LEASE
This Lease between Glenborough Properties, L.P., a California limited
partnership (herein Landlord) and Nonvolatile Electronics, Inc., a Minnesota
corporation (herein Tenant), is dated for reference purposes only as of this 1
day of October, 1998.
1. LEASE OF PREMISES.
In consideration of the Rent (as defined in Section 6.) and the provisions of
this Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown by diagonal lines on the floor plan attached hereto as Exhibit
"A", and further described in Section 2.14. The Premises are located within
the Building and Project (as described in Sections 2.14. and 2.13.). Tenant
shall have the nonexclusive right (unless otherwise provided herein) in common
with Landlord, other tenants, subtenants and invitees, to use the Common Area
(as defined in Section 2.4.). This Lease confers no rights either to the
subsurface of the land below the ground level of the Building in which the
Premises is located or to airspace, interior or exterior, above the ceiling of
the Building.
2. DEFINITIONS.
As used in this Lease the following terms shall have the following meanings:
2.1. ADJUSTMENT DATE: Each successive anniversary of Tenants' First Adjustment
Date (as described in Section 2.17.).
2.2. ANNUAL BASE RENT:
$ 15,758.18 beginning 11/1/98 ending 12/31/98
$ 99,444.00 beginning 1/1/99 ending 12/31/99
$ 102,396.00 beginning 1/1/00 ending 12/31/00
$ 105,480.00 beginning 1/1/01 ending 12/31/01
$ 108,684.00 beginning 1/1/02 ending 12/31/02
$ 111,900.00 beginning 1/1/03 ending 12/31/03
2.3. COMMENCEMENT DATE: November 1,1998. If the Commencement Date is other
than the first day of the month, then the Expiration Date of the Lease shall
be extended to the last day of the month in which the Lease expires.
2.4. COMMON AREA: The building parking areas, landscaped areas and other
generally understood public or common area.
2.5. EXPIRATION DATE: December 31, 2003, unless otherwise sooner terminated in
accordance with the provisions of this Lease.
2.7. LANDLORD'S ADDRESS FOR NOTICE:
c/o Glenborough
000 Xxxxx Xx Xxxxxx Xxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
RENT PAYMENT ADDRESS:
Glenborough Realty Trust, Inc.
0000 00xx Xxxxxx Xx., Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
TENANT'S MAILING ADDRESS:
Nonvolatile Electronics, Inc.
00000 Xxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
2.8. LISTING AND LEASING AGENT(S): N/A
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2.9. MONTHLY INSTALLMENTS OF BASE RENT:
$ 7,879.09 beginning 11/1/98 ending 12/31/98
$ 8,287.00 beginning 1/1/99 ending 12/31/99
$ 8,533.00 beginning 1/1/00 ending 12/31/00
$ 8.790.00 beginning 1/1/01 ending 12/31/01
$ 9,057.00 beginning 1/1/02 ending 12/31/02
$ 9,325.00 beginning 1/1/03 ending 12/31/03
2.10. NOTICE: Except as otherwise provided herein, Notice shall mean any
notices, approvals and demands permitted or required to be given under this
Lease. Notice shall be given in the form and manner set forth in Section 23.
2.11. ESTIMATED OPERATING EXPENSES, REAL PROPERTY TAXES AND INSURANCE COSTS
(Section 6.3.): During the first calendar year of the Term, Landlord's
estimate of Operating Expenses, Real Property Taxes and Insurance Costs is
$4.31 per square foot of Usable Area per year.
2.12. PARKING: Tenant shall be entitled to the nonexclusive use of 0 parking
spaces and the exclusive use 0 parking spaces located on the Property. The
charge for parking shall be 0 per month per parking space for the first year
of this Lease. Commencing on the first anniversary of the Commencement Date,
or Rent Commencement Date if applicable, the charge for parking may be
adjusted by Landlord at any time.
2.13. PREMISES: That portion of the Building containing approximately 12,832
square feet of Usable Area (consisting of 8,373 square feet of office space
and 4,459 square feet of warehouse space), shown by diagonal lines on Exhibit
"A", located at 11405-11411 Valley View Road, Eden Prairie, Minnesota, and
known as Unit 4. For purposes of this lease, the Premises is deemed to contain
approximately 12,832 square feet of Usable Area.
2.14. PROJECT: The building of which the Premises are a part (the Building)
and any other buildings or improvements on the real property (the Property)
located at 11403-11495 Valley View Road, Eden Prairie, Minnesota further
described at Exhibit "B". The Project is commonly known as Bryant Lake
Business Center - Phase III.
2.15. SECURITY DEPOSIT (Section 8.): $ See attached Addendum.
2.16. STATE: The State of Minnesota.
2.18. TENANT'S PROPORTIONATE SHARE: l4%. Such share is a fraction, the
numerator of which is the Usable Area of the Premises, and the denominator of
which is the Usable Area of the Project, as determined by Landlord from time
to time, The Project consists of 3 building(s), and, for purposes of this
Lease, the building(s) are deemed to contain approximately 91,732 square feet
of Usable Area.
2.19. TENANT'S USE (section 9.): General office and design of electronic
components.
2.20. TERM: The period commencing on the Commencement Date and expiring at
midnight on the Expiration Date.
2.21. USABLE AREA: As to both the Premises and the Project, the respective
measurements of floor area as may from time to time be subject to lease by
Tenant and all tenants of the Project, respectively, as determined by Landlord
and applied on a consistent basis throughout the Project.
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3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are attached hereto
and incorporated by reference in this Lease:
3.1. Exhibit A - Floor Plan showing the Premises.
3.2. Exhibit B - Site Plan of the Project.
3.3. Exhibit C - Building Standard Tenant Improvements.
3.4. Exhibit D - Work Letter and Drawings.
3.5. Exhibit E - Rules and Regulations.
3.6. Addenda: Attached hereto and made a part of this Lease by reference
are Sections 37.
4. DELIVERY OF POSSESSION.
If for any reason Landlord does not deliver possession of the Premises to
Tenant on the Commencement Date, and such failure is not caused by an act or
omission of Tenant, the Expiration Date shall be extended by the number of
days the Commencement Date has been delayed and the validity of this Lease
shall not be impaired nor shall Landlord be subject to any liability for such
failure; but Rent shall be abated until delivery of possession. Provided,
however, if the Commencement Date has been delayed by an act or omission of
Tenant then Rent shall not be abated until delivery of possession and the
Expiration Date shall not be extended. Delivery of possession shall be deemed
to occur on the earlier of the date Landlord receives a Certificate of
Occupancy or upon substantial completion of the Premises (as certified by
Landlord's architect). If Landlord permits Tenant to enter into possession of
the Premises before the Commencement Date, such possession shall be subject to
the provisions of this Lease, including, without limitation, the payment of
Rent (unless otherwise agreed in writing).
Within ten (10) days of delivery of possession Landlord shall deliver to
Tenant and Tenant shall execute an Acceptance of Premises in which Tenant
shall certify, among other things, that (a) Landlord has satisfactorily
completed Landlord's Work to the Premises pursuant to Exhibit "D", unless
written exception is set forth thereon, and (b) that Tenant accepts the
Premises. Tenant's failure to execute and deliver the Acceptance of Premises
shall be conclusive evidence, as against Tenant, that Landlord has
satisfactorily completed Landlord's Work to the Premises pursuant to Exhibit
"D".
In the event Tenant fails to take possession of the Premises following
execution of this Lease, Tenant shall reimburse Landlord promptly upon demand
for all costs incurred by Landlord in connection with entering into this Lease
including, but not limited to, broker fees and commissions, sums paid for the
preparation of a floor and/or space plan for the Premises, costs incurred in
performing Landlord's Work pursuant to Exhibit "D", loss of rental income,
attorneys' fees and costs, and any other damages for breach of this Lease
established by Landlord.
5. INTENDED USE OF THE PREMISES.
The statement in this Lease of the nature of the business to be conducted by
Tenant in the Premises does not constitute a representation or guaranty by the
Landlord as to the present or future suitability of the Premises for the
conduct of such business in the Premises, or that it is lawful or permissible
under the certificate of occupancy issued for the Building, or is Otherwise
permitted by law. Tenant's taking possession of the Premises shall be
conclusive evidence, as against Tenant, that, at the time such possession was
taken, the Premises were satisfactory for Tenant's intended use.
6. RENT.
6.1. Payment of Rent. Tenant shall pay Rent for the Premises. Monthly
Installments of Rent shall be payable in advance on the first day of each
calendar month of the Term. If the Term begins (or ends) on other than the
first (or last) day of a calendar month, Rent for the partial month shall be
prorated based on the number of days in that month. Rent shall be paid to
Landlord at the Rent Payment Address set forth in Section 2.7., or to such
other person it such place as Landlord may from time to time designate in
writing, without any prior demand therefor and without deduction or offset, in
lawful money of the United States of America. Tenant shall pay Landlord the
first Monthly Installment of Base Rent upon execution of this Lease. Base
Rent, together with Additional Rent and all other costs and expenses Tenant
assumes or is obligated to pay to Landlord under the Lease, may be
collectively referred to as Rent.
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6.2. Adjusted Base Rent. The amount of Base Rent (and the corresponding
Monthly Installments of Base Rent) payable hereunder shall be adjusted
commencing on Tenant's First Adjustment Date and continuing on each Adjustment
Date thereafter. Adjustments, if any, shall be based upon increases (if any)
in the index. The Index for the calendar month which is four (4) months before
the Commencement Date shall be the Base Index. On each Adjustment Date, the
Base Rent shall be increased by a percentage equal to the percentage increase,
if any, in the Index in publication four (4) months before the Adjustment Date
(the Comparison Index) over the Base Index (Adjusted Base Rent). In the event
the Comparison Index in any year is less than the Comparison Index (or Base
Index, as the case may be) for the preceding year, the Base Rent shall remain
the amount of Base Rent or Adjusted Base Rent payable during that preceding
year. When the Adjusted Base Rent payable as of each Adjustment Date is
determined, Landlord shall give Tenant a written statement of such Adjusted
Base Rent and the manner in which it was computed. The Adjusted Base Rent
shall thereafter be the Base Rent for all purposes under this Lease.
6.3. Additional Rent for Operating Expenses. Real Property Taxes and
Insurance Costs. Tenant shall pay Tenant's Proportionate Share of Operating
Expenses, Real Property Taxes and Insurance Costs (hereinafter sometimes
together referred to as Direct Costs) based on the percentages set forth in
Section 2.18. Tenant's Proportionate Share of Direct Costs shall be deemed
Additional Rent.
6.3.1. Definitions. As used in this Section 6.3., the following terms shall
have the following meanings:
6.3.1.1. Operating Expenses. The term Operating Expenses shall mean all
costs and expenses of every kind and nature, paid or incurred by Landlord,
because of or in connection with the management, operations, protection,
replacement, repair, ownership, maintenance or occupation of the Building,
Project and such additional facilities and personal property as Landlord may
determine to be necessary or beneficial; including, without limiting the
generality of the foregoing: (a) maintenance, repair, cleaning, painting and
the cost of replacement of the structural parts of the Building (including the
roof, foundation, floor slab and load bearing walls) amortized over the useful
life of such replacement, and the exterior surfaces of the Building; (b) the
amortized cost of capital improvements constructed to comply with any law not
in effect or applicable to the Building or Project as of the Commencement
Date; (c) the amortized cost to upgrade the efficiency or capacity of Building
telecommunication lines and systems if responsibility therefor is assumed by
Landlord as discussed in Section 35. hereof; (d) modification of existing or
construction of additional capital improvements or building service equipment
which reduce the consumption of utilities or services or the Operating
Expenses of the Building or Project and replacement of capital improvements or
building service equipment existing as of the Commencement Date when required
because of normal wear and tear or obsolescence; (e) Common Area electric, gas
and water, plumbing and sewage, the parking area, the lighting fixtures,
directional signs, the irrigation systems and all landscaping of the Building
or Project, snow and ice removal and fire safety equipment service; (f)
reasonable attorneys' fees and/or consultant fees incurred by Landlord in
contracting with a company or companies to provide electricity (or any other
utility) to the Project, any fees for the installation, maintenance, repair or
removal of related equipment, and any exit fees or stranded cost charges
mandated by the State; (g) the cost of compliance with all applicable laws and
any covenants, conditions or restrictions (including payment of charges
assessed pursuant thereto); (h) auditing, accounting, legal and other outside
services; (i) depreciation or rental of maintenance and operating machinery
and equipment; (j) that portion of all compensation and payroll (including
benefits and premiums for worker's compensation and other insurance) paid to
or for the benefit of Landlord's employees involved in the performance of work
described in this subsection which is allocable to the Building or Project;
(k) supplies and materials consumed in connection with the Building or
Project; (l) a management fee; (m) maintenance, repair and replacement of any
intrabuilding cabling network (ICN), if any; and (n) any other cost or expense
which would be deductible business expense for Federal Income Tax purposes.
