LEASE AGREEMENT
THIS
LEASE AGREEMENT is made this 11th day of December, 2007, between MDN
/
JSC - II Limited ("Landlord"),
and the Tenant named below.
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Tenant:
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Xxxxx
Golf, Ltd.
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Tenant’s
Representative,
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Xxxxx
Golf Ltd.
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Address,
and Telephone:
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0000
Xxxxxxxxxx Xxxxx
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Xxxxx
000
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Xxxxx,
XX 00000
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Premises:
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That
portion of the Building, containing approximately 52,983
rentable square feet, as determined by Landlord, as shown on Exhibit
A.
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Project:
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Plano
Distribution Center #2
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Building:
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Plano
Distribution Center #2
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0000
Xxxxxxxxxx Xxxxx
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Xxxxx
000
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Xxxxx,
XX 00000
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Tenant's
Proportionate Share of Project:
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34.063%
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Tenant's
Proportionate Share of Building:
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34.063%
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Lease
Term:
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Beginning
on the Commencement Date and ending on the last day of the 44th full
calendar month thereafter.
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Commencement
Date:
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January
1, 2008
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Initial
Monthly Base Rent:
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$17,440.24
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Initial
Estimated Monthly Operating Expense Payments:
(estimates
only and subject to adjustment to actual costs and expenses according
to
the provisions of this Lease)
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1.
Utilities: —
2.
Common Area
Charges: $706.44
3.
Taxes: $4,062.03
4.
Insurance: $353.22
5.
Others: Mgmt.
Fee
$662.29
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Initial
Estimated Monthly Operating Expense Payments:
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$5,783.98
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Initial
Monthly Base Rent and Operating Expense Payments:
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$23,224.22
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Security
Deposit:
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$23,000.00
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Broker:
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(None)
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Addenda:
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1.
HVAC Maintenance Contract 2. Move Out Conditions 3. Construction
(Turnkey)
4. One Renewal Option at Market
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Exhibits:
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A.
Site Plan
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1. Granting
Clause.
In
consideration of the obligation of Tenant to pay rent as herein provided
and in
consideration of the other terms, covenants, and conditions hereof, Landlord
leases to Tenant, and Tenant takes from Landlord, the Premises, to have and
to
hold for the Lease Term, subject to the terms, covenants and conditions of
this
Lease.
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2. Acceptance
of Premises.
Tenant
shall accept the Premises in its condition as of the Commencement Date, subject
to all applicable laws, ordinances, regulations, covenants and restrictions.
Landlord has made no representation or warranty as to the suitability of
the
Premises for the conduct of Tenant's business, and Tenant waives any implied
warranty that the Premises are suitable for Tenant's intended purposes. Except
as provided in Paragraph 10, in no event shall Landlord have any obligation
for
any defects in the Premises or any limitation on its use. The taking of
possession of the Premises shall be conclusive evidence that Tenant accepts
the
Premises and that the Premises were in good condition at the time possession
was
taken except for items that are Landlord's responsibility under Paragraph
10 and
any punchlist items agreed to in writing by Landlord and Tenant.
3. Use.
The
Premises shall be used only for the purpose of receiving, storing, shipping
and
selling (but limited to wholesale sales) products, materials and merchandise
made and/or distributed by Tenant and for such other lawful purposes as may
be
incidental thereto; provided, however, with Landlord's prior written consent,
Tenant may also use the Premises for light manufacturing. Tenant shall not
conduct or give notice of any auction, liquidation, or going out of business
sale on the Premises. Tenant will use the Premises in a careful, safe and
proper
manner and will not commit waste, overload the floor or structure of the
Premises or subject the Premises to use that would damage the Premises. Tenant
shall not permit any objectionable or unpleasant odors, smoke, dust, gas,
noise,
or vibrations to emanate from the Premises, or take any other action that
would
constitute a nuisance or would disturb, unreasonably interfere with, or endanger
Landlord or any tenants of the Project. Outside storage, including without
limitation, storage of trucks and other vehicles, is prohibited without
Landlord's prior written consent. Tenant, at its sole expense, shall use
and
occupy the Premises in compliance with all laws, including, without limitation,
the Americans With Disabilities Act, orders, judgments, ordinances, regulations,
codes, directives, permits, licenses, covenants and restrictions now or
hereafter applicable to the Premises (collectively, "Legal Requirements").
The
Premises shall not be used as a place of public accommodation under the
Americans with Disabilities Act or similar state statutes or local ordinances
or
any regulations promulgated thereunder, all as may be amended from time to
time.
Tenant shall, at its expense, make any alterations or modifications, within
or
without the Premises, that are required by Legal Requirements related to
Tenant's use or occupation of the Premises. Tenant will not use or permit
the
Premises to be used for any purpose or in any manner that would void Tenant's
or
Landlord's insurance, increase the insurance risk, or cause the disallowance
of
any sprinkler credits. If any increase in the cost of any insurance on the
Premises or the Project is caused by Tenant's use or occupation of the Premises,
or because Tenant vacates the Premises, then Tenant shall pay the amount
of such
increase to Landlord. Any occupation of the Premises by Tenant prior to the
Commencement Date shall be subject to all obligations of Tenant under this
Lease.
4. Base
Rent.
Tenant
shall pay Base Rent in the amount set forth above. The first month's Base
Rent,
the Security Deposit, and the first monthly installment of estimated Operating
Expenses (as hereafter defined) shall be due and payable on the date hereof,
and
Tenant promises to pay to Landlord in advance, without demand, deduction
or
set-off, monthly installments of Base Rent on or before the first day of
each
calendar month succeeding the Commencement Date. Payments of Base Rent for
any
fractional calendar month shall be prorated. All payments required to be
made by
Tenant to Landlord hereunder (or
to
such other party as Landlord may from time to time specify in writing) shall
be
made by check or Electronic Fund Transfer (“EFT”) of immediately available
federal funds before 11:00 a.m., Eastern Time, at such place, within the
continental United States, as Landlord may from time to time designate to
Tenant
in writing.
The
obligation of Tenant to pay Base Rent and other sums to Landlord and the
obligations of Landlord under this Lease are independent obligations. Tenant
shall have no right at any time to xxxxx, reduce, or set-off any rent due
hereunder except as may be expressly provided in this Lease. If Tenant is
delinquent in any monthly installment of Base Rent or of estimated Operating
Expenses for more than 5 business
days,
Tenant shall pay to Landlord on demand a late charge equal to five
(5)
percent
of such delinquent sum. The provision for such late charge shall be in addition
to all of Landlord's other rights and remedies hereunder or at law and shall
not
be construed as a penalty,
provided however, Tenant shall be allowed one (1) grace period per
year.
5. Security
Deposit.
The
Security Deposit shall be held by Landlord as security for the performance
of
Tenant's obligations under this Lease. The Security Deposit is not an advance
rental deposit or a measure of Landlord's damages in case of Tenant's default.
Upon each occurrence of an Event of Default (hereinafter defined), Landlord
may
use all or part of the Security Deposit to pay delinquent payments due under
this Lease, and the cost of any damage, injury, expense or liability caused
by
such Event of Default, without prejudice to any other remedy provided herein
or
provided by law. Tenant shall pay Landlord on demand the amount that will
restore the Security Deposit to its original amount. Landlord's obligation
respecting the Security Deposit is that of a debtor, not a trustee; no interest
shall accrue thereon. The Security Deposit shall be the property of Landlord,
but shall be paid to Tenant when Tenant's obligations under this Lease have
been
completely fulfilled. Landlord shall be released from any obligation with
respect to the Security Deposit upon transfer of this Lease and the Premises
to
a person or entity assuming Landlord's obligations under this Paragraph
5.
6. Operating
Expense Payments.
During
each month of the Lease Term, on the same date that Base Rent is due, Tenant
shall pay Landlord an amount equal to 1/12 of the annual cost, as estimated
by
Landlord from time to time, of Tenant's Proportionate Share (hereinafter
defined) of Operating Expenses for the Project. Payments thereof for any
fractional calendar month shall be prorated. The term "Operating Expenses"
means
all costs and expenses incurred by Landlord with respect to the ownership,
maintenance, and operation of the Project including, but not limited to costs
of: Taxes (hereinafter defined) and fees payable to tax consultants and
attorneys for consultation and contesting taxes; insurance; utilities;
maintenance, repair and replacement of all portions of the Project, including
without limitation, paving and parking areas, roads, roofs (including
the roof membrane),
alleys,
and driveways, mowing, landscaping, snow removal, exterior painting, utility
lines, heating, ventilation and air conditioning systems, lighting, electrical
systems and other mechanical and building systems; amounts paid to contractors
and subcontractors for work or services performed in connection with any
of the
foregoing; charges or assessments of any association to which the Project
is
subject; property management fees payable to a property manager, including
any
affiliate of Landlord, or if there is no property manager, an administration
fee
of 15 percent of Operating Expenses payable to Landlord; security services,
if
any; trash collection, sweeping and removal; and additions or alterations
made
by Landlord to the Project or the Building in order to comply with Legal
Requirements (other than those expressly required herein to be made by Tenant)
or that are appropriate to the continued operation of the Project or the
Building as a bulk warehouse facility in the market area, provided that the
cost
of additions or alterations that are required to be capitalized for federal
income tax purposes shall be amortized on a straight line basis over a period
equal to the lesser of the useful life thereof for federal income tax purposes
or 10 years. Operating Expenses do not include costs, expenses, depreciation
or
amortization for capital repairs and capital replacements required to be
made by
Landlord under Paragraph 10 of this Lease, debt service under mortgages or
ground rent under ground leases, costs of restoration to the extent of net
insurance proceeds received by Landlord with respect thereto, leasing
commissions, or the costs of renovating space for tenants. Notwithstanding
the
foregoing, Landlord will reimburse Tenant any overpayment of Operating Expenses
from the prior year within a reasonable time following final year-end
reconciliations.
