EXHIBIT 10.26
LEASE
THIS LEASE (the "Lease") is executed this _____ day of
_______________________, 2007, by and between FirstCal Industrial 2 Acquisition,
LLC, a Delaware limited liability company ("Landlord"), and Universal
Electronics Inc., a Delaware corporation ("Tenant").
ARTICLE 1 - LEASE OF PREMISES
Section 1.01. Basic Lease Provisions and Definitions.
(a) Leased Premises (shown in EXHIBIT A hereto): 1864 Enterprise
Parkway, Twinsburg, Ohio (the "Building").
(b) Rentable Area: approximately 21,509 square feet.
(c) Tenant's Proportionate Share: 32.54%.
(d) Minimum Annual Rent:
Year 1 $107,554.96
Year 2 $112,922.28
Year 3 $118,299.48
Year 4 $123,676.80
(e) Monthly Rental Installments:
Months 1 - 12 $ 8,962.08
Months 13 - 24 $ 9,410.19
Months 25 - 36 $ 9,858.29
Months 37 - 48 $10,306.40
(f) Intentionally Omitted
(g) Target Commencement Date: March 1, 2007.
(h) Lease Term: four (4) years.
(i) Security Deposit: $8,962.08, of which $3,138.96 is currently held by
Landlord and $5,823.12 ("Additional Security Deposit") due from
Tenant.
(j) Broker(s): Grubb and Ellis representing Landlord.
(k) Permitted Use: General office and related purposes, together with a
call center including product storage, servicing and fulfillment.
(l) Address for notices and payments are as follows:
Landlord: First Industrial Realty Trust, Inc.
4742 Creek Road
Cincinnati, OH 45242
With
Payments to: FirstCal Industrial 2 Acquisition, LLC
PO Box 809137
Chicago, IL 60680
Tenant: Universal Electronics Inc.
1864 Enterprise Parkway
Twinsburg, OH 44087
With a copy to: Universal Electronics Inc.
8190 Carrington Place
Bainbridge Township, OH 44023
ATTN: Sr. Vice President and General Counsel
EXHIBITS
Exhibit A - Leased Premises
Exhibit A-1 - The Downsize Portion
Exhibit A-2 - Leased Premises After The Downsize Date
Exhibit B - Tenant Improvements
Exhibit B-1 - Construction Drawing
Exhibit C - Letter of Understanding
Exhibit D - Intentionally Omitted
Exhibit E - Rules and Regulations
Exhibit F - Tenant Operations Inquiry Form
Lease Addendum A - Downsize Option
Lease Addendum B - Renewal Option
Section 1.02. Lease of Premises. Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord the Leased Premises, under the terms and
conditions herein, together with a non-exclusive right, in common with others,
to use the following (collectively, the "Common Areas"): the areas of the
Building and the underlying land and improvements thereto that are designed for
use in common by all tenants of the Building and their respective employees,
agents, customers, invitees and others.
ARTICLE 2 - TERM AND POSSESSION
Section 2.01. Term. The Lease Term shall commence as of the date (the
"Commencement Date") that Substantial Completion (as defined in EXHIBIT B
hereto) of the Tenant Improvements (as defined in Section 2.02 below) occurs.
Section 2.02. Construction of Tenant Improvements. Landlord shall
construct and install all leasehold improvements to the Leased Premises
(collectively, the "Tenant Improvements") in accordance with EXHIBIT B attached
hereto and made a part hereof.
Section 2.03. Surrender of the Premises. Upon the expiration or earlier
termination of this Lease, Tenant shall, at its sole cost and expense,
immediately (a) surrender the Leased Premises to Landlord in
-2-
broom-clean condition and in good order, condition and repair, (b) remove from
the Leased Premises (i) Tenant's Property (as defined in Section 8.01 below),
and (ii) any alterations required to be removed pursuant to Section 7.03 below,
and (c) repair any damage caused by any such removal and restore the Leased
Premises to the condition existing upon the Commencement Date, reasonable wear
and tear excepted. All of Tenant's Property that is not removed within ten (10)
days following Landlord's written demand therefor shall be conclusively deemed
to have been abandoned and Landlord shall be entitled to dispose of such
property at Tenant's cost without incurring any liability to Tenant. This
Section 2.03 shall survive the expiration or any earlier termination of this
Lease.