Notwithstanding the foregoing, the following shall not be included within
Operating Expenses: (i) costs of capital improvements (except as otherwise set
forth above and except any improvements that might be deemed "capital
improvements" related to the enhancement or upgrade of the ICN and related
equipment) and costs of curing design or construction defects; (ii)
depreciation; (iii) interest and principal payments on mortgages and other
debt costs and ground lease payments, if any, and any penalties assessed as a
result of Landlord's late payments of such amounts; (iv) real estate broker
leasing commissions or compensation; (v) any cost or expenditure (or portion
thereof) for which Landlord is reimbursed, whether by insurance proceeds or
otherwise; (vi) attorneys' fees, costs, disbursements, advertising and
marketing and other expenses incurred in connection with the negotiation of
leases with prospective tenants of the Building; (vii) rent for space which is
not actually used by
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Landlord in connection with the management and operation of the Building;
(viii) all costs or expenses (including fines, penalties and legal fees)
incurred due to the violation by Landlord, its employees, agents, contractors
or assigns of the terms and conditions of the Lease, or any valid, applicable
building code, governmental rule, regulation or law; (ix) except for the
referenced management compensation, any overhead or profit increments to any
subsidiary or affiliate of Landlord for services on or to the Building, to the
extent that the costs of such services exceed competitive costs. for such
services; (x) the cost of constructing tenant improvements for Tenant or any
other tenant of the Building or Project; (xi) Operating Expenses specially
charged to and paid by any other tenant of the Building or Project; and (xii)
the cost of special services, goods or materials provided to any other tenant
of the Building or Project.
6.3.1.2. Real property Taxes. As used herein, the term Real Property
Taxes shall include every form of tax (other than general net income or estate
taxes of Landlord), charge, levy, assessment, fee, license fee, service fee
(including, without limitation, those based on commercial rentals, energy or
environmental grounds as well as any increase due to reassessment or escape
assessment whether caused by sale or lease of the Premises, Building or
Project or otherwise), ordinary or extraordinary, imposed by any authority
having direct or indirect power to tax, including, without limitation, any
city, county, state or federal government or quasi-government entity or any
improvement utility, beautification or similar district against any legal or
equitable interest of Landlord in, or against Landlord's right to rent, the
Premises or the Building, and any such tax, charge, levy, assessment or fee
imposed, in addition to or in substitution for any tax previously included
within the definition of real property tax, partially or totally, whether or
not foreseeable or now within the contemplation of the parties provided that
all separately identifiable real property taxes attributable solely to
Tenant's business or Tenant's improvements which a revalued at an amount in
excess of the Building standard improvements, shall be paid entirely by
Tenant, and not prorated with other tenant s of the Building or Project.
Tenant's obligation to pay its share of the assessments, as provided in this
Section 6.3.1.2., shall be calculated on the basis of the amount due if
Landlord allows the assessments to go to bond, and the assessment is to be
paid in installments, even if Landlord pays the assessment in full. Real
Property Taxes for each tax year shall be apportioned to determine the Real
Property Taxes for the subject calendar years.
Landlord, at Landlord's sole discretion, may contest any taxes levied or
assessed against the Building or Project during the Term. If Landlord contests
any taxes levied or assessed during the Term, Tenant shall pay Landlord
Tenant's Proportionate Share of all costs incurred by Landlord in connection
with the contest.
6.3.1.3. Insurance Costs. The term Insurance Costs shall mean all costs
and expenses paid or incurred by Landlord to obtain and keep in force during
the Term of this Lease policies of insurance providing coverage for (a)
Commercial General Liability; (b) loss of or damage to the Building or Project
in such amount or percentage of replacement value as Landlord or its insurance
advisor deems reasonable in relation to the age, location, type of
construction and physical condition of the Building or Project and the
availability of such insurance at reasonable rates; and (c) loss of rental
income for a period of one year, which insurance shall also cover all Real
Property Taxes and Insurance Costs for the same period. Such policies shall
provide protection against all perils included with the classification of
fire, extended coverage, vandalism, malicious mischief, special perils (all
risk), sprinkler leakage, and other perils which Landlord deems necessary.
6.3.2. Determination and Payment of Operating Expenses. Real Property
Taxes Insurance Costs. Tenant's Proportionate Share of Operating Expenses,
Real Property Taxes and Insurance Costs shall be paid as follows:
6.3.2.1. Monthly Estimate. On or before the last day of each December
during the Term of the Lease or any extended period thereof, Landlord shall
deliver to Tenant a written statement showing in reasonable detail Landlord's
projected Direct Costs for the ensuing calendar year. During the ensuing
calendar year, Tenant shall pay Tenant's Proportionate Share of estimated
Direct Costs in advance in equal monthly installments pursuant to the same
provisions as Monthly Installments of Base Rent. If during the course of any
calendar year Landlord determines that actual Direct Costs will vary from its
estimate by more than five percent (5%), Landlord may deliver to Tenant a
written statement showing Landlord's revised estimate of Direct Costs;
whereupon payments of Tenant's Proportionate Share of estimated Direct Costs
shall be adjusted and thereafter paid on the basis of Landlord's revised
estimate. Neither Landlord's failure to deliver nor late delivery of such
statement shall constitute a default by Landlord or a waiver of Landlord's
right to any Rent adjustment provided for herein.
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6.3.2.2. Annual Reconciliation. On or before the first day of each April
during the Term of this Lease: or any extended period thereof, Landlord shall
furnish to Tenant a written statement of reconciliation (Reconciliation)
showing in reasonable detail Landlord's actual Direct Costs for the preceding
calendar year. In the event such Reconciliation shows that additional sums are
due from Tenant, Tenant shall pay such sums to Landlord within ten (10) days
of receipt of such Reconciliation to the end that Landlord shall receive the
entire amount of Tenant's Proportionate Share of Direct Costs for the
preceding year and no more. In the event such Reconciliation shows that a
credit is due Tenant, such credit shall be credited against the next sums
becoming due from Tenant, unless this Lease has expired or been terminated
pursuant to the terms hereof (and all sums due Landlord have been paid), in
which event such sums shall be refunded to Tenant. Neither Landlord's failure
to deliver nor late delivery of such Reconciliation to Tenant shall constitute
a default by Landlord or operate as a waiver of Landlord's right to collect
all Additional Rent or sums due hereunder. Tenant agrees that no written
request of such Reconciliation shall be made until the Reconciliation for such
period shall be due.
6.3.2.3. Tenant's Inspection of Reconciliation Accounting Records. So
long as Tenant is not in default under the terms of the Lease and provided
Notice of Tenant's request is given to Landlord within thirty (30) days after
Tenant's receipt of the Reconciliation, Tenant may inspect Landlord's
Reconciliation accounting records relating to Direct Costs at Landlord's
corporate office, during normal business hours, for the purpose of verifying
the charges contained in such statement. The audit must be completed within
sixty (60) days of Landlord's receipt of Tenant's Notice, unless such period
is extended by Landlord (in Landlord's reasonable discretion). Before
conducting any audit however, Tenant must pay in full the amount of Direct
Costs billed. Tenant may only review those records that specifically relate to
Direct Costs. Tenant may not review any other leases or Landlord's tax returns
or financial statements. In conducting an audit, Tenant must utilize an
independent certified public accountant experienced in auditing records
related to property operations. The proposed accountant is subject to
Landlord's reasonable prior approval. The audit shall be conducted in
accordance with generally accepted rules of auditing practices. Tenant may not
conduct an audit more often than once each calendar year. Tenant may audit
records relating to a calendar year only one time. No audit shall cover a
period of time other than the calendar year from which Landlord's
Reconciliation was generated. Upon receipt thereof, Tenant shall deliver to
Landlord a copy of the audit report and all accompanying data. Tenant and
Tenant's auditor shall keep confidential any agreements involving the rights
provided in this section and the results of any audit conducted hereunder, As
a condition precedent to Tenant's right to conduct an audit, Tenant's auditor
shall sign a confidentiality agreement in a form reasonably acceptable to
Landlord. However, Tenant shall be permitted to furnish information to its
attorneys, accountants and auditors to the extent necessary to perform their
respective services for Tenant.
6.4. Taxes on Tenant's Use and Occupancy. In addition to the Rent and any
other charges to be paid by Tenant hereunder, Tenant shall pay Landlord upon
demand for any and all taxes payable by Landlord (other than net income taxes)
which are not otherwise reimbursable under this Lease, whether or not now
customary or within the contemplation of the parties, where such taxes are
upon, measured by or reasonably attributable to (a) the cost or value of
Tenant's equipment, furniture, fixtures and other personal property located in
the Premises, or the cost or value of any leasehold improvements made in or to
the Premises by or for Tenant, other than Building Standard Tenant
Improvements made by Landlord, regardless of whether title to such
improvements is held by Tenant or Landlord; (b) the gross or net Rent payable
under this Lease, including, without limitation, any rental or gross receipts
tax levied by any taxing authority with respect to the receipt of the Rent
hereunder; (c) the possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or any portion
thereof; or (d) this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises. If it
becomes unlawful for Tenant to reimburse Landlord for any costs as required
under this Lease, the Base Rent shall be revised to net Landlord the same net
Rent after imposition of any tax or other charge upon Landlord as would have
been payable to Landlord but for the reimbursement being unlawful.
6.5. Net Lease. It is the intention of the parties hereto that this Lease
shall be completely net to Landlord and shall not be terminable for any reason
by Tenant, and that Tenant shall not be entitled to any abatement of or
reduction in Rent or other amounts hereunder, except as herein expressly
provided regardless of disturbance, prevention, interruption or inconvenience
in the use and occupancy of the Premises from any cause whatsoever, whether
within or beyond the present contemplations of the parties. With respect to
the foregoing, any present or future law to the contrary is hereby waived by
Tenant, and shall not alter this agreement of the parties.
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7. LATE CHARGES.
If Tenant fails to pay when due any Rent or other amounts or charges which
Tenant is obligated to pay under the terms of this Lease, then Tenant shall
pay Landlord a late charge equal to ten percent (10%) of each such installment
if any such installment is not received by Landlord within five (5) days from
the date it is due. Tenant acknowledges that the late payment of any Rent will
cause Landlord to lose the use of that money and incur costs and expenses not
contemplated under this Lease including, without limitation, administrative
costs and processing and accounting expenses, the exact amount of which is
extremely difficult to ascertain. Landlord and Tenant agree that this late
charge represents a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such nonpayment by Tenant.
However, the late charge is not intended to cover Landlord's attorneys' fees
and costs relating to delinquent Rent. Acceptance of any late charge shall not
constitute a waiver of Tenant's default with respect to such nonpayment by
Tenant nor prevent Landlord from exercising any other rights or remedies
available to Landlord under this Lease. Late charges are deemed Additional
Rent. In no event shall this provision for the imposition of a late charge be
deemed to grant to Tenant a grace period or an extension of time within which
to pay any Rent due hereunder or prevent Landlord from exercising any right or
remedy available to Landlord upon Tenant's failure to pay such Rent when due.
8. SECURITY DEPOSIT.
Upon execution of this Lease, Tenant agrees to deposit with Landlord a
Security Deposit in the amount set forth in Section 2.15. as security for
Tenant's performance of its obligations under this Lease. Landlord and Tenant
agree that the Security Deposit may be commingled with funds of Landlord and
Landlord shall have no obligation or liability for payment of interest on such
deposit. Tenant shall not mortgage, assign, transfer or encumber the Security
Deposit without the prior written consent of Landlord and any attempt by
Tenant to do so shall be void, without force or effect and shall not be
binding upon Landlord.
If Tenant fails to timely pay any Rent or other amount due under this Lease,
or fails to perform any of the terms hereof, Landlord may, at its option and
without prejudice to any other remedy which Landlord may have, appropriate and
apply or use all or any portion of the Security Deposit for Rent payments or
any other amount then due and unpaid, for payment of any amount for which
Landlord has become obligated as a result of Tenant's default or breach, and
for any loss or damage sustained by Landlord as a result of Tenant's default
or breach. If Landlord so uses any of the Security Deposit, Tenant shall,
within ten (10) days after written demand therefor, restore the Security
Deposit to the full amount originally deposited. Tenant's failure to do so
shall constitute an act of default hereunder and Landlord shall have the right
to exercise any remedy provided for in Section 19. hereof.