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If
Tenant's total payments of Operating Expenses for any year are less than
Tenant's Proportionate Share of actual Operating Expenses for such year,
then
Tenant shall pay the difference to Landlord within 30 days after demand,
and if
more, then Landlord shall retain such excess and credit it against Tenant's
next
payments. Notwithstanding
the foregoing, provided Tenant is not in default under the current Lease,
Landlord will reimburse Tenant for any overpayment of Operating Expenses
from
prior year within a reasonable time following final year-end
reconciliations.
For
purposes of calculating Tenant's Proportionate Share of Operating Expenses,
a
year shall mean a calendar year except the first year, which shall begin
on the
Commencement Date, and the last year, which shall end on the expiration of
this
Lease. With respect to Operating Expenses which Landlord allocates to the
entire
Project, Tenant's "Proportionate Share" shall be the percentage set forth
on the
first page of this Lease as Tenant's Proportionate Share of the Project as
reasonably adjusted by Landlord in the future for changes in the physical
size
of the Premises or the Project; and, with respect to Operating Expenses which
Landlord allocates only to the Building, Tenant's "Proportionate Share" shall
be
the percentage set forth on the first page of this Lease as Tenant's
Proportionate Share of the Building as reasonably adjusted by Landlord in
the
future for changes in the physical size of the Premises or the Building.
Landlord may equitably increase Tenant's Proportionate Share for any item
of
expense or cost reimbursable by Tenant that relates to a repair, replacement,
or
service that benefits only the Premises or only a portion of the Project
or
Building that includes the Premises or that varies with occupancy or use.
The
estimated Operating Expenses for the Premises set forth on the first page
of
this Lease are only estimates, and Landlord makes no guaranty or warranty
that
such estimates will be accurate.
7. Utilities.
Tenant
shall pay for all water, gas, electricity, heat, light, power, telephone,
sewer,
sprinkler services, refuse and trash collection, and other utilities and
services used on the Premises, all maintenance charges for utilities, and
any
storm sewer charges or other similar charges for utilities imposed by any
governmental entity or utility provider, together with any taxes, penalties,
surcharges or the like pertaining to Tenant's use of the Premises. Landlord
may
cause at Tenant's expense any utilities to be separately metered or charged
directly to Tenant by the provider. Tenant shall pay its share of all charges
for jointly metered utilities based upon consumption, as reasonably determined
by Landlord. No interruption or failure of utilities shall result in the
termination of this Lease or the abatement of rent. Tenant agrees to limit
use
of water and sewer for normal restroom use.
8. Taxes.
Landlord shall pay all taxes, assessments and governmental charges (collectively
referred to as "Taxes") that accrue against the Project during the Lease
Term,
which shall be included as part of the Operating Expenses charged to Tenant.
Landlord may contest by appropriate legal proceedings the amount, validity,
or
application of any Taxes or liens thereof. All capital levies or other taxes
assessed or imposed on Landlord upon the rents payable to Landlord under
this
Lease and any franchise tax, any excise, transaction, sales or privilege
tax,
assessment, levy or charge measured by or based, in whole or in part, upon
such
rents from the Premises and/or the Project or any portion thereof shall be
paid
by Tenant to Landlord monthly in estimated installments or upon demand, at
the
option of Landlord, as additional rent; provided, however, in no event shall
Tenant be liable for any net income taxes imposed on Landlord unless such
net
income taxes are in substitution for any Taxes payable hereunder. If any
such
tax or excise is levied or assessed directly against Tenant, then Tenant
shall
be responsible for and shall pay the same at such times and in such manner
as
the taxing authority shall require. Tenant shall be liable for all taxes
levied
or assessed against any personal property or fixtures placed in the Premises,
whether levied or assessed against Landlord or Tenant.
9. Insurance.
Landlord shall maintain all risk property insurance covering the full
replacement cost of the Building. Landlord may, but is not obligated to,
maintain such other insurance and additional coverages as it may deem necessary,
including, but not limited to, commercial liability insurance and rent loss
insurance. All such insurance shall be included as part of the Operating
Expenses charged to Tenant. The Project or Building may be included in a
blanket
policy (in which case the cost of such insurance allocable to the Project
or
Building will be determined by Landlord based upon the insurer's cost
calculations). Tenant shall also reimburse Landlord for any increased premiums
or additional insurance which Landlord reasonably deems necessary as a result
of
Tenant's use of the Premises.
Tenant,
at its expense, shall maintain during the Lease Term: all risk property
insurance covering the full replacement cost of all property and improvements
installed or placed in the Premises by Tenant at Tenant's expense; worker's
compensation insurance with no less than the minimum limits required by law;
employer's liability insurance with such limits as required by law; and
commercial liability insurance, with a minimum limit of $1,000,000 per
occurrence and a minimum umbrella limit of $1,000,000, for a total minimum
combined general liability and umbrella limit of $2,000,000 (together with
such
additional umbrella coverage as Landlord may reasonably require) for property
damage, personal injuries, or deaths of persons occurring in or about the
Premises. Landlord may from time to time require reasonable increases in
any
such limits. The commercial liability policies shall name Landlord as an
additional insured, insure on an occurrence and not a claims-made basis,
be
issued by insurance companies which are reasonably acceptable to Landlord,
not
be cancelable unless 30 days' prior written notice shall have been given
to
Landlord, contain a hostile fire endorsement and a contractual liability
endorsement and provide primary coverage to Landlord (any policy issued to
Landlord providing duplicate or similar coverage shall be deemed excess over
Tenant's policies). Such policies or certificates thereof shall be delivered
to
Landlord by Tenant upon commencement of the Lease Term and upon each renewal
of
said insurance.
The
all
risk property insurance obtained by Landlord and Tenant shall include a waiver
of subrogation by the insurers and all rights based upon an assignment from
its
insured, against Landlord or Tenant, their officers, directors, employees,
managers, agents, invitees and contractors, in connection with any loss or
damage thereby insured against. Neither party nor its officers, directors,
employees, managers, agents, invitees or contractors shall be liable to the
other for loss or damage caused by any risk coverable by all risk property
insurance, and each party waives any claims against the other party, and
its
officers, directors, employees, managers, agents, invitees and contractors
for
such loss or damage. The failure of a party to insure its property shall
not
void this waiver. Landlord and its agents, employees and contractors shall
not
be liable for, and Tenant hereby waives all claims against such parties for,
business interruption and losses occasioned thereby sustained by Tenant or
any
person claiming through Tenant resulting from any accident or occurrence
in or
upon the Premises or the Project from any cause whatsoever, including without
limitation, damage caused in whole or in part, directly or indirectly, by
the
negligence of Landlord or its agents, employees or contractors.
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10. Landlord's
Repairs.
Landlord shall maintain, at its expense, the structural soundness of the
roof,
foundation, and exterior walls of the Building in good repair, reasonable
wear
and tear and uninsured losses and damages caused by Tenant, its agents and
contractors excluded. The term "walls" as used in this Paragraph 10 shall
not
include windows, glass or plate glass, doors or overhead doors, special store
fronts, dock bumpers, dock plates or levelers, or office entries. Tenant
shall
promptly give Landlord written notice of any repair required by Landlord
pursuant to this Paragraph 10, after which Landlord shall have a reasonable
opportunity to repair.
11. Tenant's
Repairs.
Landlord, at Tenant's expense as provided in Paragraph 6, shall maintain
in good
repair and condition the parking areas and other common areas of the Building,
including, but not limited to driveways, alleys, landscape and grounds
surrounding the Premises. Subject to Landlord's obligation in Paragraph 10
and
subject to Paragraphs 9 and 15, Tenant, at its expense, shall repair, replace
and maintain in good condition all portions of the Premises and all areas,
improvements and systems exclusively serving the Premises including, without
limitation, dock and loading areas, truck doors, plumbing, water and sewer
lines
up to points of common connection, fire sprinklers and fire protection systems,
entries, doors, ceilings, windows, interior walls, and the interior side
of
demising walls, and heating, ventilation and air conditioning systems. Such
repair and replacements include capital expenditures and repairs whose benefit
may extend beyond the Term. Heating, ventilation and air conditioning systems
and other mechanical and building systems serving the Premises shall be
maintained at Tenant's expense pursuant to maintenance service contracts
entered
into by Tenant or, at Landlord's election, by Landlord. The scope of services
and contractors under such maintenance contracts shall be reasonably approved
by
Landlord. At Landlord's request, Tenant shall enter into a joint maintenance
agreement with any railroad that services the Premises. If Tenant fails to
perform any repair or replacement for which it is responsible, Landlord may
perform such work and be reimbursed by Tenant within 10 days after demand
therefore. Subject to Paragraphs 9 and 15, Tenant shall bear the full cost
of
any repair or replacement to any part of the Building or Project that results
from damage caused by Tenant, its agents, contractors, or invitees and any
repair that benefits only the Premises. (See
Addendum 2.)
