LONG GATE LLC
INDUSTRIAL MULTI-TENANT LEASE
1. BASIC PROVISIONS ("Basic Provisions").
1.1 PARTIES: This Lease ("Lease") dated 19 _____________, 2000,
is made by and between LONG GATE, LLC, a Delaware limited liability company,
("Landlord") and SDL COMMUNICATIONS, INC., a Massachusetts
corporation("Tenant") (collectively the "Parties," or individually a "Party").
1.2 PREMISES: A portion consisting of 31,237 square feet,
outlined on Exhibit A attached hereto ("Premises"), of the building
("Building") located at 00 Xxxxxx Xxxx, in the City of Mansfield,
Commonwealth of Massachusetts. The Building is located in the industrial
center commonly known as Cabot Business Park. Tenant shall have non-exclusive
rights to the Common Areas (as defined in Paragraph 2.3 below), but shall not
have any rights to the roof, exterior walls or utility raceways of the
Building or to any other buildings in the Industrial Center. The Premises,
the Building, the Common Areas, the land upon which they are located and all
other buildings and improvements thereon are herein collectively referred to
as the "Industrial Center."
1.3 TERM: Five (5) years and zero (0) months ("Term")
commencing on June 15, 2000 ("Commencement Date"), and ending on June 14,
2005 ("Expiration Date").
1.4 BASE RENT: $7.00 per square foot per annum, $218,659 per
annum, payable in equal installments of $_18,221.58 per month.
1.5 TENANT'S SHARE OF OPERATING EXPENSES ("Tenant's Share"):
(a) Industrial Center0.54 %
(b) Building 54.6 %
1.6 TENANT'S ESTIMATED MONTHLY RENT PAYMENT: Following is the
estimated monthly Rent payment to Landlord pursuant to the provisions of this
Lease. This estimate is made at the inception of the Lease and is subject to
adjustment pursuant to the provisions of this Lease:
(a) Base Rent (Paragraph 4.1) $ 18,221.58
(b) Operating Expenses (Paragraph 4.2;
excluding Real Property Taxes) $2,082.47
(c) Real Property Taxes (Paragraph 10) $2,030.00]
Estimated Monthly Payment $22,334.05
1.7 SECURITY DEPOSIT: None
1.8 Permitted Use ("Permitted Use") Warehouse, light
manufacturing, office, and uses incidental thereto.
1.9 GUARANTOR: SBS Technologies, Inc., a New Mexico corporation].
1.10 ADDENDA AND EXHIBITS: Attached hereto are the following
Addenda and Exhibits, all of which constitute a part of this Lease:
(a) Addenda:
Landlord's Remedies in Event of Tenant Default
Option to Extend
Guaranty
Early Possession and Inducement Recapture
(b) Exhibits:Exhibit A: Diagram of Premises.
Exhibit B: Commencement Date Certificate.
Exhibit C: Tenant Move-In and Lease Renewal
Environmental Questionnaire for Commercial
and Industrial Properties.
Exhibit D: Tenant Move-Out and Lease Renewal
Environmental Questionnaire for Commercial
and Industrial Properties.
Exhibit E: Form of Estoppel Certificate.
1.11 ADDRESS FOR RENT PAYMENTS: All amounts payable by Tenant to
Landlord shall until further notice from Landlord be paid to Landlord at the
following address:
Long Gate, LLC
c/o National Development
X.X. Xxx 000000
Xxxxxxx, XX 00000-0000
2. PREMISES, PARKING AND COMMON AREAS.
2.1 LETTING. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the Premises upon all of the terms, covenants and
conditions set forth in this Lease. Any statement of square footage set forth in
this Lease or that may have been used in calculating Base Rent and/or Operating
Expenses is an approximation which Landlord and Tenant agree is reasonable and
the Base Rent and Tenant's Share based thereon is not subject to revision
whether or not the actual square footage is more or less.
2.2 COMMON AREAS - DEFINITION. "Common Areas" are all areas and
facilities outside the Premises and within the exterior boundary line of the
Industrial Center and interior utility
raceways within the Premises that are provided and designated by the
Landlord from time to time for the general non-exclusive use of Landlord, Tenant
and other tenants of the Industrial Center and their respective employees,
suppliers, shippers, tenants, contractors and invitees.
2.3 COMMON AREAS - TENANT'S RIGHTS. Landlord hereby grants to
Tenant, for the benefit of Tenant and its employees, suppliers, shippers,
contractors, customers and invitees, during the term of this Lease, the
non-exclusive right to use, in common with others entitled to such use, the
Common Areas as they exist from time to time, subject to any rights, powers, and
privileges reserved by Landlord under the terms hereof or under the terms of any
rules and regulations or covenants, conditions and restrictions governing the
use of the Industrial Center.
2.4 COMMON AREAS - RULES AND REGULATIONS. Landlord shall have the
exclusive control and management of the Common Areas and shall have the right,
from time to time, to establish, modify, amend and enforce reasonable Rules and
Regulations with respect thereto in accordance with Paragraph 16.19.
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2.5 COMMON AREA CHANGES. Landlord shall have the right, in
Landlord's sole discretion, provided, however, that Landlord shall use
reasonable efforts to minimize any adverse effect upon Tenant's use and
access to and from the Premises.
(a) To make changes to the Common Areas, including,
without limitation, changes in the locations, size, shape and number of
driveways, entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, landscaped areas, walkways and
utility raceways;
(b) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises remains
available;
(c) To designate other land outside the boundaries of the
Industrial Center to be a part of the Common Areas;
(d) To add additional buildings and improvements to the
Common Areas;
(e) To use the Common Areas while engaged in making
additional improvements, repairs or alterations to the Industrial Center, or any
portion thereof; and
(f) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and Industrial Center as
Landlord may, in the exercise of sound business judgment, deem to be
appropriate.
2.6 PARKING. Tenant shall be entitled to one hundred twenty-two
(122) parking spaces, which shall be located in parking areas within Common
Areas, at no extra cost to Tenant. All parking spaces which Tenant is permitted
to use pursuant to this Section shall be on an unreserved, first-come,
first-serve basis. Tenant shall, and shall cause its employees to, comply with
all rules and regulations imposed from time to time by Landlord and provided to
Tenant with respect to the such parking. Furthermore, Tenant shall indemnify and
hold Landlord harmless from and against all loss, cost, damage or expense
arising out of the use by Tenant and its employees and invitees arising from the
use of such parking spaces, except to the extent that any such loss, cost,
damage or expense arises out of the negligent acts of Landlord.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Term of this
Lease are as specified in Paragraph 1.3.
3.2 DELAY IN POSSESSION. If for any reason Landlord cannot deliver
possession of the Premises to Tenant by the Commencement Date, Landlord shall
not be subject to any liability therefor, nor shall such failure affect the
validity of this Lease or the obligations of Tenant hereunder. In such case,
Tenant shall not, except as otherwise provided herein, be obligated to pay Rent
or perform any other obligation of Tenant under the terms of this Lease until
Landlord delivers possession of the Premises to Tenant
3.3 PREPARATION OF THE PREMISES. Landlord shall promptly and
expeditiously construct the demising wall in accordance with the Plan annexed
hereto as Exhibit A-1.
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3.4 CONDITION OF THE PREMISES. Except as set forth in Section 3.3
above, Tenant accepts the Premises in "as is" condition without representation
or warranty by Landlord.
3.5 COMMENCEMENT DATE CERTIFICATE. At the request of Landlord,
Tenant shall execute and deliver to Landlord a completed certificate
("Commencement Date Certificate") in the form attached hereto as Exhibit B.
4. RENT.
4.1 BASE RENT. Tenant shall pay to Landlord Base Rent and other
monetary obligations of Tenant to Landlord under the terms of this Lease (such
other monetary obligations are herein referred to as "Additional Rent") in
lawful money of the United States, without offset or deduction, in advance on or
before the first day of each month. Base Rent and Additional Rent for any period
during the term hereof which is for less than one full month shall be prorated
based upon the actual number of days of the month involved. Payment of Base Rent
and Additional Rent shall be made to Landlord at its address stated herein or to
such other persons or at such other addresses as Landlord may from time to time
designate in writing to Tenant. Base Rent and Additional Rent are collectively
referred to as "Rent". All monetary obligations of Tenant to Landlord under the
terms of this Lease are deemed to be rent.
4.2 OPERATING EXPENSES. Tenant shall pay to Landlord on the first
day of each month during the term hereof, in addition to the Base Rent, Tenant's
Share of all Operating Expenses in accordance with the following provisions:
(a) "Operating Expenses" are all costs incurred by
Landlord relating to the ownership and operation of the Industrial Center,
Building and Premises including, but not limited to, the following:
(i) The operation, repair, maintenance and
replacement in neat, clean, good order and condition of the Common Areas,
including parking areas, loading and unloading areas, trash areas, roadways,
sidewalks, walkways, parkways, driveways, landscaped areas, striping, bumpers,
irrigation systems, drainage systems, lighting facilities, fences and gates,
exterior signs and tenant directories.
(ii) Water, gas, electricity, telephone and other
utilities servicing the Common Areas.
(iii) Trash disposal, janitorial services, snow
removal, property management and security services.
(iv) Reserves set aside for maintenance, repair
and replacement of the Common Areas and Building.
(v) Real Property Taxes.
(vi) Premiums for the insurance policies
maintained by Landlord under Paragraph 8 hereof.
(vii) insurance programs and environmental
monitoring in connection therewith;
(viii) Monthly amortization of capital improvements
to the Common Areas and the Building. The monthly amortization of any given
capital improvement shall be the
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sum of the (i) quotient obtained by dividing the cost of the capital
improvement by Landlord's estimate of the number of months of useful life of
such improvement plus (ii) an amount equal to the cost of the capital
improvement times 1/12 of the lesser of 12% or the maximum annual interest
rate permitted by law.
(ix) Maintenance of the Building including, but
not limited to, painting, caulking and repair and replacement of Building
components, including, but not limited to, roof, elevators and fire detection
and sprinkler systems; and
(x) Management fees, provided, however, that the
amount that Tenant shall be obligated to pay during any year for management fees
shall not exceed three (3%) percent of the Rent due hereunder for that year.