If Tenant defaults under this Lease more than two (2) times during any
calendar year, irrespective of whether such default is cured, then, without
limiting Landlord's other rights and remedies, Landlord may, in Landlord's
sole discretion, modify the amount of the required Security Deposit. Within
ten (10) days after Notice of such modification, Tenant shall submit to
Landlord the required additional sums, Tenant's failure to do so shall
constitute an act of default, and Landlord shall have the right to exercise
any remedy provided for in Section 19. hereof.
If Tenant complies with all of the terms and conditions of this Lease, and
Tenant is not in default on any of its obligations hereunder, then within the
time period statutorily prescribed after Tenant vacates the Premises, Landlord
shall return to Tenant (or, at Landlord's option, to the last subtenant or
assignee of Tenant's interest hereunder) the Security Deposit less any
expenditures made by Landlord to repair damages to the Premises caused by
Tenant and to clean the Premises upon expiration or earlier termination of
this Lease.
In the event of bankruptcy or other debtor-creditor proceedings against
Tenant, such Security Deposit shall be deemed to be applied first to the
payment of Rent and other sums due Landlord for all periods prior to the
filing of such proceedings.
9. TENANT'S USE OF THE PREMISES.
The provisions of this Section are for the benefit of the Landlord and are not
nor shall they be construed to be for the benefit of any tenant of the
Building or Project.
9.1. Use. Tenant shall use the Premises solely for the purposes set
forth in Section 2.19. No change in the Use of the Premises shall be
permitted, except as provided in this Section 9.
9.1.1. If, at any time during the Term hereof, Tenant desires to change
the Use of the Premises, including any change in Use associated with a
proposed assignment or sublet of the Premises, Tenant shall provide Notice to
Landlord of its request for approval of such proposed change in Use. Tenant
shall promptly supply Landlord with
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such information concerning the proposed change in Use as Landlord may
reasonably request. Landlord shall have the right to approve such proposed
change in Use, which approval shall not be unreasonably withheld. Landlord's
consent to any change in Use shall not be construed as a consent to any
subsequent change in Use.
9.2. Observance of Law. Tenant shall not use or occupy the Premises or
permit anything to be done in or about the Premises in violation of any
declarations, covenant, condition or restriction, or law, statute, ordinance
or governmental rules, regulations or requirements now in force or which may
hereafter be enacted or promulgated. Tenant shall, a t its sole cost and
expense, upon Notice from Landlord, immediately discontinue any use of the
Premises which is declared by any governmental authority having jurisdiction
to be a violation of law or of the Certificate of Occupancy. Tenant shall
promptly comply, at its sole cost and expense, with all laws, statutes,
ordinances and governmental rules, regulations or requirements now in force or
which may hereafter be imposed which shall by reason of Tenant's Use or
occupancy of the Premises, impose any duty upon Tenant or Landlord with
respect to Tenant's Use or occupation. Further, Tenant shall, at Tenant's sole
cost and expense, bring the Premises into compliance with all such laws,
including the Americans With Disabilities Act of 1990, as amended (ADA),
whether or not the necessity for compliance is triggered by Tenant's Use, and
Tenant shall make, at its sole cost and expense, any changes to the Premises
required to accommodate Tenant's employees with disabilities (any work
performed pursuant to this Section shall be subject to the terms of Section
12. hereof). The judgment of any court of competent jurisdiction or the
admission by Tenant in any action or proceeding against Tenant, whether
Landlord is a party thereto or not, that Tenant has violated any such law,
statute, ordinance, or governmental regulation, rule or requirement in the use
or occupancy of the Premises, Building or Project shall be conclusive of that
fact as between Landlord and Tenant.
9.3. Insurance. Tenant shall not do or permit to be done anything which
will contravene, invalidate or increase the cost of any insurance policy
covering the Building or Project and/or property located therein, and shall
comply with all rules, orders, regulations, requirements and recommendations
of Landlord's insurance carrier(s) or any board of fire insurance underwriters
or other similar body now or hereafter constituted, relating to or affecting
the condition, use or occupancy of the Premises, excluding structural changes
not related to or affected by Tenant's improvements or acts. Tenant shall
promptly upon demand reimburse Landlord for any additional premium charged for
violation of this Section.
9.4. Nuisance and Waste. Tenant shall not do or permit anything to be
done in or about the Premises which will in any way obstruct or interfere with
the rights of other tenants or occupants of the Building or Project, or injure
or annoy them, or use or allow the Premises to be used for any improper,
unlawful or objectionable purpose. Tenant shall not cause, maintain or permit
any nuisance in, on or about the Premises. Tenant shall not commit or suffer
to be committed any waste in or upon the Premises.
9.5. Load and Equipment Limits. Tenant shall not place a load upon any
floor of the Premises which exceeds the load per square foot which such floor
was designed to carry as determined by Landlord or Landlord's structural
engineer. The cost of any such determination made by Landlord's structural
engineer in connection with Tenant's occupancy shall be paid by Tenant upon
Landlord's demand. Tenant shall not install business machines or mechanical
equipment which will in any manner cause noise objectionable to or injure
other tenants in the Project.
9.6. Hazardous Material.
9.6.1. Unless Tenant obtains the prior written consent of Landlord, Tenant
shall not create, generate, use, bring, allow, emit, dispose, or permit on the
Premises, Building or Project any toxic or hazardous gaseous, liquid or solid
material or waste (Hazardous Material), including without limitation, material
or substance (a) having characteristics of ignitability, corrosivity,
reactivity, or extraction procedure toxicity, or (b) which is listed on any
applicable federal, state or local law, rule, regulation or ordinance, or (c)
which has been determined by any state, federal or local governmental or public
authority or agency to be capable of posing a risk of injury to health, safety
or property.
9.6.2. Tenant shall indemnify, defend and hold Landlord harmless from any
claims, liabilities, costs or expenses incurred or suffered by Landlord
arising from such bringing, allowing, using, permitting, generating, creating,
emitting or disposing of Hazardous Material whether or not consent to same has
been granted by Landlord. Tenant's indemnification, duty to defend and hold
harmless obligations include, without limitation (a) claims, liability, costs
or expenses resulting from or based upon administrative, judicial (civil or
criminal) or other action, legal or equitable, brought by any private or
public person under common law or any federal, state, county or municipal law,
ordinance or regulation, including, without limitation, any subsequent tenant
or owner of the Premises or adjacent property, (b) claims liabilities, costs
or expenses pertaining to the cleanup or containment of Hazardous Material,
the identification of the pollutants in the Hazardous Material, the
identification of the scope of any environmental Contamination, the removal of
pollutants from soils, riverbeds or aquifers, the provision of an alternative
public drinking water source, (c)
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all costs and fees incurred in defending such claims, and (d) all costs or
losses to Landlord arising from inability or delay in selling or leasing the
Premises after the expiration of the Lease, including, without limitation,
reduction in the market value of the Premises, Building or Project. Tenant
shall comply at its sole cost, with all laws pertaining to such Hazardous
Material. Tenant's hold indemnification, duty to defend and hold harmless
obligations hereunder shall survive the expiration or sooner termination of
this Lease.
9.6.3. Tenant shall provide to Landlord a copy of any permit applications
and or permits issued by any governmental agency concerning Tenant's use or
generation of Hazardous Material on or about the Premises.
9.6.4. In the event Landlord grants Tenant permission to so bring, allow,
use, permit, generate, create, emit or dispose Hazardous Material as set forth
in Section 9.6.1. above (a) Tenant shall provide to Landlord on an annual
basis a report from a person who is, to Landlord's satisfaction, appropriately
qualified or licensed as an expert in the field of hazardous materials laws
compliance matters, certifying that Tenant is complying with all applicable
governmental statues and regulations concerning Hazardous Material, and that
there have been no spills or contamination by Tenant at the Premises that have
not been fully corrected and cleaned up and, (b) prior to any such bringing,
allowing, using permitting, generating, creating, emitting or disposing of
Hazardous Materials, Tenant shall provide proof satisfactory to Landlord that
tests prove there was existing contamination by such Hazardous Material (which
was not the result of acts or omissions of Tenant) or if Tenant fails to
provide such proof it shall be conclusively presumed between the parties that
any such contamination thereafter existing at, on or emitted from the Premises
was caused solely by Tenant.
9.6.5. In the event of contamination by Hazardous Material at, from, of
or around the Premises, the Building or the Project, the cleanup of which is
the responsibility of Tenant, Tenant shall promptly take all actions
necessary, at Tenant's sole cost and expense, to remediate the contamination
and restore the Premises, Building or Project to the condition that existed
before introduction of such Hazardous Material. Tenant shall first obtain
Landlord's approval of the proposed remedial action and shall keep Landlord
informed during the process of remediation. Landlord may require within
fifteen (15) days after written notification from Landlord, that Tenant post a
bond or other adequate security to the benefit of Landlord, in an amount equal
to Landlord's estimate of costs for cleaning up the contamination. The posting
of the bond does not relieve Tenant from fulfilling its responsibility to
clean up the contamination. After the contamination has been cleaned up and
certified, as set forth above, the bond or other adequate security shall be
returned to Tenant.
9.7. Use of Common Area. Tenant is hereby granted, for so long as it is
not in default hereunder, a non-exclusive license to use in common with other
occupants of the Building or Project, if any, such facilities within or
without the Building which are designated from time to time for the general
use, benefit or convenience of Tenant and the other tenants or occupants of
the Building or Project or their employees, customers, authorized
representatives or invitees. Tenant shall use the Common Area in conformity
with the reasonable rules and regulations and changes thereto from time to
time promulgated by Landlord governing the use, maintenance, management, and
operation of said Common Area. The manner and nature of the installation and
maintenance of the Common Area shall be subject to the sole discretion of
Landlord. Landlord reserves the right from time to time to make changes in the
shape, size, location and extent of same provided that any such change shall
be after Notice to Tenant, except as may be required by law or government
agencies. Landlord further retains the right to temporarily close the Common
Area from time to time in order to prevent a dedication thereof or for the
making of repairs or performance of maintenance.
10. SERVICES AND UTILITIES.
Tenant shall make all arrangements for and pay for all utilities and services
furnished to or used by it, including, without limitation, gas, electricity,
heating, air conditioning and other ventilation, janitorial, water, sewage,
telephone service, trash collection, including any taxes thereon, and for all
connection charges, except for those utility and services Landlord is to
acquire for the account of the tenants to service the Common Area.
Landlord may choose, in Landlord's reasonable discretion, the company or
companies that will provide all electricity (or any other utility) to the
Project, and, in such event, Tenant shall pay for electric current (or such
other utility) supplied to, or used, in the Premises at the rate prevailing for
Tenant's class of use as established by such company or companies. Electric
current (or such other utility) shall be measured in the manner set forth above
and shall be billed by Landlord as Additional Rent and paid by Tenant on a
monthly basis. If permitted by law, Landlord shall have the right, in
Landlord's reasonable discretion, at any time and from time to time during the
Term, to switch providers of any such utility. Tenant shall cooperate with
Landlord and any such utility provider at all times, and, as reasonably
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necessary, Tenant shall allow access to the electric (or other utility) lines,
feeders, risers, wiring and other machinery located within the Premises.
Notwithstanding anything contained herein to the contrary, if Tenant is
granted the right to purchase electricity from a provider other than the
company or companies used by Landlord, Tenant shall indemnify, defend, and
hold harmless Landlord from and against all losses, claims, demands, expenses
and judgments caused by, or directly or indirectly arising from, the acts or
omissions of Tenant's electricity provider (including, but not limited to,
expenses and/or fines incurred by Landlord in the event Tenant's electricity
provider fails to provide sufficient power to the Premises, as well as damages
resulting from the improper or faculty installation or construction of
facilities or equipment in or on the Premises by Tenant or Tenant's
electricity provider.
Landlord may provide telecommunications lines and systems as discussed in
Section 35. hereof.
Landlord shall not be in default hereunder or be liable for any damages
directly or indirectly resulting from, nor shall the Rent be abated by reason
of, (a) the installation, use or interruption of use of any equipment in
connection with the furnishing of any of the foregoing services, (b) failure to
furnish or delay in furnishing any such services where such failure or delay is
caused by accident or any condition or event beyond the reasonable control of
Landlord, or by the making of necessary repairs or improvements to the
Premises, Building or Project, (c) any change, failure, interruption,
disruption or defect in the quantity or character of the electricity (or other
utility) supplied to the Premises or Project, or (d) the limitation,
curtailment or rationing of, or restrictions on, use of water, electricity, gas
or any other form of energy serving the Premises, Building or Project. Landlord
shall not be liable under any circumstances for a loss of or injury to property
or business, however occurring, through, in connection with or incidental to
the failure to furnish any such services.
