Exhibit 10.23
THIS LEASE (the "Lease") is executed this 29th day of September, 2006, by
and between 200 Precision Drive Investors, LLC, a Delaware limited liability
company ("Landlord"), and Optium Corporation, a Delaware corporation ("Tenant").
ARTICLE 1 LEASE OF PREMISES
Section 1.01 BASIC LEASE PROVISIONS AND DEFINITIONS.
(a) Leased Premises (shown outlined on EXHIBIT A attached hereto):
approximately 63,757 square feet of rentable space in the building commonly
known as 000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx (the
"Building").
(b) Rentable Area: approximately 63,757 square feet.
(c) Tenant's Proportionate Share: 50.40%.
(d) Minimum Annual Rent:
Year 1 $658,610
Year 2 $690,488
Year 3 $722,367
(e) Monthly Rental Installments:
Months 1 - 12 $54,884
Months 13 - 24 $57,541
Months 25 - 36 $60,197
(f) Commencement Date: January 1, 2007.
(g) Lease Term: Three (3) years; subject to extension per Section 2.02.
(h) Security Deposit: $109,768.
(i) Broker(s): CB Xxxxxxx Xxxxx representing Landlord and Penns Grant Real
Estate representing Tenant.
(j) Permitted Use: General business office, production and assembly of
electronic equipment.
(k) Address for notices and payments are as follows:
Landlord: 000 Xxxxxxxxx Xxxxx Investors, LLC
c/o High Street Equity Advisors, LLC
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Asset Management
With Payments to: c/o Xxxxxxxx Xxxx Services, Inc.
Four Falls Corporate Center
000 Xxxxxxxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxx
Tenant (prior to occupancy):
Optium Corporation
000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Tenant (following occupancy):
Optium Corporation
000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
EXHIBITS
Exhibit A - Leased Premises
Exhibit B - Tenant's Improvements
Exhibit C - Intentionally Omitted
Exhibit D - Tenant Operations Inquiry Form
Exhibit E - Rules and Regulations
Section 1.02 LEASE OF PREMISES. Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord the Leased Premises, under the terms and
conditions herein, together with a non-exclusive right, in common with others,
to use the following (collectively, the "Common Areas"): the areas of the
Building and the underlying land and improvements thereto that are designed for
use in common by all tenants of the Building and their respective employees,
agents, customers, invitees and others.
ARTICLE 2 TERM AND POSSESSION
Section 2.01 TERM. The Commencement Date and Lease Term shall be as set
forth in Sections 1.01(f) and 1.01(g) above.
Section 2.02 EXTENSION TERM.
(a) Tenant shall have the right, but not the obligation, to extend the
Term of this Lease for one (1) additional period of three (3) consecutive years
(the "Extension Term"); provided, (i) Tenant
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gives written notice of each election no earlier than fourteen (14) months and
no later than nine (9) months prior to the proposed commencement of the
Extension Term ("Tenant's Extension Notice"), and (ii) no Event of Default on
the part of Tenant has occurred and then remains uncured under this Lease.
(b) If Tenant validly exercises its right to extend the Term of this Lease
for the Extension Term, Minimum Annual Rent shall be equal to the then-current
"Fair Market Rent" for the Leased Premises.
(c) "Fair Market Rent" means a new Minimum Annual Rental determined for
occupancy commencing as of the first day of the Extension Term as reasonably
determined by Landlord (and adjusted as described herein), taking into
consideration the rental rates then being quoted by Landlord and other landlords
for similar space in similar buildings in the area. Landlord's determination of
the Fair Market Rent shall be stated in Landlord's notice to Tenant given within
thirty (30) days after Landlord's receipt of Tenant's Extension Notice.
Landlord's determination of Fair Market Rent shall be final and binding, unless
Tenant notifies Landlord in writing within ten (10) business days after receipt
of Landlord's notice that it disagrees with Landlord's determination of the Fair
Market Rent. If the parties are unable to agree on the Fair Market Rent to be
paid by Tenant after negotiating in good faith for ten (10) business days
thereafter, then each party shall select one (1) appraiser who shall be a member
of the American Institute of Real Estate Appraisers within ten (10) days after
the parties shall fail to reach agreement (and if either party fails to make a
selection within that period, the right to do so shall be deemed waived), and
the two (2) appraisers shall then select a third (3rd) appraiser, again within a
ten (10) day period, to comprise an appraiser panel. The panel shall then
determine, within twenty (20) days after the selection of the third (3rd)
appraiser, the then Fair Market Rent. In the event the appraisers are unable to
agree upon the Fair Market Rent, the Fair Market Rent shall equal the average of
the two (2) appraisals closest in amount. Each party shall pay the cost of its
own appraiser and divide evenly the cost of the third (3rd) appraiser.
Section 2.03 CONDITION OF THE LEASED PREMISES; LANDLORD PRE-OCCUPANCY
COVENANTS.
(a) AS IS CONDITION. Tenant has personally inspected the Leased Premises
and accepts the same "AS IS" without representation or warranty by Landlord of
any kind; provided that Landlord represents and warrants that to the best of its
knowledge the Building, including without limitation it's roof and structure,
walls, foundation and all systems (including heating, air conditioning and
ventilation, sprinkler systems, plumbing and electrical), Leased Premises,
Common Areas and the Property (as defined below) are in good condition and
repair.
(b) CONSTRUCTION OF TENANT IMPROVEMENTS. Tenant shall construct and
install all leasehold improvements to the Leased Premises (collectively, the
"Tenant Improvements") in accordance with EXHIBIT B attached hereto and made a
part hereof.
(c) LANDLORD COVENANTS. Prior to the Commencement Date Landlord shall
construct and install a demising wall and related improvements for the Leased
Premises as described in EXHIBIT C and repaint the "office" areas of the Leased
Premises.
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Section 2.04 SURRENDER OF THE PREMISES. Upon the expiration or earlier
termination of this Lease, Tenant shall, at its sole cost and expense,
immediately (a) surrender the Leased Premises to Landlord in broom-clean
condition and in good order, condition and repair, (b) remove from the Leased
Premises (i) Tenant's Property (as defined in Section 8.01 below), (ii) all data
and communications wiring and cabling (including above ceiling, below raised
floors and behind walls) added by Tenant, and (iii) any alterations required to
be removed pursuant to Section 7.03 below, and (c) repair any damage caused by
any such removal and restore the Leased Premises to the condition existing upon
the Commencement Date, reasonable wear and tear excepted (subject to any interim
casualty, or condemnation). All of Tenant's Property that is not removed within
ten (10) days following Landlord's written demand therefor shall be conclusively
deemed to have been abandoned and Landlord shall be entitled to dispose of such
property at Tenant's cost without incurring any liability to Tenant. This
Section 2.03 shall survive the expiration or any earlier termination of this
Lease.
Section 2.05 HOLDING OVER. If Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease, Tenant shall
be a tenant at sufferance at one hundred fifty percent (150%) of the Monthly
Rental Installments and Annual Rental Adjustment (as hereinafter defined) for
the Leased Premises in effect upon the date of such expiration or earlier
termination, and otherwise upon the terms, covenants and conditions herein
specified, so far as applicable. Acceptance by Landlord of rent after such
expiration or earlier termination shall not result in a renewal of this Lease,
nor shall such acceptance create a month-to-month tenancy. In the event a
month-to-month tenancy is created by operation of law, or by written agreement
of the parties, either party shall have the right to terminate such
month-to-month tenancy upon thirty (30) days' prior written notice to the other,
whether or not said notice is given on the rent paying date. This Section 2.05
shall in no way constitute a consent by Landlord to any holding over by Tenant
upon the expiration or earlier termination of this Lease, nor limit Landlord's
remedies in such event.
ARTICLE 3 RENT
Section 3.01 BASE RENT. Tenant shall pay to Landlord the Minimum Annual
Rent in the Monthly Rental Installments in advance, without demand, abatement,
deduction or offset, on the Commencement Date and on or before the first day of
each and every calendar month thereafter during the Lease Term. The Monthly
Rental Installments for partial calendar months shall be prorated. Tenant shall
pay to Landlord the first Monthly Rental Installment upon Tenant's execution and
delivery of this Lease. Tenant shall be responsible for delivering the Monthly
Rental Installments to the payment address set forth in Section 1.01(k) above in
accordance with this Section 3.01.
Section 3.02 ANNUAL RENTAL ADJUSTMENT DEFINITIONS.
(a) "Annual Rental Adjustment" shall mean the amount of Tenant's
Proportionate Share of Operating Expenses, Real Estate Taxes, and Insurance
Premiums for a particular calendar year.
(b) "Tenant's Proportionate Share of Operating Expenses, Real Estate Taxes
and Insurance Premiums" shall mean an amount equal to (i) the product of
Tenant's Proportionate Share times the Operating Expenses, plus (ii) the product
of Tenant's Proportionate Share times the Real Estate Taxes, plus (iii) the
product of Tenant's Proportionate Share times the Insurance Premiums.