12. Tenant-Made
Alterations and Trade Fixtures.
Any
alterations, additions, or improvements made by or on behalf of Tenant to
the
Premises ("Tenant-Made Alterations") shall be subject to Landlord's prior
written consent. Tenant shall cause, at its expense, all Tenant-Made Alterations
to comply with insurance requirements and with Legal Requirements and shall
construct at its expense any alteration or modification required by Legal
Requirements as a result of any Tenant-Made Alterations. All Tenant-Made
Alterations shall be constructed in a good and workmanlike manner by contractors
reasonably acceptable to Landlord and only good grades of materials shall
be
used. All plans and specifications for any Tenant-Made Alterations shall
be
submitted to Landlord for its approval. Landlord may monitor construction
of the
Tenant-Made Alterations. Tenant shall reimburse Landlord for its costs in
reviewing plans and specifications and in monitoring construction. Landlord's
right to review plans and specifications and to monitor construction shall
be
solely for its own benefit, and Landlord shall have no duty to see that such
plans and specifications or construction comply with applicable laws, codes,
rules and regulations. Tenant shall provide Landlord with the identities
and
mailing addresses of all persons performing work or supplying materials,
prior
to beginning such construction, and Landlord may post on and about the Premises
notices of non-responsibility pursuant to applicable law. Tenant shall furnish
security or make other arrangements satisfactory to Landlord to assure payment
for the completion of all work free and clear of liens and shall provide
certificates of insurance for worker's compensation and other coverage in
amounts and from an insurance company satisfactory to Landlord protecting
Landlord against liability for personal injury or property damage during
construction. Upon completion of any Tenant-Made Alterations, Tenant shall
deliver to Landlord sworn statements setting forth the names of all contractors
and subcontractors who did work on the Tenant-Made Alterations and final
lien
waivers from all such contractors and subcontractors. Upon surrender of the
Premises, all Tenant-Made Alterations and any leasehold improvements constructed
by Landlord or Tenant shall remain on the Premises as Landlord's property,
except to the extent Landlord requires removal at Tenant's expense of any
such
items or Landlord and Tenant have otherwise agreed in writing in connection
with
Landlord's consent to any Tenant-Made Alterations. Tenant shall repair any
damage caused by such removal.
Tenant,
at its own cost and expense and without Landlord's prior approval, may erect
such shelves, bins, machinery and trade fixtures (collectively "Trade Fixtures")
in the ordinary course of its business provided that such items do not alter
the
basic character of the Premises, do not overload or damage the Premises,
and may
be removed without injury to the Premises, and the construction, erection,
and
installation thereof complies with all Legal Requirements and with Landlord's
requirements set forth above. Tenant shall remove its Trade Fixtures and
shall
repair any damage caused by such removal.
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13. Signs.
Tenant
shall not make any changes to the exterior of the Premises, install any exterior
lights, decorations, balloons, flags, pennants, banners, or painting, or
erect
or install any signs, windows or door lettering, placards, decorations, or
advertising media of any type which can be viewed from the exterior of the
Premises, without Landlord's prior written consent. Upon surrender or vacation
of the Premises, Tenant shall have removed all signs and repair, paint, and/or
replace the building facia surface to which its signs are attached. Tenant
shall
obtain all applicable governmental permits and approvals for sign and exterior
treatments. All signs, decorations, advertising media, blinds, draperies
and
other window treatment or bars or other security installations visible from
outside the Premises shall be subject to Landlord's approval and conform
in all
respects to Landlord's requirements.
14. Parking.
Tenant
shall be entitled to park in common with other tenants of the Project in
those
areas designated for non-reserved parking. Landlord may allocate parking
spaces
among Tenant and other tenants in the Project if Landlord determines that
such
parking facilities are becoming crowded. Landlord shall not be responsible
for
enforcing Tenant's parking rights against any third parties. Landlord
agrees to allocate approximately fifty (50) parking spaces outside Suite
100 for
Tenant’s use.
15. Restoration.
If at
any time during the Lease Term the Premises are damaged by a fire or other
casualty, Landlord shall notify Tenant within 60 days after such damage as
to
the amount of time Landlord reasonably estimates it will take to restore
the
Premises. If the restoration time is estimated to exceed 6 months, either
Landlord or Tenant may elect to terminate this Lease upon notice to the other
party given no later than 30 days after Landlord's notice. If neither party
elects to terminate this Lease or if Landlord estimates that restoration
will
xxxx 0 months or less, then, subject to receipt of sufficient insurance
proceeds, Landlord shall promptly restore the Premises excluding the
improvements installed by Tenant or by Landlord and paid by Tenant, subject
to
delays arising from the collection of insurance proceeds or from Force Majeure
events. Tenant at Tenant's expense shall promptly perform, subject to delays
arising from the collection of insurance proceeds, or from Force Majeure
events,
all repairs or restoration not required to be done by Landlord and shall
promptly re-enter the Premises and commence doing business in accordance
with
this Lease. Notwithstanding the foregoing, either party may terminate this
Lease
if the Premises are damaged during the last year of the Lease Term and Landlord
reasonably estimates that it will take more than one month to repair such
damage. Base Rent and Operating Expenses shall be abated for the period of
repair and restoration in the proportion which the area of the Premises,
if any,
which is not usable by Tenant bears to the total area of the Premises. Such
abatement shall be the sole remedy of Tenant, and except as provided herein,
Tenant waives any right to terminate the Lease by reason of damage or casualty
loss.
16. Condemnation.
If any
part of the Premises or the Project should be taken for any public or
quasi-public use under governmental law, ordinance, or regulation, or by
right
of eminent domain, or by private purchase in lieu thereof (a "Taking" or
"Taken"), and the Taking would prevent or materially interfere with Tenant's
use
of the Premises or in Landlord's judgment would materially interfere with
or
impair its ownership or operation of the Project, then upon written notice
by
Landlord this Lease shall terminate and Base Rent shall be apportioned as
of
said date. If part of the Premises shall be Taken, and this Lease is not
terminated as provided above, the Base Rent payable hereunder during the
unexpired Lease Term shall be reduced to such extent as may be fair and
reasonable under the circumstances. In the event of any such Taking, Landlord
shall be entitled to receive the entire price or award from any such Taking
without any payment to Tenant, and Tenant hereby assigns to Landlord Tenant's
interest, if any, in such award. Tenant shall have the right, to the extent
that
same shall not diminish Landlord's award, to make a separate claim against
the
condemning authority (but not Landlord) for such compensation as may be
separately awarded or recoverable by Tenant for moving expenses and damage
to
Tenant's Trade Fixtures, if a separate award for such items is made to
Tenant.
17. Assignment
and Subletting.
Without
Landlord's prior written consent, Tenant shall not assign this Lease or sublease
the Premises or any part thereof or mortgage, pledge, or hypothecate its
leasehold interest or grant any concession or license within the Premises
and
any attempt to do any of the foregoing shall be void and of no effect. For
purposes of this paragraph, a transfer of the ownership interests controlling
Tenant shall be deemed an assignment of this Lease unless such ownership
interests are publicly traded. Notwithstanding the above, Tenant may assign
or
sublet the Premises, or any part thereof, to any entity controlling Tenant,
controlled by Tenant or under common control with Tenant (a "Tenant Affiliate"),
without the prior written consent of Landlord. Tenant shall reimburse Landlord
for all of Landlord's reasonable out-of-pocket expenses in connection with
any
assignment or sublease. Upon Landlord's receipt of Tenant's written notice
of a
desire to assign or sublet the Premises, or any part thereof (other than
to a
Tenant Affiliate), Landlord may, by giving written notice to Tenant within
30
days after receipt of Tenant's notice, terminate this Lease with respect
to the
space described in Tenant's notice, as of the date specified in Tenant's
notice
for the commencement of the proposed assignment or sublease.
Notwithstanding
any assignment or subletting, Tenant and any guarantor or surety of Tenant's
obligations under this Lease shall at all times remain fully responsible
and
liable for the payment of the rent and for compliance with all of Tenant's
other
obligations under this Lease (regardless of whether Landlord's approval has
been
obtained for any such assignments or sublettings). In the event that the
rent
due and payable by a sublessee or assignee (or a combination of the rental
payable under such sublease or assignment plus any bonus or other consideration
therefor or incident thereto) exceeds the rental payable under this Lease,
then
Tenant shall be bound and obligated to pay Landlord as additional rent hereunder
all such excess rental and other excess consideration within 10 days following
receipt thereof by Tenant.
If
this
Lease be assigned or if the Premises be subleased (whether in whole or in
part)
or in the event of the mortgage, pledge, or hypothecation of Tenant's leasehold
interest or grant of any concession or license within the Premises or if
the
Premises be occupied in whole or in part by anyone other than Tenant, then
upon
a default by Tenant hereunder Landlord may collect rent from the assignee,
sublessee, mortgagee, pledgee, party to whom the leasehold interest was
hypothecated, concessionee or licensee or other occupant and, except to the
extent set forth in the preceding paragraph, apply the amount collected to
the
next rent payable hereunder; and all such rentals collected by Tenant shall
be
held in trust for Landlord and immediately forwarded to Landlord. No such
transaction or collection of rent or application thereof by Landlord, however,
shall be deemed a waiver of these provisions or a release of Tenant from
the
further performance by Tenant of its covenants, duties, or obligations
hereunder.