Notwithstanding the foregoing, the following shall be excluded from the
definition of Operating Expenses:
(a) interest and principal payments and other related charges on loans and
ground lease payments;
(b) depreciation charges;
(c) repairs or other work occasioned by exercise of the right of eminent
domain or the negligence of Landlord;
(d) leasing commissions, attorneys' fees, cost and disbursements and other
expenses incurred in connection with negotiations or disputes with
tenants or other occupants of the Property, or with prospective tenants
or costs incurred in marketing the Industrial Center, Building or the
Premises;
(e) renovating or otherwise improving or decorating, painting or
redecorating any interior leaseable space in the Industrial Center or
Building, except as required by law;
(f) Landlord's costs of electricity, water or other utilities which are
provided without cost to certain tenants of the Industrial Center and
not supplied to all tenants of the Industrial Center or which are sold
separately to certain tenants of the Industrial Center for which
Landlord is entitled to be reimbursed;
(g) any expense in connection with services or other benefits of a type or
quality which Tenant is not entitled to receive under this Lease but
which are provided without reimbursement by direct payment to another
tenant or occupant of the Industrial Center;
(h) costs due to violation by Landlord or its agent of the terms and
conditions of any lease, debt agreement, or ground lease, or of any
law, rule, regulation, order or ordinance, unless such costs are
incurred to comply with any law, rule, regulation, order or ordinance
with which the Building or Common Areas were not required to comply
prior to the Commencement Date or to comply with any amendment or
change in interpretation of any such law, rule, regulation, order or
ordinance after the Commencement Date;
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(i) overhead and profit paid to subsidiaries or affiliates of Landlord for
services on or to the Industrial Center or Premises to the extent that
the services exceed competitive costs of such services. No management
fees shall be included other than management fee as specifically
provided in and subject to the limitations of Section (x) above;
(j) advertising and promotional expenses;
(k) any expense for which Landlord is compensated by proceeds through
insurance or which Landlord would have been compensated had Landlord
maintained insurance of a type which a reasonably prudent owner of a
comparable building in Mansfield, Massachusetts, except pursuant to
similar provisions for the payment of a proportionate share of
operating expenses;
(l) rental and other related expenses incurred in leasing] air conditioning
systems, elevators or other equipment ordinarily considered to be of a
capital nature;
(m) costs associated with specific charges solely attributable to any
building in the Industrial Center other than the Building;
(n) legal and other professional fees and expenses incurred in preparing,
negotiating and executing leases, amendments, terminations and
extensions or in resolving any disputes with tenants and other
occupants or enforcing lease obligations, including, without
limitation, court costs;
(o) expenses incurred by Landlord in connection with the transfer or
disposition of the Industrial Center, Building or Premises or any
ground, underlying or overriding lease, including, without limitation,
transfer, deed and gains taxes, provided, however, that any such
expenses incurred due to a reassessment resulting from a sale of real
property within the Industrial Center shall be included in the
definition of Operating Expenses;
(p) costs incurred to correct any misrepresentation by Landlord or in
connection with any fines or penalties arising therefrom; and
(q) Capital expenditures related to the Building roof.
(b) Tenant's Share of Operating Expenses that are not
specifically attributed to the Premises or Building ("Common Area Operating
Expenses") shall be that percentage shown in Paragraph 1.5(a). Tenant's Share of
Operating Expenses that are attributable to the Building ("Building Operating
Expenses") shall be that percentage shown in Paragraph 1.5(b). Landlord in its
sole discretion shall determine which Operating Expenses are Common Area
Operating Expenses, Building Operating Expenses or expenses to be entirely borne
by Tenant.
(c) The inclusion of the improvements, facilities and
services set forth in Subparagraph 4.2(a) shall not be deemed to impose any
obligation upon Landlord to either have said improvements or facilities or to
provide those services.
(d) Tenant shall pay monthly in advance on the same day
as the Base Rent is due Tenant's Share of estimated Operating Expenses in the
amount set forth in Paragraph 1.6.
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Landlord shall deliver to Tenant within 90 days after the expiration of each
calendar year a reasonably detailed statement showing Tenant's Share of the
actual Operating Expenses incurred during the preceding year. If Tenant's
estimated payments under this Paragraph 4(d) during the preceding year exceed
Tenant's Share as indicated on said statement, Tenant shall be credited the
amount of such overpayment against Tenant's Share of Operating Expenses next
becoming due. If Tenant's estimated payments under this Paragraph 4.2(d)
during said preceding year were less than Tenant's Share as indicated on said
statement, Tenant shall pay to Landlord the amount of the deficiency within
10 days after delivery by Landlord to tenant of said statement. At any time
Landlord may adjust the amount of the estimated Tenant's Share of Operating
Expenses to reflect Landlord's reasonable estimate of such expenses for the
year.
(e) Landlord shall permit Tenant, at Tenant's sole
expense and during normal business hours, to review Landlord's invoices and
statements relating to Operating Expenses for the applicable period for the
purpose of verifying the statement delivered by Landlord pursuant to Section
4.2(b) above, provided that notice of Tenant's desire to so review is given
to Landlord not later than three (3) months after delivery of such statement
by Landlord, and provided that such review is thereafter commenced and
prosecuted by Tenant (or any third party which has not been engaged by any
other tenant of the Industrial Center to perform a similar audit and which is
compensated by Tenant on a contingency fee arrangement) with due diligence.
Any such statement delivered to Tenant by Landlord shall be binding and
conclusive upon Tenant unless within four (4) months after the giving by
Landlord of such statement Tenant shall notify Landlord that Tenant disputes
the correctness of such statement, specifying the particular respect in which
the statement is claimed to be incorrect. If such dispute has not been
settled by agreement within two (2) months after the expiration of the
aforementioned four-month period, either party may submit the dispute to
arbitration in accordance with the commercial arbitration rules of the
American Arbitration Association within thirty (30) days after the expiration
of the aforementioned two-month period. The decision of the arbitrators shall
be final and binding on Landlord and Tenant and judgment thereon may be
entered in any court of competent jurisdiction. All of the information
obtained through Tenant's review of Operating Expenses as well as compromise,
settlement or adjustment reached between Landlord and Tenant relative to the
result thereof shall be held in strict confidence by Tenant. Tenant shall
indemnify, defend upon request and hold Landlord harmless from and against
all loss, cost, damage and expense suffered by Landlord based in whole or in
part upon the breach of the covenants of Tenant contained in the preceding
sentence. The obligations of Tenant hereunder shall survive the expiration or
earlier termination of this Lease.
If it should be agreed or decided that Operating Expenses were
overstated by five percent (5%) or more, then Landlord shall promptly
reimburse Tenant for the reasonable costs incurred by Tenant in reviewing
Landlord's invoices and statements, Tenant's reasonable arbitration costs
plus any excess amount paid by Tenant on account of overstated Operating. If
it should be agreed or decided that Operating Expenses were not overstated at
all, then Tenant shall, as Additional Rent, promptly reimburse Landlord for
the reasonable costs incurred in the arbitration plus the costs incurred by
Landlord in preparing for Tenant's review of invoices and statements; and if
Operating Expenses shall have been understated or Tenant shall not have paid
the Operating Expenses in full, Tenant shall, as Additional Rent, promptly
pay any deficiency in the payments theretofore made. In the event of an
overstatement which is less than five percent (5%), Landlord shall promptly
reimburse Tenant any excess amount paid by Tenant on account
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of overstated Operating Expenses, and each party shall be responsible for its
own costs incurred in connection with such dispute.
Tenant keep confidential (and shall cause any third party assisting
Tenant with any such audit to keep confidential) all information obtained
during the audit process including any settlements or arbitration awards
made. Landlord may require Tenant to execute and deliver a separate
confidentiality agreement further specifying Tenant's obligations and
Landlord's remedies for breach, as a condition to commencement of the audit.
5. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon Tenant's
execution hereof the Security Deposit set forth in Paragraph 1.7 as security
for Tenant's faithful performance of Tenants obligations under this Lease. If
Tenant fails to pay Base Rent or Additional Rent or otherwise defaults under
this Lease (as defined in Paragraph 13.1), Landlord may use the Security
Deposit for the payment of any amount due Landlord or to reimburse or
compensate Landlord for any liability, cost, expense, loss or damage
(including attorney's fees) which Landlord may suffer or incur by reason
thereof. Tenant shall on demand pay Landlord the amount so used or applied so
as to restore the Security Deposit to the amount set forth in Paragraph 1.7.
Landlord shall not be required to keep all or any part of the Security
Deposit separate from its general accounts. Landlord shall, at the expiration
or earlier termination of the term hereof and after Tenant has vacated the
Premises, return to Tenant that portion of the Security Deposit not used or
applied by Landlord. No part of the Security Deposit shall be considered to
be held in trust, to bear interest, or to be prepayment for any monies to be
paid by Tenant under this Lease.
6. USE.
6.1 PERMITTED USE. Tenant shall use and occupy the Premises only
for the Permitted Use set forth in Paragraph 1.8. Tenant shall not commit any
nuisance, permit the emission of any objectionable noise or odor, suffer any
waste, make any use of the Premises which is contrary to any law or ordinance or
which will invalidate or increase the premiums for any of Landlord's insurance.
Tenant shall not service, maintain or repair vehicles on the Premises, Building
or Common Areas. Tenant shall not store foods, pallets, drums or any other
materials outside the Premises.
6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "Hazardous
Substance" as used in this Lease shall mean any product, substance, chemical,
material or waste whose presence, nature, quantity and/or intensity of
existence, use, manufacture, disposal, transportation, spill, release or effect,
either by itself or in combination with other materials expected to be on the
Premises, is either: (i) potentially injurious to the public health, safety or
welfare, the environment, or the Premises; (ii) regulated or monitored by any
governmental authority; or (iii) a basis for potential liability of Landlord to
any governmental agency or third party under any applicable statute or common
law theory. Hazardous Substance shall include,
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but not be limited to, hydrocarbons, petroleum, gasoline, crude oil or any
products or by-products thereof. Tenant shall not engage in any activity in
or about the Premises which constitutes a Reportable Use (as hereinafter
defined) of Hazardous Substances without the express prior written consent of
Landlord and compliance in a timely manner (at Tenant's sole cost and
expense) with all Applicable Requirements (as defined in Paragraph 6.3).