11. REPAIRS AND MAINTENANCE.
11.1. Landlord's Obligations. Landlord shall make all structural repairs
except as specified herein and shall maintain in good order, condition and
repair the Building and all other portions of the Premises not the obligation
of Tenant or of any other tenant in the Building. If applicable, Landlord
shall also maintain in good order, condition and repair the ICN, the cost of
which is reimbursable pursuant to Section 6.3. unless responsibility therefor
is assigned to a particular tenant.
11.2. Tenant's Obligations.
11.2.1. Tenant shall, at Tenant's sole expense and except for services
furnished by Landlord pursuant to Section 10. hereof, maintain the Premises in
good order, condition and repair. For the purposes of this Section 1l.2.1.,
the term Premises shall be deemed to include all items and equipment installed
by or for the benefit of or at the expense of Tenant, including, without
limitation the interior surfaces of the ceilings, walls and floors; all doors;
all interior and exterior windows; dedicated heating, ventilating and air
conditioning equipment (Tenant shall procure and maintain at Tenant's expense
a heating and air conditioning system maintenance contract); all plumbing,
pipes and fixtures; electrical switches and fixtures; internal wiring as it
connects to the ICN, if applicable; and Building Standard Tenant Improvements,
if any.
11.2.2. Tenant shall be responsible for all repairs and alterations in
and to the Premises, Building and Project and the facilities and systems
thereof to the satisfaction of Landlord, the need for which arises out of (a)
Tenant's use or occupancy of the Premises, (b) the installation, removal, use
or operation of Tenant's Property (as defined in Section 13.) in the Premises,
(c) the moving of Tenant's Property into or out of the Building, or (d) the
act, omission, misuse or negligence of Tenant, its agents, contractors,
employees or invitees.
11.2.3. If Tenant fails to maintain the Premises in good order, condition
and repair, Landlord shall give Notice to 'Tenant to do such acts as are
reasonably required to so maintain the Premises. If Tenant fails to promptly
commence such work and diligently prosecute it to completion, then Landlord
shall have the right to do such acts and expend such funds at the expense of
Tenant as are reasonably required to perform such work.
11.3. Compliance with Law. Landlord and Tenant shall each do all acts
necessary to comply with all applicable laws, statutes, ordinances, and rules
of any public authority relating to their respective maintenance obligations
as set forth herein. The provisions of Section 9.2. are deemed restated here.
11.4. Notice of Defect. If it is Landlord's obligation to repair, Tenant
shall give Landlord prompt Notice, regardless of the nature or cause, of any
damage to or defective condition in any part or appurtenance of the Building's
mechanical, electrical, plumbing, HVAC or other systems serving, located in,
or passing through the Premises.
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11.5. Landlord's Liability. Except as otherwise expressly provided in
this Lease, Landlord shall have no liability to Tenant nor shall Tenant's
obligations under this Lease be reduced or abated in any manner by reason of
any inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease or by any other tenant's lease or required by law to
make in or to any portion of the Project, Building or Premises. Landlord shall
nevertheless use reasonable efforts to minimize any interference with Tenant's
conduct of its business in the Premises.
12. CONSTRUCTION, ALTERATIONS AND ADDITIONS.
12.1. Landlord's Construction Obligations. Landlord shall perform
Landlord's Work to the Premises as described in Exhibit "D".
12.2. Tenant's Construction Obligations. Tenant shall perform Tenant's
Work to the Premises as described in Exhibit "D" and shall comply with all of
the provisions of this Section 12.
12.3. Tenant's Alterations and Additions. Except as provided in Section
12.2. above, Tenant shall not make any other additions, alterations or
improvements to the Premises without obtaining the prior written consent of
Landlord. Landlord's consent may be conditioned, without limitation, on Tenant
removing any such additions, alterations or improvements upon the expiration
of the Term and restoring the Premises to the same condition as on the date
Tenant took possession. All work with respect to Tenant's Work described in
Exhibit "D", as well as any addition, alteration or improvement, shall comply
with all applicable laws, ordinances, codes and rules of any public authority
(including, but not limited to the ADA) and shall be done in a good and
professional manner by properly qualified and licensed personnel approved by
Landlord. All work shall be diligently prosecuted to completion. Upon
completion, Tenant shall furnish Landlord "as-built" plans. Prior to
commencing any such work, Tenant shall furnish Landlord with plans and
specifications; names and addresses of contractors; copies of all contracts;
copies of all necessary permits; evidence of contractor's and subcontractor's
insurance coverage for Builder's Risk at least as broad as Insurance Services
Office (ISO) special causes of loss form CP 10 30, Commercial General
Liability at least as broad as ISO CG 00 01, workers' compensation, employer's
liability and auto liability, all in amounts reasonably satisfactory to
Landlord; and indemnification in a form reasonably satisfactory to Landlord.
The work shall be performed in a manner that will not interfere with the quiet
enjoyment of the other tenants in the Building in which the Premises is
located.
Landlord may require, in Landlord's sole discretion and at Tenant's sole cost
and expense, that Tenant provide Landlord with a lien and completion bond in
an amount equal to at least one and one-half (1-1/2) times the total estimated
cost of any additions, alterations or improvements to be made in or to the
Premises. Nothing contained in this Section 12.3. shall relieve Tenant of its
obligation under Section 12.4. to keep the Premises, Building and Project free
of all liens.
12.4. Payment. Tenant shall pay the costs of any work done on the
Premises pursuant to Sections 12.2. and 12.3., and shall keep the Premises,
Building and Project free and clear of liens of any kind. Tenant hereby
indemnifies, and agrees to defend against and keep Landlord free and harmless
from all liability, loss, damage, costs, attorneys' fees and any other expense
incurred on account of claims by any person performing work or furnishing
materials or supplies for Tenant or any person claiming under Tenant.
Tenant shall give Notice to Landlord at least ten (10) business days prior to
the expected date of commencement of any work relating to alterations,
additions or improvements to the Premises. Landlord retains the right to enter
the Premises and post such notices as Landlord deems proper at any reasonable
time.
12.5. Property of Landlord. Except as otherwise set forth herein, all
additions, alterations and improvements made to the Premises shall become the
property of Landlord and shall be surrendered with the Premises upon the
expiration of the Term unless their removal is required by Landlord as
provided in Section 12.3.; provided, however, Tenant's equipment, machinery
and trade fixtures shall remain the Property of Tenant and shall be removed,
subject to the provisions of Section 13.2.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
13.1. Leasehold Improvements. All fixtures, equipment (including air-
conditioning or heating systems), improvements and appurtenances attached to
or built into the Premises at the commencement or during the Term of the Lease
(Leasehold Improvements), whether or not by or at the expense of Tenant, shall
be and remain a part of the Premises, shall be the property of Landlord and
shall not be removed by Tenant, except as expressly provided in Section 13.2.,
unless Landlord, by Notice to Tenant not later than thirty (30) days prior to
the expiration of the Term, elects to have Tenant remove any Leasehold
Improvements installed
11
by Tenant. In such case, Tenant, at Tenant's sole cost and expense and prior
to the expiration of the Term, shall remove the Leasehold Improvements and
repair any damage caused by such removal.
13.2. Tenant's Property. All signs, notices, displays, movable
partitions, business and trade fixtures, machinery and equipment (excluding
air-conditioning or heating systems, whether installed by Tenant or not),
personal telecommunications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense to
Landlord, which can be removed without structural damage to the Building, and
all furniture, furnishings and other articles. of movable personal property
owned by Tenant and located in the Premises (collectively, Tenant's Property)
shall be and shall remain the property of Tenant and may be removed by Tenant
at any time during the Term; provided that if any of Tenant's Property is
removed, Tenant shall promptly repair any damage to the Premises or to the
Building resulting from such removal, including without limitation repairing
the flooring and patching and pointing the walls where required by Landlord to
Landlord's reasonable satisfaction, all at Tenant's sole cost and expense.
14. INDEMNIFICATION.
14.1. Tenant Indemnification. Tenant shall indemnify and hold Landlord
harmless from and against any and all liability and claims of any kind for
loss or damage to any person or property arising out of: (a) Tenant's use and
occupancy of the Premises, or the Building or Project, or any work, activity
or thing done, allowed or suffered by Tenant in, on or about the Premises, the
Building or the Project; (b) any breach or default by Tenant of any of
Tenant's obligations under this Lease; or (c) any negligent or otherwise
tortuous act or omission of Tenant, its agents, employees, subtenants,
licensees, customers, guests, invitees or contractors (including agents or
contractors who perform work outside of the Premises for Tenant). At
Landlord's request, Tenant shall, at Tenant's expense, and by counsel
satisfactory to Landlord, defend Landlord in any action or proceeding arising
from any such claim. Tenant shall indemnify Landlord against all costs,
attorneys' fees, expert witness fees and any other expenses or liabilities
incurred in such action or proceeding. As a material part of the consideration
for Landlord's execution of this Lease, Tenant hereby assumes all risk of
damage or injury to any person or property in, on or about the Premises from
any cause and Tenant hereby waives all claims in respect thereof against
Landlord, except in connection with damage or injury resulting solely from the
gross negligence or willful misconduct of Landlord or its authorized agents.
14.2 Landlord Not Liable. Landlord shall not be liable for injury or
damage which may be sustained by the person or property of Tenant, its
employees, invitees or customers, or any other person in or about the
Premises, caused by or resulting from fire, steam, electricity, gas, water or
rain which may leak or flow from or into any part of the Premises, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning, lighting fixtures or mechanical or
electrical systems, whether such damage or injury results from conditions
arising upon the Premises or upon other portions of the Building or Project or
from other sources, unless the condition was the sole result of Landlord's
gross negligence or willful misconduct. Landlord shall not be liable for any
damages arising from any act or omission of any other tenant of the Building
or Project or for the acts of persons in, on or about the Promises, Building
or the Project who are not the authorized agents of Landlord or for losses due
to theft, vandalism or like causes.
Tenant acknowledges that Landlord's election to provide mechanical surveillance
or to post security personnel in the Building or on the Project is solely
within Landlord's discretion. Landlord shall have no liability in connection
with the decision whether or not to provide such services, and, to the extent
permitted by law, Tenant hereby waives all claims based thereon.
15. TENANT'S INSURANCE.
15.1. Insurance Requirement. Tenant shall procure and maintain insurance
coverage in accordance with the terms hereof, either as specific policies or
within blanket policies. Coverage shall begin on the date Tenant is given
access to the Premises for any purpose and shall continue until expiration of
the Term, except as otherwise set forth in the Lease. The cost of such
insurance shall be borne by Tenant.
Insurance shall be with insurers licensed to do business in the State, and
acceptable to Landlord. The insurers must have a current A.M. Best's rating of
not less than A:VII, or equivalent (as reasonably determined by Landlord) if
the Best's rating system is discontinued.
Tenant shall furnish Landlord with original certificates and amendatory
endorsements effecting coverage required by this Section 15. before the date
Tenant is first given access to the Premises. All certificates and
endorsements are to be received and approved by Landlord before any work
commences, Landlord reserves the right to inspect and/or copy any insurance
policy required to be maintained by Tenant hereunder, or to require complete,
certified copies of all required insurance policies, including endorsements
effecting the coverage required herein at any time. Tenant shall comply with
such requirement within thirty (30) days of demand therefor by Landlord,
Tenant shall furnish Landlord with renewal certificates and
12
amendments or a "binder" of any such policy at least twenty (20) days prior to
the expiration thereof. Each insurance policy required herein shall be
endorsed to state that coverage shall not be canceled, except after thirty
(30) days' prior written notice to Landlord and Landlord's lender (if such
lender's address is provided).
The Commercial General Liability policy, as hereinafter required, shall
contain, or be endorsed to contain, the following provisions: (a) Landlord and
any parties designated by Landlord shall be covered as additional insureds as
their respective interests may appear; and (b) Tenant's insurance coverage
shall be primary insurance as to any insurance carried by the parties
designated as additional insureds. Any insurance or self-insurance maintained
by Landlord shall be excess of Tenant's insurance and shall not contribute
with it.
15.2. Minimum Scope of Coverage. Coverage shall be at least as broad as
set forth herein. However, if, because of Tenant's Use or occupancy of the
Premises, Landlord determines, in Landlord's reasonable judgment, that
additional insurance coverage or different types of insurance are necessary,
then Tenant shall obtain such insurance at Tenant's expense in accordance with
the terms of this Section 15.