Section 2.04. Holding Over. If Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease, Tenant shall
be a tenant at sufferance at one hundred fifty percent (150%) of the Monthly
Rental Installments for the Leased Premises in effect upon the date of such
expiration or earlier termination, and otherwise upon the terms, covenants and
conditions herein specified, so far as applicable. Acceptance by Landlord of
rent after such expiration or earlier termination shall not result in a renewal
of this Lease, nor shall such acceptance create a month-to-month tenancy. In the
event a month-to-month tenancy is created by operation of law, either party
shall have the right to terminate such month-to-month tenancy upon thirty (30)
days' prior written notice to the other, whether or not said notice is given on
the rent paying date. This Section 2.04 shall in no way constitute a consent by
Landlord to any holding over by Tenant upon the expiration or earlier
termination of this Lease, nor limit Landlord's remedies in such event.
ARTICLE 3 - RENT
Section 3.01. Base Rent. Tenant shall pay to Landlord the Minimum Annual
Rent in the Monthly Rental Installments in advance, without demand, deduction or
offset, or the Commencement Date and on or before the first day of each and
every calendar month thereafter during the Lease Term. The Monthly Rental
Installments for partial calendar months shall be prorated. Tenant shall be
responsible for delivering the Monthly Rental Installments to the payment
address set forth in Section 1.01(l) above in accordance with this Section 3.01.
Section 3.02. Annual Rental Adjustment Definitions.
(a) "Annual Rental Adjustment" shall mean the amount of Tenant's
Proportionate Share of Operating Expenses for a particular calendar year.
(b) "Operating Expenses" shall mean the amount of all of Landlord's costs
and expenses paid or incurred in operating, repairing, replacing and maintaining
the Building and the Common Areas in good condition and repair for a particular
calendar year, including by way of illustration and not limitation, the
following: all Real Estate Taxes (as hereinafter defined), insurance premiums
and deductibles; water, sewer, electrical and other utility charges other than
the separately billed electrical and other charges paid by Tenant as provided in
this Lease (or other tenants in the Building); painting; stormwater discharge
fees; tools and supplies; repair costs; landscape maintenance costs; access
patrols; license, permit and inspection fees; management fees; administrative
fees; supplies, costs, wages and related employee benefits payable for the
management, maintenance and operation of the Building; maintenance, repair and
replacement of the driveways, parking areas, curbs and sidewalk areas (including
snow and ice removal), landscaped areas, drainage strips, sewer lines, exterior
walls, foundation, structural frame, roof, gutters and lighting; and maintenance
and repair costs, dues, fees and assessments incurred under any covenants or
charged by any owners association. The cost of any Operating Expenses that are
capital in nature shall be amortized over the useful life of the improvement (as
reasonably determined by Landlord), and only the amortized portion shall be
included in Operating Expenses.
-3-
Operating Costs shall not include the following: (i) tenant improvements,
leasing commissions, and advertising and marketing costs for leasing of space,
(ii) depreciation, and principal and interest on mortgages or other debt, (iii)
legal expenses incurred in enforcing the terms of any other lease; (iv) interest
or amortization payments of any Mortgage; (v) any costs, fines, or penalties
incurred due to violations by Landlord of any applicable governmental rule,
regulation, code or law; (vi) costs attributable to repairing items that are
recovered by Landlord through enforcement of warranties; and (vii) any cost or
expense of any nature whatsoever, other than Operating Expenses, which Landlord
shall incur in connection with the management, operation, or maintenance of the
Building or Common Areas which is specifically reimbursed to Landlord from any
source, or charged directly to the tenant on whose behalf it was incurred
(whether or not the same shall finally be paid by such tenant), or for which
Landlord is otherwise compensated or recoups such expense by way of setoff,
reductions or recovery allowed, or otherwise.
(c) "Tenant's Proportionate Share of Operating Expenses" shall mean an
amount equal to the product of Tenant's Proportionate Share times the Operating
Expenses.
(d) "Real Estate Taxes" shall mean any form of real estate tax or
assessment or service payments in lieu thereof, and any license fee, commercial
rental tax, improvement bond or other similar charge or tax (other than
inheritance, personal income or estate taxes) imposed upon the Building or
Common Areas, or against Landlord's business of leasing the Building, by any
authority having the power to so charge or tax, together with costs and expenses
of contesting the validity or amount of the Real Estate Taxes.
Section 3.03. Payment of Additional Rent.