"Reportable Use" shall mean (i) the installation or use of any above or below
ground storage tank, (ii) the generation, possession, storage, use,
transportation, or disposal of a Hazardous Substance that requires a permit
from, or with respect to which a report, notice, registration or business
plan is required to be filed with, any governmental authority, and (iii) the
presence in, on or about the Premises of a Hazardous Substance with respect
to which any Applicable Requirements require that a notice be given to
persons entering or occupying the Premises or neighboring properties.
Notwithstanding the foregoing, Tenant may, without Landlord's prior consent,
but upon notice to Landlord and in compliance with all Applicable
Requirements, use any ordinary and customary materials reasonably required to
be used by Tenant in the normal course of the Permitted Use, so long as such
use is not a Reportable Use and does not expose the Premises, or neighboring
properties to any meaningful risk of contamination or damage or expose
Landlord to any liability therefor. In addition, Landlord may (but without
any obligation to do so) condition its consent to any Reportable Use of any
Hazardous Substance by Tenant upon Tenant's giving Landlord such additional
assurances as Landlord, in its reasonable discretion, deems necessary to
protect itself, the public, the Premises and the environment against damage,
contamination or injury and/or liability therefor, including but not limited
to the installation (and, at Landlord's option, removal on or before Lease
expiration or earlier termination) of reasonably necessary protective
modifications to the Premises (such as concrete encasements) and/or the
deposit of an additional Security Deposit.
(b) DUTY TO INFORM LANDLORD. If Tenant knows, or has
reasonable cause to believe, that a Hazardous Substance is located in, under
or about the Premises or the Building, Tenant shall immediately give Landlord
written notice thereof, together with a copy of any statement, report,
notice, registration, application, permit, business plan, license, claim,
action, or proceeding given to, or received from, any governmental authority
or private party concerning the presence, spill, release, discharge of, or
exposure to, such Hazardous Substance. Tenant shall not cause or permit any
Hazardous Substance to be spilled or released in, on, under or about the
Premises (including, without limitation, through the plumbing or sanitary
sewer system).
(c) INDEMNIFICATION. Tenant shall indemnify, protect,
defend and hold Landlord, Landlord's affiliates, Lenders, and the officers,
directors, shareholders, partners, employees, managers, independent
contractors, attorneys and agents of the foregoing ("Landlord Entities") and
the Premises, harmless from and against any and all damages, liabilities,
judgments, costs, claims, liens, expenses, penalties, loss of permits and
attorneys' and consultants' fees arising out of or involving any Hazardous
Substance brought onto the Premises by or for Tenant or by any of Tenant's
employees, agents, contractors or invitees. Tenant's obligations under this
Paragraph 6.2(c) shall include, but not be limited to, the effects of any
contamination or injury to person, property or the environment created or
suffered by Tenant, and the cost of investigation (including consultants' and
attorneys' fees and testing), removal, remediation, restoration and/or
abatement thereof, or of any contamination therein involved. Landlord shall
indemnify, protect, defend and hold Tenant, Tenant's affiliates, lenders and
the officers, directors, shareholders, partners, employees, managers,
independent contractors, attorneys and agents of the foregoing ("Tenant
Entities") harmless from and against any and all damages, liabilities,
judgments, costs,
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claims, liens, and expenses arising from injury to third parties caused by
contamination of the Building due to use of Hazardous Substances by parties
other than Tenant or Tenant Entities in violation of applicable law. In the
event of any contamination not caused by Tenant or Tenant Entities due to use
of Hazardous Substances in violation of applicable law, which contamination
affects or could reasonably affect the Premises, the Building or the
Industrial Center, Landlord shall cause such contamination to be removed or
remediated, promptly after notice of such contamination. Landlord's and
Tenant's obligations under the indemnities contained in this Paragraph 6.2(c)
shall survive the expiration or earlier termination of this Lease.
6.3 TENANT'S COMPLIANCE WITH REQUIREMENTS. Tenant shall, at
Tenant's sole cost and expense, fully, diligently and in a timely manner,
comply with all "Applicable Requirements," which term is used in this Lease
to mean all laws, rules, regulations, ordinances, directives, covenants,
easements and restrictions of record, permits, the requirements of any
applicable fire insurance underwriter or rating bureau, and the
recommendations of Landlord's engineers and/or consultants, relating in any
manner to the Premises (including but not limited to matters pertaining to
(i) industrial hygiene, (ii) environmental conditions on, in, under or about
the Premises, including soil and groundwater conditions, and (iii) the use,
generation, manufacture, production, installation, maintenance, removal,
transportation, storage, spill or release of any Hazardous Substance), now in
effect or which may hereafter come into effect. Tenant shall, within 5 days
after receipt of Landlord's written request, provide Landlord with copies of
all documents and information evidencing Tenant's compliance with any
Applicable Requirements and shall immediately upon receipt, notify Landlord
in writing (with copies of any documents involved) of any threatened or
actual claim, notice, citation, warning, complaint or report pertaining to or
involving failure by Tenant or the Premises to comply with any Applicable
Requirements. Tenant shall execute and deliver to Landlord a completed
questionnaire, in the form attached hereto as Exhibit C, immediately prior to
the Commencement Date and, if applicable, immediately prior to the
commencement of any Option Period; and Tenant shall execute and deliver to
Landlord a completed questionnaire, in the form attached hereto as Exhibit D,
immediately prior to the expiration of the term or Tenant's surrender of
possession of the Premises, whichever is earlier.
6.4 INSPECTION; COMPLIANCE WITH LAW. In addition to Landlord's
environmental monitoring and insurance program, the cost of which is included
in Operating Expenses, Landlord and the holders of any mortgages, deeds of
trust or ground leases on the Premises ("Lenders") shall have the right to
enter the Premises at any time in the case of an emergency, and otherwise at
reasonable times after reasonable notice for the purpose of inspecting the
condition of the Premises and for verifying compliance by Tenant with this
Lease and all Applicable Requirements. Landlord shall be entitled to employ
experts and/or consultants in connection therewith to advise Landlord with
respect to Tenant's installation, operation, use, monitoring, maintenance, or
removal of any Hazardous Substance on or from the Premises. The cost and
expenses of any such inspections shall be paid by the party requesting same
unless a violation of Applicable Requirements exists or is imminent or the
inspection is requested or ordered by a governmental authority. In such case,
Tenant shall upon request reimburse Landlord or Landlord's Lender, as the
case may be, for the costs and expenses of such inspections.
7. MAINTENANCE, REPAIRS, TRADE FIXTURES AND ALTERATIONS.
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7.1 TENANT'S OBLIGATIONS. Subject to the provisions of
Paragraph 7.2 (Landlord's Obligations), Paragraph 9 (Damage or Destruction)
and Paragraph 14 (Condemnation), Tenant shall, at Tenant's sole cost and
expense and at all times, keep the Premises and every part thereof in good
order, condition and repair (whether or not such portion of the Premises
requiring repair, or the means of repairing the same, are reasonable or
readily accessible to Tenant and whether or not the need for such repairs
occurs as a result of Tenant's use, any prior use, the elements or the age of
such portion of the Premises) including, without limiting the generality of
the foregoing, all equipment or facilities specifically serving the Premises,
such as plumbing, heating, air conditioning, ventilating, electrical,
lighting facilities, boilers, fired or unfired pressure vessels, fire hose
connectors if within the Premises, fixtures, interior walls, interior
surfaces of exterior walls, ceilings, floors, windows, doors, plate glass,
but excluding any items which are the responsibility of Landlord pursuant to
Paragraph 7.2 below. Tenant's obligations shall include restorations,
replacements or renewals when necessary to keep the Premises and all
improvements thereon or a part thereof in good order, condition and state of
repair and shall require that Tenant, at its expense, enter into a
maintenance and service agreement (the "HVAC Maintenance Agreement") for the
HVAC system which agreement and vender shall be reasonably acceptable to
Landlord. [Notwithstanding the foregoing, Landlord shall maintain the HVAC
system serving the Premises in good repair and condition at its expense
throughout the first year of the Term and shall, at its expense, make any
capital expenditures required to keep the HVAC system in good repair and
condition, provided that Tenant shall have maintained the HVAC Maintenance
Agreement in full force and effect throughout the second and all subsequent
years of the Term.
7.2 LANDLORD'S OBLIGATIONS. Subject to the provisions of Paragraph
6 (Use), Paragraph 7.1 (Tenant's Obligations), Paragraph 9 (Damage or
Destruction) and Paragraph 14 (Condemnation), Landlord at its expense and not
subject to reimbursement pursuant to Paragraph 4.2, shall keep in good order,
condition and repair the foundations and exterior walls of the Building,
including, loadbearing walls, capital expenditures related to the Building roof,
and utility systems outside the Building. Landlord, subject to reimbursement
pursuant to Paragraph 4.2, shall keep in good order, condition and repair
Building roof and Common Areas.
7.3 ALTERATIONS. Tenant shall not make nor cause to be made any
alterations, installations in, on, under or about the Premises without on
each occasion obtaining the prior consent of Landlord. Landlord's consent
shall not be unreasonably withheld or delayed with respect to alterations,
additions or improvements which Tenant proposes to make at its sole cost
provided any such alterations or installation are consistent with Building
standards, do not adversely affect the plumbing, heating ventilating,
air-conditioning, life safety, mechanical or electrical systems of the
Building, do not adversely affect the structural elements of the Building,
are not visible from the outside of the Premises, and shall not materially
increase Real Estate Taxes or Operating Expenses, nor require Landlord to
perform any work to the Premises, Building or Industrial Center.
7.4 SURRENDER/RESTORATION. Tenant shall surrender the Premises
by the end of the last day of the Lease term or any earlier termination date,
clean and free of debris and in good operating order, condition and state of
repair ordinary wear and tear excepted. Without limiting the generality of
the above, Tenant shall remove all personal property, trade fixtures and
floor bolts, patch all floors and cause all lights to be in good operating
condition.
