Premises, Lessor shall have
the option of (i) retaking possession of the Premises and recovering from
Lessee the amount specified in this Section 14.02(a) or (ii) proceeding
under Section 15.02(b).
(b) Maintain Lessee's right to possession, in which case this Lease
shall continue in effect whether or not Lessee shall have abandoned the
Premises. In such event, Lessor shall be entitled to enforce all of
Lessor's rights and remedies under this Lease, including the right to
recover the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the State in which the property is
located.
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Section 14.03. DEFAULT BY LESSOR. Lessor shall not be in default unless
Lessor fails to perform obligations required of Lessor within a reasonable time,
but in no event later than thirty (30) days after written notice by Lessee to
Lessor; provided, however, that if the nature of Lessor's obligation is such
that more than thirty (30) days are required for performance, then Lessor shall
not be in default if Lessor commences performance within such 30-day period and
thereafter diligently prosecutes the same to completion.
Section 14.04. LATE CHARGES. Notwithstanding anything contained in this
Lease to the contrary, Lessee hereby acknowledges that late payment by Lessee to
Lessor of rent and other sums due hereunder will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges and late charges, which may be imposed on Lessor by the
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or any other sum due from Lessee shall not be received by
Lessor or Lessor's designee within ten (10) days after such amount shall be due,
Lessee shall pay to Lessor a late charge equal to ten percent (10%) of such
overdue amount. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Lessor will incur by reason of late
payment by Lessee. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee's default, with respect to such overdue amount nor
prevent Lessor from exercising any of the other rights and remedies granted
hereunder.
ARTICLE XV
CONDEMNATION
If the Premises, or any portion thereof, are taken under the power of
eminent domain or sold under the threat of the exercise of said power (all of
which are herein called "condemnation"), this Lease shall terminate as to the
part so taken as of the date the condemning authority takes title or possession,
whichever first occurs. If more than 10% of the floor area of the Premises is
taken by condemnation, Lessee may, at Lessee's option to be exercised in writing
only within ten (10) days after Lessor shall have given Lessee written notice of
such taking (or in the absence of such notice, within ten (10) days after the
condemning authority shall have taken possession), terminate this Lease as of
the date the condemning authority takes such possession. If Lessee does not
terminate this Lease in accordance with the foregoing, this Lease shall remain
in full force and effect as to the portion of the Premises remaining, except
that the rent shall be reduced in the proportion that the floor area taken bears
to the total floor area of the Premises. Any award for the taking of all or any
part of the Premises under the power of eminent domain or any payment made under
threat of the exercise of such power shall be the property of Lessor, whether
such award shall be made as compensation for diminution in value of the
leasehold or for the taking of the fee or as severance damages; provided,
however, that Lessee shall be entitled to any award for loss of damage to
Lessee's trade fixtures and removable personal property. In the event that this
Lease is not terminated by reason of such condemnation, Lessor shall, to the
extent of severance damages received by Lessor in connection with such
condemnation, repair any damage to the Premises caused by such condemnation,
except to the extent that Lessee has been reimbursed thereof by the condemning
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authority. Lessee shall pay any amount in excess of such severance damages
required to complete such repair.
ARTICLE XVI
GENERAL PROVISIONS
Section 16.01. ESTOPPEL CERTIFICATE.
(a) Lessee shall, at any time upon not less than ten (10) days prior
written notice from Lessor, execute, acknowledge and deliver to Lessor a
statement in writing: (i) certifying that this Lease is unmodified and in
full force and effect or, if modified, stating the nature o such
modification and certifying that this Lease, as so modified, is in full
force and effect and the date to which the rent and other charges are paid
in advance, if any; and (ii) acknowledging that there are not, to Lessee's
knowledge, any uncured defaults on the part of Lessor hereunder, or
specifying such defaults if any are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrances of
the Premises.
(b) Lessee's failure to deliver such statement within such time shall
be conclusive upon Lessee (i) that this Lease is in full force and effect,
without modification except as may be represented by Lessor, (ii) that
there are no uncured defaults in Lessor's performance, and (iii) that not
more than one month's rent has been paid in advance.
(c) If Lessor desires to finance or refinance the Premises, or any
part thereof, Lessee hereby agrees to deliver to any lender designated by
Lessor such financial statement of Lessee as may be reasonably required by
such lender. Such statements shall include the past three years' financial
statements of Lessee. All such financial statements shall be received by
Lessor in confidence and shall be used only for the purposes herein set
forth.
Section 16.02. LESSOR'S LIABILITY. The term "Lessor" as used herein shall
mean only the Owner or Owners at the time in question of the fee title or a
Lessee's interest in a ground lease of the Premises. In the event of any
transfer of such title or interest, Lessor herein named (and in case of any
subsequent transfers the then-Grantor) shall be relieved from after the date of
such transfer of all liability for Lessor's obligations thereafter to be
performed, provided that any funds in the hands of Lessor or the then-Grantor at
the time of such transfer in which Lessee has an interest shall be delivered to
the Grantee. The obligations contained in this Lease to be performed by Lessor
shall, subject as aforesaid, be binding on Lessor's successors and assigns only
during their respective periods of Ownership.