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(c) "Operating Expenses" shall mean the amount of all of Landlord's costs
and expenses paid or incurred in operating, repairing, replacing and maintaining
the building and the Common Areas in good condition and repair for a particular
calendar year (including all additional costs and expenses that Landlord
reasonably determines that it would have paid or incurred during such year if
the Building had been fully occupied), including by way of illustration and not
limitation, the following: all insurance deductibles; water, sewer, electrical
and other utility charges other than the separately billed electrical and other
charges paid by Tenant as provided in this Lease (or other tenants in the
Building); painting; stormwater discharge fees; tools and supplies; repair
costs; landscape maintenance costs; access patrols; license, permit and
inspection fees; management fees; supplies, costs, wages and related employee
benefits payable for the management, maintenance and operation of the Building;
maintenance, repair of the driveways, parking areas, curbs and sidewalk areas
(including snow and ice removal), landscaped areas, drainage strips, sewer
lines, exterior walls, foundation, structural frame, roof, gutters and lighting;
and maintenance and repair costs, dues, fees and assessments incurred under any
covenants or charged by any owners association. Notwithstanding anything herein
to the contrary, the following shall not be included in the calculation of
Operating Expenses:
(i) Wages, salaries or fringe benefits paid for any
employee above the grade of building manager or the wages or indirect
compensation of any employee to the extent such employee devotes his or her time
to property other than the Building or the parcel(s) of real property on which
the Building is located (the "Property");
(ii) Costs of repairs or other work necessitated by
fire, windstorm, casualty or other insurable occurrence and costs of repairs or
other work necessitated by the exercise of the power of eminent domain;
(iii) The costs of capital improvements or capital
replacements, unless such improvements or replacements are (1) made for the
purpose of causing the Building or Common Areas to comply with any laws not in
existence and not in effect as of the date of this Lease, or (2) intended to
improve the efficiency of the Building or to reduce Operating Expenses or
utility costs, or (3) incurred to replace existing equipment and machinery
necessary to the day to day operations of the Property which has outlived its
useful life, or which are in lieu of needed repairs. The cost of any capital
improvements or replacements shall be amortized over the useful life of the
improvement (as reasonably determined by Landlord), and only the amortized
portion shall be included in Operating Expenses;
(iv) The costs of leasing building systems equipment or
other items that if purchased would not be permitted to be included in Operating
Expenses pursuant to subsection (iii) above;
(v) Payments to any subsidiary or affiliate of Landlord
in excess of the amount that would be paid for similar goods or services on an
arms-length basis between unrelated third parties;
(vi) Management fees in excess of 5% of the gross rent,
including all additional rent, for the Building;
(vii) Any costs of services or utilities used or consumed
in premises leased or leasable to Tenants or occupants if Tenant's use or
consumption of the applicable utility or service is separately metered or
submetered;
(viii) Any increases in premiums for any insurance
maintained by Landlord resulting from the extra-hazardous activities of Landlord
or other tenants or occupants;
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(ix) Leasing commissions, attorneys' fees, costs,
disbursements and other expenses incurred by Landlord or its agents in
connection with negotiations for leases or other occupancy agreements, and
similar costs incurred in connection with disputes with and/or enforcement of
leases or other occupancy agreements;
(x) "Tenant allowances," "tenant concessions,"
workletters, and other costs or expenses (including permit, license and
inspection fees) incurred in completing, fixturing, furnishing, renovating or
otherwise improving, decorating or redecorating space for Tenants or other
occupants, or vacant, leasable space, including space planning/interior
architecture fees for same;
(xi) Payments of principal, finance charges, or interest
on debt or amortization on any mortgage, deed of trust or other debt financing
or refinancing, and rental payments (or increases in same) under any ground or
underlying lease or leases;
(xii) Contributions to operating expense reserves and any
bad debt loss, rent loss or other reserve for bad debt or rent loss;
(xiii) Any costs incurred to test, survey, clean up,
contain, xxxxx or remove any environmental or hazardous waste or materials,
including without limitation, asbestos containing materials, from the Building,
any other building in the Property or the Common Areas, or to remedy any breach
or violation of any Environmental Laws, unless such costs are incurred in whole
or in part by the acts or omissions Tenant or its agents, contractors or
employees;
(xiv) Interest, fines or penalties for any late payments
by Landlord not due to the act or neglect of Tenant or its agents, contractors
or employees;
(xv) Legal fees, late charges and penalties incurred in
connection with Landlord's noncompliance with or violation of law;
(xvi) Costs resulting from the negligence or willful
misconduct of Landlord, its employees, agents and/or contractors and not
reimbursed by insurance;
(xvii) Advertising and promotional expenses and costs
associated with maintaining Landlord's corporate (or other entity) existence and
other overhead and administrative costs of Landlord not directly incurred in the
operation and maintenance of the Building or the Property;
(xviii) Costs incurred in connection with the making of
repairs or replacements which are the obligation of any other tenant or
occupant;
(xix) Political contributions or contributions to
charitable organizations;
(xx) Costs or fees relating to the defense of Landlord's
title to or interest in the Property, or any part thereof;
(xxi) Costs to comply with any governmental law, order,
regulation or other legal requirement enacted prior to the date of this Lease
and the costs of correcting any violation by Landlord of applicable building,
health or fire codes or other applicable law relating to the Building or the
Common Area;
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(xxii) Depreciation or amortization of the Building or the
Property, or its components or the Common Areas;
(xxiii) Any costs in connection with an expansion of the
rentable area of the Building or the Property or adding any new Building or
Property amenities, or any costs incurred in connection with any additions to
the Common Areas or the Property, including the purchase of additional land or
other development rights;
(xxiv) The cost of any item or service for which Tenant
separately reimburses Landlord or pays to third parties, or that Landlord
provides selectively to one or more, but not all Tenants of the Building or the
Property, other than Tenant, whether or not Landlord is reimbursed by such other
tenant(s), including, without limitation, the actual cost of any special
electrical, heating, ventilation or air conditioning required by any tenant that
exceeds the standard for the Building;
(xxv) The cost of correcting defects in the construction
in the Building or any other buildings in the Property, or any Common Areas; and
(xxvi) Any personal property taxes of Landlord for
equipment or items not used directly in the operation or maintenance of the
Building or the Common Areas.
(d) "Real Estate Taxes" shall mean any form of real estate tax or
assessment or service payments in lieu thereof, and any license fee, commercial
rental tax, improvement bond or other similar charge or tax (other than transfer
or documentary stamp, inheritance, personal income, capital gain, gift or estate
taxes) imposed upon the Building or Common Areas, or against Landlord's business
of leasing the Building, by any authority having the power to so charge or tax,
together with costs and expenses of contesting the validity or amount of the
Real Estate Taxes.
(e) "Insurance Premiums" shall mean insurance premiums for insurance
coverage on the Building or Common Areas and shall include all fire and extended
coverage insurance on the Building and all liability insurance coverage on the
Common Areas of the Building, and the grounds, sidewalks, driveways and parking
areas related thereto, together with such other insurance coverages, including,
but not limited to, rent interruption insurance, as are from time to time
obtained by Landlord, but excluding environmental remediation insurance unless
such insurance is obtained due in whole or in part by an act or omission of
Tenant.
Section 3.03 PAYMENT OF ADDITIONAL RENT.
(a) Any amount required to be paid by Tenant hereunder (in addition to
Minimum Annual Rent) and any charges or expenses incurred by Landlord on behalf
of Tenant under the terms of this Lease shall be considered "Additional Rent"
payable in the same manner and upon the same terms and conditions as the Minimum
Annual Rent reserved hereunder, except as set forth herein to the contrary. Any
failure on the part of Tenant to pay such Additional Rent when and as the same
shall become due shall entitle Landlord to the remedies available to it for
non-payment of Minimum Annual Rent.
(b) In addition to the Minimum Annual Rent specified in this Lease,
commencing as of the Commencement Date, Tenant shall pay to Landlord as
Additional Rent for the Leased Premises, in each
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calendar year or partial calendar year during the Lease Term, an amount equal to
the Annual Rental Adjustment for such calendar year. Landlord shall estimate the
Annual Rental Adjustment annually, and written notice thereof shall be given to
Tenant prior to the beginning of each calendar year. Tenant shall pay to
Landlord each month, at the same time the Monthly Rental Installment is due, an
amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment.
Tenant shall be responsible for delivering the Additional Rent to the payment
address set forth in Section 1.01(k) above in accordance with this Section 3.03.
If Operating Expenses increase during a calendar year, Landlord may increase the
estimated Annual Rental Adjustment during such year by giving Tenant written
notice to that effect, and thereafter Tenant shall pay to Landlord, in each of
the remaining months of such year, an amount equal to the amount of such
increase in the estimated Annual Rental Adjustment divided by the number of
months remaining in such year. Within a reasonable time after the end of each
calendar year, Landlord shall prepare and deliver to Tenant a statement showing
the actual Annual Rental Adjustment. Within thirty (30) days after receipt of
the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall
credit against the next rent payment or payments due from Tenant (or refund if
the Lease Term has expired), as the case may be, the difference between the
actual Annual Rental Adjustment for the preceding calendar year and the
estimated amount paid by Tenant during such year.
(c) Upon Tenant's reasonable notice, given within ninety (90) days after
Tenant's receipt of Landlord's statement for any calendar year during the Lease
Term, Landlord shall make available for Tenant's and/or Tenant's agents'
inspection and photocopying, during normal business hours, Landlord's records
relating to Landlord's Operating Expenses for the period covered by any invoice
or annual statement. If Tenant has not timely notified Landlord of Tenant's
desire to inspect, Tenant shall be deemed to be satisfied with that statement
from Landlord and the amounts Tenant is obligated to pay pursuant thereto.
Should Tenant dispute any of Landlord's Operating Expenses, Tenant shall be
entitled to audit Landlord's Operating Cost records for the calendar year in
question. Should the audit determine that Tenant was over-charged, then,
Landlord shall credit Tenant the amount of such over-charge toward the payments
of Minimum Annual Rent and Additional Rent next coming due under the Lease;
provided that if the Lease Term has expired, Landlord shall pay such amount to
Tenant within thirty (30) days of invoice. Should the audit determine that
Tenant has been under-charged, Tenant shall reimburse Landlord for such amount
as Additional Rent next coming due under the Lease. Tenant agrees to pay the
actual, reasonable, out-of-pocket cost of the audit, unless the audit determines
that Landlord's calculation of Landlord's Operating Expenses was overstated by
more than five percent (5%), in which case Landlord shall pay for the audit.