8. INSURANCE; INDEMNITY.
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8.1 PAYMENT OF PREMIUMS. The cost of the premiums for the
insurance policies maintained by Landlord under this Paragraph 8 shall be a
Common Area Operating Expense pursuant to Paragraph 4.2 hereof. Premiums for
policy periods commencing prior to, or extending beyond, the term of this
Lease shall be prorated to coincide with the corresponding Commencement Date
or Expiration Date.
8.2 TENANT'S INSURANCE.
(i) At its sole cost and expense, Tenant shall
maintain in full force and effect during the Term of the lease the following
insurance coverages insuring against claims which may arise from or in
connection with the Tenant's operation and use of the leased premises.
(a) Commercial General Liability with minimum
limits of $1,000,000 per occurrence; $3,000,000 general aggregate for bodily
injury, personal injury and property damage. If required by Landlord, liquor
liability coverage will be included.
(b) Workers' Compensation insurance with
statutory limits and Employers Liability with a $1,000,000 per accident limit
for bodily injury or disease.
(c) Automobile Liability covering all owned,
non-owned and hired vehicles with a $1,000,000 per accident limit for bodily
injury and property damage.
(d) Property insurance against all risks of loss
to any tenant improvements or betterments and business personal property on a
full replacement cost basis with no coinsurance penalty provision; and Business
Interruption Insurance with a limit of liability representing loss of at least
approximately six months of income.
(ii) Tenant shall deliver to Landlord certificates of all
insurance reflecting evidence of required coverages prior to initial occupancy;
and annually thereafter;
(iii) If, at any time during the Option Period, as set
forth in the Option to Extend Addendum to this Lease, in the opinion of
Landlord's insurance advisor, the amount or scope of such coverage is deemed
inadequate at any time, Tenant shall increase such coverage to such reasonable
amounts or scope as Landlord's advisor deems adequate.
(iv) All insurance required under Paragraph 8.2 (i) shall
be primary and non-contributory (ii) shall provide for severability of
interests, (iii) shall be issued by insurers, licensed to do business in the
state in which the Premises are located and which are rated A:VII or better by
Best's Key Rating Guide, (iv) shall be endorsed to include Landlord and such
other persons or entities as Landlord may from time to time designate, as
additional insureds (Commercial General Liability only), and (v) shall be
endorsed to provide at least 30-days prior notification of cancellation or
material change in coverage to said additional insureds.
8.3 LANDLORD'S INSURANCE. Landlord may, but shall not be obligated
to, maintain all risk, including earthquake and flood, insurance covering the
buildings within the Industrial Center, Commercial General Liability and such
other insurance in such amounts and covering such other liability or hazards as
deemed appropriate by Landlord. The amount and scope of coverage of Landlord's
insurance shall be determined by Landlord from time to time in its sole
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discretion and shall be subject to such deductible amounts as Landlord may
elect. Landlord shall have the right to reduce or terminate any insurance or
coverage. Premiums for any such insurance shall be a Common Area Operating
Expense.
8.4 WAIVER OF SUBROGATION. To the extent permitted by law and
without affecting the coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to recover against the other
on account of any and all claims Landlord or Tenant may have against the other
with respect to property insurance actually carried, or required to be carried
hereunder, to the extent of the proceeds realized from such insurance coverage.
If Landlord does not carry insurance on the Building, Landlord shall waive any
claim against Tenant which would have been insured by an all-risk extended
coverage policy of property insurance at replacement value.
8.5 INDEMNITY. Tenant shall protect, indemnify and hold the
Landlord Entities harmless from and against any and all loss, claims, liability
or costs (including court costs and attorney's fees) incurred by reason of:
(i) any damage to any property (including but not limited
to property of any Landlord Entity) or death or injury to any person occurring
in or about the Premises, the Building or the Industrial Center to the extent
that such injury or damage shall be caused by or arise from any actual or
alleged act, neglect, fault or omission by or of Tenant, its agents, servants,
employees, invitees, or visitors;
(ii) the conduct or management of any work or anything
whatsoever done by the Tenant on or about the Premises or from transactions of
the Tenant concerning the Premises;
(iii) Tenant's failure to comply with any and all
governmental laws, ordinances and regulations applicable to the use of the
Premises or its occupancy; or
(iv) any breach or default of the part of Tenant in the
performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to this Lease.
The provisions of this Paragraph 8.5 shall survive the termination of this Lease
with respect to any claims or liability accruing prior to such termination.
8.6 EXEMPTION OF LANDLORD FROM LIABILITY. Except to the extent
caused by the negligence or willful misconduct of Landlord, Landlord Entities
shall not be liable for and Tenant waives any claims against Landlord Entities
for injury or damage to the person or the property of Tenant, Tenant's
employees, contractors, invitees, customers or any other person in or about the
Premises, Building or Industrial Center from any cause whatsoever, including,
but not limited to, damage or injury which is caused by or results from (i)
fire, steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, fire sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures or (ii) from the condition of
the Premises, other portions of the Building or Industrial Center. Landlord
shall not be liable for any damages arising from any act or neglect of any other
tenant of Landlord nor from the failure by Landlord to enforce the provisions of
any other lease in the Industrial Center. Notwithstanding Landlord's negligence
or breach of this Lease, Landlord shall under no circumstances be liable for
injury to Tenant's business, for any loss of income or profit therefrom or any
indirect, consequential or punitive damages.
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9. DAMAGE OR DESTRUCTION.
9.1 TERMINATION RIGHT. Tenant shall give Landlord immediate
written notice of any damage to the Premises. Subject to the provisions of
Paragraph 9.2, if the Premises or the Building shall be damaged to such an
extent that there is substantial interference for a period exceeding 90
consecutive days with the conduct by Tenant of its business at the Premises,
Tenant, at any time prior to commencement of repair of the Premises and
following 10 days written notice to Landlord, may terminate this Lease effective
30 days after delivery of such notice to Landlord. Such termination shall not
excuse the performance by Tenant of those covenants which under the terms hereof
survive termination. Rent shall be abated in proportion to the degree of
interference during the period that there is such substantial interference with
the conduct of Tenant's business at the Premises. Abatement of rent and Tenant's
right of termination pursuant to this provision shall be Tenant's sole remedy
for failure of Landlord to keep in good order, condition and repair the
foundations and exterior walls of the Building, Building roof, utility systems
outside the Building, the Common Areas and HVAC. . In the event that the
Premises or the Building, or any material part thereof, shall be destroyed or
damaged by fire or other casualty, then this Lease may be terminated at the
election of Landlord. Any such election shall be made by the giving of notice by
Landlord to Tenant within sixty (60) days following Landlord's receipt of
Tenant's notice of such fire or casualty.
9.2 DAMAGE CAUSED BY TENANT. Tenant's termination rights under
Paragraph 9.1 shall not apply if the damage to the Premises or Building is the
result of act or omission of Tenant or of any of Tenant's agents, employees,
customers, invitees or contractors ("Tenant Acts"). Any damage resulting from a
Tenant Act shall be promptly repaired by Tenant. Landlord at its option may at
Tenant's expense repair any damage caused by Tenant Acts. Tenant shall continue
to pay all rent and other sums due hereunder and shall be liable to Landlord for
all damages that Landlord may sustain resulting from a Tenant Act.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF REAL PROPERTY TAXES. Landlord shall pay the Real
Property Taxes due and payable during the term of this Lease and, except as
otherwise provided in Paragraph 10.3, any such amounts shall be included in the
calculation of Operating Expenses in accordance with the provisions of Paragraph
4.2.
10.2 REAL PROPERTY TAX DEFINITION. As used herein, the term "Real
Property Taxes" is any form of tax or assessment, general, special, ordinary or
extraordinary, imposed or levied upon (a) the Industrial Center, (b) any
interest of Landlord in the Industrial Center, (c) Landlord's right to rent or
other income from the Industrial Center, and/or (d) Landlord's business of
leasing the Premises. Real Property Taxes include (i) any license fee,
commercial rental tax, excise tax, improvement bond or bonds, levy or tax; (ii)
any tax or charge which replaces or is in addition to any of such
above-described "Real Property Taxes" and (iii) any fees, expenses or costs
(including attorney's fees, expert fees and the like) incurred by Landlord in
protesting or contesting any assessments levied or any tax rate. The term "Real
Property Taxes" shall also include any increase resulting from a change in the
ownership of the Industrial Center or Building, the execution of this Lease or
any modification, amendment or transfer thereof. Real Property Taxes for tax
years commencing prior to, or extending beyond, the term of this Lease shall be
prorated to coincide with the corresponding Commencement Date or Expiration
Date.
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10.3 ADDITIONAL IMPROVEMENTS. Operating Expenses shall not
include Real Property Taxes attributable to improvements placed upon the
Industrial Center by other tenants or by Landlord for the exclusive enjoyment
of such other tenants. Notwithstanding Paragraph 10.1 hereof, Tenant shall,
however, pay to Landlord at the time Operating Expenses are payable under
Paragraph 4.2, the entirety of any increase in Real Property Taxes if
assessed by reason of improvements placed upon the Premises by Tenant or at
Tenant's request.
10.4 JOINT ASSESSMENT. If the Building is not separately assessed,
Real Property Taxes allocated to the Building shall be an equitable proportion
of the Real Property Taxes for all of the land and improvements included within
the tax parcel assessed.
10.5 TENANT'S PROPERTY TAXES. Tenant shall pay prior to delinquency
all taxes assessed against and levied upon Tenant's improvements, fixtures,
furnishings, equipment and all personal property of Tenant contained in the
Premises or stored within the Industrial Center.
11. UTILITIES. Tenant shall pay directly for all utilities and services
supplied to the Premises, including but not limited to electricity, telephone,
security, gas and cleaning of the Premises, together with any taxes thereon.