15.2.1. Commercial General Liability (ISO occurrence form CG 00 01) which
shall cover liability arising from Tenant's Use and occupancy of the Premises,
its operations therefrom, Tenant's independent contractors, products-completed
operations, personal injury and advertising injury, and liability assumed
under an insured contract.
15.2.2. Workers' Compensation insurance as required by law, and Employers
Liability insurance.
15.2.3. Commercial Property Insurance (ISO special causes of loss form CP
10 30) against all risk of direct physical loss or damage (including flood, if
applicable), earthquake excepted, for: (a) all leasehold improvements
(including any alterations, additions or improvements made by Tenant pursuant
to the provisions of Section 12. hereof) in, on or about the Premises; and (b)
trade fixtures, merchandise and Tenant's Property from time to time in, on or
about the Premises. The proceeds of such property insurance shall be used for
the repair or replacement of the property so insured. Upon termination of this
Lease following a casualty as set forth herein, the proceeds under (a) shall
be paid to Landlord, and the proceeds under (b) above shall be paid to Tenant.
15.2.4. Business Auto Liability.
Landlord shall, during the term hereof, maintain in effect similar insurance
on the Building and Common Area.
15.2.5. Business Interruption and Extra Expense Insurance.
15.3. Minimum Limits of Insurance. Tenant shall maintain limits not less than:
15.3.1. Commercial General Liability: $1,000,000 per occurrence. If the
insurance contains a general aggregate limit, either the general aggregate
limit shall apply separately to this location or the general aggregate limit
shall be at least twice the required occurrence limit.
15.3.2. Employer's Liability: $1,000,000 per accident for bodily injury
or disease.
15.3.3. Commercial Property Insurance: 100% replacement cost with no
coinsurance penalty provision.
15.2.4. Business Auto Liability: $1,000,000 per accident.
15.3.5. Business Interruption and Extra Expense Insurance: In a
reasonable amount and comparable to amounts; carried by comparable tenants in
comparable projects.
15.4. Deductible and Self-Insured Retention. Any deductible or self-
insured retention in excess of $5,000 per occurrence must be declared to and
approved by Landlord, at the option of Landlord, either the insurer shall
reduce or eliminate such deductible or self-insured retention or Tenant shall
provide separate insurance conforming to this requirement.
15.5. Increases in Insurance Policy Limits. If the coverage limits set
forth in this Section 15. are deemed inadequate by Landlord or Landlord's
lender, then Tenant shall increase the coverage limits to the amounts
reasonably recommended by either Landlord or Landlord's lender. Landlord
agrees that any such required increases in coverage limits shall not occur
more frequently than once every three (3) years.
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15.6. Waiver of Subrogation. Landlord and Tenant each hereby waive all
rights of recovery against the other and against the officers, employees,
agents and representatives, contractors and invitees of the other, on account
of loss by or damage to the waiving party or its property or the property of
others under its control, to the extent that such loss or damage is insured
against under any insurance policy which may have been in force at the time
of such loss or damage.
15.7. Landlord's Right to Obtain Insurance for Tenant. If Tenant fails to
obtain the insurance coverage or fails to provide certificates and
endorsements as required by this Lease, Landlord may, at its option, obtain
such insurance for Tenant. Tenant shall pay, as Additional Rent, the
reasonable cost thereof together with a twenty-five percent (25%) service
charge.
16. DAMAGE OR DESTRUCTION.
16.1. Damage. If, during the term of this Lease, the Premises or the
portion of the Building necessary for Tenant's occupancy is damaged by fire or
other casualty covered by fire and extended coverage insurance carried by
Landlord, Landlord shall promptly repair the damage provided (a) such repairs
can, in Landlord's opinion, be completed, under applicable laws and
regulations, within one hundred eighty (180) days of the date a permit for
such construction is issued by the governing authority, (b) insurance proceeds
are available to pay eighty percent (80%) or more of the cost of restoration,
and (c) Tenant performs its obligations pursuant to Section 16.4. hereof. In
such event, this Lease shall continue in full force and effect, except that if
such damage is not the result of the negligence or willful misconduct of
Tenant, its agents or employees, Tenant shall be entitled to a proportionate
reduction of Rent to the extent Tenant's use of the Premises is impaired,
commencing with the date of damage and continuing until completion of the
repairs required of Landlord under Section 16.4. If the damage is due to the
fault or neglect of Tenant, its agents or employees and loss of rental income
insurance is denied as a result, there shall be no abatement of Rent.
Notwithstanding anything contained in the Lease to the contrary, in the event
of partial or total damage or destruction of the Premises during the last
twelve (12) months of the Term, either party shall have the option to
terminate this Lease upon thirty (30) days prior Notice to the other party
provided such Notice is served within thirty (30) days after the damage or
destruction. For purposes of this Section l6.1., "partial damage or
destruction" shall mean the damage or destruction of at least thirty-three and
one-third percent (33 and 1/3%) of the Premises, as determined by Landlord in
Landlord's reasonable discretion.
16.2. Repair of Premises in Excess of One Hundred Eighty Days. If in
Landlord's opinion, such repairs to the Premises or portion of the Building
necessary for Tenant's occupancy cannot be completed under applicable laws and
regulations within one hundred eighty (180) days of the date a permit for such
construction is issued by the governing authority, Landlord may elect, upon
Notice to Tenant given within thirty (30) days after the date of such fire or
other casualty, to repair such damage, in which event this Lease shall
continue in full force and effect, but the Base Rent shall be partially abated
as provided in Section 16.1. If Landlord does not so elect to make such
repairs, this Lease shall terminate as of the date of such fire or other
casualty.
16.3. Repair Outside Premises. If any other portion of the Building or
Project is totally destroyed or damaged to the extent that in Landlord's
opinion repair thereof cannot be completed under applicable laws and
regulations within one hundred eighty (180) days of the date a permit for such
construction is issued by the governing authority, Landlord may elect upon
Notice to Tenant given within thirty (30) days after the date of such fire or
other casualty, to repair such damage, in which event this Lease shall
continue in full force and effect, but the Base Rent shall be partially abated
as provided in Section 16.1. If Landlord does not elect to make such repairs,
this Lease shall terminate as of the date of such fire or other casualty.
16.4. Tenant Repair. If the Premises are to be repaired under this
Section 16., Landlord shall repair at its cost any injury or damage to the
Building and Building Standard Tenant Improvements, if any, Notwithstanding
anything contained herein to the contrary, Landlord shall not be obligated to
perform work other than Landlord's Work performed previously pursuant to
Section 12.1, hereof. Tenant shall be responsible at its sole cost and expense
for the repair, restoration and replacement of any other Leasehold
Improvements and Tenant's Property (as well as reconstructing and reconnecting
Tenant's internal telecommunications wiring and related equipment). Landlord
shall not be liable for any loss of business, inconvenience or annoyance
arising from any repair or restoration of any portion of the Premises,
Building or Project as a result of any damage from fire or other casualty.
16.5. Election Not to Perform Landlord's Work. Notwithstanding anything
to the contrary contained herein, Landlord shall provide Notice to Tenant of
its intent to repair or replace the Premises (if Landlord elects to perform
such work), and, within ten (10) days of its receipt of such Notice, Tenant
shall provide Notice to Landlord of its intent to reoccupy the Premises.
Should Tenant fail to provide such Notice to Landlord, then such failure shall
be deemed an election by Tenant not to re-occupy the Premises and Landlord may
elect not to perform the repair or replacement of the Premises. Such election
shall not result in a
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termination of this Lease and all obligations of Tenant hereunder shall remain
in full force and effect, including the obligation to pay Rent.
16.6. Express Agreement. This Lease shall be considered an express
agreement governing any case of damage to or destruction of the Premises,
Building or Project by fire or other casualty, and any present or future law
which purports to govern the rights of Landlord and Tenant in such
circumstances in the absence of express agreement shall have no application.
17. EMINENT DOMAIN.
17.1. Whole Taking. If the whole of the Building or Premises is lawfully
taken by condemnation or in any other manner for any public or quasi-public
purpose, this Lease shall terminate as of the date of such taking, and Rent
shall be prorated to such date.
17.2. Partial Taking. If less than the whole of the Building or Premises
is so taken, this Lease shall be unaffected by such taking, provided that (a)
Tenant shall have the right to terminate this Lease by Notice to Landlord
given within ninety (90) days after the date of such taking if twenty percent
(20%) or more. of the Premises is taken and the remaining are a of the
Premises is not reasonably sufficient for Tenant to continue operation of its
business, and (b) Landlord shall have the right to terminate this Lease by
Notice to Tenant given within ninety (90) days after the date of such taking.
If either Landlord or Tenant so elects to terminate this Lease, the Lease
shall terminate on the thirtieth (30th) calendar day after either such Notice.
Rent shall be prorated to the date of termination. If this Lease continues in
force upon such partial taking, Base Rent and Tenant's Proportionate Share
shall be equitably adjusted according to the remaining Usable Area of the
Premises and Project.
17.3. Proceeds. In the event of any taking, partial or whole, all of the
proceeds of any award, judgment or settlement payable by the condemning
authority shall be the exclusive property of Landlord, and Tenant hereby
assigns to Landlord all of its right, title and interest in any award,
judgment or settlement from the condemning authority; however, Tenant shall
have the right, to the extent that Landlord's award is not reduced or
prejudiced, to claim from the condemning authority (but not from Landlord)
such compensation as may be recoverable by Tenant in its own right for
relocation expenses and damage to Tenant's Property and damage to Leasehold
Improvements installed at the sole expense of Tenant.
17.4. Landlord's Restoration. In the event of a partial taking of the
Premises which does not result in a termination of this Lease, Landlord shall
restore the remaining portion of the Premises as nearly as practicable to its
condition prior to the condemnation or taking; provided however, Landlord
shall not be obligated to perform work other than Landlord's Work performed
previously pursuant to Section 12.1. hereof. Tenant shall be responsible at
its sole cost and expense for the repair, restoration and replacement of
Tenant's Property and any other Leasehold Improvements.
18. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the Premises
shall be permitted, except as provided in this Section 18.
18.1. No Assignment or Subletting. Tenant shall not, without the prior
written consent of Landlord, assign or hypothecate this Lease or any interest
herein or sublet the Premises or any part thereof, or permit the use of the
Premises or any part thereof by any party other than Tenant. Any of the
foregoing acts without such consent shall be voidable and shall, at the option
of Landlord, constitute a default hereunder. This Lease shall not, nor shall
any interest of Tenant herein, be assignable by operation of law without the
prior written consent of Landlord.
18.1.1. For purposes of this Section 18., the following shall be deemed
an assignment:
18.1.1.1. If Tenant is a partnership, any withdrawal or substitution
(whether voluntary, involuntary, or by operation of law, and whether occurring
at one time or over a period of time) of any partner(s) owning twenty-five
(25%) or more (cumulatively) of any interest in the capital or profits of the
partnership, or the dissolution of the partnership;
18.1.1.2. If Tenant is a corporation, any dissolution, merger,
consolidation, or other reorganization of Tenant, any sale or transfer (or
cumulative sales or transfers) of the capital stock of Tenant in excess of
twenty-five percent (25%), or any sale (or cumulative sales) or transfer of
fifty-one (51%) or more of the value of the assets of Tenant provided,
however, the foregoing shall not apply to corporations the capital stock of
which is publicly traded.
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18.2. Landlord's Consent. If, at any time or from time to time during the
Term hereof, Tenant desires to assign this Lease or sublet all or any part of
the Premises, and if Tenant is not then in default under the terms of the
Lease, Tenant shall submit to Landlord a written request for approval setting
forth the terms and provisions of the proposed assignment or sublease, the
identity of the proposed assignee or subtenant, and a copy of the proposed
form of assignment or sublease. Tenant's request for consent shall be
submitted to Landlord at least thirty (30) days prior to the intended date of
such transfer. Tenant shall promptly supply Landlord with such information
concerning the business background and financial condition of such proposed
assignee or subtenant as Landlord may reasonably request. Landlord shall have
the right to approve such proposed assignee or subtenant, which approval shall
not be unreasonably withheld. Landlord's consent to any assignment shall not
be construed as a consent to any subsequent assignment, subletting, transfer
of partnership interest or stock, occupancy or use.