Section 3.04 LATE CHARGES. Tenant acknowledges that Landlord shall incur
certain additional unanticipated administrative and legal costs and expenses if
Tenant fails to pay timely any payment required hereunder. Therefore, without
exercising any late payment or limiting Landlord's rights and remedies under
this Lease, Tenant shall pay Landlord, upon demand, a late charge of 5% of any
payment not made within five (5) days of its due date. In addition to such late
charge and the other remedies available to Landlord hereunder, if any payment
required to be paid by Tenant to Landlord hereunder shall become overdue, such
unpaid amount shall bear interest from the due date thereof to the date of
payment at the lesser of the prime rate of interest, as reported in the Wall
Street Journal (the "Prime Rate") plus three percent (3%) per annum and the
maximum legal rate of interest.
ARTICLE 4 SECURITY DEPOSIT
Upon execution and delivery of this Lease by Tenant, Tenant shall deposit
the Security Deposit with Landlord as security for the performance by Tenant of
all of Tenant's obligations contained in this Lease. In
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the event of a Default by Tenant, Landlord may at its option apply all or any
part of the Security Deposit to cure all or any part of such Default; provided,
however, that any such application by Landlord shall not be or be deemed to be
an election of remedies by Landlord or considered or deemed to be liquidated
damages. If so applied by Landlord, Tenant agrees promptly, upon demand, to
deposit such additional sum with Landlord as may be required to maintain the
full amount of the Security Deposit. All sums held by Landlord pursuant to this
Article 4 shall be without interest and may be commingled by Landlord. Promptly
after the end of the Lease Term, provided that there is then no uncured Default
or any repairs required to be made by Tenant pursuant to Section 2.03 above or
Section 7.03 below, Landlord shall return the Security Deposit to Tenant.
ARTICLE 5 OCCUPANCY AND USE
Section 5.01 USE. Tenant shall use the Leased Premises for the Permitted
Use and for no other purpose without the prior written consent of Landlord.
Section 5.02 COVENANTS OF TENANT REGARDING USE.
(a) Tenant shall (i) use and maintain the Leased Premises and conduct its
business thereon in a safe, careful and lawful manner, (ii) comply with all
laws, rules, regulations, orders, ordinances, directions and requirements of any
governmental authority or agency, now in force or which may hereafter be in
force, including, without limitation, those which shall impose upon Landlord or
Tenant any duty with respect to or triggered by a change in the use or
occupation of, Tenant's particular use or occupancy of, or any improvement or
alteration to, the Leased Premises, and (iii) comply with and obey all
reasonable directions, rules and regulations of Landlord, including without
limitation the Building Rules and Regulations attached hereto as EXHIBIT E and
made a part hereof, as may be modified from time to time by Landlord on
reasonable notice to Tenant, provided that that such rules and regulations do
not unreasonably interfere with Tenant's use and enjoyment of the Leased
Premises for the Permitted Use. Landlord represents that Landlord has not
received any notices of non-compliance with respect to any laws affecting the
Leased Premises, the Building or the Common Areas. Notwithstanding the
foregoing, Tenant shall have no obligation to correct any noncompliance of the
Premises with applicable laws existing as of the Commencement Date.
(b) Tenant shall not do or permit anything to be done in or about the
Leased Premises that will in any way cause a nuisance, obstruct or interfere
with the rights of other tenants or occupants of the Building or injure them.
Landlord shall not be responsible to Tenant for the non-performance by any other
tenant or occupant of the Building of any of Landlord's directions, rules and
regulations, but agrees that any enforcement thereof shall be done uniformly.
Tenant shall not overload the floors of the Leased Premises. All damage to the
floor structure or foundation of the Building due to improper positioning or
storage of items or materials shall be repaired by Landlord at the sole expense
of Tenant, who shall reimburse Landlord immediately therefor upon demand. Tenant
shall not use the Leased Premises, nor allow the Leased Premises to be used, for
any purpose or in any manner that would (i) invalidate any policy of insurance
now or hereafter carried by Landlord on the Building, or (ii) increase the rate
of premiums payable on any such insurance policy unless Tenant reimburses
Landlord for any increase in premium charged.
(c) Tenant shall complete a Tenant Operations Inquiry Form in
substantially the form of EXHIBIT D attached hereto and made a part hereof.
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Section 5.03 LANDLORD'S RIGHTS REGARDING USE. Without limiting any of
Landlord's rights specified elsewhere in this Lease (a) Landlord shall have the
right at any time, without notice to Tenant, to control, change or otherwise
alter the Common Areas in such manner as it deems necessary or proper and does
not interfere with the permitted use of the Lease Premises, and (b) Landlord,
its agents, employees and contractors and any mortgagee of the Building shall
have the right to enter any part of the Leased Premises at reasonable times upon
reasonable notice (except in the event of an emergency where no notice shall be
required) for the purposes of examining or inspecting the same (including,
without limitation, testing to confirm Tenant's compliance with this Lease),
showing the same to prospective purchasers, mortgagees or tenants, and making
such repairs, alterations or improvements to the Leased Premises or the Building
as Landlord may deem necessary or desirable. Landlord shall incur no liability
to Tenant for such entry, nor shall such entry constitute an actual or
constructive eviction of Tenant or a termination of this Lease, or entitle
Tenant to any abatement of rent therefor.
ARTICLE 6 UTILITIES
Tenant shall obtain in its own name and pay directly to the appropriate
supplier the cost of all utilities and services serving the Leased Premises.
However, if any services or utilities are jointly metered with other property,
Landlord shall make a reasonable determination of Tenant's proportionate share
of the cost of such utilities and services (at rates that would have been
payable if such utilities and services had been directly billed by the utilities
or services providers without xxxx-up by Landlord) and Tenant shall pay such
share to Landlord within fifteen (15) days after receipt of Landlord's written
statement. Landlord shall not be liable in damages or otherwise for any failure
or interruption of any utility or other Building service and no such failure or
interruption shall entitle Tenant to terminate this Lease or withhold sums due
hereunder or constitute an actual or constructive eviction of Tenant.
ARTICLE 7 REPAIRS, MAINTENANCE AND ALTERATIONS
Section 7.01 REPAIR AND MAINTENANCE OF BUILDING. Landlord shall make all
necessary repairs, replacements and maintenance to the roof, sprinkler systems,
exterior walls, foundation, structural frame of the Building, any electrical
systems, heating and air conditioning and plumbing systems and the parking
(including snow plowing) and landscaped areas and other Common Areas. The cost
of such repairs, replacements and maintenance shall be included in Operating
Expenses to the extent provided in Section 3.02; provided however, to the extent
any such repairs, replacements or maintenance are required because of the
negligence, misuse or Default of Tenant, its employees, agents, contractors,
customers or invitees, Landlord shall make such repairs at Tenant's sole
expense.
Section 7.02 REPAIR AND MAINTENANCE OF LEASED PREMISES. Tenant shall, at
its own cost and expense, maintain the Leased Premises in good condition,
regularly servicing and promptly making all repairs thereto, including but not
limited to plate glass, floors, windows and doors, dock-doors, levelers, and
trash compactors and shall be responsible for janitorial and pest control
services.
Section 7.03 ALTERATIONS. Tenant shall not permit alterations in or to
the Leased Premises unless and until Landlord has approved the plans therefor in
writing. If Landlord has notified Tenant in writing at the time of an
alteration, Landlord may require Tenant to remove the alterations and restore
the Leased Premises upon termination of this Lease; otherwise, all such
alterations shall become a part of the realty and the property of Landlord, and
shall not be removed by Tenant. Tenant shall ensure that all alterations shall
be made in accordance with all applicable laws, regulations and building codes,
in a good
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and workmanlike manner and of quality equal to or better than the original
construction of the Building. No person shall be entitled to any lien derived
through or under Tenant for any labor or material furnished to the Leased
Premises, and nothing in this Lease shall be construed to constitute Landlord's
consent to the creation of any lien. If any lien is filed against the Leased
Premises for work claimed to have been done for or material claimed to have been
furnished to Tenant, Tenant shall cause such lien to be discharged of record
within thirty (30) days after filing. Tenant shall indemnify Landlord from all
costs, losses, expenses and attorneys' fees in connection with any construction
or alteration and any related lien.
ARTICLE 8 INDEMNITY AND INSURANCE
Section 8.01 RELEASE. All of Tenant's trade fixtures, merchandise,
inventory and all other personal property in or about the Leased Premises, the
Building or the Common Areas, which is deemed to include the trade fixtures,
merchandise, inventory and personal property of others claiming by, through or
under Tenant located in or about the Leased Premises or Common Areas at the
invitation, direction or acquiescence (express or implied) of Tenant (all of
which property shall be referred to herein, collectively, as "Tenant's
Property"), shall be and remain at Tenant's sole risk. Landlord shall not be
liable to Tenant or to any other person for, and Tenant hereby releases Landlord
from (a) any and all liability for theft or damage to Tenant's Property, and (b)
any and all liability for any injury to Tenant or its employees, agents,
contractors, guests and invitees in or about the Leased Premises, the Building
or the Common Areas, except to the extent of personal injury (but not property
loss or damage) caused directly by the negligence or willful misconduct of
Landlord, its agents, employees or contractors. Nothing contained in this
Section 8.01 shall limit (or be deemed to limit) the waivers contained in
Section 8.06 below. In the event of any conflict between the provisions of
Section 8.06 below and this Section 8.01, the provisions of Section 8.06 shall
prevail. This Section 8.01 shall survive the expiration or earlier termination
of this Lease.
Section 8.02 INDEMNIFICATION BY TENANT. Tenant shall protect, defend,
indemnify and hold Landlord, its agents, employees and contractors harmless from
and against any and all claims, damages, demands, penalties, costs, liabilities,
losses, and expenses (including without limitation reasonable attorneys' fees
and expenses at the trial and appellate levels) to the extent (a) arising out of
or relating to any act, omission, negligence, or willful misconduct of Tenant or
Tenant's agents, employees, contractors, customers or invitees in or about the
Leased Premises, the Building or the Common Areas, (b) arising out of or
relating to any of Tenant's Property, or (c) arising out of any other act or
occurrence within the Leased Premises, in all such cases except to the extent of
personal injury (but not property loss or damage) caused directly by the
negligence or willful misconduct of Landlord, its agents, employees or
contractors. Nothing contained in this Section 8.02 shall limit (or be deemed to
limit) the waivers contained in Section 8.06 below. In the event of any conflict
between the provisions of Section 8.06 below and this Section 8.02, the
provisions of Section 8.06 shall prevail. This Section 8.02 shall survive the
expiration or earlier termination of this Lease.