(a) Any amount required to be paid by Tenant hereunder (in addition to
Minimum Annual Rent) and any charges or expenses incurred by Landlord on behalf
of Tenant under the terms of this Lease shall be considered "Additional Rent"
payable in the same manner and upon the same terms and conditions as the Minimum
Annual Rent reserved hereunder, except as set forth herein to the contrary. Any
failure on the part of Tenant to pay such Additional Rent when and as the same
shall become due shall entitle Landlord to the remedies available to it for
non-payment of Minimum Annual Rent.
(b) In addition to the Minimum Annual Rent specified in this Lease,
commencing as of the Commencement Date, Tenant shall pay to Landlord as
Additional Rent for the Leased Premises, in each calendar year or partial
calendar year during the Lease Term, an amount equal to the Annual Rental
Adjustment for such calendar year. Landlord shall estimate the Annual Rental
Adjustment annually, and written notice thereof shall be given to Tenant prior
to the beginning of each calendar year. Tenant shall pay to Landlord each month,
at the same time the Monthly Rental Installment is due, an amount equal to
one-twelfth (1/12) of the estimated Annual Rental Adjustment to the payment
address set forth in Section 1.01(l) above in accordance with this Section 3.03.
If Operating Expenses increase during a calendar year, Landlord may increase the
estimated Annual Rental Adjustment during such year by giving Tenant thirty (30)
days written notice to that effect, together with documentation prepared by
Landlord in the ordinary course of its business in support of such increase, and
thereafter Tenant shall pay to Landlord, in each of the remaining months of such
year, an amount equal to the amount of such increase in the estimated Annual
Rental Adjustment divided by the number of months remaining in such year. Within
a reasonable time after the end of each calendar year, Landlord shall prepare
and deliver to Tenant a statement showing the actual Annual Rental Adjustment,
together with documentation prepared by Landlord in the ordinary course of its
business in support of such costs. Within thirty (30) days after receipt of the
aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit
against the next rent payment or payments due from Tenant (or reimburse Tenant
if for the last year of the Lease
-4-
Term), as the case may be, the difference between the actual Annual Rental
Adjustment for the preceding calendar year and the estimated amount paid by
Tenant during such year. As soon as is reasonably practical after each calendar
year during the Lease Term (each such year, an "OPERATING YEAR"), Landlord shall
provide Tenant with a statement (a "STATEMENT") setting forth the actual
ultimate Annual Rental Adjustment for the subject Operating Year. If Tenant
disputes the amount set forth in a given Statement, Tenant shall have the right,
at Tenant's sole expense, to cause Landlord's books and records with respect to
the particular Operating Year that is the subject of that particular Statement
to be audited (the "AUDIT") by a certified public accountant or firm of
certified public accountants mutually acceptable to Landlord and Tenant (the
"ACCOUNTANT"), provided Tenant (i) has not defaulted under this Lease and failed
to cure such default on a timely basis and (ii) delivers written notice (an
"AUDIT NOTICE") to Landlord on or prior to the date that is forty-five (45) days
after Landlord delivers the Statement in question to Tenant (such 30-day period,
the "RESPONSE PERIOD"). If Tenant fails to timely deliver an Audit Notice with
respect to a given Statement, then Tenant's right to undertake an Audit with
respect to that Statement and the Operating Year to which that particular
Statement relates shall automatically and irrevocably be waived and such
Statement shall be final and binding upon Tenant and shall, as between the
parties, be conclusively deemed correct. If Tenant timely delivers an Audit
Notice, Tenant must commence such Audit within thirty (30) days after the Audit
Notice is delivered to Landlord, and the Audit must be completed within thirty
(30) days of the date on which it is begun. If Tenant fails, for any reason, to
commence and complete the Audit within such periods, the Statement that Tenant
elected to Audit shall be deemed final and binding upon Tenant and shall, as
between the parties, be conclusively deemed correct. The Audit shall take place
at the offices of Landlord where its books and records are located, at a
mutually convenient time during Landlord's regular business hours. Before
conducting the Audit, Tenant must pay the full amount of the Annual Rental
Adjustment billed under the Statement then in question. Tenant hereby covenants
and agrees that the Accountant engaged by Tenant to conduct the Audit shall be
compensated on an hourly or flat-fee basis and shall not be compensated based
upon a percentage of overcharges it discovers. If an Audit is conducted in a
timely manner, such Audit shall be deemed final and binding upon Landlord and
Tenant and shall, as between the parties, be conclusively deemed correct. If the
results of the Audit reveal that the actual ultimate Annual Rental Adjustment
does not equal the aggregate amount of the Annual Rental Adjustment actually
paid by Tenant to Landlord for the Operating Year that is the subject of the
Audit, the appropriate adjustment shall be made between Landlord and Tenant, and
any payment required to be made by Landlord or Tenant to the other shall be made
within thirty (30) days after the Accountant's determination. In no event shall
this Lease be terminable nor shall Landlord be liable for damages based upon any
disagreement regarding an adjustment of the Annual Rental Adjustment. Tenant
agrees that the results of any Audit shall be kept strictly confidential by
Tenant and shall not be disclosed to any other person or entity.