18.2.1. Landlord's approval shall be conditioned, among other things, on
Landlord's receiving adequate assurances of future performance under this
Lease and any sublease or assignment. In determining the adequacy of such
assurances, Landlord may base its decision on such factors as it deems
appropriate, including but not limited to:
18.2.1.1. that the source of rent and other consideration due under this
Lease, and, in the case of assignment, that the financial condition and
operating performance and business experience of the proposed assignee and its
guarantors, if any, shall be equal to or greater than the financial condition
and operating performance and experience of Tenant and its guarantors, if any,
as of the time Tenant became the lessee under this Lease;
18.2.1.2. that any assumption or assignment of this Lease will not result
in increased cost or expense, wear and tear, greater traffic or demand for
services and utilities provided by Landlord pursuant to Section 10. hereof and
will not disturb or be detrimental to other tenants of Landlord;
18.2.1.3. whether the proposed assignee's use of the Premises will
include the use of Hazardous Material, or will in any way increase any risk to
Landlord relating to Hazardous Material; and
18.2.1.4. that assumption or assignment of such lease will not disrupt
any tenant mix or balance in the Project.
18.2.2. The assignment or sublease shall be on the same terms and
conditions set forth in the written request for approval given to Landlord,
or, if different, upon terms and conditions consented to by Landlord;
18.2.3. No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises or any part thereof until an
executed counterpart of such assignment or sublease has been delivered to
Landlord;
18.2.4. No assignee or sublessee shall have a further right to assign or
sublet except on the terms herein contained;
18.2.5. Any sums or other economic considerations received by Tenant as a
result of such assignment or subletting, however denominated under the
assignment or sublease, which exceed, in the aggregate (a) the total sums
which Tenant is obligated to pay Landlord under this Lease (prorated to
reflect obligations allocable to any portion of the Premises subleased), plus
(b) any real estate brokerage commissions or fees payable to third parties in
connection with such assignment or subletting, shall be shared equally by
Tenant and Landlord as Additional Rent under this Lease without effecting or
reducing any other obligations of Tenant hereunder.
If Landlord consents to the proposed transfer, Tenant shall deliver to
Landlord three (3) fully executed original documents (in the form previously
approved by Landlord) and Landlord shall attach its consent thereto. Landlord
shall retain one (1) fully executed original document. No transfer of Tenant's
interest in this Lease shall be deemed effective until the terms and
conditions of this Section 18. have been fulfilled.
18.3. Tenant Remains Responsible. No subletting or assignment shall
release Tenant of Tenant's obligations under this Lease or alter the primary
liability of Tenant to Pay the Rent and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of Rent by Landlord from any
other person shall not be deemed to be a waiver by Landlord of any provision
hereof. Consent to one assignment or subletting shall not be deemed consent to
any subsequent assignment or subletting. In the event of default by an
assignee or subtenant of Tenant or any successor of Tenant in the performance
of any of the terms hereof, Landlord may proceed directly against Tenant
without the necessity of exhausting remedies against such assignee, subtenant
or successor, Landlord may consent to subsequent assignments or sublets of the
Lease or amendments or modifications to the Lease with assignees of Tenant,
without notifying Tenant, or any successor of Tenant, and without obtaining
its or their consent thereto and any such actions shall not relieve Tenant of
liability under this Lease.
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18.4. Conversion to a Limited Liability Entity. Notwithstanding anything
contained therein to the contrary, if Tenant is a limited or general
partnership (or is comprised of two (2) or more persons, individually or as
co-partners, or entities), the change or conversion of Tenant to (a) a limited
liability company, (b) a limited liability partnership, or (c) any other
entity which possesses the characteristics of limited liability (any such
limited liability entity is collectively referred to herein as a "Successor
Entity") shall be prohibited unless the prior written consent of Landlord is
obtained, which consent may be withheld in Landlord's sole discretion.
18.4.1. Notwithstanding Section 18.4., Landlord agrees not to
unreasonably withhold or delay such consent provided that:
18.4.1.1. The Successor Entity succeeds to all or substantially all of
Tenant's business and assets;
18.4.1.2. The Successor Entity shall have a tangible net worth (Tangible
Net Worth), determined in accordance with generally accepted accounting
principles, consistently applied, of not less than the greater of the Tangible
Net Worth of Tenant on (a) the date of execution of the Lease, or (b) the day
immediately preceding the proposed effective date of such conversion; and
18.4.1.3. Tenant is not in default of any of the terms, covenants, or
conditions of this Lease on the propose effective date of such conversion.
18.5. Payment of Fees. If Tenant assigns the Lease or sublets the
Premises or requests the consent of Landlord to any assignment, subletting or
conversion to a limited liability entity, then Tenant shall, upon demand, pay
Landlord, whether or not consent is ultimately given, an administrative fee of
Three Hundred and 00/l00 Dollars ($300.00) plus costs and other reasonable
expenses incurred by Landlord in connection with each such act or request.
19. DEFAULT.
19.1. Tenant's Default. The occurrence of any one or more of the
following events shall constitute a default and breach of this Lease by
Tenant:
19.1.1. If Tenant abandons or vacates the Premises.
19.1.2. If Tenant fails to pay any Rent or Additional Rent or any other
charges required to be paid by Tenant under this Lease and such failure
continues for three (3) days after receipt of Notice thereof from Landlord to
Tenant.
19.1.3. If Tenant fails to promptly and fully perform any other covenant,
condition or agreement contained in this Lease and such failure continues for
thirty (30) days after Notice thereof from Landlord to Tenant, or, if such
default cannot reasonably be cured within thirty (30) days, if Tenant fails to
commence to cure within that thirty (30) day period and diligently prosecute
to completion.
19.1.4. Tenant's failure to occupy the Premises within ten (10) days
after delivery of possession (as defined in Section 4. hereof).
19.1.5. Tenant's failure to provide any document, instrument or
assurance as required by Sections 12., 15., 18. and/or 35. if the failure
continues for three (3) days after receipt of Notice from Landlord to Tenant.
19.1.6. To the extent provided by law:
19.1.6.1. If a writ of attachment or execution is levied on this Lease or
on substantially all of Tenant's Property; or
19.1.6.2. If Tenant or Tenant's Guarantor makes a general assignment for
the benefit of creditors; or
19.1.6.3. If Tenant files a voluntary petition for relief or if a
petition against Tenant in a proceeding under the federal bankruptcy laws or
other insolvency laws is filed and not withdrawn or dismissed within sixty
(60) days thereafter, or if under the provisions of any law providing for
reorganization or winding up of corporations, any court of competent
jurisdiction assumes jurisdiction, custody or control of Tenant or any
substantial part of its property and such jurisdiction, custody or control
remains in force unrelinquished, unstayed or unterminated for a period of
sixty (60) days; or
19.1.6.4. If in any proceeding or action in which Tenant is a party, a
trustee, receiver, agent or custodian is appointed to take charge of the
Premises or Tenant's Property (or has the authority to do so); or
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19.1.6.5. If Tenant is a partnership or consists of more than one (1)
person or entity, if any partner of the partnership or other person or entity
is involved in any of the acts or events described in Sections 19.1.6.1.
through 19.1.6.4. above.
19.2. Landlord Remedies. In the event of Tenant's default hereunder,
then, in addition to any other rights or remedies Landlord may have under any
law or at equity, Landlord shall have the right to collect interest on all
past due sums (at the maximum rate permitted by law to be charged by an
individual), and, at Landlord's option and without further notice or demand of
any kind, to do the following:
19.2.1. Terminate this Lease and Tenant's right to possession of the
Premises and reenter the Premises and take possession thereof, and Tenant
shall have no further claim to the Premises or under this Lease; or
19.2.2. Continue this Lease in effect, reenter and occupy the Premises
for the account of Tenant, and collect any unpaid Rent or other charges which
have or thereafter become due and payable; or
19.2.3. Reenter the Premises under the provisions of Section 19.2.2.,
and thereafter elect to terminate this Lease and Tenant's right to possession
of the Premises.
If Landlord reenters the Premises under the provisions of Sections 19.2.2. or
19.2.3. above, Landlord shall not be deemed to have terminated this Lease or
the obligation of Tenant to pay any Rent or other charges thereafter accruing
unless Landlord notifies Tenant in writing of Landlord's election to terminate
this Lease. Acts of maintenance, efforts to relet the Premises or the
appointment of a receiver on Landlord's initiative to protect Landlord's
interest under this Lease shall not constitute a termination of Tenant's
obligations under the Lease. In the event of any reentry or retaking of
possession by Landlord, Landlord shall have the right, but not the obligation,
to remove all or any part of Tenant's Property in the Premises and to place
such property in storage at a public warehouse at the expense and risk of
Tenant. If Landlord elects to relet the Premises for the account of Tenant,
the rent received by Landlord from such reletting shall be applied as follows:
first, to the payment of any indebtedness other than Rent due hereunder from
Tenant to Landlord; second, to the payment of any costs of such reletting;
third, to the payment of the cost of any alterations or repairs to the
Premises; fourth to the payment of Rent due and unpaid hereunder; and the
balance, if any, shall be held by Landlord and applied in payment of future
Rent as it becomes due. If that portion of Rent received from the reletting
which is applied against the Rent due hereunder is less than the amount of the
Rent due, Tenant shall pay the deficiency to Landlord promptly upon demand by
Landlord. Such deficiency shall be calculated and paid monthly. Tenant shall
also pay to Landlord, as soon as determined, any costs and expenses incurred
by Landlord in connection with such reletting or in making alterations and
repairs to the Premises which are not covered by the rent received from the
reletting.
19.3. Damages Recoverable. Should Landlord elect to terminate this Lease
under the provisions of Section 19.2., Landlord may recover as damages from
Tenant the following:
19.3.1. Past Rent. The worth at the time of the award of any unpaid Rent
that had been earned at the time of termination including the value of any
Rent that was abated during the Term of the Lease (except Rent that was abated
as a result of damage or destruction or condemnation); plus
19.3.2. Rent Prior to Award. The worth at the time of the award of the
amount by which the unpaid Rent that would have been earned between the time
of the termination and the time of the award exceeds the amount of unpaid Rent
that Tenant proves could reasonably have been avoided; plus
19.3.3. Rent After Award. The worth at the time of the award of the
amount by which the unpaid Rent for the balance of the Term after the time of
award exceeds the amount of the unpaid Rent that Tenant proves could be
reasonably avoided; plus
19.3.4. Proximately Caused by Damages. Any other amount necessary to
compensate Landlord for all detriment proximately caused by Tenant's failure
to perform its obligations under this lease or which in the ordinary course of
things would be likely to result therefrom, including, but not limited to, any
costs or expenses (including attorneys' fees), incurred by Landlord in (a)
retaking possession of the Premises, (b) maintaining the Premises after
Tenant's default, (c) preparing the Premises for reletting to a new tenant,
including any repairs or alterations, and (d) reletting the Premises,
including brokers' commissions.
"The worth at the time of the award" as used in Sections 19.3.1. and 19.3.2.
above, is to be computed by allowing interest at the maximum rate permitted by
law to be charged by an individual. "The worth at the time of the award" as
used in Section 19.3.3. above, is to be computed by discounting the amount at
the discount rate of the Federal Reserve Bank situated nearest to the Premises
at the time of the award plus one percent (1%).
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19.4. Landlord's Right to Cure Tenant's Default. If Tenant defaults in
the performance of any of its obligations under this Lease and Tenant has not
timely cured the default after Notice, Landlord may (but shall not be
obligated to), without waiving such default, perform the same for the account
and at the expense of Tenant. Tenant shall pay Landlord all Costs of such
performance immediately upon written demand therefor, and if paid at a later
date these costs shall bear interest at the maximum rate permitted by law to
be charged by an individual.
19.5. Landlord's Default. If Landlord fails to perform any covenant,
condition or agreement contained in this Lease within thirty (30) days after
receipt of Notice from Tenant specifying such default, or, if such default
cannot reasonably be cured within thirty (30) days if Landlord fails to
commence to cure within that thirty (30) day period and diligently prosecute
to completion, then Landlord shall be liable to Tenant for any damages
sustained by Tenant as a result of Landlord's breach; provided, however, it
is expressly understood and agreed that if Tenant obtains a money judgment
against Landlord resulting from any default or other claim arising under this
Lease, that judgment shall be satisfied only out of the rents, issues,
profits, and other income actually received on account of Landlord's right,
title and interest in the Premises, Building or Project, and no other real,
personal or mixed property of Landlord (or of any of the partners which
comprise Landlord, if any), wherever situated, shall be subject to levy to
satisfy such judgment.
19.6. Mortgagee Protection. Tenant agrees to send by certified or
registered mail to any first mortgagee or first deed of trust beneficiary of
Landlord whose address has been furnished to Tenant, a copy of any notice of
default served by Tenant on Landlord. If Landlord fails to cure such default
within the time provided for in this Lease, then such mortgagee or beneficiary
shall have such additional time to cure the default as is reasonably necessary
under the circumstances.