Section 8.03 INDEMNIFICATION BY LANDLORD. Landlord shall protect, defend,
indemnify and hold Tenant, its agents, employees and contractors harmless from
and against any and all claims, damages, demands, penalties, costs, liabilities,
losses and expenses (including without limitation reasonable attorneys' fees and
expenses at the trial and appellate levels) to the extent arising out of or
relating to negligence or willful misconduct of Landlord or Landlord's agents,
employees or contractors. Nothing contained in this Section 8.03 shall limit (or
be deemed to limit) the waivers contained in Section 8.06 below. In the event of
any conflict between the provisions of Section 8.06 below and this Section 8.03,
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the provisions of Section 8.06 shall prevail. This Section 8.03 shall survive
the expiration or earlier termination of this Lease.
Section 8.04 TENANT'S INSURANCE. Tenant shall purchase, at its own
expense, and keep in force at all times during the Lease Term the policies of
insurance set forth below (collectively, "Tenant's Policies"). All Tenant's
Policies shall (a) be issued by an insurance company with a Best's rating of A-
or better and otherwise reasonably acceptable to Landlord and shall be licensed
to do business in the state in which the Leased Premises is located; (b) provide
that said insurance shall not be canceled or materially modified unless 30 days'
prior written notice shall have been given to Landlord; (c) provide for
deductible amounts that are reasonably acceptable to Landlord (and its lender,
if applicable) and (d) otherwise be in such form, and include such coverages, as
Landlord may reasonably require. The Tenant's Policies described in (i) and (ii)
below shall (1) provide coverage on an occurrence basis; (2) name Landlord (and
its lender, if applicable) as additional insured; (3) provide coverage, to the
extent insurable, for the indemnity obligations of Tenant under this Lease; (4)
contain a separation of insured parties provision; (5) be primary, not
contributing with, and not in excess of, coverage that Landlord may carry; and
(6) provide coverage with no exclusion for a pollution incident arising from a
hostile fire. All Tenant's Policies (or, at Landlord's option, Certificates of
Insurance and applicable endorsements, including, without limitation, an
"Additional Insured-Managers or Landlords of Premises" endorsement) shall be
delivered to Landlord prior to the Commencement Date and renewals thereof shall
be delivered to Landlord's notice addresses at least 30 days prior to the
applicable expiration date of each Tenant's Policy. In the event that Tenant
fails, at any time or from time to time, to comply with the requirements of the
preceding sentence and such failure continues for 10 days following written
notice thereof from Landlord, Landlord may (A) order such insurance and charge
the cost thereof to Tenant, which amount shall be payable by Tenant to Landlord
upon demand, as Additional Rent or (B) impose on Tenant, as Additional Rent, a
monthly delinquency fee, for each month during which Tenant fails to comply with
the foregoing obligation, in an amount equal to five percent (5%) of the Monthly
Rental Installments then in effect. Tenant shall give prompt notice to Landlord
and Agent of any bodily injury, death, personal injury, advertising injury or
property damage occurring in and about the Property.
Tenant shall purchase and maintain, throughout the Term, a Tenant's
Policy(ies) of: (i) commercial general or excess liability insurance, including
personal injury and property damage, in the amount of not less than
$2,000,000.00 per occurrence, and $5,000,000.00 annual general aggregate, per
location; (ii) comprehensive automobile liability insurance covering Tenant
against any personal injuries or deaths of persons and property damage based
upon or arising out of the ownership, use, occupancy or maintenance of a motor
vehicle at the Leased Premises and all areas appurtenant thereto in the amount
of not less than $1,000,000, combined single limit; (iii) commercial property
insurance covering Tenant's Property (at its full replacement cost); (iv)
workers' compensation insurance per the applicable state statutes covering all
employees of Tenant; (v) business interruption insurance with limits not less
than an amount equal to one (1) year's rent due hereunder; and if Tenant
handles, stores or utilizes Hazardous Substances in its business operations
(other than customary office and manufacturing products), (vi) pollution legal
liability insurance.
Section 8.05 LANDLORD'S INSURANCE. During the Lease Term, Landlord shall
maintain the following types of insurance (the cost of which shall be included
in Operating Expenses): (a) a commercial property insurance policy covering the
Building (at its full replacement cost), but excluding Tenant's personal
property and any improvements or alterations made by Tenant; (b) commercial
general public liability insurance covering Landlord for claims arising out of
liability for bodily injury, death, personal injury, advertising injury and
property damage occurring in and about the Building and otherwise resulting from
any acts or omissions of Landlord, its agents and employees; (c) rent loss
insurance; and (d) any other insurance coverage deemed appropriate by Landlord
or required by Landlord's lender. All of the coverages described in (a) through
(d) shall be determined from time to
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time by Landlord, in its sole discretion. All insurance maintained by Landlord
shall be in addition to and not in lieu of the insurance required to be
maintained by the Tenant.
Section 8.06 WAIVER OF SUBROGATION. Notwithstanding anything contained in
this Lease to the contrary, Landlord and Tenant hereby waive any rights each may
have against the other on account of any loss of or damage to their respective
property, the Leased Premises, its contents, or other portions of the Building
or Common Areas arising from any risk which is covered or required to be covered
by the insurance maintained by the waiving party pursuant to this Lease. The
special form coverage insurance policies maintained by Landlord and Tenant as
provided in this Lease shall include an endorsement containing an express waiver
of any rights of subrogation by the insurance company against Landlord and
Tenant, as applicable.
ARTICLE 9 CASUALTY
In the event of total or partial destruction of the Building or the Leased
Premises by fire or other casualty, Landlord agrees promptly to restore and
repair same; provided, however, Landlord's obligation hereunder with respect to
the Leased Premises shall be limited to the reconstruction of such of the
leasehold improvements as were originally in place at the time of the
Commencement Date or required to be made by Landlord pursuant to Section 2.02
above, if any. Rent shall proportionately xxxxx during the time that the Leased
Premises or part thereof are unusable because of any such damage.
Notwithstanding the foregoing, if the Leased Premises are (a) so destroyed that
they cannot be repaired or rebuilt within two hundred ten (210) days from the
casualty date; or (b) destroyed by a casualty that is not covered by the
insurance required hereunder or, if covered, such insurance proceeds are not
released by any mortgagee entitled thereto or are insufficient to rebuild the
Building and the Leased Premises; then, in case of a clause (a) casualty, either
Landlord or Tenant may, or, in the case in the case of a clause (b) casualty,
then Landlord may, upon thirty (30) days' written notice to the other party,
terminate this Lease with respect to matters thereafter accruing. Tenant waives
any right under applicable laws inconsistent with the terms of this paragraph.
Notwithstanding anything in this Lease to the contrary, if (i) the Leased
Premises is damaged or destroyed during the last twelve (12) months of the Term;
or (ii) Landlord fails to substantially complete its repair or restoration
obligations within two hundred ten (210) days following the date of such
casualty, then Tenant may terminate the Lease by delivering written notice to
Landlord of its election to terminate within thirty (30) days after the casualty
with respect to (i) above, or, with respect to (ii) above, at any time after the
expiration of the applicable time period giving rise to Tenant's right to
terminate, provided, that Tenant's notice of termination shall be deemed null
and void if Landlord substantially completes the Leased Premises within sixty
(60) days following receipt of Tenant's termination notice.
ARTICLE 10 EMINENT DOMAIN
If all or any substantial part of the Building or Common Areas shall be
acquired by the exercise of eminent domain, Landlord may terminate this Lease by
giving written notice to Tenant on or before the date possession thereof is so
taken. If all or any part of the Leased Premises shall be acquired by the
exercise of eminent domain so that the Leased Premises shall become impractical
for Tenant to use for the Permitted Use, Tenant may terminate this Lease by
giving written notice to Landlord as of the date possession thereof is so taken.
All damages awarded shall belong to Landlord; provided, however, that Tenant may
claim dislocation damages and the unamortized value or any leasehold
improvements.
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ARTICLE 11 ASSIGNMENT AND SUBLEASE
Section 11.01 ASSIGNMENT AND SUBLEASE.
(a) Tenant shall not assign this Lease or sublet the Leased Premises in
whole or in part without Landlord's prior written consent. In the event of any
assignment or subletting, Tenant shall remain primarily liable hereunder. In
addition, in the event of any assignment of the Lease or the subletting or more
than twenty percent (20%) of the rentable square feet of the Leased Premises,
any renewal, extension, expansion, rights of first offer, rights of first
refusal or other rights or options granted to Tenant under this Lease shall be
rendered void and of no further force or effect. The acceptance of rent from any
other person shall not be deemed to be a waiver of any of the provisions of this
Lease or to be a consent to the assignment of this Lease or the subletting of
the Leased Premises. Any assignment or sublease consented to by Landlord shall
not relieve Tenant (or its assignee) from obtaining Landlord's consent to any
subsequent assignment or sublease.
(b) By way of example and not limitation, Landlord shall be deemed to have
reasonably withheld consent to a proposed assignment or sublease if in
Landlord's opinion (i) the Leased Premises are or may be in any way adversely
affected; (ii) the business reputation of the proposed assignee or subtenant is
unacceptable; (iii) the financial worth of the proposed assignee or subtenant is
insufficient to meet the obligations hereunder, or (iv) the prospective assignee
or subtenant is a current tenant at the Building or is a bona-fide third-party
prospective tenant. Landlord further expressly reserves the right to refuse to
give its consent to any subletting if the proposed rent is advertised to the
general public (not including being offered and available through a broker of
Tenant) to be less than the then current rent for similar premises in the
Building.