Section 3.04. Late Charges. Tenant acknowledges that Landlord shall incur
certain additional unanticipated administrative and legal costs and expenses if
Tenant fails to pay timely any payment required hereunder. Therefore, in
addition to the other remedies available to Landlord hereunder, if Tenant fails
to pay to Landlord any sum due under this Lease on a timely basis, then if such
payment is not made within the cure period provided in SECTION 13.01, then from
and after the expiration of such cure period, the delinquent payment shall bear
interest from the due date thereof to the date of payment at the "prime" rate of
interest, as reported in the Wall Street Journal (the "Prime Rate") plus six
percent (6%) per annum ("DEFAULT INTEREST RATE").
ARTICLE 4 - SECURITY DEPOSIT
Upon execution and delivery of this Lease by Tenant, Tenant shall deposit
the Additional Security Deposit with Landlord as security for the performance by
Tenant of all of Tenant's obligations contained in this Lease. In the event of a
default by Tenant, Landlord may apply all or any part of the
-5-
Security Deposit to cure all or any part of such default; provided, however,
that any such application by Landlord shall not be or be deemed to be an
election of remedies by Landlord or considered or deemed to be liquidated
damages. Tenant agrees promptly, upon demand, to deposit such additional sum
with Landlord as may be required to maintain the full amount of the Security
Deposit. All sums held by Landlord pursuant to this Article 4 shall be without
interest and may be commingled by Landlord. At the end of the Lease Term,
provided that there is then no uncured default or any repairs required to be
made by Tenant pursuant to Section 2.03 above or Section 7.03 below, Landlord
shall return the Security Deposit to Tenant.
ARTICLE 5 - OCCUPANCY AND USE
Section 5.01. Use. Tenant shall use the Leased Premises for the Permitted
Use and for no other purpose without the prior written consent of Landlord.
Section 5.02. Covenants of Tenant Regarding Use.
(a) Tenant shall (i) use and maintain the Leased Premises and conduct its
business thereon in a safe, careful, reputable and lawful manner, (ii) comply
with all covenants that encumber the Building and all laws, rules, regulations,
orders, ordinances, directions and requirements of any governmental authority or
agency, now in force or which may hereafter be in force, including, without
limitation, those which shall impose upon Landlord or Tenant any duty with
respect to or triggered by a change in the use or occupation of, or any
improvement or alteration to, the Leased Premises, and (iii) comply with and
obey all reasonable directions, rules and regulations of Landlord, including the
Building Rules and Regulations attached hereto as EXHIBIT E and made a part
hereof, as may be modified from time to time by Landlord on reasonable notice to
Tenant.
(b) Tenant shall not do or permit anything to be done in or about the
Leased Premises that will in any way cause a nuisance, obstruct or interfere
with the rights of other tenants or occupants of the Building or injure or annoy
them. Landlord shall not be responsible to Tenant for the non-performance by any
other tenant or occupant of the Building of any of Landlord's directions, rules
and regulations, but agrees that any enforcement thereof shall be done
uniformly. Tenant shall not overload the floors of the Leased Premises. All
damage to the floor structure or foundation of the Building due to improper
positioning or storage of items or materials shall be repaired by Landlord at
the sole expense of Tenant, who shall reimburse Landlord immediately therefor
upon demand. Tenant shall not use the Leased Premises, nor allow the Leased
Premises to be used, for any purpose or in any manner that would (i) invalidate
any policy of insurance now or hereafter carried by Landlord on the Building, or
(ii) increase the rate of premiums payable on any such insurance policy unless
Tenant reimburses Landlord for any increase in premium charged.