19.7. Tenant's Right to Cure Landlord's Default. If, after Notice to
Landlord of default, Landlord (or any first mortgagee or first deed of trust
beneficiary of Landlord) fails to cure the default as provided herein, then
Tenant shall have the right to cure that default at Landlord's expense. Tenant
shall not have the right to terminate this Lease or to withhold, reduce or
offset any amount against any payments of Rent or any other charges due and
payable under this Lease except as otherwise specifically provided herein.
Tenant expressly waives the benefits of any statute now or hereafter in effect
which would otherwise afford Tenant the right to make repairs at Landlord's
expense or to terminate this Lease because of Landlord's failure to keep the
Premises in good order, condition and repair.
20. WAIVER.
No delay or omission in the exercise of any right or remedy of Landlord upon
any default by Tenant shall impair such right or remedy or be construed as a
waiver of such default. The receipt and acceptance by Landlord of delinquent
Rent shall not constitute a waiver of any other default; it shall constitute
only a waiver of timely payment for the particular Rent payment involved
(excluding the collection of a late charge or interest).
No act or conduct of Landlord, including, without limitation, the acceptance
of keys to the Premises, shall constitute an acceptance of the surrender of
the Premises by Tenant before the expiration of the Term. Only written
acknowledgement from Landlord to Tenant shall constitute acceptance of the
surrender of the Premises and accomplish a termination of this Lease.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of this
Lease.
21. SUBORDINATION AND ATTORNMENT.
This Lease is and shall be subject and subordinate to all ground or underlying
leases (including renewals, extensions, modifications, consolidations and
replacements thereof) which now exist or may hereafter be executed affecting
the Building or the land upon which the Building is situated, or both, and to
the lien of any mortgages or deeds of trust in any amount or amounts
whatsoever (including renewals, extensions, modifications, consolidations and
replacements thereof) now or hereafter placed on or against the Building or on
or against Landlord's interest or estate therein, or on or against any ground
or underlying lease, without the necessity of the execution and delivery of
any further instruments on the part of Tenant to effectuate such
subordination. Nevertheless, Tenant covenants and agrees to execute and
deliver upon demand, without charge therefor, such further instruments
evidencing such subordination of this Lease to such ground or underlying
leases, and to the lien of any such mortgages or deeds of trust as may be
required by Landlord.
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Notwithstanding anything contained herein to the contrary, if any mortgagee,
trustee or ground lessor shall elect that this Lease is senior to the lien of
its mortgage, deed of trust or ground lease, and shall give written notice
thereof to Tenant, this Lease shall be deemed prior to such mortgage, deed of
trust or ground lease, whether this Lease is dated prior or subsequent to the
date of said mortgage, deed of trust, or ground lease, or the date of the
recording thereof.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which Landlord is lessee, Tenant shall attorn to
the purchaser, transferee or lessor as the case may be, and recognize that
party as landlord under this Lease, provided such party acquires and accepts
the Premises subject to this Lease.
22. TENANT ESTOPPEL CERTIFICATES.
22.1. Landlord Request for Estoppel Certificate. Within ten (10) days
after written request from Landlord, Tenant shall execute and deliver to
Landlord or Landlord's designee, in the form requested by Landlord, a written
statement certifying, among other things, (a) that this Lease is unmodified
and in full force and effect, or that it is in full force and effect as
modified and stating the modifications; (b) the amount of Base Rent and the
date to which Base Rent and Additional Rent have been paid in advance; (c) the
amount of any security deposited with Landlord; and (d) that Landlord is not
in default hereunder or, if Landlord is claimed to be in default, stating the
nature of any claimed default. Any such statement may be conclusively relied
upon by a prospective purchaser, assignee or encumbrance of the Premises.
22.2. Failure to Execute. Tenant's failure to execute and deliver such
statement within the time required shall at Landlord's election be a default
under this Lease and shall also be conclusive upon Tenant that: (a) this Lease
is in full force and effect and has not been modified except as represented by
Landlord; (b) there are no uncured defaults in Landlord's performance and that
Tenant has no right of offset, counter-claim or deduction against Rent and (c)
not more than one month's Rent has been paid in advance.
23. NOTICE.
Notice shall be in writing and shall be deemed duly served or given if
personally delivered, sent by certified or registered U.S. Mail, postage
prepaid with a return receipt requested, or sent by overnight courier service,
fee prepaid with a return receipt requested, as follows: (a) if to Landlord,
to Landlord's Address for Notice with a copy to the Building manager, and (b)
if to Tenant, to Tenant's Mailing Address; provided, however, Notices to
Tenant shall be deemed duly served or given if delivered or sent to Tenant at
the Premises. Landlord and Tenant may from time to time by Notice to the other
designate another place for receipt of future Notice. Notwithstanding anything
contained herein to the contrary, when an applicable State statute requires
service of Notice in a particular manner, service of that Notice in accordance
with those particular requirements shall replace rather than supplement any
Notice requirement set forth in the Lease.
24. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises, Building or
Project, and assignment of this Lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any act, occurrence or
omission relating to the Premises, Building, Project or Lease occurring after
the consummation of such sale or transfer, provided the purchaser shall
expressly assume all of the covenants and obligations of Landlord under this
Lease. This Lease shall not be affected by any such sale and Tenant agrees to
attorn to the purchaser or assignee provided all of Landlord's obligations
hereunder are assumed by such transferee. If any security deposit or prepaid
Rent has been paid by Tenant, Landlord shall transfer the security deposit or
prepaid Rent to Landlord's successor and upon such transfer, Landlord shall be
relieved of any and all further liability with respect thereto.
25. SURRENDER OF PREMISES.
25.1. Clean and Same Condition. Upon the Expiration Date or earlier
termination of this Lease, Tenant shall peaceably surrender the Premises to
Landlord clean and in the same condition as when received, except for (a)
reasonable wear and tear, (b) loss by fire or other casualty, and (c) loss by
condemnation. Tenant shall remove Tenant's Property no later than the
Expiration Date, If Tenant is required by Landlord to remove any additions,
alterations, or improvements under Section 12.3., Tenant shall complete such
removal no later than the Expiration Date. Any damage to the Premises,
including any structural damage, resulting from removal of any addition.
alteration, or improvement made pursuant to Section 12.3. and/or from Tenant's
use or from the removal of Tenant's Property pursuant to Section 13.2. shall
be repaired (in accordance with Landlord's reasonable direction) no later than
the Expiration
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Date by Tenant at Tenant's sole cost and expense. On the Expiration Date
Tenant shall surrender all keys to the Premises.
25.2. Failure to Deliver Possession. If Tenant fails to vacate and
deliver possession of the Premises to Landlord on the expiration or sooner
termination of this Lease as required by Section 25.1., Tenant shall
indemnify, defend and hold Landlord harmless from all claims, liabilities and
damages resulting from Tenant's failure to vacate and deliver possession of
the Premises, including, without limitation, claims made by a succeeding
tenant resulting from Tenant's failure to vacate and deliver possession of the
Premises and rental loss which Landlord suffers.
25.3. Property Abandoned. If Tenant abandons or surrenders the Premises,
or is dispossessed by process of law or otherwise, any of Tenant's Property
left on the Premises shall be deemed to be abandoned, and, at Landlord's
option, title shall pass to Landlord under this Lease as by a xxxx of sale. If
Landlord elects to remove all or any part of such Tenant's Property, the cost
of removal, including repairing any damage to the Premises or Building caused
by such removal, shall be paid by Tenant.
26. HOLDING OVER.
Tenant shall not occupy the Premises after the Expiration Date without
Landlord's consent. If after expiration of the Term, Tenant remains in
possession of the Premises with Landlord's permission (express or implied),
Tenant shall become a tenant from month to month only upon all the provisions
of this Lease (except as to the term and Base Rent), Monthly Installments of
Base Rent payable by Tenant during this period shall be increased to the
greater of one hundred fifty percent (150%) of the fair market rental value of
the Premises (as reasonably determined by Landlord) or two hundred percent
(200%) of the Monthly Installments of Base Rent payable by Tenant in the final
month of the Term. Such monthly rent shall be payable in advance on or before
the first day of each month. The tenancy may be terminated by either party,
effective on the last day of a calendar month, by delivering a Notice of
Termination to the other party at least thirty (30) days prior thereto.
Nothing contained in this Section 26. shall be construed to limit or
constitute a waiver of any other rights or remedies available to Landlord
pursuant to this Lease or at law.
27. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors, employees and
invitees to comply with) the rules and regulations attached hereto as Exhibit
"E" and with such reasonable modifications thereof and additions thereto as
Landlord may from time to time make. Landlord agrees to enforce the rules and
regulations uniformly against all tenants of the Project. Landlord shall not
be liable, however, for any violation of said rules and regulations by other
tenants or occupants of the Building or Project.
28. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without (a) liability to
Tenant for damage or injury to property, person or business; (b) being found
to have caused an actual or constructive eviction from the Premises; or (c)
being found to have disturbed Tenant's use or possession of the Premises.
28.1. To name the Building and Project and to change the name or street
address of the Building or Project.
28.2. To install and maintain all signs on the exterior and interior of
the Building and Project.
28.3. To have pass keys to the Premises and all doors within the
Premises, excluding Tenant's files, vaults and safes.
28.4. To stripe or re-stripe, re-surface, enlarge, change the grade or
drainage of and control access to the parking lot; to assign and reassign
spaces for the exclusive or nonexclusive use of tenants (including Tenant);
and to locate or relocate parking spaces assigned to Tenant.
28.5. At any time during the Term, and on prior telephonic notice to
Tenant, to inspect the Premises, and to show the Premises to any person having
an existing or prospective interest in the Project or Landlord, and during the
Last six months of the Term, to show the Premises to prospective tenants
thereof.
28.6. To enter the Premises for the purpose of making inspections,
repairs, alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or balancing
controls and other parts of the HVAC system). and to take all steps as may be
necessary or desirable for the safety, protection, maintenance or
preservation of the Premises or the Building or Landlord's interest therein,
or as may be necessary or desirable for the operation or improvement of the
Building or in order to comply
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with laws, orders or requirements of governmental or other authority. Landlord
agrees to use its best efforts (except in an emergency) to minimize
interference with Tenant's business in the Premises in the course of any such
entry.
28.7. To exclusively regulate and control use of the Common Area.
29. ADVERTISEMENTS AND SIGNS.
Tenant shall not affix, paint, erect or inscribe any sign, projection, awning,
signal or advertisement of any kind to any part of the Premises, Building or
Project, including without limitation the inside or outside of windows or
doors. without the prior written consent of Landlord. Landlord shall have the
right to remove any signs or other matter installed without Landlord's
permission, without being liable to Tenant by reason of such removal, and to
charge the cost of removal to Tenant as Additional Rent hereunder, payable
within ten (10) days of written demand by Landlord.
30. RELOCATION OF PREMISES.
Landlord shall have the right to relocate the Premises to another part of the
Building at any time after the execution and delivery of the Lease upon at
least thirty (30) days prior Notice to Tenant, The new premises shall be
similar in size to the Premises described in this Lease and shall be leased to
Tenant on the same terms and conditions as provided in the Lease, except that
if the new premises contains more or less square footage, then there shall be
a proportionate adjustment in Rent. Landlord shall pay reasonable expenses
incurred moving Tenant's Property to the new premises. Upon completion of such
relocation, the new premises shall be the Premises for all purposes under the
Lease and the parties shall immediately execute an amendment to this Lease
setting forth the relocation of the Premises and the reduction of Base Rent,
if any.
31. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use or consumption of energy or
other utilities (including telecommunications) during the Term, both Landlord
and Tenant shall be bound thereby. In the event of a difference in
interpretation by Landlord and Tenant of any such controls, the interpretation
of Landlord shall prevail and Landlord shall have the right to enforce
compliance therewith, including the right of entry into the Premises to effect
compliance.
32. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or
Tenant which is due to strikes, labor disputes, inability to obtain labor,
materials, equipment or reasonable substitutes therefor, acts of God,
governmental restrictions or regulations or controls, judicial orders, enemy
or hostile government actions, civil commotion, fire or other casualty, or
other causes beyond the reasonable control of the party obligated to perform
hereunder, shall excuse performance of the work by that party for a period
equal to the duration of that prevention, delay or stoppage. Nothing in this
Section 32. shall excuse or delay Tenant's obligation to pay Rent or other
charges under this Lease.
33. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any real estate
broker or agent in connection with this Lease or its negotiation except the
Listing and Leasing Agent(s) set forth in Section 2.8 of this Lease, Tenant
shall indemnify, defend and hold Landlord harmless from any cost, expense or
liability (including costs of suit and reasonable attorneys' fees) for any
compensation, commission or fees claimed by any other real estate broker or
agent in connection with this Lease or its negotiation by reason of any act of
Tenant.