(c) If Tenant shall make any assignment or sublease, with Landlord's
consent, for a rental in excess of the rent payable under this Lease after
deducting Tenant's reasonable out of pocket costs to procure and execute such
assignment or sublease, Tenant shall pay to Landlord fifty percent (50%) of any
such excess rental upon receipt. Tenant agrees to reimburse Landlord upon demand
for Landlord's reasonable accounting and attorneys' fees incurred in conjunction
with the processing and documentation of any requested assignment, subletting or
any other hypothecation of this Lease or Tenant's interest in and to the Leased
Premises, whether or not Landlord consents thereto.
Section 11.02 PERMITTED TRANSFER. Notwithstanding anything to the contrary
contained in Section 11.01 above, Tenant shall have the right, without
Landlord's consent, but upon not less than ten (10) days' prior notice to
Landlord, to (a) sublet all or part of the Leased Premises to any related
corporation or other entity which controls Tenant, is controlled by Tenant or is
under common control with Tenant; (b) assign all or any part of this Lease to
any related corporation or other entity which controls Tenant, is controlled by
Tenant, or is under common control with Tenant, or to a successor entity into
which or with which Tenant is merged or consolidated or which acquires
substantially all of Tenant's stock, assets or property; or (c) effectuate any
public offering of Tenant's stock on the New York Stock Exchange or in the
NASDAQ over the counter market, provided that in the event of a transfer
pursuant to clause (b), the tangible net worth of Tenant's successor entity
after any such transaction (on a pro forma basis) is not less than the tangible
net worth of Tenant as of the date hereof and provided further that such
successor entity assumes all of the obligations and liabilities of Tenant (any
such entity hereinafter referred to as a "Permitted Transferee"). For the
purpose of this Article 11 (i) "control" shall mean
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ownership of not less than fifty percent (50%) of all voting stock or legal and
equitable interest in such corporation or entity, and (ii) "tangible net worth"
shall mean the excess of the value of tangible assets (i.e. assets excluding
those which are intangible such as goodwill, patents and trademarks) over
liabilities. Any such transfer shall not relieve Tenant of its obligations under
this Lease. Nothing in this paragraph is intended to nor shall permit Tenant to
transfer its interest under this Lease as part of a fraud or subterfuge to
intentionally avoid its obligations under this Lease (for example, transferring
its interest to a shell corporation that subsequently files a bankruptcy), and
any such transfer shall constitute a Default hereunder. Any change in control of
Tenant resulting from a merger, consolidation, or a transfer of partnership or
membership interests, a stock transfer, or any sale of substantially all of the
assets of Tenant (other than as the result of transfers of any of Tenant's
publicly-traded stock) that do not meet the requirements of this Section 11.02
shall be deemed an assignment or transfer that requires Landlord's prior written
consent pursuant to Section 11.01 above.
ARTICLE 12 TRANSFERS BY LANDLORD
Section 12.01 SALE OF THE BUILDING. Landlord shall have the right to sell
the Building at any time during the Lease Term, subject only to the rights of
Tenant hereunder; and such sale shall operate to release Landlord from liability
hereunder after the date of such conveyance.
Section 12.02 ESTOPPEL CERTIFICATE. Within ten (10) days following receipt
of a written request from Landlord or Tenant, Tenant or Landlord, as applicable,
shall execute and deliver to the other party, without cost to the other party,
an estoppel certificate in such form as the other party may reasonably request
certifying (a) that this Lease is in full force and effect and unmodified or
stating the nature of any modification, (b) the date to which rent has been
paid, (c) that there are not, to the non-requesting party's knowledge, any
uncured Defaults or specifying such Defaults if any are claimed, and (d) any
other matters or state of facts reasonably required respecting the Lease. Such
estoppel may be relied upon by Tenant, Landlord and by any purchaser or
mortgagee of the Building or any party to a strategic transaction with Tenant.
Section 12.03 SUBORDINATION. This Lease shall be automatically subordinate
to any mortgage, deed to secure debt, ground lease, deed of trust or other
instrument in the nature thereof, and any amendments or modifications thereto
(collectively, a "Mortgage") presently existing or hereafter encumbering the
Building without the need for any further act by any party. However, within ten
(10) days following receipt of a written request from Landlord, Tenant shall
execute and deliver to Landlord, without cost, any instrument that Landlord
deems reasonably necessary or desirable to confirm the subordination of this
Lease ; provided, however, that the subordination of this Lease to any mortgage
or ground lease entered into after the date of this Lease shall be upon the
express condition that so long as Tenant is not in default of the Lease beyond
applicable notice and cure periods, Tenant's possession and enjoyment of the
Leased Premises and Tenant's rights under the Lease shall not be disturbed or
interfered with in the event of a foreclosure of such Mortgage or the exercise
of any rights thereunder. Within 30 days of the execution of this Lease,
Landlord agrees to use reasonable efforts to obtain and deliver to Tenant a
subordination, non-disturbance and attornment agreement from its current lender
for the benefit of Tenant in a form reasonably acceptable to Tenant and such
lender.
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ARTICLE 13 DEFAULT AND REMEDY
Section 13.01 DEFAULT. The occurrence of any of the following shall be
a "Default":
(a) Tenant fails to pay any Monthly Rental Installments or Additional Rent
within five (5) days after Tenant has received written notice of the delinquent
payment from or on behalf of Landlord; provided, however, Landlord need not give
any such written notice for non-payment more than twice in any twelve (12) month
period; for the balance of such twelve (12) month period a Default shall have
occurred if a payment of any Base Rent is more than five (5) days past due, with
or without notice from Landlord.
(b) Tenant fails to perform or observe any other term, condition, covenant
or obligation required under this Lease for a period of thirty (30) days after
written notice thereof from Landlord; provided, however, that if the nature of
Tenant's Default is such that more than thirty (30) days are reasonably required
to cure, then Tenant shall have such additional time to cure such Default as is
reasonably necessary under the circumstances in question, provided that Tenant
commences such curative efforts as soon as is reasonably practical within said
thirty (30) day period and thereafter diligently completes the required action
within a reasonable time (not to exceed sixty (60) additional days).
(c) Tenant shall assign or sublet all or a portion of the Leased Premises
in contravention of the provisions of Article 11 of this Lease and the same is
not cured within thirty (30) days after written notice thereof from Landlord.
(d) All or substantially all of Tenant's assets in the Leased Premises or
Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is filed
by or against Tenant (and Tenant fails to secure a stay or discharge thereof
within sixty (60) days thereafter); Tenant is insolvent and unable to pay its
debts as they become due; Tenant makes a general assignment for the benefit of
creditors; Tenant takes the benefit of any insolvency action or law; the
appointment of a receiver or trustee in bankruptcy for Tenant or its assets if
such receivership has not been vacated or set aside within sixty (60) days
thereafter; or, dissolution or other termination of Tenant's corporate charter
if Tenant is a corporation.
In addition to the Defaults described above, the parties agree that if
Tenant receives written notice of the occurrence of any default above (but not
necessarily the same) three (3) or more times during any twelve (12) month
period, regardless of whether such defaults are ultimately cured, then such
conduct shall, at Landlord's option, represent a separate Default.
Section 13.02 REMEDIES. Upon the occurrence of any Default , Landlord
shall have the following rights and remedies, in addition to those stated
elsewhere in this Lease and those allowed by law or in equity, any one or more
of which may be exercised without further notice to Tenant:
(a) Landlord may re-enter the Leased Premises and cure any Default of
Tenant, and Tenant shall reimburse Landlord as Additional Rent for any costs and
expenses which Landlord thereby incurs; and Landlord shall not be liable to
Tenant for any loss or damage which Tenant may sustain by reason of Landlord's
action.
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(b) Without terminating this Lease, Landlord may terminate Tenant's right
to possession of the Leased Premises, and thereafter, neither Tenant nor any
person claiming under or through Tenant shall be entitled to possession of the
Leased Premises, and Tenant shall immediately surrender the Leased Premises to
Landlord, and Landlord may re-enter the Leased Premises and dispossess Tenant
and any other occupants of the Leased Premises by any lawful means and may
remove their effects, without prejudice to any other remedy that Landlord may
have. Upon termination of possession, Landlord may (i) re-let all or any part
thereof for a term different from that which would otherwise have constituted
the balance of the Lease Term and for rent and on terms and conditions different
from those contained herein, whereupon Tenant shall be immediately obligated to
pay to Landlord an amount equal to the present value (discounted at the Prime
Rate) of the difference between the rent provided for herein and that provided
for in any lease covering a subsequent re-letting of the Leased Premises, for
the period which would otherwise have constituted the balance of the Lease Term
(the "Accelerated Rent Difference"), or (ii) without re-letting, declare to be
immediately due and payable the difference between the present value (discounted
at the Prime Rate less 3%) of all rent which would have been due under this
Lease for the balance of the Lease Term to be immediately due and payable as
liquidated damages (the "Accelerated Rent") and the fair market rental value of
the Leased Premises for the same period of time (the "Fair Market Rental"), as
determined by an appraiser selected by Landlord, based upon recently completed
comparable lease transactions in the Building and the leasing submarket (the
Horsham, Xxxxxxxxxx County submarket) in which Leased Premises is located,
similarly discounted to present value (such difference being referred to as the
"Accelerated Fair Market Difference"). Upon termination of possession, Tenant
shall be obligated to pay to Landlord (A) the Accelerated Rent Difference or the
Accelerated Fair Market Difference, whichever is applicable, (B) all loss or
damage that Landlord may sustain by reason of Tenant's Default ("Default
Damages"), which shall include, without limitation, expenses of preparing the
Leased Premises for re-letting, demolition, repairs, tenant finish improvements,
brokers' commissions and attorneys' fees, and (C) all unpaid Minimum Annual Rent
and Additional Rent that accrued prior to the date of termination of possession,
plus any interest and late fees due hereunder (the "Prior Obligations").