Section 5.03. Landlord's Rights Regarding Use. Without limiting any of
Landlord's rights specified elsewhere in this Lease (a) Landlord shall have the
right at any time, without notice to Tenant, to control, change or otherwise
alter the Common Areas in such manner as it deems necessary or proper, and (b)
Landlord, its agents, employees and contractors and any mortgagee of the
Building shall have the right to enter any part of the Leased Premises at
reasonable times upon reasonable notice (except in the event of an emergency
where no notice shall be required provided that Landlord use reasonable efforts
under the circumstances to provide such notice to Tenant) for the purposes of
examining or inspecting the same (including, without limitation, testing to
confirm Tenant's compliance with this Lease), showing the same to prospective
purchasers, mortgagees or tenants, and making such repairs, alterations or
improvements to the Leased Premises or the Building as Landlord may deem
necessary or desirable. Landlord shall incur no liability to Tenant for such
entry, nor shall such entry constitute an eviction of
-6-
Tenant or a termination of this Lease, or entitle Tenant to any abatement of
rent therefor. Notwithstanding the foregoing, Landlord shall not unreasonably
interfere with Tenant's use of and operation from the Leased Premises in
exercising the foregoing rights.
Section 5.04. Tenant Operations Inquiry Form. On or prior to the date
hereof, Tenant has completed and delivered for the benefit of Landlord a "Tenant
Operations Inquiry Form" in the form attached hereto as EXHIBIT F describing the
nature of Tenant's proposed business operations at the Premises, which form is
intended to, and shall be, relied upon by Landlord. From time to time during the
Lease Term (but no more often than once in any twelve month period unless Tenant
is in default hereunder or unless Tenant assigns this Lease or subleases all or
any portion of the Leased Premises, whether or not in accordance with SECTION
11), Tenant shall provide an updated and current Tenant Operations Inquiry Form
upon Landlord's request.
ARTICLE 6 - UTILITIES
Tenant shall obtain in its own name and pay directly to the appropriate supplier
the cost of all utilities and services serving the Leased Premises. However, if
any services or utilities are jointly metered with other property, Landlord
shall make a reasonable determination of Tenant's proportionate share of the
cost of such utilities and services (at rates that would have been payable if
such utilities and services had been directly billed by the utilities or
services providers) and Tenant shall pay such share to Landlord within thirty
(30) days after receipt of Landlord's written statement. Landlord shall not be
liable in damages or otherwise for any failure or interruption of any utility or
other Building service and no such failure or interruption shall entitle Tenant
to terminate this Lease or withhold sums due hereunder unless due to the
negligence or intentional acts or omissions of Landlord or its employees,
contractors, or agents in which event rent shall abate for the period of time
that Tenant is unable to use or operate from the Leased Premises.
Notwithstanding the foregoing, the electrical and gas utilities are separately
metered as of the Commencement Date of this Lease.
ARTICLE 7 - REPAIRS, MAINTENANCE AND ALTERATIONS
Section 7.01. Repair and Maintenance of Building. Landlord shall make all
necessary repairs, replacements and maintenance to the roof, sprinkler systems,
exterior walls, foundation, structural frame of the Building and the parking and
landscaped areas and other Common Areas. The cost of such repairs, replacements
and maintenance shall be included in Operating Expenses to the extent provided
in Section 3.02; provided however, to the extent any such repairs, replacements
or maintenance are required because of the negligence, misuse or default of
Tenant, its employees, agents, contractors, customers or invitees, Landlord
shall make such repairs at Tenant's sole expense, subject to the terms and
conditions of Section 8.06.
Section 7.02. Repair and Maintenance of Leased Premises. Tenant shall, at
its own cost and expense, maintain the Leased Premises in good condition,
regularly servicing and promptly making all repairs and replacements thereto,
including but not limited to the electrical systems, heating and air
conditioning systems, plate glass, floors, windows and doors, and plumbing
systems which service the Leased Premises. Tenant shall obtain a preventive
maintenance contract on the heating, ventilating and air-conditioning systems
which service the Leased Premises and provide Landlord with a copy thereof. The
preventive maintenance contract shall meet or exceed Landlord's standard
maintenance criteria, and shall provide for the inspection and maintenance of
the heating, ventilating and air conditioning system on at least a semi-annual
basis.