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18. Indemnification. Except
for the negligence of Landlord, its agents, employees or contractors, and
to the
extent permitted by law, Tenant agrees to indemnify, defend and hold harmless
Landlord, and Landlord's agents, employees and contractors, from and against
any
and all losses, liabilities, damages, costs and expenses (including attorneys'
fees) resulting from claims by third parties for injuries to any person and
damage to or theft or misappropriation or loss of property occurring in or
about
the Project and arising from the use and occupancy of the Premises or from
any
activity, work, or thing done, permitted or suffered by Tenant in or about
the
Premises or due to any other act or omission of Tenant, its subtenants,
assignees, invitees, employees, contractors and agents. The furnishing of
insurance required hereunder shall not be deemed to limit Tenant's obligations
under this Paragraph 18.
19. Inspection
and Access.
Landlord and its agents, representatives, and contractors may enter the Premises
at any reasonable time to inspect the Premises and to make such repairs as
may
be required or permitted pursuant to this Lease and for any other business
purpose. Landlord and Landlord's representatives may enter the Premises during
business hours for the purpose of showing the Premises to prospective purchasers
and, during the last year of the Lease Term, to prospective tenants. Landlord
may erect a suitable sign on the Premises stating the Premises are available
to
let or that the Project is available for sale. Landlord may grant easements,
make public dedications, designate common areas and create restrictions on
or
about the Premises, provided that no such easement, dedication, designation
or
restriction materially interferes with Tenant's use or occupancy of the
Premises. At Landlord's request, Tenant shall execute such instruments as
may be
necessary for such easements, dedications or restrictions.
20. Quiet
Enjoyment.
If
Tenant shall perform all of the covenants and agreements herein required
to be
performed by Tenant, Tenant shall, subject to the terms of this Lease, at
all
times during the Lease Term, have peaceful and quiet enjoyment of the Premises
against any person claiming by, through or under Landlord.
21. Surrender.
Upon
termination of the Lease Term or earlier termination of Tenant's right of
possession, Tenant shall surrender the Premises to Landlord in the same
condition as received, broom clean, ordinary wear and tear and casualty loss
and
condemnation covered by Paragraphs 15 and 16 excepted. Any Trade Fixtures,
Tenant-Made Alterations and property not so removed by Tenant as permitted
or
required herein shall be deemed abandoned and may be stored, removed, and
disposed of by Landlord at Tenant's expense, and Tenant waives all claims
against Landlord for any damages resulting from Landlord's retention and
disposition of such property. All obligations of Tenant hereunder not fully
performed as of the termination of the Lease Term shall survive the termination
of the Lease Term, including without limitation, indemnity obligations, payment
obligations with respect to Operating Expenses and obligations concerning
the
condition and repair of the Premises.
22. Holding
Over.
If
Tenant retains possession of the Premises after the termination of the Lease
Term, unless otherwise agreed in writing, such possession shall be subject
to
immediate termination by Landlord at any time, and all of the other terms
and
provisions of this Lease (excluding any expansion or renewal option or other
similar right or option) shall be applicable during such holdover period,
except
that Tenant shall pay Landlord from time to time, upon demand, as Base Rent
for
the holdover period, an amount equal to 150%
of the
Base Rent in effect on the termination date, computed on a monthly basis
for
each month or part thereof during such holding over. All other payments shall
continue under the terms of this Lease. In addition, Tenant shall be liable
for
all damages incurred by Landlord as a result of such holding over. No holding
over by Tenant, whether with or without consent of Landlord, shall operate
to
extend this Lease except as otherwise expressly provided, and this Paragraph
22
shall not be construed as consent for Tenant to retain possession of the
Premises. For
purposes of this Paragraph 22, “possession of the Premises” shall continue
until, among other things, Tenant has delivered all keys to the Premises
to
Landlord, Landlord has complete and total dominion and control over the
Premises, and Tenant has completely fulfilled all obligations required of
it
upon termination of the Lease as set forth in this Lease, including, without
limitation, those concerning the condition and repair of the
Premises.
23. Events
of Default.
Each of
the following events shall be an event of default ("Event of Default") by
Tenant
under this Lease:
(i) Tenant
shall fail to pay any installment of Base Rent or any other payment required
herein when due, and such failure shall continue for a period of 5 business
days
from the date such payment was due, provided
however, Tenant shall be allowed one (1) grace period per year.
(ii) Tenant
or
any guarantor or surety of Tenant's obligations hereunder shall (A) make
a
general assignment for the benefit of creditors; (B) commence any case,
proceeding or other action seeking to have an order for relief entered on
its
behalf as a debtor or to adjudicate it as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or composition
of it or its debts or seeking appointment of a receiver, trustee, custodian
or
other similar official for it or for all or of any substantial part of its
property (collectively a "proceeding for relief"); (C) become the subject
of any
proceeding for relief which is not dismissed within 60 days of its filing
or
entry; or (D) die or suffer a legal disability (if Tenant, guarantor, or
surety
is an individual) or be dissolved or otherwise fail to maintain its legal
existence (if Tenant, guarantor or surety is a corporation, partnership or
other
entity).
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(iii) Any
insurance required to be maintained by Tenant pursuant to this Lease shall
be
cancelled or terminated or shall expire or shall be reduced or materially
changed, except, in each case, as permitted in this Lease.
(iv) Tenant
shall not occupy or shall vacate the Premises or shall fail to continuously
operate its business at the Premises for the permitted use set forth herein,
whether or not Tenant is in monetary or other default under this
Lease.
(v) Tenant
shall attempt or there shall occur any assignment, subleasing or other transfer
of Tenant's interest in or with respect to this Lease except as otherwise
permitted in this Lease.
(vi) Tenant
shall fail to discharge any lien placed upon the Premises in violation of
this
Lease within 30 days after any such lien or encumbrance is filed against
the
Premises.
(vii) Tenant
shall fail to comply with any provision of this Lease other than those
specifically referred to in this Paragraph 23, and except as otherwise expressly
provided herein, such default shall continue for more than 30 days after
Landlord shall have given Tenant written notice of such default.
24. Landlord's
Remedies.
Upon
each occurrence of an Event of Default and so long as such Event of Default
shall be continuing, Landlord may at any time thereafter at its election:
terminate this Lease or Tenant's right of possession, (but Tenant shall remain
liable as hereinafter provided) and/or pursue any other remedies at law or
in
equity. Upon the termination of this Lease or termination of Tenant's right
of
possession, it shall be lawful for Landlord, without formal demand or notice
of
any kind, to re-enter the Premises by summary dispossession proceedings or
any
other action or proceeding authorized by law and to remove Tenant and all
persons and property therefrom. If Landlord re-enters the Premises, Landlord
shall have the right to keep in place and use, or remove and store, all of
the
furniture, fixtures and equipment at the Premises.
If
Landlord terminates this Lease, Landlord may recover from Tenant the sum
of: all
Base Rent and all other amounts accrued hereunder to the date of such
termination; the cost of reletting the whole or any part of the Premises,
including without limitation brokerage fees and/or leasing commissions incurred
by Landlord, and costs of removing and storing Tenant's or any other occupant's
property, repairing, altering, remodeling, or otherwise putting the Premises
into condition acceptable to a new tenant or tenants, and all reasonable
expenses incurred by Landlord in pursuing its remedies, including reasonable
attorneys' fees and court costs; and the excess of the then present value
of the
Base Rent and other amounts payable by Tenant under this Lease as would
otherwise have been required to be paid by Tenant to Landlord during the
period
following the termination of this Lease measured from the date of such
termination to the expiration date stated in this Lease, over the present
value
of any net amounts which Tenant establishes Landlord can reasonably expect
to
recover by reletting the Premises for such period, taking into consideration
the
availability of acceptable tenants and other market conditions affecting
leasing. Such present values shall be calculated at a discount rate equal
to the
90-day U.S. Treasury xxxx rate at the date of such termination.
If
Landlord terminates Tenant's right of possession (but not this Lease), Landlord
may, but shall be under no obligation to, relet the Premises for the account
of
Tenant for such rent and upon such terms as shall be satisfactory to Landlord
without thereby releasing Tenant from any liability hereunder and without
demand
or notice of any kind to Tenant. For the purpose of such reletting Landlord
is
authorized to make any repairs, changes, alterations, or additions in or
to the
Premises as Landlord deems reasonably necessary or desirable. If the Premises
are not relet, then Tenant shall pay to Landlord as damages a sum equal to
the
amount of the rental reserved in this Lease for such period or periods, plus
the
cost of recovering possession of the Premises (including attorneys' fees
and
costs of suit), the unpaid Base Rent and other amounts accrued hereunder
at the
time of repossession, and the costs incurred in any attempt by Landlord to
relet
the Premises. If the Premises are relet and a sufficient sum shall not be
realized from such reletting [after first deducting therefrom, for retention
by
Landlord, the unpaid Base Rent and other amounts accrued hereunder at the
time
of reletting, the cost of recovering possession (including attorneys' fees
and
costs of suit), all of the costs and expense of repairs, changes, alterations,
and additions, the expense of such reletting (including without limitation
brokerage fees and leasing commissions) and the cost of collection of the
rent
accruing therefrom] to satisfy the rent provided for in this Lease to be
paid,
then Tenant shall immediately satisfy and pay any such deficiency. Any such
payments due Landlord shall be made upon demand therefor from time to time
and
Tenant agrees that Landlord may file suit to recover any sums falling due
from
time to time. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect in writing to terminate this Lease for such
previous breach.