(c) Landlord may terminate this Lease and declare the Accelerated Rent
Difference or the Accelerated Fair Market Difference, whichever is applicable,
to be immediately due and payable, whereupon Tenant shall be obligated to pay to
Landlord (i) the Accelerated Rent Difference or the Accelerated Fair Market
Difference, whichever is applicable, (ii) all of Landlord's Default Damages, and
(iii) all Prior Obligations. It is expressly agreed and understood that all of
Tenant's liabilities and obligations set forth in this subsection (c) shall
survive termination.
(d) Landlord and Tenant acknowledge and agree that the payment of the
Accelerated Rent Difference or the Accelerated Fair Market Difference as set
above shall not be deemed a penalty or forfeiture, but merely shall constitute
payment of liquidated damages, it being understood that actual damages to
Landlord are extremely difficult, if not impossible, to ascertain. Neither the
filing of a dispossessory proceeding nor an eviction of personalty in the Leased
Premises shall be deemed to terminate the Lease.
(e) Landlord may xxx for injunctive relief or to recover damages for
any loss resulting from the Default.
(f) In addition to, and not in lieu of any of the foregoing rights
granted to Landlord:
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TENANT HEREBY EMPOWERS ANY PROTHONOTARY, CLERK OF COURT OR ATTORNEY OF ANY COURT
OF RECORD TO APPEAR FOR TENANT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR
ANY RENT, OR ANY CHARGES HEREBY RESERVED OR DESIGNATED AS RENT OR ANY OTHER SUM
PAYABLE BY TENANT TO LANDLORD UNDER OR BY REASON OF THIS LEASE (INCLUDING,
WITHOUT LIMITATION, ANY SUM PAYABLE UNDER SECTION 13.2), AND TO SIGN FOR TENANT
AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTION OR ACTIONS FOR THE
RECOVERY OF SAID RENT, CHARGES AND OTHER SUMS, AND IN SAID SUIT OR IN SAID
ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST TENANT FOR ALL OR ANY PART OF THE
RENT SPECIFIED IN THIS LEASE AND THEN UNPAID INCLUDING, AT LANDLORD'S OPTION,
THE RENT FOR THE ENTIRE UNEXPIRED BALANCE OF THE TERM OF THIS LEASE, AND ALL OR
ANY PART OF ANY OTHER OF SAID CHARGES OR SUMS, AND FOR INTEREST AND COSTS
TOGETHER WITH REASONABLE ATTORNEY'S FEES OF 5% OF SUCH SUMS. SUCH AUTHORITY
SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS
AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF SAID RENT OR SUCH OTHER SUMS,
CHARGES, PAYMENTS, COSTS AND EXPENSES SHALL FALL DUE OR BE IN ARREARS, AND SUCH
POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE TERM OR DURING ANY
EXTENSION OR RENEWAL OF THIS LEASE.
WHEN THIS LEASE OR TENANT'S RIGHT OF POSSESSION SHALL BE TERMINATED BY COVENANT
OR CONDITION BROKEN, OR FOR ANY OTHER REASON, EITHER DURING THE TERM OF THIS
LEASE OR ANY RENEWAL OR EXTENSION THEREOF, AND ALSO WHEN AND AS SOON AS THE TERM
HEREBY CREATED OR ANY EXTENSION THEREOF SHALL HAVE EXPIRED, IT SHALL BE LAWFUL
FOR ANY ATTORNEY AS ATTORNEY FOR TENANT TO FILE AN AGREEMENT FOR ENTERING IN ANY
COMPETENT COURT AN ACTION TO CONFESS JUDGMENT IN EJECTMENT AGAINST TENANT AND
ALL PERSONS CLAIMING UNDER TENANT, WHEREUPON, IF LANDLORD SO DESIRES, A WRIT OF
EXECUTION OR OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OF
PROCEEDINGS, WHATSOEVER, AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION
SHALL HAVE BEEN COMMENCED THE SAME SHALL BE DETERMINED AND THE POSSESSION OF THE
LEASED PREMISES HEREBY DEMISED REMAIN IN OR BE RESTORED TO TENANT, LANDLORD
SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE
TERMINATION OF THIS LEASE AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE ACTION
OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE SAID LEASED
PREMISES.
In any action to confess judgment in ejectment or for rent in arrears, Landlord
shall first cause to be filed in such action an affidavit made by it or someone
acting for it setting forth the facts necessary to authorize the entry of
judgment, of which facts such affidavit shall be conclusive evidence, and if a
true copy of this Lease (and of the truth of the copy such affidavit shall be
sufficient evidence) be filed in such action, it shall not be necessary to file
the original as a warrant of attorney, any rule of Court, custom or practice to
the contrary notwithstanding.
Section 13.03 LANDLORD'S DEFAULT AND TENANT'S REMEDIES. Landlord shall be
in default if it fails to perform any term, condition, covenant or obligation
required under this Lease for a period of thirty (30) days after written notice
thereof from Tenant to Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is such that it cannot
reasonably be performed within thirty (30) days, such default shall be deemed to
have been cured if Landlord commences such performance within said thirty-day
period and thereafter diligently undertakes to complete the same. Upon the
occurrence of any such default, Tenant may xxx for injunctive relief or to
recover damages for
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any loss directly resulting from the breach, but Tenant shall not be entitled to
terminate this Lease or withhold, offset or xxxxx any sums due hereunder.
Section 13.04 LIMITATION OF LANDLORD'S LIABILITY. If Landlord shall fail
to perform any term, condition, covenant or obligation required to be performed
by it under this Lease and if Tenant shall, as a consequence thereof, recover a
money judgment against Landlord, Tenant agrees that it shall look solely to
Landlord's right, title and interest in and to the Building, nor of any owner,
partner, member or manager in or of Landlord, for the collection of such
judgment; and Tenant further agrees that no other assets of Landlord shall be
subject to levy, execution or other process for the satisfaction of Tenant's
judgment.
Section 13.05 NONWAIVER OF DEFAULTS. Neither party's failure or delay in
exercising any of its rights or remedies or other provisions of this Lease shall
constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the Lease Term shall be
deemed an acceptance of a surrender of the Leased Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
Section 13.06 ATTORNEYS' FEES. If either party defaults in the performance
or observance of any of the terms, conditions, covenants or obligations
contained in this Lease and the non-defaulting party obtains a judgment against
the defaulting party, then the defaulting party agrees to reimburse the
non-defaulting party for reasonable attorneys' fees incurred in connection
therewith. In addition, if a monetary Default shall occur and Landlord engages
outside counsel to exercise its remedies hereunder, and then Tenant cures such
monetary Default, Tenant shall pay to Landlord, on demand, all expenses incurred
by Landlord as a result thereof, including reasonable attorneys' fees, court
costs and expenses.
ARTICLE 14 TENANT'S RESPONSIBILITY REGARDING ENVIRONMENTAL LAWS AND HAZARDOUS
SUBSTANCES
Section 14.01 ENVIRONMENTAL DEFINITIONS.
(a) "Environmental Laws" shall mean all present or future federal, state
and municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, and the rules and
regulations of the Federal Environmental Protection Agency and any other
federal, state or municipal agency or governmental board or entity now or
hereafter having jurisdiction over the Leased Premises.
(b) "Hazardous Substances" shall mean those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances"
"solid waste" or "infectious waste" under Environmental Laws and petroleum
products.
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Section 14.02 RESTRICTIONS ON TENANT. Tenant shall not cause or permit the
use, generation, release, manufacture, refining, production, processing, storage
or disposal of any Hazardous Substances on, under or about the Leased Premises,
or the transportation to or from the Leased Premises of any Hazardous
Substances, except as necessary and appropriate for its Permitted Use in which
case the use, storage or disposal of such Hazardous Substances shall be
performed in compliance with the Environmental Laws and the highest standards
prevailing in the industry.
Section 14.03 NOTICES, AFFIDAVITS, ETC. Tenant shall immediately (a)
notify Landlord of (i) any actual or alleged violation by Tenant, its employees,
agents, representatives, customers, invitees or contractors of any Environmental
Laws on, under or about the Leased Premises, or (ii) the presence or suspected
presence of any Hazardous Substances on, under or about the Leased Premises, and
(b) deliver to Landlord any notice received by Tenant relating to (a)(i) and
(a)(ii) above from any source. Tenant shall execute affidavits, representations
and the like within five (5) days of Landlord's request therefor concerning
Tenant's best knowledge and belief regarding the presence of any Hazardous
Substances on, under or about the Leased Premises.
Section 14.04 TENANT'S INDEMNIFICATION. Tenant shall indemnify Landlord
and Landlord's managing agent from any and all claims, losses, liabilities,
costs, expenses and damages, including without limitation reasonable attorneys'
fees, costs of testing and remediation costs, incurred by Landlord in connection
with any breach by Tenant of its obligations under this Article 14. The
covenants and obligations under this Article 14 shall survive the expiration or
earlier termination of this Lease.
Section 14.05 LANDLORD'S REPRESENTATIONS AND INDEMNIFICATION. Landlord
represents to Tenant that, as of the date of this Lease, Landlord has no actual
knowledge of the presence of any Hazardous Substances at the Property requiring
remediation under applicable law. Landlord shall indemnify and defend Tenant
against and hold Tenant harmless from all claims, liabilities, costs, expenses,
losses and damages (including reasonable attorneys fees' and disbursements) that
Tenant may incur in connection with claims arising from (i) any Hazardous
Substances introduced at, on, about or under the Leased Premises, the Building
or the Property by any act of Landlord or its agents, officers, employees,
contractors, invitees or licensees, or (ii) any Hazardous Substances which
existed or were present or introduced at, on, about or under the Leased
Premises, the Building or the Property prior to the Commencement Date of this
Lease, or (iii) any breach of the foregoing representation by Landlord. The
covenants and obligations under this Section 14.05 shall survive the expiration
or earlier termination of this Lease.