Section 7.03. Alterations. Tenant shall not permit alterations in or to
the Leased Premises unless and until Landlord has approved the plans therefor in
writing. As a condition of such approval, Landlord
-7-
may require Tenant to remove the alterations and restore the Leased Premises
upon termination of this Lease; otherwise, all such alterations shall at
Landlord's option become a part of the realty and the property of Landlord, and
shall not be removed by Tenant. Tenant shall ensure that all alterations shall
be made in accordance with all applicable laws, regulations and building codes,
in a good and workmanlike manner and of quality equal to or better than the
original construction of the Building. No person shall be entitled to any lien
derived through or under Tenant for any labor or material furnished to the
Leased Premises, and nothing in this Lease shall be construed to constitute
Landlord's consent to the creation of any lien. If any lien is filed against the
Leased Premises for work claimed to have been done for or material claimed to
have been furnished to Tenant (other than work performed by or at the direction
of Landlord), Tenant shall cause such lien to be discharged of record within
thirty (30) days after filing. Tenant shall indemnify Landlord from all costs,
losses, expenses and attorneys' fees in connection with any construction or
alteration and any related lien.
ARTICLE 8 - INDEMNITY AND INSURANCE
Section 8.01. Release. All of Tenant's trade fixtures, merchandise,
inventory and all other personal property in or about the Leased Premises, the
Building or the Common Areas, which is deemed to include the trade fixtures,
merchandise, inventory and personal property of others located in or about the
Leased Premises or Common Areas at the invitation, direction or acquiescence
(express or implied) of Tenant (all of which property shall be referred to
herein, collectively, as "Tenant's Property"), shall be and remain at Tenant's
sole risk. Landlord shall not be liable to Tenant or to any other person for,
and Tenant hereby releases Landlord from (a) any and all liability for theft or
damage to Tenant's Property, and (b) any and all liability for any injury to
Tenant or its employees, agents, contractors, guests and invitees in or about
the Leased Premises, the Building or the Common Areas, except to the extent of
personal injury (but not property loss or damage) caused directly by the
negligence or willful misconduct of Landlord, its agents, employees or
contractors. Nothing contained in this Section 8.01 shall limit (or be deemed to
limit) the waivers contained in Section 8.06 below. In the event of any conflict
between the provisions of Section 8.06 below and this Section 8.01, the
provisions of Section 8.06 shall prevail. This Section 8.01 shall survive the
expiration or earlier termination of this Lease.
Section 8.02. Indemnification by Tenant. Tenant shall protect, defend,
indemnify and hold Landlord, its agents, employees and contractors harmless from
and against any and all claims, damages, demands, penalties, costs, liabilities,
losses, and expenses (including reasonable attorneys' fees and expenses at the
trial and appellate levels) to the extent (a) arising out of or relating to any
act, omission, negligence, or willful misconduct of Tenant or Tenant's agents,
employees, contractors, customers, or invitees in or about the Leased Premises,
the Building or the Common Areas, (b) arising out of or relating to any of
Tenant's Property, or (c) arising out of any other act or occurrence within the
Leased Premises, in all such cases except to the extent of personal injury (but
not property loss or damage) caused directly by the negligence or willful
misconduct of Landlord, its agents, employees or contractors. Nothing contained
in this Section 8.02 shall limit (or be deemed to limit) the waivers contained
in Section 8.06 below. In the event of any conflict between the provisions of
Section 8.06 below and this Section 8.02, the provisions of Section 8.06 shall
prevail. This Section 8.02 shall survive the expiration or earlier termination
of this Lease.
Section 8.03. Indemnification by Landlord. Landlord shall protect, defend,
indemnify and hold Tenant, its agents, employees and contractors harmless from
and against any and all claims, damages, demands, penalties, costs, liabilities,
losses and expenses (including reasonable attorneys' fees and expenses at the
trial and appellate levels) to the extent arising out of or relating to any act,
omission, negligence or willful misconduct of Landlord or Landlord's agents,
employees, invitees or contractors. Nothing contained in this Section 8.03 shall
limit (or be deemed to limit) the waivers contained in Section
-8-
8.06 below. In the event of any conflict between the provisions of Section 8.06
below and this Section 8.03, the provisions of Section 8.06 shall prevail. This
Section 8.03 shall survive the expiration or earlier termination of this Lease.