12. ASSIGNMENT AND SUBLETTING.
12.1 LANDLORD'S CONSENT REQUIRED.
(a) Tenant shall not assign, mortgage or otherwise
transfer or encumber (collectively, "assign") or sublet all or any part of
Tenant's interest in this Lease or in the Premises without Landlord's prior
written consent which consent shall not be unreasonably withheld, conditioned or
delayed. Relevant criteria in determining reasonability of consent include, but
are not limited to, credit history of a proposed assignee or sublessee,
references from prior landlords, any change or intensification of use of the
Premises or the Common Areas and any limitations imposed by the Internal Revenue
Code and the Regulations promulgated thereunder relating to Real Estate
Investment Trusts. Assignment or sublet shall not release Tenant from its
obligations hereunder. Tenant shall not (i) sublet or assign or enter into other
arrangements such that the amounts to be paid by the sublessee or assignee
thereunder would be based, in whole or in part, on the income or profits derived
by the business activities of the sublessee or assignee; (ii) sublet the
Premises or assign this Lease to any person in which Landlord owns an interest,
directly or indirectly (by applying constructive ownership rules set forth in
Section 856(d)(5) of the Internal Revenue Code (the "Code"); or (iii) sublet the
Premises or assign this Lease in any other manner which could cause any portion
of the amounts received by Landlord pursuant to this Lease or any sublease to
fail to qualify as "rents from real property" within the meaning of Section
856(d) of the Code, or which could cause any other income received by Landlord
to fail to qualify as income described in Section 856(c)(2) of the Code. The
requirements of this Section 12.1 shall apply to any further subleasing by any
subtenant.
(b) A change in the control of Tenant shall constitute an
assignment requiring Landlord's consent. The transfer, on a cumulative basis, of
50% or more of the voting or management control of Tenant shall constitute a
change in control for this purpose.
(c) If the rent and other sums (including, without
limitation, all monetary payments plus the reasonable value of any services
performed or any other thing of value given
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by any assignee or subtenant in consideration of such assignment or
sublease), either initially or over the term of any assignment or sublease,
payable by any assignee or subtenant (other than any entity which controls,
is controlled by or is under common control with the Tenant identified in
Section 1.1 (such entity being an "Affiliate")) to Tenant on account of an
assignment or sublease of all or any portion of the Premises exceed the sum
of Base Rent plus Additional Rent called for hereunder with respect to the
space assigned or sublet, Tenant shall pay to Landlord as Additional Rent
fifty percent (50%) of such excess payable monthly at the time for payment of
Base Rent.
(d) In the event that Tenant intends enter into any
assignment or sublease other than to an Affiliate, then Tenant shall, not
sooner than one hundred twenty (120) days and not later than forty-five (45)
days, prior to the proposed effective date of such sublease or assignment,
give notice to Landlord of such intent, identifying the proposed subtenant or
assignee, all of the terms and conditions of the proposed sublease or
assignment, and such other information as Landlord may reasonably request.
Landlord may elect (i) to terminate the term of this Lease or (ii) to exclude
from the Premises, for the term of the proposed sublease, the portion thereof
to be sublet by giving notice to Tenant of either such election not later
than thirty (30) days after receiving notice of such intent from Tenant. If
Landlord shall give such notice within such thirty (30) day period, upon the
later to occur of (a) the proposed date of commencement of such proposed
sublease or assignment, or (b) the date which is fifteen (15) days after
Landlord's notice, the term of this Lease shall terminate or (as applicable),
for the period expiring on the expiration date of such proposed sublease (if
applicable), the Premises shall be reduced to exclude the portion of the
Premises intended for subletting, in which case the Base Rent and Tenant's
Share of Operating Expenses shall be correspondingly reduced but Tenant shall
upon invoice reimburse Landlord for the cost of separating the excluded space
from the remainder of the Premises (including installation of demising walls
and separating utilities). If Landlord shall give its consent, Tenant may
enter into such sublease or assignment on the terms and conditions set forth
in such notice from Tenant within the following thirty (30) days. If Tenant
shall not enter into such sublease or assignment within such following thirty
(30) day period and shall still desire to enter into any sublease, or if
Tenant shall change the terms and conditions thereof following the date of
Tenant's notice to Landlord, the first sentence of this paragraph shall again
become applicable.
(e) Any sublease to an Affiliate shall, at Landlord's
election, be terminated if the subtenant shall cease to be an Affiliate, and any
sublease shall so provide.
13. DEFAULT; REMEDIES.
13.1 DEFAULT. The occurrence of any one of the following events
shall constitute an event of default on the part of Tenant ("Default"):
(a) The abandonment of the Premises by Tenant;
(b) Failure to pay any installment of Base Rent,
Additional Rent or any other monies due and payable hereunder, said failure
continuing for a period of five (5) business days after receipt of written
notice thereof (but such notice to be required not more than twice in any
12-month period);
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(c) A general assignment by Tenant or any guarantor for
the benefit of creditors;
(d) The filing of a voluntary petition in bankruptcy by
Tenant or any guarantor, the filing of a voluntary petition for an arrangement,
the filing of a petition, voluntary or involuntary, for reorganization, or the
filing of an involuntary petition by Tenant's creditors or guarantors;
(e) Receivership, attachment, of other judicial seizure
of the Premises or all or substantially all of Tenant's assets on the Premises;
(f) Failure of Tenant to maintain insurance as required
by Paragraph 8.2;
(g) Any breach by Tenant of its covenants under Paragraph
6.2;
(h) Failure in the performance of any of Tenant's
covenants, agreements or obligations hereunder (except those failures specified
as events of Default in other Paragraphs of this Paragraph 13.1 which shall be
governed by such other Paragraphs), which failure continues for 30 days after
written notice thereof from Landlord to Tenant provided that, if Tenant has
exercised reasonable diligence to cure such failure and such failure cannot be
cured within such 30 day period despite reasonable diligence, Tenant shall not
be in default under this subparagraph unless Tenant fails thereafter diligently
and continuously to prosecute the cure to completion;
(i) Any transfer of a substantial portion of the assets
of Tenant, or any incurrence of a material obligation by Tenant, unless such
transfer or obligation is undertaken or incurred in the ordinary course of
Tenants business or in good faith for equivalent consideration, or with
Landlord's consent
13.2 REMEDIES. In the event of any Default by Tenant, Landlord
shall have the remedies set forth in the Addendum attached hereto entitled
"Landlord's Remedies in Event of Tenant Default".
13.3 LATE CHARGES. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent and other sums due hereunder will cause Landlord 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. Accordingly, if any installment of rent or
other sum due from Tenant shall not be received by Landlord or Landlord's
designee within 10 days after such amount shall be due, then, without any
requirement for notice to Tenant, Tenant shall pay to Landlord a late charge
equal to 5% of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of late payment by Tenant. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's Default with respect
to such overdue amount, nor prevent Landlord from exercising any of the other
rights and remedies granted hereunder.
14. CONDEMNATION. If the Premises or any portion thereof are taken under
the power of eminent domain or sold under the threat of 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, or more than 10% of the portion of the Common Areas designated for
Tenant's parking (after taking into consideration any additional space within
reasonable walking distance
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of the Premises offered by Landlord), is taken by condemnation, Tenant may,
at Tenant's option, to be exercised in writing within 10 days after Landlord
shall have given Tenant written notice of such taking (or in the absence of
such notice, within 10 days after the condemning authority shall have taken
possession) terminate this Lease as of the date the condemning authority
takes such possession. If Tenant 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 Base Rent shall be
reduced in the same proportion as the rentable floor area of the Premises
taken bears to the total rentable floor area of the Premises. No reduction of
Base Rent shall occur if the condemnation does not apply to any portion 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 Landlord, provided, however,
that Tenant shall be entitled to any compensation, separately awarded to
Tenant for Tenant's relocation expenses and/or loss of Tenants trade
fixtures. In the event that this Lease is not terminated by reason of such
condemnation, Landlord shall to the extent of its net severance damages in
the condemnation matter, repair any damage to the Premises caused by such
condemnation authority. Tenant shall be responsible for the payment of any
amount in excess of such net severance damages required to complete such
repair.
15. ESTOPPEL CERTIFICATE AND FINANCIAL STATEMENTS.
15.1 ESTOPPEL CERTIFICATE. Each party (herein referred to as
"Responding Party") shall within 10 days after written notice from the other
Party (the "Requesting Party") execute, acknowledge and deliver to the
Requesting Party, to the extent it can truthfully do so, an estoppel certificate
in the form attached hereto as Exhibit E, plus such additional information,
confirmation and/or statements as shall be reasonably requested by the
Requesting Party.
15.2 FINANCIAL STATEMENT. If Landlord desires to finance,
refinance, or sell the Building, Industrial Center or any part thereof, Tenant
(on a consolidated basis with Guarantor, if Tenant's financial statements are so
consolidated) and all Guarantors, if the stock of such Guarantors are not traded
on the American Stock Exchange, the New York Stock Exchange, or NASDAQ, shall
deliver to any potential lender or purchaser designated by Landlord such
financial statements of Tenant (on a consolidated basis with Guarantor as set
forth above) and such Guarantors (if not publicly traded as set forth above) as
may be reasonably required by such lender or purchaser, including but not
limited to Tenant's, if not consolidated with Guarantor's financial statements,
and if so consolidated, Guarantor's financial statements for the past 3 years.
All such financial statements shall be received by Landlord and such lender or
purchaser in confidence and shall be used only for the purposes herein set
forth.
16. ADDITIONAL COVENANTS AND PROVISIONS.
16.1 SEVERABILITY. The invalidity of any provision of this Lease,
as determined by a court of competent jurisdiction, shall not affect the
validity of any other provision hereof.
16.2 INTEREST ON PAST-DUE OBLIGATIONS. Any monetary payment due
Landlord hereunder not received by Landlord within 10 days following the date on
which it was due shall bear interest from the date due at 12% per annum, but not
exceeding the maximum rate allowed by law in addition to the late charge
provided for in Paragraph 13.3.
16.3 TIME OF ESSENCE. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the Parties under
this Lease.