Section 16.03. SEVERABILITY. The invalidity of any provision of this
Lease, as determined by a court of competent jurisdiction, shall in no way
effect the validity of any other provision hereof.
10.16-11
Section 16.04. TIME OF ESSENCE. Time is of the essence.
Section 16.05. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease
contains all agreements of the parties with respect to any matter mentioned
herein. No prior agreement or understanding pertaining to any such matter shall
be effective. This Lease may be modified in writing only, signed by the parties
in interest at the time of the modification.
Section 16.06. NOTICES. Any notice required or permitted to be given
hereunder shall be in writing and may be served personally or by regular mail,
addressed to Lessor and Lessee, respectively, at the addresses set forth after
their signatures at the end of this Lease.
Section 16.07. WAIVERS. No waiver by Lessor of any provision hereof shall
be deemed a waiver of any other provision hereof or of any subsequent breach by
Lessee of the same or any other provision. Lessor's consent to or approval of
any act shall not be deemed to render unnecessary the obtaining of Lessor's
consent to or approval of any subsequent act by Lessee. The acceptance of rent
hereunder by Lessor shall not be a waiver of any preceding breach by Lessee of
any provision hereof other than the failure of Lessee to pay the particular rent
so accepted regardless of Lessor's knowledge of such preceding breach at the
time of acceptance of such rent.
Section 16.08. RECORDING. Lessee shall not record this Lease without
Lessor's prior written consent and such recordation shall, at the option of
Lessor, constitute a noncurable default of Lessee hereunder. Either party
shall, upon request of the other, execute, acknowledge and deliver to the other
a "short form" memorandum of this Lease for recording purposes.
Section 16.09. HOLDING OVER. If Lessee remains in possession of the
Premises or any part thereof after the expiration of the term hereof without the
express written consent of Lessor, such occupancy shall be a tenancy from month
to month at a rental in the amount of double the last monthly rental plus all
other charges payable hereunder and upon all the terms hereof applicable to a
month-to-month tenancy.
Section 16.10. CUMULATIVE REMEDIES. No remedy or election hereunder shall
be deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
Section 16.11. COVENANTS AND CONDITIONS. Each provision of this Lease to
be performed by Lessee shall be deemed both a covenant and a condition.
Section 16.12. BINDING EFFECT. Subject to any provision hereof
restricting assignment or subletting by Lessee and subject to the provisions of
Section 17.02, this Lease shall bind the parties, their personal
representatives, successors and assigns.
Section 16.13. SUBORDINATION.
(a) This Lease, at Lessor's option, shall be subordinate to any
ground lease, mortgage, deed of trust or any other hypothecation for
security now or hereafter placed upon the property of which the Premises
are a part and to any and all advances made on
10.16-12
the security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such subordination,
Lessee's right to quiet possession of the Premises shall not be disturbed
if Lessee is not in default and so long as Lessee shall pay the rent and
observe and perform all of the provisions of this Lease, unless this Lease
is otherwise terminated pursuant to its terms. If any mortgagee, trustee
or ground Lessor shall elect to have this Lease prior to the lien of its
mortgage, deed of trust or ground lease and shall give written notice
thereof to Lessee, this Lease shall be deemed prior to such mortgage, deed
of trust or ground lease whether this Lease is dated prior or subsequent to
the date of said mortgage, deed of trust or ground lease as of the date of
recording thereof.
(b) Lessee agrees to execute any documents required to effectuate
such subordination or to make this Lease prior to the lien of any mortgage,
deed of trust or ground lease, as the case may be, and failing to do so
within ten (10) days after written demand does hereby make, constitute and
irrevocably appoint Lessor as Lessee's attorney in fact and in Lessee's
name, place and stead, to do so.
Section 16.14. ATTORNEY'S FEES. If either party brings an action to
enforce the terms hereof or declare rights hereunder, the prevailing party, in
any such action, on trial or appeal, shall be entitled to reasonable attorneys'
fees to be paid by the losing party as fixed by the court.
Section 16.15. LESSOR'S ACCESS. Lessor and Lessor's Agents shall have the
right to enter the Premises at reasonable times between 8 a.m. and 5 p.m.
weekdays for the purpose of inspecting the same, showing the same to prospective
purchasers or lenders and making such alterations, repairs, improvements or
additions to the Premises or to the building of which they are a part as Lessor
may deem necessary or desirable. Lessor may at any time place on or about the
Premises any "For Sale" and "For Lease" signs.
Section 16.16. SIGNS AND AUCTIONS. Lessee shall not place any sign upon
the Premises or conduct any auction thereon without Lessor's prior written
consent; provided, however, Lessee shall place letter and maintain the standard
project sign can with the name of Lessee business.