Exercise
by Landlord of any one or more remedies hereunder granted or otherwise available
shall not be deemed to be an acceptance of surrender of the Premises and/or
a
termination of this Lease by Landlord, whether by agreement or by operation
of
law, it being understood that such surrender and/or termination can be effected
only by the written agreement of Landlord and Tenant. Any law, usage, or
custom
to the contrary notwithstanding, Landlord shall have the right at all times
to
enforce the provisions of this Lease in strict accordance with the terms
hereof;
and the failure of Landlord at any time to enforce its rights under this
Lease
strictly in accordance with same shall not be construed as having created
a
custom in any way or manner contrary to the specific terms, provisions, and
covenants of this Lease or as having modified the same. Tenant and Landlord
further agree that forbearance or waiver by Landlord to enforce its rights
pursuant to this Lease or at law or in equity, shall not be a waiver of
Landlord's right to enforce one or more of its rights in connection with
any
subsequent default. A receipt by Landlord of rent or other payment with
knowledge of the breach of any covenant hereof shall not be deemed a waiver
of
such breach, and no waiver by Landlord of any provision of this Lease shall
be
deemed to have been made unless expressed in writing and signed by Landlord.
To
the greatest extent permitted by law, Tenant waives the service of notice
of
Landlord's intention to re-enter as provided for in any statute, or to institute
legal proceedings to that end, and also waives all right of redemption in
case
Tenant shall be dispossessed by a judgment or by warrant of any court or
judge.
The terms "enter," "re-enter," "entry" or "re-entry," as used in this Lease,
are
not restricted to their technical legal meanings. Any reletting of the Premises
shall be on such terms and conditions as Landlord in its sole discretion
may
determine (including without limitation a term different than the remaining
Lease Term, rental concessions, alterations and repair of the Premises, lease
of
less than the entire Premises to any tenant and leasing any or all other
portions of the Project before reletting the Premises). Landlord shall not
be
liable, nor shall Tenant's obligations hereunder be diminished because of,
Landlord's failure to relet the Premises or collect rent due in respect of
such
reletting.
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25. Tenant's
Remedies/Limitation of Liability.
Landlord shall not be in default hereunder unless Landlord fails to perform
any
of its obligations hereunder within 30 days after written notice from Tenant
specifying such failure (unless such performance will, due to the nature
of the
obligation, require a period of time in excess of 30 days, then after such
period of time as is reasonably necessary). All obligations of Landlord
hereunder shall be construed as covenants, not conditions; and, except as
may be
otherwise expressly provided in this Lease, Tenant may not terminate this
Lease
for breach of Landlord's obligations hereunder. All obligations of Landlord
under this Lease will be binding upon Landlord only during the period of
its
ownership of the Premises and not thereafter. The term "Landlord" in this
Lease
shall mean only the owner, for the time being of the Premises, and in the
event
of the transfer by such owner of its interest in the Premises, such owner
shall
thereupon be released and discharged from all obligations of Landlord thereafter
accruing, but such obligations shall be binding during the Lease Term upon
each
new owner for the duration of such owner's ownership. Any liability of Landlord
under this Lease shall be limited solely to its interest in the Project,
and in
no event shall any personal liability be asserted against Landlord in connection
with this Lease nor shall any recourse be had to any other property or assets
of
Landlord.
26. Waiver
of Jury Trial.
TENANT
AND LANDLORD WAIVE ANY RIGHT TO TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE
IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE,
BETWEEN
LANDLORD AND TENANT ARISING OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT,
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED HERETO.
27. Subordination.
This
Lease and Tenant's interest and rights hereunder are and shall be subject
and
subordinate at all times to the lien of any first mortgage, now existing
or
hereafter created on or against the Project or the Premises, and all amendments,
restatements, renewals, modifications, consolidations, refinancing, assignments
and extensions thereof, without the necessity of any further instrument or
act
on the part of Tenant. Tenant agrees, at the election of the holder of any
such
mortgage, to attorn to any such holder. Tenant agrees upon demand to execute,
acknowledge and deliver such instruments, confirming such subordination and
such
instruments of attornment as shall be requested by any such holder. Tenant
hereby appoints Landlord attorney in fact for Tenant irrevocably (such power
of
attorney being coupled with an interest) to execute, acknowledge and deliver
any
such instrument and instruments for and in the name of the Tenant and to
cause
any such instrument to be recorded. Notwithstanding the foregoing, any such
holder may at any time subordinate its mortgage to this Lease, without Tenant's
consent, by notice in writing to Tenant, and thereupon this Lease shall be
deemed prior to such mortgage without regard to their respective dates of
execution, delivery or recording and in that event such holder shall have
the
same rights with respect to this Lease as though this Lease had been executed
prior to the execution, delivery and recording of such mortgage and had been
assigned to such holder. The term "mortgage" whenever used in this Lease
shall
be deemed to include deeds of trust, security assignments and any other
encumbrances, and any reference to the "holder" of a mortgage shall be deemed
to
include the beneficiary under a deed of trust.
28. Mechanic's
Liens.
Tenant
has no express or implied authority to create or place any lien or encumbrance
of any kind upon, or in any manner to bind the interest of Landlord or Tenant
in, the Premises or to charge the rentals payable hereunder for any claim
in
favor of any person dealing with Tenant, including those who may furnish
materials or perform labor for any construction or repairs. Tenant covenants
and
agrees that it will pay or cause to be paid all sums legally due and payable
by
it on account of any labor performed or materials furnished in connection
with
any work performed on the Premises and that it will save and hold Landlord
harmless from all loss, cost or expense based on or arising out of asserted
claims or liens against the leasehold estate or against the interest of Landlord
in the Premises or under this Lease. Tenant shall give Landlord immediate
written notice of the placing of any lien or encumbrance against the Premises
and cause such lien or encumbrance to be discharged within 30 days of the
filing
or recording thereof; provided, however, Tenant may contest such liens or
encumbrances as long as such contest prevents foreclosure of the lien or
encumbrance and Tenant causes such lien or encumbrance to be bonded or insured
over in a manner satisfactory to Landlord within such 30 day
period.
29. Estoppel
Certificates.
Tenant
agrees, from time to time, within 10 days after request of Landlord, to execute
and deliver to Landlord, or Landlord's designee, any estoppel certificate
requested by Landlord, stating that this Lease is in full force and effect,
the
date to which rent has been paid, that Landlord is not in default hereunder
(or
specifying in detail the nature of Landlord's default), the termination date
of
this Lease and such other matters pertaining to this Lease as may be requested
by Landlord. Tenant's obligation to furnish each estoppel certificate in
a
timely fashion is a material inducement for Landlord's execution of this
Lease.
No cure or grace period provided in this Lease shall apply to Tenant's
obligations to timely deliver an estoppel certificate. Tenant hereby irrevocably
appoints Landlord as its attorney in fact to execute on its behalf and in
its
name any such estoppel certificate if Tenant fails to execute and deliver
the
estoppel certificate within 10 days after Landlord's written request
thereof.
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30. Environmental
Requirements.
Except
for Hazardous Material contained in products used by Tenant in de minimis
quantities for ordinary cleaning and office purposes, Tenant shall not permit
or
cause any party to bring any Hazardous Material upon the Premises or transport,
store, use, generate, manufacture or release any Hazardous Material in or
about
the Premises without Landlord's prior written consent. Tenant, at its sole
cost
and expense, shall operate its business in the Premises in strict compliance
with all Environmental Requirements and shall remediate in a manner satisfactory
to Landlord any Hazardous Materials released on or from the Project by Tenant,
its agents, employees, contractors, subtenants or invitees. Tenant shall
complete and certify to disclosure statements as requested by Landlord from
time
to time relating to Tenant's transportation, storage, use, generation,
manufacture or release of Hazardous Materials on the Premises. The term
"Environmental Requirements" means all applicable present and future statutes,
regulations, ordinances, rules, codes, judgments, orders or other similar
enactments of any governmental authority or agency regulating or relating
to
health, safety, or environmental conditions on, under, or about the Premises
or
the environment, including without limitation, the following: the Comprehensive
Environmental Response, Compensation and Liability Act; the Resource
Conservation and Recovery Act; and all state and local counterparts thereto,
and
any regulations or policies promulgated or issued thereunder. The term
"Hazardous Materials" means and includes any substance, material, waste,
pollutant, or contaminant listed or defined as hazardous or toxic, under
any
Environmental Requirements, asbestos and petroleum, including crude oil or
any
fraction thereof, natural gas liquids, liquified natural gas, or synthetic
gas
usable for fuel (or mixtures of natural gas and such synthetic gas). As defined
in Environmental Requirements, Tenant is and shall be deemed to be the
"operator" of Tenant's "facility" and the "owner" of all Hazardous Materials
brought on the Premises by Tenant, its agents, employees, contractors or
invitees, and the wastes, by-products, or residues generated, resulting,
or
produced therefrom.