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16.4 LANDLORD LIABILITY. Tenant, its successors and assigns,
shall not assert nor seek to enforce any claim for breach of this Lease
against any of Landlord's assets other than Landlord's interest in the
Industrial Center. Tenant agrees to look solely to such interest for the
satisfaction of any liability or claim against Landlord under this Lease. In
no event whatsoever shall Landlord (which term shall include, without
limitation, any general or limited partner, trustees, beneficiaries,
officers, directors, or stockholders of Landlord) ever be personally liable
for any such liability.
16.5 NO PRIOR OR OTHER AGREEMENTS. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein,
and supersedes all oral, written prior or contemporaneous agreements or
understandings.
16.6 NOTICE REQUIREMENTS. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand or by
messenger or courier service) or may be sent by regular, certified or registered
mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile
transmission during normal business hours, and shall be deemed sufficiently
given if served in a manner specified in the Paragraph 16.6. The addresses noted
adjacent to a Party's signature on this Lease shall be that Party's address for
delivery or mailing of notice purposes. Either Party may by written notice to
the other specify a different address for notice purposes, except that upon
Tenant's taking possessing of the Premises, the Premises shall constitute
Tenant's address for the purpose of mailing or delivering notices to Tenant. A
copy of all notices required or permitted to be given to Landlord hereunder
shall be concurrently transmitted to such party or parties at such addresses as
Landlord may from time to time hereafter designate by written notice to Tenant.
16.7 DATE OF NOTICE. Any notice sent by registered or certified
mail, return receipt requested, shall be deemed given on the date of delivery
shown on the receipt card, or if no delivery date is shown, the postmark
thereon. If sent by regular mail, the notice shall be deemed given 48 hours
after the same is addressed as required herein and mailed with postage prepaid.
Notices delivered by United States Express Mail or overnight courier that
guarantees next day delivery shall be deemed given 24 hours after delivery of
the same to the United States Postal Service or courier. If any notice is
transmitted by facsimile transmission or similar means, the same shall be deemed
served or delivered upon telephone or facsimile confirmation of receipt of the
transmission thereof, provided a copy is also delivered via hand or overnight
delivery or certified mail. If notice is received on a Saturday or a Sunday or a
legal holiday, it shall be deemed received on the next business day.
16.8 WAIVERS. No waiver by Landlord of a Default by Tenant shall be
deemed a waiver of any other term, covenant or condition hereof, or of any
subsequent Default by Tenant of the same or any other term, covenant or
condition hereof.
16.9 HOLDOVER. Tenant has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease. If Tenant holds over with the consent of Landlord: (i) the Base Rent
payable shall be increased to 150% of the Base Rent applicable during the month
immediately preceding such expiration or earlier termination; (ii) Tenant's
right to possession shall terminate on 30 days notice from Landlord and (iii)
all other terms and conditions of this Lease shall continue to apply. Nothing
contained herein shall be construed as a consent by Landlord to any holding over
by Tenant. Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all claims, demands, actions,
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losses, damages, obligations, costs and expenses, including, without
limitation, attorneys' fees incurred or suffered by Landlord by reason of
Tenant's failure to surrender the Premises on the expiration or earlier
termination of this Lease in accordance with the provisions of this Lease.
16.10 CUMULATIVE REMEDIES. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies in law or in equity.
16.11 BINDING EFFECT: CHOICE OF LAW. This Lease shall be binding
upon the Parties, their personal representatives, successors and assigns and be
governed by the laws of the State in which the Premises are located. Any
litigation between the Parties hereto concerning this Lease shall be initiated
in the county in which the Premises are located.
16.12 LANDLORD. The covenants and obligations contained in this
Lease on the part of Landlord are binding on Landlord, its successors and
assigns, only during and in respect of their respective period of ownership of
such interest in the Industrial Center. In the event of any transfer or
transfers of such title to the Industrial Center, Landlord (and in case of any
subsequent transfers or conveyances, the then grantor) shall be concurrently
freed and relieved from and after the date of such transfer or conveyance,
without any further instrument or agreement, of all liability with respect to
the performance of any covenants or obligations on the part of Landlord
contained in this Lease thereafter to be performed, provided that the transferee
assumes all such covenants and obligations effective as of such date of
transfer.
16.13 ATTORNEYS' FEES AND OTHER COSTS. If any Party brings an action
or proceeding to enforce the terms hereof or declare rights hereunder, the
Prevailing Party (as hereafter defined) in any such proceeding shall be entitled
to reasonable attorneys' fees. The term "Prevailing Party" shall include,
without limitation, a Party who substantially obtains or defeats the relief
sought. Landlord shall be entitled to attorneys' fees, costs and expenses
incurred in preparation and service of notices of Default and consultations in
connection therewith, whether or not a legal action is subsequently commenced in
connection with such Default or resulting breach. Tenant shall reimburse
Landlord on demand for all reasonable legal, engineering and other professional
services expenses incurred by Landlord in connection with all requests by Tenant
for consent or approval hereunder.
16.14 LANDLORD'S ACCESS; SHOWING PREMISES; REPAIRS. Landlord and
Landlord's agents shall have the right to enter the Premises at any time, in the
case of an emergency, and otherwise at reasonable times upon reasonable notice
for the purpose of showing the same to prospective purchasers, lenders, or
tenants, and making such alterations, repairs, improvements or additions to the
Premises or to the Building, as Landlord may reasonably deem necessary. Landlord
may at any time place on or about the Premises or Building any ordinary "For
Sale" signs and Landlord may at any time during the last 180 days of the term
hereof place on or about the Premises any ordinary "For Lease" signs. All such
activities of Landlord shall be without abatement of rent or liability to
Tenant.
16.15
SIGNS. Tenant shall not place any signs at or upon the
exterior of the Premises or the Building, except that Tenant may, with
Landlord's prior written consent, install (but not on the roof) such signs as
are reasonably required to advertise Tenant's own business so long as such signs
are in a location designated by Landlord and comply with sign ordinances and the
signage criteria established for the Industrial Center by Landlord.
Notwithstanding the foregoing,
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Tenant shall have the right to install, at Tenant's sole cost and expense in
a location designated by Landlord, one (1) building-mounted sign, subject to
Landlord's approval, which approval shall not be unreasonably withheld.
Landlord shall add Tenant's name to the Industrial Park and Building
directories, the cost of which shall be borne by Landlord. Tenant shall be
required to obtain at its expense all permits and approvals required for the
installation of such sign (but shall not be permitted to seek any zoning or
other similar relief for such signs without Landlord's consent) and shall at
its expense keep all such permits and approvals in full force and effect.
Tenant shall keep such signs in good condition through the term of this Lease
and shall, if Landlord so requests, remove such exterior signs at the end of
the term of this Lease and repair any damage caused by such removal.
16.16 TERMINATION: MERGER. Unless specifically stated otherwise
in writing by Landlord, the voluntary or other surrender of this Lease by
Tenant, the mutual termination or cancellation hereof, or a termination
hereof by Landlord for Default by Tenant, shall automatically terminate any
sublease or lesser estate in the Premises; provided, however, Landlord shall,
in the event of any such surrender, termination or cancellation, have the
option to continue any one or all of any existing subtenancies. Landlord's
failure within 10 days following any such event to make a written election to
the contrary by written notice to the holder of any such lesser interest,
shall constitute Landlord's election to have such event constitute the
termination of such interest.
16.17 QUIET POSSESSION. Upon payment by Tenant of the Base Rent
and Additional Rent for the Premises and the performance of all of the
covenants, conditions and provisions on Tenant's part to be observed and
performed under this Lease, Tenant shall have quiet possession of the
Premises for the entire term hereof subject to all of the provisions of this
Lease.
16.18 SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
(a) Subordination. This Lease shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or
other hypothecation or mortgage (collectively, "Mortgage") now or hereafter
placed by Landlord upon the real property of which the Premises are a part,
to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof. Tenant
agrees that any person holding any Mortgage shall have no duty, liability or
obligation to perform any of the obligations of Landlord under this Lease. In
the event of Landlord's default with respect to any such obligation, Tenant
will give any Lender, whose name and address have previously in writing been
furnished Tenant, notice of a default by Landlord. Tenant may not exercise
any remedies for default by Landlord unless and until Landlord and the Lender
shall have received written notice of such default and a reasonable time (not
less than 90 days) shall thereafter have elapsed without the default having
been cured. If any Lender shall elect to have this Lease superior to the lien
of its Mortgage and shall give written notice thereof to Tenant, this Lease
shall be deemed prior to such Mortgage. The provisions of a Mortgage relating
to the disposition of condemnation and insurance proceeds shall prevail over
any contrary provisions contained in this Lease.
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(b) Attornment. Subject to the
non-disturbance provisions of subparagraph C of this Paragraph 16.18, Tenant
agrees to attorn to a Lender or any other party who acquires ownership of the
Premises by reason of a foreclosure of a Mortgage. In the event of such
foreclosure, such new owner shall not: (i) be liable for any act or omission
of any prior landlord or with respect to events occurring prior to
acquisition of ownership, (ii) be subject to any offsets or defenses which
Tenant might have against any prior Landlord, or (iii) be liable for security
deposits or be bound by prepayment of more than one month's rent.
(c) Non-Disturbance. With respect to any
Mortgage entered into by Landlord after the execution of this Lease, Tenant's
subordination of this Lease shall be subject to receiving assurance (a
"non-disturbance agreement") from the Mortgage holder that Tenant's
possession and this Lease will not be disturbed so long as Tenant is not in
default and attorns to the record owner of the Premises.
(d) Self-Executing. The agreements contained
in this Paragraph 16.18 shall be effective without the execution of any
further documents; provided, however, that upon written request from Landlord
or a Lender in connection with a sale, financing or refinancing of Premises,
Tenant and Landlord shall execute such further writings as may be reasonably
required to separately document any such subordination or non-subordination,
attornment and/or non-disturbance agreement as is provided for herein.
Landlord is hereby irrevocably vested with full power to subordinate this
Lease to a Mortgage.