34. QUIET ENJOYMENT.
Tenant, upon payment of Rent and performance of all of its obligations under
this Lease, shall peaceably, quietly and exclusively enjoy possession of the
Premises without unwarranted interference by Landlord or anyone acting or
claiming through Landlord, subject to the terms of this Lease and to any
mortgage, lease, or other agreement to which this Lease may be subordinate.
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35. TELECOMMUNICATIONS.
35.1. Telecommunications Companies. Tenant and Tenant's
telecommunications companies, including but not limited to local exchange
telecommunications companies and alternative access vendor services companies
("Telecommunications Companies"), shall have no right of access to and within
the lands or Buildings comprising the Project for the installation and
operation of telecommunications lines and systems including but not limited to
voice, video, data, and any other telecommunications services provided over
wire, fiber optic, microwave, wireless and any other transmission systems, for
part or all of Tenant's telecommunications within the Building and from the
Building to any other location (hereinafter collectively referred to as
"Telecommunications Lines"), without Landlord's prior written consent, which
Landlord may withhold in its sole and absolute discretion. Notwithstanding the
foregoing, Tenant may perform any installation, repair and maintenance to its
Telecommunications Lines without Landlord's consent where the equipment being
installed, repaired or maintained is not located in an area in which the
Telecommunications Lines or any part thereof of any other tenant or of
Landlord are located.
35.2. Tenant's Obligations. If at any time, Tenant's Telecommunications
Companies or appropriate governmental authorities relocate the point of
demarcation from the location of Tenant's telecommunications equipment in
Tenant's telephone equipment room or other location, to some other point, or
in any other manner transfer any obligations or liabilities for
telecommunications to Landlord or Tenant, whether by operation of law or
otherwise, upon Landlord's election, Tenant shall, at Tenant's sole expense
and cost: (1) within thirty (30) days after notice is first given to Tenant of
Landlord's election, cause to be completed by an appropriate
telecommunications engineering entity approved in advance in writing by
Landlord, all details of the Telecommunications Lines serving Tenant in the
Building which details shall include all appropriate plans, schematics, and
specifications; and (2) if Landlord so elects, immediately undertake the
operation, repair and maintenance of the Telecommunications Lines serving
Tenant in the Building; and (3) upon the termination of the Lease for any
reason, or upon expiration of the Lease, immediately effect the complete
removal of all or any portion or portions of the Telecommunications Lines
serving Tenant in the Building and repair any damage caused thereby (to
Landlord's reasonable satisfaction).
Prior to the commencement of any alterations, additions, or modifications
to the Telecommunications Lines serving Tenant in the Building, except for
minor changes, Tenant shall first obtain Landlord's prior written consent by
written request accompanied by detailed plans, schematics, and specifications
showing all alterations, additions and modifications to be performed, with the
time schedule for completion of the work, and the identity of the entity which
will perform the work, for which, except as otherwise provided in Section
35.3. below, Landlord may withhold consent in its sole and absolute
discretion.
35.3. Landlord's Consent. Without in any way limiting Landlord's right to
withhold its consent to a proposed request for access, or for alterations,
additions or modifications of the Telecommunications Lines serving Tenant in
the Building, Landlord shall consider the following factors in making its
determination:
35.3.1. If the proposed actions of Tenant and its Telecommunications
Companies will impose new obligations on Landlord, or expose Landlord to
liability of any nature or description, or increase Landlord's insurance costs
for the Building, or create liabilities for which Landlord is unable to obtain
insurance protection, or imperil Landlord's insurance coverage;
35.3.2. If Tenant's Telecommunications Companies are unwilling to pay
reasonable monetary compensation for the use and occupation of the Building
for the Telecommunications Lines;
35.3.3. If Tenant and its Telecommunications Companies would cause any
work to be performed that would adversely affect the land and Building or any
space in the Building in any manner;
35.3.4. If Tenant encumbers or mortgages its interest in any
telecommunications wiring or cabling; or
35.3.5. If Tenant is in default under this Lease.
35.4. Indemnification. Tenant shall indemnify, defend and hold harmless
Landlord and its employees, agents, officers, and directors from and against
any claims, demands, penalties, fines, liabilities, settlements, damages,
costs, or expenses of any kind or nature, known or unknown, contingent or
otherwise, arising out of or in any way related to the acts and omissions of
Tenant, Tenant's officers, directors, employees, agents, contractors,
subcontractors, subtenants, and invitees with respect to (1) any
Telecommunications Lines serving Tenant in the Building which are on, from, or
affecting the Project and Building; (2) any bodily injury (including wrongful
death) or property damage (real or personal) arising out of or related to any
Telecommunications Lines serving Tenant in the Building which are on, from, or
affecting the Building; (3) any lawsuit brought or threatened, settlement
reached, or governmental order relating to such Telecommunications Lines; (4)
any violations of laws, orders, regulations, requirements, or demands of
governmental authorities, or any reasonable
23
policies or requirements of Landlord, which are based upon or in any way
related to such Telecommunications Lines, including, without limitation,
attorney and consultant fees, court costs, and litigation expenses, This
indemnification and hold harmless agreement will survive this Lease. Under no
circumstances shall Landlord be required to maintain, repair or replace any
Building systems or any portions thereof, when such maintenance, repair or
replacement is caused in whole or in part by the failure or any such system or
any portions thereof, and/or the requirements of any governmental authorities.
Under no circumstances shall Landlord be liable for interruption in
telecommunications services to Tenant or any other entity affected, for
electrical spikes or surges, or for any other cause whatsoever, whether by Act
of God or otherwise, even if the same is caused by the ordinary negligence of
Landlord, Landlord's contractors, subcontractors, or agents or other tenants,
subtenants, or their contractors, subcontractors, or agents.
35.5. Landlord's Operation of Building Telecommunications Lines and
Systems. Notwithstanding anything contained herein to the contrary, if the
point of demarcation is relocated, Landlord may, but shall not be obligated
to, undertake the operation, repair and maintenance of telecommunications
lines and systems in the Building. If Landlord so elects, Landlord shall give
Notice of its intent to do so, and Landlord shall, based on Landlord's sole
business discretion, make such lines and systems available to tenants of the
Building (including Tenant) in the manner it deems most prudent. Landlord may
include in Operating Expenses all or a portion of the expenses related to the
operation, repair and maintenance of the telecommunications lines and systems.
36. MISCELLANEOUS.
36.1. Accord and Satisfaction: Allocation of Payments. No payment by
Tenant or receipt by Landlord of a lesser amount than the Rent provided for in
this Lease shall be deemed to be other than on account of the earliest due
Rent, nor shall any endorsement or statement on any check or letter
accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of the Rent or pursue any other
remedy provided for in this Lease. In connection with the foregoing, Landlord
shall have the absolute right in its sole discretion to apply any payment
received from Tenant to any account or other payment of Tenant then not
current and due or delinquent.
36.2. Addenda. If any provision contained in an addendum to this Lease is
inconsistent with any other provision herein, the provision contained in the
addendum shall control, unless otherwise provided in the addendum.
36.3. Attorneys' Fees. If any action or proceeding is brought by either
party against the other pertaining to or arising out of this Lease, the
finally prevailing party (i.e., the party that recovers the greater relief as
a result (of the action or proceeding) shall be entitled to recover all costs
and expenses, including reasonable attorneys' fees, incurred on account of
such action or proceeding.
36.4. Captions and Section Numbers. The captions appearing in the body of
this Lease have been inserted as a matter of convenience and for reference
only and in no way define, limit or enlarge the scope or meaning of this
Lease. All references to Section numbers refer to Sections in this Lease.
36.5. Changes Requested by Lender. Neither Landlord nor Tenant shall
unreasonably withhold its consent to changes or amendments to this Lease
requested by the lender on Landlord's interest, so long as such changes do not
alter the basic business terms of this Lease or otherwise materially diminish
any rights or materially increase any obligations of the party from whom
consent to such change or amendment is requested.
36.6. Choice of Law. This Lease shall be construed and enforced in
accordance with the Laws of the State.
36.7. Consent. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall have no claim, and hereby waives the right to any claim
against Landlord for money damages, by reason of any refusal, withholding or
delaying by Landlord of any consent, approval or statement of satisfaction,
and, in such event, Tenant's only remedies therefor shall be an action for
specific performance, injunction or declaratory judgment to enforce any right
to such consent, approval or statement of satisfaction.
36.8. Authority. If Tenant is not an individual signing on his or her own
behalf, then each individual signing this Lease on behalf of the business
entity that constitutes Tenant represents and warrants that the individual is
duly authorized to execute and deliver this Lease on behalf of the business
entity, and that this Lease is binding on Tenant in accordance with its terms.
Tenant shall, at Landlord's request, deliver a certified copy of a resolution
of its board of directors, if Tenant is a corporation, or other memorandum of
resolution if Tenant is a limited partnership, general partnership or limited
liability entity, authorizing such execution.
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36.9. Waiver of right to Jury Trial. Landlord and Tenant hereby waive
their respective rights to a trial by jury of any claim, action, proceeding or
counterclaim by either party against the other on any matters arising out of
or in any way connected with this Lease, the relationship of Landlord and
Tenant, and/or Tenant's Use or occupancy of the Premises, Building or Project
(including any claim of injury or damage or the enforcement of any remedy
under any current or future laws, statutes, regulations, codes or ordinances).
36.10. Counterparts. This Lease may be executed in multiple counterparts,
all of which shall constitute one and the same Lease.
36.11. Execution of Lease; No Option. The submission of this Lease to
Tenant shall be for examination purposes only and does not and shall not
constitute a reservation of or option for Tenant to Lease, or otherwise create
any interest of Tenant in the Premises or any other premises within the
Building or Project. Execution of this Lease by Tenant and its return to
Landlord shall not be binding on Landlord, notwithstanding any time interval,
until Landlord has in fact signed and delivered this Lease to Tenant.
36.12. Furnishing of Financial Statements; Tenant's Representations. In
order to induce Landlord to enter into this Lease, Tenant agrees that it shall
promptly furnish Landlord, from time to time, upon Landlord's written request,
financial statements reflecting Tenant's current financial condition. Tenant
represents and warrants that all financial statements, records and information
furnished by Tenant to Landlord in connection with this Lease are true,
correct and complete in all respects.
36.13. Further Assurances. The parties agree to promptly sign all
documents reasonably requested to give effect to the provisions of this Lease.
36.14. Prior Agreements; Amendments. This Lease and the schedules and
addenda attached, if any, form a part of this Lease together with the rules
and regulations set forth on Exhibit "E" attached hereto, and set forth all
the covenants, promises, assurances, agreements, representations, conditions,
warranties, statements, and understandings (Representations) between Landlord
and Tenant concerning the Premises and the Building and Project, and there are
no Representations, either oral or written, between them other than those in
this Lease.
This Lease supersedes and revokes all previous negotiations, arrangements,
letters of intent, Offers to lease, lease proposals, brochures,
representations, and information conveyed, whether oral or in writing, between
the parties hereto or their respective representatives or any other person
purporting to represent Landlord or Tenant. Tenant acknowledges that it has
not been induced to enter into this Lease by any Representations not set forth
in this Lease, and that it has not relied on any such Representations. Tenant
further acknowledges that no such Representations shall be used in the
interpretation or construction of this Lease, and that Landlord shall have no
liability for any consequences arising as a result of any such
Representations.
Except as otherwise provided herein, no subsequent alteration, amendment,
change, or addition to this Lease shall be binding upon Landlord or Tenant
unless it is in writing and signed by each party.
36.15. Recording. Tenant shall not record this Lease without the prior
written consent of Landlord. Tenant, upon the request of Landlord, shall
execute and acknowledge a short form memorandum of this Lease for recording
purposes.
36.16. Severability. A final determination by a court of competent
jurisdiction that any provision of this Lease is invalid shall not affect the
validity of any other provision, and any provision so determined to be invalid
shall, to the extent possible, be construed to accomplish its intended effect.
36.17. Successors and Assigns. This Lease shall apply to and bind the
heirs, personal representatives, and successors and assigns of the parties.
36.18. Time of the Essence. Time is of the essence of this Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as
of the date first set forth on Page 1.
LANDLORD:
GLENBOROUGH PROPERTIES, L.P.,
a California limited partnership
By: Glenborough Realty Trust Incorporated,
a Maryland corporation
Its General Partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Its Sr. Vice President
Commercial Property Management
------------------------------
TENANT:
Nonvolatile Electronics, Inc.
a Minnesota corporation.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Its President
---------
By:
----------------
Its
---------------
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