ARTICLE 15 MISCELLANEOUS
Section 15.01 BENEFIT OF LANDLORD AND TENANT. This Lease shall inure to
the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
Section 15.02 GOVERNING LAW. This Lease shall be governed in accordance
with the laws of the State where the Building is located.
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Section 15.03 FORCE MAJEURE. Landlord and Tenant (except with respect to
the payment of any monetary obligation) shall be excused for the period of any
delay in the performance of any non-monetary obligation hereunder when such
delay is occasioned by causes beyond its control, including but not limited to
work stoppages, boycotts, slowdowns or strikes; shortages of materials,
equipment, labor or energy; unusual weather conditions; or acts or omissions of
governmental or political bodies.
Section 15.04 EXAMINATION OF LEASE. Submission of this instrument by
Landlord to Tenant for examination or signature does not constitute an offer by
Landlord to lease the Leased Premises. This Lease shall become effective, if at
all, only upon the execution by and delivery to both Landlord and Tenant.
Execution and delivery of this Lease by Tenant to Landlord constitutes an offer
to lease the Leased Premises on the terms contained herein.
Section 15.05 INDEMNIFICATION FOR LEASING COMMISSIONS. The parties hereby
represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are the Brokers and that no other party
is entitled, as a result of the actions of the respective party, to a commission
or other fee resulting from the execution of this Lease. Each party shall
indemnify the other from any and all liability for the breach of this
representation and warranty on its part and shall pay any compensation to any
other broker or person who may be entitled thereto. Landlord shall pay any
commissions due Brokers based on this Lease pursuant to separate agreements
between Landlord and Brokers.
Section 15.06 NOTICES. Any notice required or permitted to be given under
this Lease or by law shall be deemed to have been given if it is written and
delivered in person or by overnight courier or mailed by certified mail, postage
prepaid, to the party who is to receive such notice at the address specified in
Section 1.01(k). If sent by overnight courier, the notice shall be deemed to
have been given one (1) day after sending. If mailed postage prepaid, the notice
shall be deemed to have been given on the date that is three (3) business days
following mailing. Either party may change its address by giving written notice
thereof to the other party.
Section 15.07 PARTIAL INVALIDITY; COMPLETE AGREEMENT. If any provision of
this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions shall remain in full force and effect. This Lease represents the
entire agreement between Landlord and Tenant covering everything agreed upon or
understood in this transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties. No change or addition shall be made to this Lease except by a written
agreement executed by Landlord and Tenant.
Section 15.08 FINANCIAL INFORMATION. From time to time during the Lease
Term when Tenant is not a company that files periodic financial reports with the
Securities and Exchange Commission, but not more than twice per calendar year,
except in connection with prospective purchasers or lenders, Tenant shall
deliver to Landlord information and documentation describing and concerning
Tenant's financial condition certified by an officer of Tenant within twenty
(20) days following Landlord's written request therefor. Upon Landlord's
request, Tenant shall provide to Landlord the most currently available audited
financial statement of Tenant; and if no such audited financial statement is
available, then Tenant shall instead deliver to Landlord its most currently
available balance sheet and income statement, certified by an officer of Tenant.
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Section 15.09 WAIVER OF JURY TRIAL. THE LANDLORD AND THE TENANT, TO THE
FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BROUGHT BY ANY PARTY TO THIS LEASE WITH RESPECT TO THIS
LEASE, THE LEASED PREMISES, OR ANY OTHER MATTER RELATED TO THIS LEASE OR THE
LEASED PREMISES.
Section 15.10 REPRESENTATIONS AND WARRANTIES.
(a) Tenant hereby represents and warrants that (i) Tenant is duly
organized, validly existing and in good standing (if applicable) in accordance
with the laws of the State under which it was organized; (ii) Tenant is
authorized to do business in the State where the Building is located; and (iii)
the individual(s) executing and delivering this Lease on behalf of Tenant has
been properly authorized to do so, and such execution and delivery shall bind
Tenant to its terms.
(b) Landlord hereby represents and warrants that (i) Landlord is duly
organized, validly existing and in good standing (if applicable) in accordance
with the laws of the State under which it was organized; (ii) Landlord is
authorized to do business in the State where the Building is located; and (iii)
the individual(s) executing and delivering this Lease on behalf of Landlord has
been properly authorized to do so, and such execution and delivery shall bind
Landlord to its terms.
Section 15.11 SIGNAGE. Tenant shall not erect any signage without
Landlord's prior written consent as to size, location and style. All signage in
or about the Leased Premises shall be in compliance with the any codes and
recorded restrictions applicable to the sign or the Building. Tenant agrees to
maintain any sign in good state of repair, and upon expiration of the Lease
Term, Tenant agrees to promptly remove such signs and repair any damage to the
Leased Premises. Tenant shall have the right to install its signage on the
monument sign for the Building, upon Landlord's prior approval of the signage,
which consent shall not be unreasonably withheld or delayed.
Section 15.12 PARKING. Tenant shall be entitled to the non-exclusive use
of the parking spaces on the Property. Tenant agrees not to overburden the
parking facilities and agrees to cooperate with Landlord and other tenants in
the use of the parking facilities. Landlord reserves the right in its absolute
discretion to determine whether parking facilities are becoming crowded and, in
such event, to allocate parking spaces between Tenant and other tenants
equitably based upon each tenant's particular use of the Building. There will be
no assigned parking unless Landlord, in its sole discretion, deems such assigned
parking advisable. No vehicle may be repaired or serviced in the parking area
and any vehicle brought into the parking area by Tenant, or any of Tenant's
employees, contractors or invitees, and deemed abandoned by Landlord will be
towed and all costs thereof shall be borne by the Tenant. All driveways, ingress
and egress, and all parking spaces are for the joint use of all tenants. In
addition, Tenant agrees that its employees will not park in the spaces
designated visitor parking.
Section 15.13 TIME. Time is of the essence of each term and provision of
this Lease.
Section 15.14 CONTINGENCY. This Lease and Tenant's right to early
occupancy under this Lease are contingent upon the Landlord executing a lease
termination agreement with JDS Uniphase Corporation, in form acceptable to
Landlord, by September 29, 2006 (the "Contingency Date"). Landlord shall notify
Tenant in writing on or before the Contingency Date as to whether the foregoing
contingency has been satisfied or waived. In the event that Landlord provides
notice that the contingency has not been satisfied or waived prior to the close
of business on the Contingency Date, then Landlord shall have the
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right, but not the obligation, by written notice to the other party given prior
to the close of business on the Contingency Date to terminate this Lease.
Section 15.15 RIGHT OF FIRST OFFER. Subject to any rights of first offer
granted to tenants under existing leases at the Property, Landlord hereby grants
Tenant a one time right of first offer with respect to space that is contiguous
to the Leased Premises (the "First Offer Space"). Provided that Tenant is not
then in Default hereunder, at such time that Landlord elects to actively market
the First Offer Space, Landlord shall give Tenant written notice of the terms
pursuant to which Landlord is willing to lease the First Offer Space to Tenant.
Unless (a) within ten (10) days following receipt of Landlord's notice Tenant
gives Landlord written notice accepting Landlord's proposed terms, AND (b)
within thirty (30) days following Tenant's notice or the parties' agreement to
terms as described in (a), Tenant executes and delivers to Landlord the
amendment to this Lease prepared by Landlord with respect to the First Offer
Space with terms substantially similar to this Lease (other than as to price),
from and after such applicable date (the "Trigger Date") Landlord shall be free
to lease the First Offer Space to any other person and on any terms, without any
further obligation to Tenant; provided that if Landlord fails to enter into a
lease for the First Offer Space within 90 days of the Trigger Date, then the
First Offer Space shall again be subject to the right of first offer of Tenant
as provided by this Section 15.15.
Tenant acknowledges and agrees that the right of first offer and any other
rights granted under this Section 15.15 are granted exclusively to Tenant and
not to any assignee or sublessee of Tenant; provided, however that the rights
set forth herein shall, provided the same have not otherwise been previously
terminated, be available to any assignee of the entirety of Tenant's interest
hereunder, provided such assignee is a permitted assignee under and pursuant to
Section 11.02 of this Lease.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and year first above written.
LANDLORD:
200 PRECISION DRIVE INVESTORS, LLC,
a Delaware limited liability company
By: RFP High Street Investors, LLC,
its sole member
By: High Street Real Estate Fund I, LLC
its managing member
By: High Street Equity Advisors LLC,
Its managing member
By: /s/ [Illegible]
------------------------------------
Name: [Illegible]
Title: Authorized Member
TENANT:
OPTIUM CORPORATION
A Delaware corporation
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: CEO
-------------------------------
Attest:
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
--------------------------------
Title: General Counsel
-------------------------------
[CORPORATE SEAL]
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EXHIBIT A
SITE PLAN OF LEASED PREMISES
[GRAPHIC]
EXHIBIT B
TENANT IMPROVEMENTS
1. TENANT ALLOWANCE. As a material inducement to Tenant to enter into this
Lease, Landlord hereby agrees to provide to Tenant an allowance in the amount
$159,392.50 (the "Tenant Allowance") to be used for the constructing of the
Tenant Improvements, fixturing of the Leased Premises and moving expenses.
Landlord shall pay the Tenant Allowance to Tenant, whether or not the expenses
have yet been incurred, within ten (10) business days following the Commencement
Date, provided that (a) Tenant is not in default under this Lease, and (b)
Tenant has commenced business operations in the Leased Premises.