16.19 RULES AND REGULATIONS. Tenant agrees that it will abide by,
and to cause its employees, suppliers, shippers, customers, tenants,
contractors and invitees to abide by all reasonable rules and regulations
("Rules and Regulations") which Landlord may make from time to time for the
management, safety, care, and cleanliness of the Common Areas, the parking
and unloading of vehicles and the preservation of good order, as well as for
the convenience of other occupants or tenants of the Building and the
Industrial Center and their invitees. Landlord shall not be responsible to
Tenant for the non-compliance with said Rules and Regulations by other
tenants of the Industrial Center.
16.20 SECURITY MEASURES. Tenant acknowledges that the rental
payable to Landlord hereunder does not include the cost of guard service or
other security measures. Landlord has no obligations to provide same. Tenant
assumes all responsibility for the protection of the Premises, Tenant, its
agents and invitees and their property from the acts of third parties.
16.21 RESERVATIONS. Landlord reserves the right to grant such
easements that Landlord deems necessary and to cause the recordation of
parcel maps, so long as such easements and maps do not reasonably interfere
with the use of the Premises by Tenant. Tenant agrees to sign any documents
reasonable requested by Landlord to effectuate any such easements or maps.
16.22 CONFLICT. Any conflict between the printed provisions of
this Lease and the typewritten or handwritten provisions shall be controlled
by the typewritten or handwritten provisions.
16.23 OFFER. Preparation of this Lease by either Landlord or
Tenant or Landlord's agent or Tenant's agent and submission of same to Tenant
or Landlord shall not be deemed an offer to lease. This Lease is not intended
to be binding until executed and delivered by all Parties hereto.
16.24 BROKERAGE. Tenant warrants and represents that it has dealt
with no broker in connection with the execution of this Lease other than
InsigniaESG and Xxxxx Associates and
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agrees to indemnify and hold Landlord harmless from and against any and all
brokerage claims, other than by Insignia/ESG and/or Xxxxx Associates arising
therefrom.
16.25 AMENDMENTS. This Lease may be modified only in writing,
signed by the parties in interest at the time of the modification.
16.26 MULTIPLE PARTIES. Except as otherwise expressly provided
herein, if more than one person or entity is named herein as Tenant, the
obligations of such persons shall be the joint and several responsibility of
all persons or entities named herein as such Tenant.
16.27 AUTHORITY. Each person signing on behalf of Landlord or
Tenant warrants and represents that she or is authorized to execute and
deliver this Lease and to make it a binding obligation of Landlord or Tenant.
The parties hereto have executed this Lease at the place
and on the dates specified above their respective signatures.
LANDLORD: TENANT:
LONG GATE, LLC SDL COMMUNICATIONS, INC.:
By: AMB Property Holding Corporation By: /s/ X.X. Xxxxx
Its: Managing Member X.X. Xxxxx
Title: Secretary
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Its: Vice President
Long Gate, LLC
c/o AMB Property Corporation
00 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Tenant's address for notice purposes:
Attention Xxxx Xxxxxxx
SDL Communications, Inc.
00 Xxxxxxx Xxxx
-00-
Xxxxxxxxx, XX 00000
Telephone: ( ) Telephone: ( )
------- -----
Facsimile: ( ) Facsimile: ( )
------- -------
Executed at: Executed at:
on: on:
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LANDLORD'S REMEDIES IN EVENT OF TENANT DEFAULT ADDENDUM
This Remedies Addendum is part of the Lease dated
______________________ by and between LONG GATE, LLC and SDL COMMUNICATIONS,
INC. for the premises known as
(A) TERMINATION. In the event of any Default by Tenant,
Landlord and the agents and servants of Landlord may, in addition to and not
in derogation of any remedies for any preceding breach of covenant,
immediately or at any time thereafter give notice to Tenant terminating this
Lease and the term hereof, which notice shall specify the date of
termination, whereupon on the date so specified the term of this Lease and
all of Tenant's rights and privileges under this Lease shall expire and
terminate, but Tenant shall remain liable as hereinafter provided.
(B) REMEDIES. In the event of any termination due to a Default
by Tenant, Tenant shall pay the Base Rent, Additional Rent and other charges
payable hereunder up to the time of such termination, and thereafter, Tenant,
until the end of what would have been the term of this Lease in the absence
of such termination and whether or not the Premises shall have been relet,
shall be liable to Landlord for, and shall pay to Landlord, as current
damages, the Base Rent, Additional Rent and other charges which would be
payable hereunder for the remainder of this Lease if such termination had not
occurred, less the proceeds, if any, of any reletting of the Premises, after
deducting all expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, legal expenses,
attorneys' fees, advertising, expenses of employees, alteration costs and
expenses of preparation for such reletting. Tenant shall pay such current
damages to Landlord monthly on the days on which the Base Rent would have
been payable hereunder if this Lease had not been terminated.
At any time after such termination, in lieu of all such current
damages beyond the date of such demand, at Landlord's election Tenant shall
pay to Landlord either (i) an amount equal to the excess, if any, of the Base
Rent, Additional Rent and other charges as hereinbefore provided which would
be payable hereunder from the date of such demand for what would be the then
unexpired term of this Lease if the same remained in effect, over the then
fair net rental value of the Premises for the same period or (ii) an amount
equal to the lesser of (x) the Base Rent, Additional Rent and other charges
that would have been payable for the balance of the term of this Lease had it
not been terminated or (y) the aggregate of the Base Rent, Additional Rent
and other charges accrued in the twelve (12) months ended next prior to such
termination (without reduction for any free rent or other concession or
abatement) except that in the event the term of this Lease is so terminated
prior to the expiration of the first full year of the term of this Lease, the
liquidated damages which Landlord may elect to recover pursuant to clause
(ii) (y) of this paragraph shall be calculated as if such termination had
occurred on the first anniversary of the Commencement Date and there had been
no so-called free rent or other rental concession or any rental abatement.
Nothing contained in this Lease shall, however, limit or prejudice the right
of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or
not the amount be greater than, equal to, or less than the amount of the loss
or damages referred to above.
In case of any Default of Tenant, re-entry, expiration and
dispossession by summary proceedings or otherwise, Landlord may (i) relet the
Premises or any part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms which may at Landlord's option be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the term of this Lease and may grant concessions or free rent to the
extent that Landlord considers advisable and necessary to relet the same and
(ii) may make such reasonable alterations, repairs and decorations in the
Premises as Landlord in its sole judgment considers advisable and necessary for
the purpose of reletting the Premises; and the making of such alterations,
repairs and decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable in any
way whatsoever for failure to relet the Premises, or, in the event that the
Premises are relet, for failure to collect the rent under such reletting. To the
fullest extent permitted by law, Tenant hereby expressly waives any and all
rights of redemption granted under any present or future laws in the event of
Tenant being evicted or dispossessed, or in the event of Landlord obtaining
possession of the Premises, by reason of the violation by Tenant of any of the
covenants and conditions of this Lease.
(C) REMEDIES CUMULATIVE. Except as expressly provided above,
any and all rights and remedies which Landlord may have under this Lease, and
at law and equity (including without limitation actions at law for direct,
indirect, special and consequential (foreseeable and unforeseeable) damages,
for Tenant's failure to comply with its obligations under this Lease shall be
cumulative and shall not be deemed inconsistent with each other, and any two
or more of all such rights and remedies may be exercised at the same time
insofar as permitted by law.
(D) NO SURRENDER. No act or conduct of Landlord, whether
consisting of the acceptance of the keys to the Premises, or otherwise, shall
be deemed to be or constitute an acceptance of the surrender of the Premises
by Tenant prior to the expiration of the Term, and such acceptance by
Landlord of surrender by Tenant shall only flow from and must be evidenced by
a written acknowledgment of acceptance of surrender signed by Landlord. The
surrender of this Lease by Tenant, voluntarily or otherwise, shall not work a
merger unless Landlord elects in writing that such merger take place, but
shall operate as an assignment to Landlord of any and all existing subleases,
or Landlord may, at its option, elect in writing to treat such surrender as a
merger terminating Tenant's estate under this Lease, and thereupon Landlord
may terminate any or all such subleases by notifying the sublessee of its
election so to do within five (5) days after such surrender.
(E) LANDLORD'S CURE RIGHTS. At any time with or without notice,
Landlord shall have the right, but shall not be required, to pay such sums or
do any act which requires the expenditure of monies which may be necessary or
appropriate by reason of the failure or neglect of Tenant to comply with any
of its obligations under this Lease, and in the event of the exercise of such
right by Landlord, Tenant agrees to pay to Landlord forthwith upon demand all
such sums including reasonable attorneys fees, together with interest thereon
at a rate equal to the lesser of 6% over the Prime Rate or the maximum rate
allowed by law. "Prime Rate" shall mean the annual floating rate of interest,
determined daily and expressed as a percentage from time to time announced by
the largest national or state-chartered banking institution in the state or
district in which the Building is located as its "prime" or "base" rate.
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TENANT INITIALS LANDLORD INITIALS
/s/ X.X.X. /s/ C.J.S.
---------------------- ---------------------
-3-
LONG GATE, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
INDUSTRIAL MULTI-TENANT LEASE
OPTION TO EXTEND
This Option to Extend is a part of the Lease dated ______________________, by
and between LONG GATE, LLC ("Landlord") and SDL COMMUNICATIONS, INC.
("Tenant") for the premises commonly known as 00 Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx.
1. Option to Extend. Landlord
hereby grants to Tenant the option to extend the term of this Lease for the
one (1) additional period of five (5) years, commencing on the date
immediately following the Expiration Date.
2. Exercise Dates: For purposes of Paragraph 5 of
this Addendum, the Last Exercise Date is twelve (12) months prior to the date
that the Option Period would commence.
3. Monthly Base Rent. The monthly Base Rent for each month of the
Option Period shall be the amount calculated in accordance with the
alternative selected below ("Rent Adjustment Alternative") but in no event
shall the monthly Base Rent for the Option Period be less than the highest
monthly Base Rent payable during the term immediately preceding the Option
Period.
[ ] Fixed rent adjustment ("Fixed Rent Adjustment")
$ shall be the monthly Base Rent for Period One.
$ shall be the monthly Base Rent for Period Two.
$ shall be the monthly Base Rent for Period Three.
$ shall be the monthly Base Rent for Period Four.
$ shall be the monthly Base Rent for Period Five.