Section 8.04. Tenant's Insurance. Tenant shall purchase, at its own
expense, and keep in force at all times during the Lease Term the policies of
insurance set forth below (collectively, "Tenant's Policies"). All Tenant's
Policies shall (a) be issued by an insurance company with a Best's rating of A
or better and otherwise reasonably acceptable to Landlord and shall be licensed
to do business in the state in which the Leased Premises is located; (b) provide
that said insurance shall not be canceled or materially modified unless 30 days'
prior written notice shall have been given to Landlord; (c) provide for
deductible amounts that are reasonably acceptable to Landlord (and its lender,
if applicable) and (d) otherwise be in such form, and include such coverages, as
Landlord may reasonably require. The Tenant's Policies described in (i) and (ii)
below shall (1) provide coverage on an occurrence basis; (2) name Landlord (and
its lender, if applicable) as additional insured; (3) provide coverage, to the
extent insurable, for the indemnity obligations of Tenant under this Lease; (4)
contain a separation of insured parties provision; (5) be primary, not
contributing with, and not in excess of, coverage that Landlord may carry; and
(6) provide coverage with no exclusion for a pollution incident arising from a
hostile fire. All certificates of insurance for Tenant's Policies shall be
delivered to Landlord prior to the Commencement Date and renewals thereof shall
be delivered to Landlord's corporate and regional notice addresses at least 30
days after renewal of any such Tenant's Policy. In the event that Tenant fails,
at any time or from time to time, to comply with the requirements of the
preceding sentence and such failure continues for 5 business days after notice
from Landlord to Tenant, Landlord may order such insurance and charge the cost
thereof to Tenant, which amount shall be payable by Tenant to Landlord upon
demand, as Additional Rent. Tenant shall give prompt notice to Landlord of any
bodily injury, death, personal injury, advertising injury or property damage
occurring in and about the Property.
Tenant shall purchase and maintain, throughout the Term, a Tenant's
Policy(ies) of: (i) commercial general or excess liability insurance, including
personal injury and property damage, in the amount of not less than
$2,000,000.00 per occurrence, and $5,000,000.00 annual general aggregate, per
location, (ii) comprehensive automobile liability insurance covering Tenant
against any personal injuries or deaths of persons and property damage based
upon or arising out of the ownership, use, occupancy or maintenance of a motor
vehicle at the Premises and all areas appurtenant thereto in the amount of not
less than $1,000,000, combined single limit; (iii) commercial property insurance
(including reasonable business interruption limits) covering Tenant's Property
(at its full replacement cost); (iv) workers' compensation insurance per the
applicable statutes covering all employees of Tenant; and if Tenant handles,
stores or utilizes Hazardous Substances in its business operations, (v)
pollution legal liability insurance.
Section 8.05. Landlord's Insurance. During the Lease Term, Landlord shall
maintain the following types of insurance, in the amounts specified below (the
cost of which shall be included in Operating Expenses):
(a) a commercial property insurance policy covering the Building (at its
full replacement cost), but excluding Tenant's personal property; (b) commercial
general public liability insurance covering Landlord for claims arising out of
liability for bodily injury, death, personal injury, advertising injury and
property damage occurring in and about the Building and otherwise resulting from
any acts and operations of Landlord, its agents and employees; and (c) any other
insurance coverage which is reasonable for similarly situated properties. All of
the coverages described in (a) through (d) shall be determined from time to time
by Landlord, in its sole discretion. All insurance maintained by Landlord shall
be in addition to and not in lieu of the insurance required to be maintained by
the Tenant.
-9-
Section 8.06. Waiver of Subrogation. Notwithstanding anything to the
contrary in this Lease, Landlord and Tenant mutually waive their respective
rights of recovery against each other and each other's officers, directors,
constituent partners, members, agents and employees, and Tenant further waives
such rights against (a) each lessor under any ground or underlying lease
encumbering the Building and (b) each lender under any mortgage or deed of trust
or other lien encumbering the Building (or any portion thereof or interest
therein), to the extent any loss is insured against or required to be insured
against under this Lease, including, but not limited to, losses, deductibles or
self-insured retentions covered by Landlord's or Tenant's commercial property,
general liability, automobile liability or workers' compensation policies
described above, This provision is intended to waive, fully and for the benefit
of each party to this Lease, any and all rights and claims that might give rise
to a right of subrogation by any insurance carrier. Each party shall cause its
respective insurance policy(ies) to be endorsed to evidence compliance with such
waiver.