Tenant
shall indemnify, defend, and hold Landlord harmless from and against any
and all
losses (including, without limitation, diminution in value of the Premises
or
the Project and loss of rental income from the Project), claims, demands,
actions, suits, damages (including, without limitation, punitive damages),
expenses (including, without limitation, remediation, removal, repair,
corrective action, or cleanup expenses), and costs (including, without
limitation, actual attorneys' fees, consultant fees or expert fees and
including, without limitation, removal or management of any asbestos brought
into the property or disturbed in breach of the requirements of this Paragraph
30, regardless of whether such removal or management is required by law)
which
are brought or recoverable against, or suffered or incurred by Landlord as
a
result of any release of Hazardous Materials for which Tenant is obligated
to
remediate as provided above or any other breach of the requirements under
this
Paragraph 30 by Tenant, its agents, employees, contractors, subtenants,
assignees or invitees, regardless of whether Tenant had knowledge of such
noncompliance. The obligations of Tenant under this Paragraph 30 shall survive
any termination of this Lease.
Landlord
shall have access to, and a right to perform inspections and tests of, the
Premises to determine Tenant's compliance with Environmental Requirements,
its
obligations under this Paragraph 30, or the environmental condition of the
Premises. Access shall be granted to Landlord upon Landlord's prior notice
to
Tenant and at such times so as to minimize, so far as may be reasonable under
the circumstances, any disturbance to Tenant's operations. Such inspections
and
tests shall be conducted at Landlord's expense, unless such inspections or
tests
reveal that Tenant has not complied with any Environmental Requirement, in
which
case Tenant shall reimburse Landlord for the reasonable cost of such inspection
and tests. Landlord's receipt of or satisfaction with any environmental
assessment in no way waives any rights that Landlord holds against
Tenant.
31. Rules
and Regulations.
Tenant
shall, at all times during the Lease Term and any extension thereof, comply
with
all reasonable rules and regulations at any time or from time to time
established by Landlord covering use of the Premises and the Project. The
current rules and regulations are attached hereto. In the event of any conflict
between said rules and regulations and other provisions of this Lease, the
other
terms and provisions of this Lease shall control. Landlord shall not have
any
liability or obligation for the breach of any rules or regulations by other
tenants in the Project.
32. Security
Service.
Tenant
acknowledges and agrees that, while Landlord may patrol the Project, Landlord
is
not providing any security services with respect to the Premises and that
Landlord shall not be liable to Tenant for, and Tenant waives any claim against
Landlord with respect to, any loss by theft or any other damage suffered
or
incurred by Tenant in connection with any unauthorized entry into the Premises
or any other breach of security with respect to the Premises.
33. Force
Majeure.
Landlord shall not be held responsible for delays in the performance of its
obligations hereunder when caused by strikes, lockouts, labor disputes, acts
of
God, inability to obtain labor or materials or reasonable substitutes therefor,
governmental restrictions, governmental regulations, governmental controls,
delay in issuance of permits, enemy or hostile governmental action, civil
commotion, fire or other casualty, and other causes beyond the reasonable
control of Landlord ("Force Majeure").
34. Entire
Agreement.
This
Lease constitutes the complete agreement of Landlord and Tenant with respect
to
the subject matter hereof. No representations, inducements, promises or
agreements, oral or written, have been made by Landlord or Tenant, or anyone
acting on behalf of Landlord or Tenant, which are not contained herein, and
any
prior agreements, promises, negotiations, or representations are superseded
by
this Lease. This Lease may not be amended except by an instrument in writing
signed by both parties hereto.
35. Severability.
If any
clause or provision of this Lease is illegal, invalid or unenforceable under
present or future laws, then and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected thereby.
It is also the intention of the parties to this Lease that in lieu of each
clause or provision of this Lease that is illegal, invalid or unenforceable,
there be added, as a part of this Lease, a clause or provision as similar
in
terms to such illegal, invalid or unenforceable clause or provision as may
be
possible and be legal, valid and enforceable.
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36. Brokers.
Tenant
represents and warrants that it has dealt with no broker, agent or other
person
in connection with this transaction and that no broker, agent or other person
brought about this transaction, other than the broker, if any, set forth
on the
first page of this Lease, and Tenant agrees to indemnify and hold Landlord
harmless from and against any claims by any other broker, agent or other
person
claiming a commission or other form of compensation by virtue of having dealt
with Tenant with regard to this leasing transaction.
37. Miscellaneous.(a)Any
payments or charges due from Tenant to Landlord hereunder shall be considered
rent for all purposes of this Lease.
(b) If
and
when included within the term "Tenant," as used in this instrument, there
is
more than one person, firm or corporation, each shall be jointly and severally
liable for the obligations of Tenant.
(c) All
notices required or permitted to be given under this Lease shall be in writing
and shall be sent by registered or certified mail, return receipt requested,
or
by a reputable national overnight courier service, postage prepaid, or by
hand
delivery addressed to the parties at their addresses below, and with a copy
sent
to Landlord at 0000
Xxxxxxx Xxx, Xxxxxx, Xxxxxxxx 00000.
Either
party may by notice given aforesaid change its address for all subsequent
notices. Except where otherwise expressly provided to the contrary, notice
shall
be deemed given upon delivery.
(d) Except
as
otherwise expressly provided in this Lease or as otherwise required by law,
Landlord retains the absolute right to withhold any consent or
approval.
(e) At
Landlord's request from time to time Tenant shall furnish Landlord with true
and
complete copies of its most recent annual and quarterly financial statements
prepared by Tenant or Tenant's accountants and any other financial information
or summaries that Tenant typically provides to its lenders or
shareholders.
(f) Neither
this Lease nor a memorandum of lease shall be filed by or on behalf of Tenant
in
any public record. Landlord may prepare and file, and upon request by Landlord
Tenant will execute, a memorandum of lease.
(g) Intentionally
Deleted.
(h) The
submission by Landlord to Tenant of this Lease shall have no binding force
or
effect, shall not constitute an option for the leasing of the Premises, nor
confer any right or impose any obligations upon either party until execution
of
this Lease by both parties.
(i) Words
of
any gender used in this Lease shall be held and construed to include any
other
gender, and words in the singular number shall be held to include the plural,
unless the context otherwise requires. The captions inserted in this Lease
are
for convenience only and in no way define, limit or otherwise describe the
scope
or intent of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease.
(j) Any
amount not paid by Tenant within 5 business days
after
its due date in accordance with the terms of this Lease shall bear interest
from
such due date until paid in full at the lesser of the highest rate permitted
by
applicable law or 15 percent per year (does
not apply to grace period).
It is
expressly the intent of Landlord and Tenant at all times to comply with
applicable law governing the maximum rate or amount of any interest payable
on
or in connection with this Lease. If applicable law is ever judicially
interpreted so as to render usurious any interest called for under this Lease,
or contracted for, charged, taken, reserved, or received with respect to
this
Lease, then it is Landlord's and Tenant's express intent that all excess
amounts
theretofore collected by Landlord be credited on the applicable obligation
(or,
if the obligation has been or would thereby be paid in full, refunded to
Tenant), and the provisions of this Lease immediately shall be deemed reformed
and the amounts thereafter collectible hereunder reduced, without the necessity
of the execution of any new document, so as to comply with the applicable
law,
but so as to permit the recovery of the fullest amount otherwise called for
hereunder.
(k) Construction
and interpretation of this Lease shall be governed by the laws of the state
in
which the Project is located, excluding any principles of conflicts of
laws.
(l) Time
is
of the essence as to the performance of Tenant's obligations under this
Lease.
(m) All
exhibits and addenda attached hereto are hereby incorporated into this Lease
and
made a part hereof. In the event of any conflict between such exhibits or
addenda and the terms of this Lease, such exhibits or addenda shall
control.
(n) In
the
event either party hereto initiates litigation to enforce the terms and
provisions of this Lease, the non-prevailing party in such action shall
reimburse the prevailing party for its reasonable attorney's fees, filing
fees,
and court costs.
38. Landlord's
Lien/Security Interest.
Tenant
hereby grants Landlord a security interest, and this Lease constitutes a
security agreement, within the meaning of and pursuant to the Uniform Commercial
Code of the state in which the Premises are situated as to all of Tenant's
property situated in, or upon, or used in connection with the Premises (except
merchandise sold in the ordinary course of business) as security for all
of
Tenant's obligations hereunder, including, without limitation, the obligation
to
pay rent. Such personalty thus encumbered includes specifically all trade
and
other fixtures for the purpose of this Paragraph and inventory, equipment,
contract rights, accounts receivable and the proceeds thereof. In order to
perfect such security interest, Tenant shall execute such financing statements
and file the same at Tenant's expense at the state and county Uniform Commercial
Code filing offices as often as Landlord in its discretion shall require;
and
Tenant hereby irrevocably appoints Landlord its agent for the purpose of
executing and filing such financing statements on Tenant's behalf as Landlord
shall deem necessary.
-
10
-
39. Limitation
of Liability of Trustees, Shareholders, and Officers of
ProLogis.
Any
obligation or liability whatsoever of ProLogis, a Maryland real estate
investment trust, which may arise at any time under this Lease or any obligation
or liability which may be incurred by it pursuant to any other instrument,
transaction, or undertaking contemplated hereby shall not be personally binding
upon, nor shall resort for the enforcement thereof be had to the property
of,
its trustees, directors, shareholders, officers, employees or agents, regardless
of whether such obligation or liability is in the nature of contract, tort,
or
otherwise.