2. EARLY OCCUPANCY. Tenant is permitted entry to the Leased Premises on
October 1, 2006 for the purpose of constructing the Tenant Improvements and
installing fixtures. During any entry prior to the Commencement Date (a) Tenant
shall comply with all terms and conditions of this Lease other than the
obligation to pay rent, and (b) Tenant shall not begin operation of its
business. Tenant shall indemnify Landlord against any injury, loss or damage
which may occur to any person or to any of the work in the Leased Premises or in
the Building, and to any personal property therein, all of which shall be at the
Tenant's sole risk and, prior to early entry by Tenant, Tenant shall provide
Landlord with proof of insurance coverage required of Tenant by this Lease.
Tenant acknowledges that Tenant shall be responsible for obtaining all
applicable permits and inspections relating to any such entry by Tenant.
3. CONSTRUCTION OF TENANT IMPROVEMENTS. Tenant shall construct the Tenant
Improvements in substantial conformity with the plans and outline specifications
to be prepared by Tenant and approved in advance by Landlord, which approval
shall not be unreasonably withheld or delayed. In constructing the Tenant
Improvements, Tenant shall comply with the following provisions:
(a) The Tenant Improvements shall be performed by responsible
contractors and subcontractors who shall not prejudice Landlord's
relationship with Landlord's contractors or subcontractors or the
relationship between such contractors and their subcontractors or
employees, or disturb harmonious labor relations, and who shall furnish in
advance and maintain in effect workmen's compensation insurance in
accordance with statutory requirements and comprehensive public liability
insurance (naming Landlord and Landlord's contractors and subcontractors as
additional insureds) with limits satisfactory to Landlord;
(b) If the aggregate cost of the Tenant Improvements is equal to or
in excess of one hundred fifty thousand dollars ($150,000) then prior to
commencing the Tenant Improvements, Tenant must provide executed, effective
waivers of mechanics liens from all contractors and all sub-contractors. In
the event Tenant fails to provide executed and effective waivers, or if
such waivers are not applicable under state law, Tenant must bond all such
Tenant's Work prior to commencement;
(c) No such work shall be performed in such manner or at such times
as to cause any delay in connection with any work being done by any of the
Landlord's contractors or subcontractors in the Leased Premises or in the
Building generally;
(d) All construction contracts for Tenant Improvements must include a
provision holding the Landlord harmless from and against any and all claims
arising from, under or in connection with such construction; and
(e) Tenant and its contractors and subcontractors shall be solely
responsible for the transportation, safekeeping and storage of materials
and equipment used in the performance of
such work, for the removal of waste and debris resulting therefrom, and for
any damage caused by them to any installations or work performed by
Landlord's contractors and subcontractors.
The Tenant Improvements shall be deemed to be alterations under Section
7.03 of the Lease.
EXHIBIT C
DEMISING WALL AND RELATED IMPROVEMENTS
1. Construction of a demising wall between the Leased Premises and the
premises currently leased to JDS Uniphase Corporation.
2. Painting of only the office area of the Leased Premises.
EXHIBIT D
TENANT OPERATIONS INQUIRY FORM
1. Name of Company/Contact_______________________________________________
2.
Address/Phone______________________________________________________________
__________________________________________________________________
3. Provide a brief description of your business and operations:
4. Will you be required to make filings and notices or obtain permits as
required by Federal and/or State regulations for the operations at the proposed
facility? Specifically:
a. XXXX Title III Section 312 (Tier II) reports YES NO
(GREATER THAN 10,000 lbs. of hazardous materials
STORED at any one time)
b. XXXX Title III Section 313 (Tier III) Form R reports YES NO
(GREATER THAN 10,000 lbs. of hazardous materials
USED per year)
c. NPDES or SPDES Stormwater Discharge permit YES NO
(answer "No" if "No-Exposure Certification" filed)
d. EPA Hazardous Waste Generator ID Number YES NO
5. Provide a list of chemicals and wastes that will be used and/or generated
at the proposed location. Routine office and cleaning supplies are not included.
Make additional copies if required.
Storage Container(s)
Approximate Annual Quantity (i.e. Drums, Cartons, Totes,
Chemical/Waste Used or Generated Bags, ASTs, USTs, etc)
------------------------- -------------------------------- ------------------------------
Storage Container(s)
Approximate Annual Quantity (i.e. Drums, Cartons, Totes,
Chemical/Waste Used or Generated Bags, ASTs, USTs, etc)
------------------------- -------------------------------- ------------------------------
EXHIBIT E
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways and roadways serving and adjacent
to the Leased Premises shall not be obstructed or used for any purpose other
than ingress and egress. Landlord shall control the Common Areas.
2. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens shall be attached to or
hung in, or used in connection with, any window or door of the Leased Premises
other than Landlord standard window coverings without Landlord's prior written
approval. All electric ceiling fixtures hung in offices or spaces along the
perimeter of the Building must be fluorescent, of a quality, type, design and
tube color approved by Landlord. Neither the interior nor the exterior of any
windows shall be coated or otherwise sunscreened without written consent of
Landlord.
3. No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by any tenant on, about or from any part of the
Leased Premises, the Building or in the Common Areas including the parking area
without the prior written consent of Landlord. In the event of the violation of
the foregoing by any tenant, Landlord may remove or stop same without any
liability, and may charge the expense incurred in such removal or stopping to
tenant.
4. The sinks and toilets and other plumbing fixtures shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose subtenants, assignees or any of their servants, employees, agents,
visitors or licensees shall have caused the same.
5. No boring, cutting or stringing of wires or laying of any floor
coverings shall be permitted, except with the prior written consent of the
Landlord and as the Landlord may direct. Landlord shall direct electricians as
to where and how telephone or data cabling are to be introduced. The location of
telephones, call boxes and other office equipment affixed to the Leased Premises
shall be subject to the approval of Landlord.
6. No vehicles, birds or animals of any kind (except seeing eye dogs)
shall be brought into or kept in the Leased Premises, and no cooking shall be
done or permitted by any tenant on the Leased Premises, except microwave
cooking, and the preparation of coffee, tea, hot chocolate and similar items for
tenants and their employees. No tenant shall cause or permit any unusual or
objectionable odors to be produced in or permeate from the Leased Premises.
7. No tenant shall make, or permit to be made any unseemly, excessive or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them, whether by the use of
any musical instrument, radio, phonograph, unusual noise, or in any other way.
No tenant shall throw anything out of doors, windows or down the passageways.
8. No tenant, subtenant or assignee nor any of its servants, employees,
agents, visitors or licensees, shall at any time bring or keep upon the Leased
Premises any flammable, combustible or explosive fluid, chemical or substance or
firearm.
9. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made to existing
locks or the mechanism thereof. Each tenant must upon the termination of his
tenancy, restore to the Landlord all keys of doors, offices, and toilet rooms,
either furnished to, or otherwise procured by, such tenant and in the event of
the loss of keys so furnished, such tenant shall pay to the Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such changes.
10. No tenant shall overload the floors of the Leased Premises. All damage
to the floor, structure or foundation of the Building due to improper
positioning or storage items or materials shall be repaired by Landlord at the
sole cost and expense of tenant, who shall reimburse Landlord immediately
therefor upon demand.
11. Each tenant shall be responsible for all persons entering the Building
at tenant's invitation, express or implied. Landlord shall in no case be liable
for damages for any error with regard to the admission to or exclusion from the
Building of any person. In case of an invasion, mob riot, public excitement or
other circumstances rendering such action advisable in Landlord's opinion,
Landlord reserves the right without any abatement of rent to require all persons
to vacate the Building and to prevent access to the Building during the
continuance of the same for the safety of the tenants and the protection of the
Building and the property in the Building.
12. Canvassing, soliciting and peddling in the Building are prohibited,
and each tenant shall report and otherwise cooperate to prevent the same.
13. All equipment of any electrical or mechanical nature shall be placed
by tenant in the Leased Premises in settings that will, to the maximum extent
possible, absorb or prevent any vibration, noise and annoyance.
14. There shall not be used in any space, either by any tenant or others,
any hand trucks except those equipped with rubber tires and rubber side guards.
15. The scheduling of tenant move-ins shall be before or after normal
business hours and on weekends, subject to the reasonable discretion of
Landlord.
16. The Building is a smoke-free Building. Smoking is strictly prohibited
within the Building. Smoking shall only be allowed in areas designated as a
smoking area by Landlord. Tenant and its employees, representatives, contractors
or invitees shall not smoke within the Building or throw cigar or cigarette
butts or other substances or litter of any kind in or about the Building, except
in receptacles for that purpose.
17. Tenants will insure that all doors are securely locked, and water
faucets, electric lights and electric machinery are turned off before leaving
the Building.
18. Tenant, its employees, customers, invitees and guests shall, when
using the parking facilities in and around the Building, observe and obey all
signs regarding fire lanes and no-parking and driving speed zones and designated
handicapped and visitor spaces, and when parking always park between the
designated lines. Landlord reserves the right to tow away, at the expense of the
owner, any vehicle which is improperly parked or parked in a no-parking zone or
in a designated handicapped area, and any vehicle which is left in any parking
lot in violation of the foregoing regulation. All vehicles shall be parked at
the sole risk of the owner, and Landlord assumes no responsibility for any
damage to or loss of vehicles.
19. Tenant shall be responsible for and cause the proper disposal of
medical waste, including hypodermic needles, created by its employees.
20. No outside storage is permitted including without limitation the
storage of trucks and other vehicles.
21. No tenant shall be allowed to conduct an auction from the Leased
Premises without the prior written consent of Landlord.
It is Landlord's desire to maintain in the Building and Common Areas the highest
standard of dignity and good taste consistent with comfort and convenience for
tenants. Any action or condition not meeting this high standard should be
reported directly to Landlord. The Landlord reserves the right to make such
other and further rules and regulations as in its judgment may from time to time
be necessary for the safety, care and cleanliness of the Building and Common
Areas, and for the preservation of good order therein; provided such rules and
regulations do not unreasonably interfere with Tenant's use and enjoyment of the
Leased Premises for the Permitted Use. If there is a conflict between the rules
and regulations and any other provisions of the Lease, the provisions of the
Lease shall prevail.