[ ] Cost of living adjustment ("CPI Adjustment")
Monthly Base Rent shall be calculated using the following CPI
index ("Index")
[ ] Urban Wage Earners and Clerical Workers
[ ] All Urban Consumers
[ ] The Comparison Month is:
[ ] the first month of the term of this Lease; or
[ ]
[ X ] Market rent ("Market Rent Adjustment")
4. Conditions to Exercise of Option. Tenant's right to extend is
conditioned upon and subject to each of the following:
A. In order to exercise the option to extend, Tenant must give
written notice of such election to Landlord and Landlord must receive the
same not later than the Last Exercise Date and not sooner than six (6))
months prior thereto. If proper notification of the exercise of the
option is not given and/or received, such option shall automatically expire.
Tenant acknowledges that the failure of Tenant to notify Landlord on or
before the Last Exercise Date will conclusively be presumed an election by
Tenant not to exercise the option.
B. Landlord may elect to revoke Tenant's rights hereunder (i)
if Tenant is in Default at the time of the exercise of the option or (ii) in
the event that Landlord has given to Tenant 3 or more notices of separate
Defaults during the 12 month period immediately preceding the exercise of the
option, whether or not the Defaults are cured. The period of time within
which the option may be exercised shall not be extended or enlarged by reason
of Tenant's inability to exercise the option because of the provisions of
this paragraph.
C. All of the terms and conditions of this Lease except where
specifically modified by this Addendum shall apply to the extended term,
except that there shall be no further right to extend the term hereof.
D. The option is personal to the Tenant, may not be assigned
or exercised by anyone other than the Tenant and may be exercised only while
the Tenant is in full possession of the Premises and without the intention of
thereafter assigning or subletting.
5. CALCULATION OF RENT ADJUSTMENT
A. Market Rent Adjustment. Four months prior to the
commencement of the Option Period, if the selected Rent Adjustment
Alternative is the Market Rent Adjustment, the Parties shall negotiate in
good faith to determine the Base Rent for the Option Period. If agreement
cannot be reached within thirty days, then Landlord and Tenant shall each, no
later then 90 days prior to the commencement of the Option Period, make a
reasonable determination of the fair market rental for the Premises for the
Option Period and submit such determination, in writing, to arbitration in
accordance with the following provisions:
(i) No later then 90 days prior to the commencement of
the Option Period, Landlord and Tenant shall each select an industrial
leasing broker to act as an arbitrator. The two arbitrators so appointed
shall, no later then 75 days prior to the commencement of the Option Period,
select a third mutually acceptable industrial leasing broker to act as a
third arbitrator.
(ii) The three arbitrators, acting by a majority, shall
no later then 75 days prior to the commencement of the Option Period,
determine the actual fair market rental for the Premises for the Option
Period. The decision of a majority of the arbitrators shall be binding on the
Parties. The fair market rental determination of Landlord or Tenant which is
closest to the fair market rental as determined by the arbitrators shall be
the Base Rent for the Option Period.
(iii) If either of the Parties fails to appoint an
arbitrator within the period required by this Addendum, the arbitrator timely
appointed shall determine the Base Rent for the Option Period.
(iv) The entire cost of such arbitration shall be paid
by the party whose fair market rental submission is not selected.
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LANDLORD: TENANT:
LONG GATE, LLC SDL COMMUNICATIONS, INC:
By: AMB Property Holding Corporation By /s/ X.X. Xxxxx
Its: Managing Member X.X. Xxxxx
Title: Secretary
By: /s/ X. X. Xxxxxx
Xxxxxxx X. Xxxxxx
Its: Vice President
-3-
LONG GATE, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
Early Possession and Inducement Recapture Addendum
This Early Possession and Inducement Recapture Addendum is a part of the
Lease dated ______________________, by and between LONG GATE, LLC
("Landlord") and SDL COMMUNICATIONS, INC. ("Tenant") for the premises
commonly known as 00 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx.
1. Early Possession. Tenant may occupy the Premises from and after May
15, 2000 even though the Early Possession Date is prior to the Commencement
Date of the Lease (such period being "Early Possession"). The obligation to
pay Base Rent shall be abated for the Early Possession Period. All other
terms of this Lease, however, including but not limited to the obligations to
pay Tenant's Share of Operating Expenses and to carry the insurance required
by Paragraph 8 shall be in effect during the Early Possession period. Such
Early Possession shall not change the Expiration Date of the Original Term.
If possession is not tendered to Tenant on the Early Possession Date, the
Early Possession period shall run from the date of delivery of possession and
continue for a period equal to the period during which the Tenant would have
otherwise enjoyed under the terms hereof possession of the Premises with
abated Base Rent, but minus any days of delay caused by the acts, failure to
act, or omissions of Tenant.
2. Inducement Recapture in Event of Breach. Any agreement by Landlord
for possession of the Premises without the payment or reduced payment of rent
or other charges or for the giving or paying by Landlord to or for Tenant of
any cash or other bonus, inducement or consideration for Tenant's entering
into this Lease, all of which concessions are hereinafter referred to as
"Inducement Provisions" are conditioned upon Tenant's full and faithful
performance of all of the terms, covenants and conditions of this Lease to be
performed or observed by Tenant during the term of this Lease. Upon
Landlord's termination of the term of the Lease arising from the occurrence
of a Default by Tenant any rent, other charge, bonus, inducement or
consideration abated, given or paid by Landlord under such an Inducement
Provision shall be immediately due and payable by Tenant to Landlord and
recoverable by Landlord, as additional rent due under this Lease,
notwithstanding any subsequent cure by Tenant.
Landlord: Tenant:
LONG GATE, LLC SDL COMMUNICATIONS, INC:
By: AMB Property Holding Corporation By /s/ X.X. Xxxxx
Its: Managing Member X.X. Xxxxx
Title: Secretary
By: /s/ X. X. Xxxxxx
Xxxxxxx X. Xxxxxx
Its: Vice President
GUARANTY OF LEASE
WHEREAS, LONG GATE, LLC ("Landlord"), and SDL COMMUNICATIONS, INC.,
("Tenant") are about to execute a lease ("Lease") dated
_____________________________ for the premises commonly known as 00 Xxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx,
WHEREAS, SBS TECHNOLOGIES, INC. ("Guarantors") have a financial interest in
Tenant and
WHEREAS, Landlord would not execute the Lease if Guarantors did not execute
and deliver to Landlord this Guaranty of Lease.
NOW THEREFORE, in consideration of the execution of the foregoing Lease by
Landlord and as a material inducement to Landlord to execute the Lease:
1. Guarantors hereby jointly, severally, unconditionally and irrevocably
guarantee the prompt payment by Tenant of all rents and all other sums payable
by Tenant under the Lease and the faithful and prompt performance by Tenant of
each and every one of the terms, conditions and covenants of the Lease to be
kept and performed by Tenant.
2. The terms of the Lease may, without the consent of or notice to
Guarantor, be modified by Landlord and Tenant or by a course of conduct and this
Guaranty shall guarantee the performance of said Lease as so modified. The Lease
may be assigned by Landlord or any assignee of Landlord without consent or
notice to Guarantors
3. This Guaranty shall not be released, modified or affected by the
failure or delay on the part of Landlord to enforce any of the rights or
remedies of the Landlord under the Lease, whether pursuant to the terms thereof
or at law or in equity.
4. No notice of default need be given to Guarantors. The guaranty of the
undersigned is a continuing guaranty under which Landlord may proceed
immediately against Tenant and/or against Guarantors following any breach or
default by Tenant or for the enforcement of any rights which Landlord may have
against Tenant under the terms of the Lease or at law or in equity.
5. Landlord shall have the right to proceed against Guarantors hereunder
following any breach or default by Tenant without first proceeding against
Tenant and without previous notice to or demand upon either Tenant or
Guarantors.
6. Guarantors hereby waive (a) notice of acceptance of this Guaranty, (b)
demand of payment, presentation and protest, (c) all right to assert or plead
any statute of limitations relating to this Guaranty or the Lease, (d) any right
to require the Landlord to proceed against the Tenant or any other Guarantor or
any other person or entity liable to Landlord, (e) any right to require Landlord
to apply to any default any security deposit or other security it may hold under
the Lease, (f) any right to require Landlord to proceed under any other remedy
Landlord may have before proceeding against Guarantors and (g) any right of
subrogation.
7. Guarantors do hereby subrogate all existing or future indebtedness of
Tenant to Guarantors to the obligations owed to Landlord under the Lease and
this Guaranty.
8. If a Guarantor is married, such Guarantor expressly agrees that
recourse may be had against his or her separate property for all of the
obligations hereunder.
9. The obligations of Tenant under the Lease to execute and deliver
estoppel certificates and
financial statements (except as expressly set forth otherwise in the Lease)
shall be deemed to also require the Guarantors hereunder to do and provide
the same.
10. The term "Landlord" refers to and means the Landlord named in the
Lease and also Landlord's successors and assigns. So long as Landlord's
interest in the Lease, the leased premises or the rents, issues and profits
therefrom, are subject to any mortgage or deed of trust or assignment for
security, no acquisition by Guarantors of the Landlord's interest shall
affect the continuing obligation of Guarantors under this Guaranty which
shall nevertheless continue in full force and effect for the benefit of the
mortgagee, beneficiary, trustee or assignee under such mortgage, deed of
trust or assignment and their successors and assigns.
11. The term "Tenant" refers to and means the Tenant named in the Lease
and also Tenant's successors and assigns.
12. In the event any action be brought by said Landlord against
Guarantors hereunder to enforce the obligation of Guarantors hereunder, the
unsuccessful party in such action shall pay to the prevailing party therein a
reasonable attorney's fee which shall be fixed by the court.
Executed at Albuquerque, NM
on May 5, 2000
Address 0000 Xxxxxxxx Xxxx XX
AFC #0 Xxxxx 000
Xxxxxxxxxxx, XX 00000
"GUARANTORS"
------------
SBS Technologies, Inc.
/s/ Xxxxxxxxxxx X. Xxxxxxx
Xxxxxxxxxxx X. Xxxxxxx,
Chairman and CEO
-2-