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and
year first above written.
|
TENANT:
|
LANDLORD:
|
|||
|
Xxxxx
Golf, Ltd.
|
MDN
/ JSC – II Limited
|
|||
|
By:
|
/S/:
Xxxx Xxxxx
|
By:
|
/S/:
Xxxx Xxxxx
|
|
|
Name:
|
Xxxx
Xxxxx
|
Name:
|
Xxxx
Xxxxx
|
|
|
Title:
|
CFO
|
Title:
|
Senior
Vice President
|
|
|
Address:
|
Address:
|
|||
|
0000
Xxxxxxxxxx Xxxxx
|
0000
XXX Xxxxxxx
|
|||
|
Xxxxx
000
|
Xxxxx
000
|
|||
|
Xxxxx,
XX 00000
|
Xxxxxx,
XX 00000
|
|||
-
11
-
Rules
and Regulations
| 1. |
The
sidewalk, entries, and driveways of the Project shall not be obstructed
by
Tenant, or its agents, or used by them for any purpose other than
ingress
and egress to and from the Premises.
|
| 2. |
Tenant
shall not place any objects, including antennas, outdoor furniture,
etc.,
in the parking areas, landscaped areas or other areas outside of
its
Premises, or on the roof of the Project.
|
| 3. |
Except
for seeing-eye dogs, no animals shall be allowed in the offices,
halls, or
corridors in the Project.
|
| 4. |
Tenant
shall not disturb the occupants of the Project or adjoining buildings
by
the use of any radio or musical instrument or by the making of loud
or
improper noises.
|
| 5. |
If
Tenant desires telegraphic, telephonic or other electric connections
in
the Premises, Landlord or its agent will direct the electrician as
to
where and how the wires may be introduced; and, without such direction,
no
boring or cutting of wires will be permitted. Any such installation
or
connection shall be made at Tenant's
expense.
|
| 6. |
Tenant
shall not install or operate any steam or gas engine or boiler, or
other
mechanical apparatus in the Premises, except as specifically approved
in
the Lease. The use of oil, gas or inflammable liquids for heating,
lighting or any other purpose is expressly prohibited. Explosives
or other
articles deemed extra hazardous shall not be brought into the
Project.
|
| 7. |
Parking
any type of recreational vehicles is specifically prohibited on or
about
the Project. Further, parking any type of trucks, trailers or other
vehicles in the Premises is specifically prohibited. Except for the
overnight parking of operative vehicles, no vehicle of any type shall
be
stored in the parking areas at any time. In the event that a vehicle
is
disabled, it shall be removed within 48 hours. There shall be no
"For
Sale" or other advertising signs on or about any parked vehicle.
All
vehicles shall be parked in the designated parking areas in conformity
with all signs and other markings. All parking will be open parking,
and
no reserved parking, numbering or lettering of individual spaces
will be
permitted except as specified by
Landlord.
|
| 8. |
Tenant
shall maintain the Premises free from rodents, insects and other
pests.
|
| 9. |
Landlord
reserves the right to exclude or expel from the Project any person
who, in
the judgment of Landlord, is intoxicated or under the influence of
liquor
or drugs or who shall in any manner do any act in violation of the
Rules
and Regulations of the Project.
|
| 10. |
Tenant
shall not cause any unnecessary labor by reason of Tenant's carelessness
or indifference in the preservation of good order and cleanliness.
Landlord shall not be responsible to Tenant for any loss of property
on
the Premises, however occurring, or for any damage done to the effects
of
Tenant by the janitors or any other employee or
person.
|
| 11. |
Tenant
shall give Landlord prompt notice of any defects in the water, lawn
sprinkler, sewage, gas pipes, electrical lights and fixtures, heating
apparatus, HVAC
system, or
any other service equipment affecting the
Premises.
|
| 12. |
Tenant
shall not permit storage outside the Premises, including without
limitation, outside storage of trucks and other vehicles, or dumping
of
waste or refuse or permit any harmful materials to be placed in any
drainage system or sanitary system in or about the
Premises.
|
| 13. |
All
moveable trash receptacles provided by the trash disposal firm for
the
Premises must be kept in the trash enclosure areas, if any, provided
for
that purpose.
|
| 14. |
No
auction, public or private, will be permitted on the Premises or
the
Project.
|
| 15. |
No
awnings shall be placed over the windows in the Premises except with
the
prior written consent of Landlord.
|
| 16. |
The
Premises shall not be used for lodging, sleeping or cooking or for
any
immoral or illegal purposes or for any purpose other than that specified
in the Lease. No gaming devices shall be operated in the
Premises.
|
| 17. |
Tenant
shall ascertain from Landlord the maximum amount of electrical current
which can safely be used in the Premises, taking into account the
capacity
of the electrical wiring in the Project and the Premises and the
needs of
other tenants, and shall not use more than such safe capacity. Landlord's
consent to the installation of electric equipment shall not relieve
Tenant
from the obligation not to use more electricity than such safe
capacity.
|
| 18. |
Tenant
assumes full responsibility for protecting the Premises from theft,
robbery and pilferage.
|
| 19. |
Tenant
shall not install or operate on the Premises any machinery or mechanical
devices of a nature not directly related to Tenant's ordinary use
of the
Premises and shall keep all such machinery free of vibration, noise
and
air waves which may be transmitted beyond the
Premises.
|
-
12
-
ADDENDUM
1
HVAC
MAINTENANCE CONTRACT
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED
__________,
2007
BETWEEN
MDN
/
JSC – II Limited
and
Xxxxx
Golf, Ltd.
Paragraph
11, captioned "TENANT REPAIRS," is revised to include the
following:
Tenant
agrees to enter into and maintain through the term of the Lease, a regularly
scheduled preventative maintenance/service contract for servicing all hot
water,
heating and air conditioning systems and equipment within the Premises. Landlord
requires a qualified HVAC contractor perform this work. A certificate must
be
provided to the Landlord upon occupancy of the leased Premises. All
electrical, plumbing, and mechanical systems will be delivered in good working
order to the Tenant at the time of occupancy. Landlord will warranty the
existing HVAC system for the first 180 days. Furthermore, Landlord will repair
HVAC system per the “TMAC Mechanical” Report dated November 2007. After the
first 180 days of the primary lease term, in the event that an HVAC system
repair is necessary, Tenant will pay an HVAC Repair Deductible of
$800.00
per
occurrence. Any charges beyond the $800.00
Deductible will be paid by Landlord.
The
service contract must become effective within thirty (30) days of occupancy,
and
service visits should be performed on a quarterly basis. Landlord suggests
that
Tenant send the following list to a qualified HVAC contractor to be assured
that
these items are included in the maintenance contract:
|
1.
|
Adjust
belt tension;
|
|
2.
|
Lubricate
all moving parts, as necessary;
|
|
3.
|
Inspect
and adjust all temperature and safety controls;
|
|
4.
|
Check
refrigeration system for leaks and operation;
|
|
5.
|
Check
refrigeration system for moisture;
|
|
6.
|
Inspect
compressor oil level and crank case heaters;
|
|
7.
|
Check
head pressure, suction pressure and oil pressure;
|
|
8.
|
Inspect
air filters and replace when necessary;
|
|
9.
|
Check
space conditions;
|
|
10.
|
Check
condensate drains and drain pans and clean, if
necessary;
|
|
11.
|
Inspect
and adjust all valves;
|
|
12.
|
Check
and adjust dampers;
|
|
13.
|
Run
machine through complete
cycle.
|
-
13
-
ADDENDUM
2
MOVE-OUT
CONDITIONS
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED_________,
2007
BETWEEN
MDN
/
JSC - II Limited
and
Xxxxx
Golf, Ltd.
Per
Paragraph 21, Tenant is obligated to check and address prior to move-out
of the
Premises the following items. Landlord expects to receive the Premises in
a well
maintained condition, with normal wear and tear of certain areas acceptable.
The
following list is designed to assist Tenant in the move-out procedures but
is
not intended to be all inclusive.
|
1.
|
All
lighting is to be placed into good working order. This includes
replacement of bulbs, ballasts, and lenses as
needed.
|
|
2.
|
All
truck doors and dock levelers should be serviced and placed in
good
operating order. This would include the necessary replacement of
any
dented truck door panels and adjustment of door tension to insure
proper
operation. All door panels which are replaced need to be painted
to match
the Building standard.
|
|
3.
|
All
structural steel columns in the warehouse and office should be
inspected
for damage. Repairs of this nature should be pre-approved by the
Landlord
prior to implementation.
|
|
4.
|
Heating/air-conditioning
systems should be placed in good working order, including the necessary
replacement of any parts to return the unit to a well maintained
condition. This includes warehouse heaters and exhaust fans. Upon
move-out, Landlord will have an exit inspection performed by a
certified
mechanical contractor to determine the
condition.
|
|
5.
|
All
holes in the sheet rock walls should be repaired prior to
move-out.
|
|
6.
|
The
carpets and vinyl tiles should be in a clean condition and should
not have
any holes or chips in them. Landlord will accept normal wear on
these
items provided they appear to be in a maintained
condition.
|
|
7.
|
Facilities
should be returned in a clean condition which would include cleaning
of
the coffee bar, restroom areas, windows, and other portions of
the
space.
|
|
8.
|
The
warehouse should be in broom clean condition with all inventory
and
racking removed. There should be no protrusion of anchors from
the
warehouse floor and all holes should be appropriately patched.