Section 16.17. MERGER. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not work a merger and shall, at
the option of Lessor, terminate all or any existing subtenancies.
Section 16.18. CORPORATION AUTHORITY. If Lessee is a corporation, each
individual executing this Lease on behalf of said corporation represents and
warrants that he or she is duly authorized to execute and deliver this Lease on
behalf of said corporation in accordance with a duly adopted resolution of the
Board of Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Lessee is a corporation, Lessee shall, within thirty (30)
days after execution of this Lease, deliver to Lessor a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
10.16-13
Section 16.19. RIGHT TO MOVE. Lessor shall have the right, at any time
during the term of this Lease upon giving Lessee sixty (60) days' notice in
writing, to provide and furnish Lessee with space elsewhere in the industrial
park of the approximate same size and areas as the herein Premises and to remove
and place Lessee in such new space at Lessor's sole cost and expense, including
the installation in the new space by Lessor at Lessor's sole cost and expense of
all electrical, plumbing, construction, venting and other similar improvements
made by Lessee in the original space, with all terms, covenants and provisions
contained herein remaining in full force and effect. If Lessee declines to
accept such substituted Premises, this Lease Agreement shall terminate all the
expiration of such sixty (60) day notice period or at such earlier date as
agreed upon by Lessor and Lessee.
Section 16.20. PARKING AND COMMON AREAS. The Lessee, its Agents,
employees and invitees shall be entitled to part in common with either tenant of
Lessor providing that it agrees not to overburden the parking facilities and
agrees to cooperate with the Lessor and other occupants of the property in the
use of the parking facilities. The Lessor specifically reserves the right in
this absolute discretion to determine whether parking facilities are becoming
overburdened and in such event to allocate the parking spaces among the Lessee
and other occupants, their Agent, employees and business invitees using the
parking facilities; provided, however, that Lessee shall be entitled to not less
than ten (10) parking spaces. All loading operating for receipt of shipment of
goods, wares and merchandise by the Lessee shall be done in the rear of the
Premises or in such area therein which is specifically designated in writing by
the Lessor.
Section 16.21. SAFETY. Lessee will maintain on the Premises at all times
during the term hereof adequate number, size and type of fire extinguishers as
is appropriate to Lessee's business. Lessee will at all times adhere to good
safety practices or as may be required by safety inspectors.
ARTICLE XVII
ENVIRONMENTAL REGULATIONS
The Lessee agrees to abide by all local, state and federal environmental
legislation that may now exist or become law during the term of this lease.
Lessee further agrees to indemnify the Lessor from any environmental issues that
may arise during the term of the lease that are caused by Lessee is use of the
property. This condition shall survive the lease expiration.
ARTICLE XVIII
BUILDING OPERATION EXPENSE CAP
The Lessee and Landlord agree to a maximum 10% annual cap on the building
operating expenses and property taxes during the lease term. The expenses for
1996 base year are attached as Exhibit A.
10.16-14
ARTICLE XIX
BROKER COMPENSATION
The Lessor shall compensate The Home Brokers, who is acting as Lessee's
agent, in the amount of 3.5% of the gross lease value.
The parties hereto have executed this Lease on the date set forth herein
above.
LANDLORD: TENANT:
SPRINGS INDUSTRIAL GROUP, LLC MICROLINK TECHNOLOGIES CORP.
By /s/ Xxxxxxx Xxxxx, Manager By /s/ Xxxxxxx X. Xxxxxxx, President
----------------------------- ------------------------------------
Date: October 15, 1997 Date: October 15, 1997
--------------------------- ----------------------------------
10.16-15
Lease Guarantor:
INTERCELL CORPORATION
The Undersigned Officer on behalf of Intercell Corporation hereby
guarantees the obligations created under this lease by Microlink Technologies
Corporation including payment of all rental sums due under the lease. Intercell
Corporation shall submit with execution of the lease a current audited balance
sheet and a profit and loss statement for the year ending 1996 or the last
fiscal year of operations.
INTERCELL CORPORATION
By /s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxxxx, President & Chief
Executive Officer
Date: October 15, 1997
10.16-16
EXHIBIT A
October 13, 1997
Xx. Xxxxxxx Xxxxxx
Olive Real Estate Group, Inc.
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Dear Xx. Xxxxxx:
Pursuant to your request, we have completed a summary of 1996 expenses for
the building located at 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx. These
expenses are summarized below:
1996 EXPENSE SUMMARY CHART
Expense Cost
------- ----
Real Estate Taxes $ 9,747.46
Insurance 1,853.00
Repairs/Maintenance 4,284.25
Utilities, Grounds, Miscellaneous 4,075.33
----------
Total $19,960.04
Based on the total building area of approximately 20,212 square feet, the
above expenses equal approximately $0.99 per square foot.
If we can be of further assistance in this matter, please do not hesitate
to contact us, as it is a privilege to be of service to your firm.
Sincerely,
SPRINGS INDUSTRIAL GROUP, LLC
By /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
A-1