If
machinery/equipment is removed, the electrical lines should be
properly
terminated at the nearest junction
box.
|
|
9.
|
All
exterior windows with cracks or breakage should be
replaced.
|
|
10.
|
The
Tenant shall provide keys for all locks on the Premises, including
front
doors, rear doors, and interior
doors.
|
|
11.
|
Items
that have been added by the Tenant and affixed to the Building
will remain
the property of Landlord, unless agreed otherwise. This would include
but
is not limited to mini-blinds, air conditioners, electrical, water
heaters, cabinets, flooring, etc. Please note that if modifications
have
been made to the space, such as the addition of office areas, Landlord
retains the right to have the Tenant remove these at Tenant’s
expense.
|
|
12.
|
All
electrical systems should be left in a safe condition that conforms
to
code. Bare wires and dangerous installations should be corrected
prior to
move-out.
|
|
13.
|
All
plumbing fixtures should be in good working order, including the
water
heater. Faucets and toilets should not
leak.
|
|
14.
|
All
dock bumpers must be left in place and well
secured.
|
-
14
-
ADDENDUM
3
CONSTRUCTION
(TURNKEY)
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED___________,
2007
BETWEEN
MDN
/
JSC - II Limited
and
Xxxxx
Golf, Ltd.
(a)
Landlord
agrees to furnish or perform at Landlord's sole cost and expense those items
of
construction and those improvements (the "Initial Improvements") specified
below:
| - |
ProLogis
will provide an opening (10’ x 12’) on or around December 14, 2007 between
Suites 100 & 300
and will allow Xxxxx Golf forty-none (49) days to transfer inventory
between the spaces. ProLogis will be responsible for sealing the
opening
effective January 31, 2008.
|
| - |
Tenant
agrees to take the space “as-is.”
|
| - |
ProLogis
warrants that all building systems will be in good working order
upon
lease commencement.
|
(b) If
Tenant
shall desire any changes, Tenant shall so advise Landlord in writing and
Landlord shall determine whether such changes can be made in a reasonable
and
feasible manner. Any and all costs of reviewing any requested changes, and
any
and all costs of making any changes to the Initial Improvements which Tenant
may
request and which Landlord may agree to shall be at Tenant's sole cost and
expense and shall be paid to Landlord upon demand and before execution of
the
change order.
(c) Landlord
shall proceed with and complete the construction of the Initial Improvements.
As
soon as such improvements have been Substantially Completed, Landlord shall
notify Tenant in writing of the date that the Initial Improvements were
Substantially Completed. Such date, unless an earlier date is specified as
the
Commencement Date in this Lease or otherwise agreed to in writing between
Landlord and Tenant, shall be the "Commencement
Date,"
unless
the completion of such improvements was delayed due to any act or omission
of,
or delay caused by, Tenant including, without limitation, Tenant's failure
to
approve plans, complete submittals or obtain permits within the time periods
agreed to by the parties or as reasonably required by Landlord, in which
case
the Commencement Date shall be the date such improvements would have been
completed but for the delays caused by Tenant. The Initial Improvements shall
be
deemed substantially completed ("Substantially
Completed")
when,
in the opinion of the construction manager (whether an employee or agent
of
Landlord or a third party construction manager) ("Construction
Manager"),
the
Premises are substantially completed except for punch list items which do
not
prevent in any material way the use of the Premises for the purposes for
which
they were intended. In the event Tenant, its employees, agents, or contractors
cause construction of such improvements to be delayed, the date of Substantial
Completion shall be deemed to be the date that, in the opinion of the
Construction Manager, Substantial Completion would have occurred if such
delays
had not taken place. Without limiting the foregoing, Tenant shall be solely
responsible for delays caused by Tenant's request for any changes in the
plans,
Tenant's request for long lead items or Tenant's interference with the
construction of the Initial Improvements, and such delays shall not cause
a
deferral of the Commencement Date beyond what it otherwise would have been.
After the Commencement Date Tenant shall, upon demand, execute and deliver
to
Landlord a letter of acceptance of delivery of the Premises. In the event
of any
dispute as to the Initial Improvements, including the Commencement Date,
the
certificate of the Construction Manager shall be conclusive absent manifest
error.
(d) The
failure of Tenant to take possession of or to occupy the Premises shall not
serve to relieve Tenant of obligations arising on the Commencement Date or
delay
the payment of rent by Tenant. Subject to applicable ordinances and building
codes governing Tenant's right to occupy or perform in the Premises, Tenant
shall be allowed to install its tenant improvements, machinery, equipment,
fixtures, or other property on the Premises during the final stages of
completion of construction provided that Tenant does not thereby interfere
with
the completion of construction or cause any labor dispute as a result of
such
installations, and provided further that Tenant does hereby agree to indemnify,
defend, and hold Landlord harmless from any loss or damage to such property,
and
all liability, loss, or damage arising from any injury to the Project or
the
property of Landlord, its contractors, subcontractors, or materialmen, and
any
death or personal injury to any person or persons arising out of such
installations, unless any such loss, damage, liability, death, or personal
injury was caused by Landlord's negligence. Any such occupancy or performance
in
the Premises shall be in accordance with the provisions governing Tenant-Made
Alterations and Trade Fixtures in the Lease, and shall be subject to Tenant
providing to Landlord satisfactory evidence of insurance for personal injury
and
property damage related to such installations and satisfactory payment
arrangements with respect to installations permitted hereunder. Delay in
putting
Tenant in possession of the Premises shall not serve to extend the term of
this
Lease or to make Landlord liable for any damages arising therefrom.
-
15
-
ADDENDUM
4
ONE
RENEWAL OPTION AT MARKET
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED__________,
2007
BETWEEN
MDN
/
JSC - II Limited
and
Xxxxx
Golf, Ltd.
(a)
Provided
that as of the time of the giving of the Extension Notice and the Commencement
Date of the Extension Term, (x) Tenant is the Tenant originally named herein,
(y) Tenant actually occupies all of the Premises initially demised under
this Lease and any space added to the Premises, and (z) no Event of Default
exists or would exist but for the passage of time or the giving of notice,
or
both; then Tenant shall have the right to extend the Lease Term for an
additional term of 2
years
(such additional term is hereinafter called the "Extension
Term")
commencing on the day following the expiration of the Lease Term (hereinafter
referred to as the "Commencement
Date of the Extension Term").
Tenant shall give Landlord notice (hereinafter called the "Extension
Notice")
of its
election to extend the term of the Lease Term at least 6
months,
but not more than 9
months,
prior to the scheduled expiration date of the Lease Term.
(b)
The
Base
Rent payable by Tenant to Landlord during the Extension Term shall be the
greater of (i) the Base Rent applicable to the last year of the initial Lease
term and (ii) the then prevailing market rate for comparable space in the
Project and comparable buildings in the vicinity of the Project, taking into
account the size of the Lease, the length of the renewal term, market
escalations and the credit of Tenant. The Base Rent shall not be reduced
by
reason of any costs or expenses saved by Landlord by reason of Landlord's
not
having to find a new tenant for such premises (including, without limitation,
brokerage commissions, costs of improvements, rent concessions or lost rental
income during any vacancy period). In the event Landlord and Tenant fail
to
reach an agreement on such rental rate and execute the Amendment (defined
below)
at least 6
months
prior to the expiration of the Lease, then Tenant's exercise of the renewal
option shall be deemed withdrawn and the Lease shall terminate on its original
expiration date.
(c)
The
determination of Base Rent does not reduce the Tenant's obligation to pay
or
reimburse Landlord for Operating Expenses and other reimbursable items as
set
forth in the Lease, and Tenant shall reimburse and pay Landlord as set forth
in
the Lease with respect to such Operating Expenses and other items with respect
to the Premises during the Extension Term without regard to any cap on such
expenses set forth in the Lease.
(d)
Except
for the Base Rent as determined above, Tenant's occupancy of the Premises
during
the Extension Term shall be on the same terms and conditions as are in effect
immediately prior to the expiration of the initial Lease Term; provided,
however, Tenant shall have no further right to any allowances, credits or
abatements or any options to expand, contract, renew or extend the Lease.
(e)
If
Tenant
does not give the Extension Notice within the period set forth in paragraph
(a)
above, Tenant's right to extend the Lease Term shall automatically terminate.
Time is of the essence as to the giving of the Extension Notice.
(f)
Landlord
shall have no obligation to refurbish or otherwise improve the Premises for
the
Extension Term. The Premises shall be tendered on the Commencement Date of
the
Extension Term in "as-is" condition.
(g)
If
the
Lease is extended for the Extension Term, then Landlord shall prepare and
Tenant
shall execute an amendment to the Lease confirming the extension of the Lease
Term and the other provisions applicable thereto (the "Amendment").
(h)
If
Tenant
exercises its right to extend the term of the Lease for the Extension Term
pursuant to this Addendum, the term "Lease Term" as used in the Lease, shall
be
construed to include, when practicable, the Extension Term except as provided
in
(d) above.
-
16
-
EXHIBIT
A
SITE
PLAN
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED__________,
2007
BETWEEN
MDN
/
JSC - II Limited
and
Xxxxx
Golf, Ltd.
-
17
-