ARTICLE 9 - CASUALTY
In the event of total or partial destruction of the Building or the Leased
Premises by fire or other casualty, Landlord agrees promptly to restore and
repair same; provided, however, Landlord's obligation hereunder with respect to
the Leased Premises shall be limited to the reconstruction of such of the
leasehold improvements as were originally required to be made by Landlord
pursuant to Section 2.02 above, if any. Rent shall proportionately abate during
the time that the Leased Premises or part thereof are unusable because of any
such damage. Notwithstanding the foregoing, if the Leased Premises, Building or
Common Areas are (a) so destroyed that they cannot be repaired or rebuilt within
one hundred eighty (180) days from the casualty date; or (b) destroyed by a
casualty that is not covered by the insurance required hereunder or, if covered,
such insurance proceeds are not released by any mortgagee entitled thereto or
are insufficient to rebuild the Building and the Leased Premises; then, Landlord
shall so notify Tenant within thirty (30) days after the occurrence of the
casualty and, in case of a clause (a) casualty, either Landlord or Tenant may,
or, in the case of a clause (b) casualty, then Landlord may, upon thirty (30)
days' written notice to the other party, terminate this Lease with respect to
matters thereafter accruing. Tenant waives any right under applicable laws
inconsistent with the terms of this paragraph.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or Common Areas shall be
acquired by the exercise of eminent domain, Landlord may terminate this Lease by
giving written notice to Tenant on or before the date possession thereof is so
taken. If all or any part of the Leased Premises, Building or Common Areas shall
be acquired by the exercise of eminent domain so that the Leased Premises shall
become impractical for Tenant to use for the Permitted Use, Tenant may terminate
this Lease by giving written notice to Landlord as of the date possession
thereof is so taken. All damages awarded shall belong to Landlord; provided,
however, that Tenant may claim dislocation damages if such amount is not
subtracted from Landlord's award.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
Section 11.01. Assignment and Sublease.
(a) Tenant shall not assign this Lease or sublet the Leased Premises in
whole or in part without Landlord's prior written consent. In the event of any
permitted assignment or subletting, Tenant shall remain primarily liable
hereunder, and any extension, expansion, rights of first offer, rights of first
refusal or other options granted to Tenant under this Lease shall be rendered
void and of no further force
-10-
or effect. The acceptance of rent from any other person shall not be deemed to
be a waiver of any of the provisions of this Lease or to be a consent to the
assignment of this Lease or the subletting of the Leased Premises. Any
assignment or sublease consented to by Landlord shall not relieve Tenant (or its
assignee) from obtaining Landlord's consent to any subsequent assignment or
sublease.
(b) By way of example and not limitation, Landlord shall be deemed to have
reasonably withheld consent to a proposed assignment or sublease if in
Landlord's opinion (i) the Leased Premises are or may be in any way adversely
affected; (ii) the business reputation of the proposed assignee or subtenant is
unacceptable; (iii) the financial worth of the proposed assignee or subtenant is
insufficient to meet the obligations hereunder, or (iv) the prospective assignee
or subtenant is a current tenant at the Park or is a bona-fide third-party
prospective tenant. Landlord further expressly reserves the right to refuse to
give its consent to any subletting if the proposed rent is publicly advertised
to be less than the then current rent for similar premises in the Building. If
Landlord refuses to give its consent to any proposed assignment or subletting,
Landlord may, at its option, within thirty (30) days after receiving a request
to consent, terminate this Lease by giving Tenant thirty (30) days' prior
written notice of such termination, whereupon each party shall be released from
all further obligations and liability hereunder, except those which expressly
survive the termination of this Lease.
(c) If Tenant shall make any assignment or sublease, with Landlord's
consent, for a rental in excess of the rent payable under this Lease, Tenant
shall pay to Landlord fifty percent (50%) of any such excess rental upon
receipt. Tenant agrees to pay Landlord $500.00 upon demand by Landlord for
reasonable accounting and attorneys' fees incurred in conjunction with the
processing and documentation of any requested assignment, subletting or any
other hypothecation of this Lease or Tenant's interest in and to the Leased
Premises as consideration for Landlord's consent.
Section 11.02. Permitted Transfer. Notwithstanding anything to the
contrary contained in Section 11.01 above, Tenant shall have the right, without
Landlord's consent, but upon ten (10) days' prior notice to Landlord, to (a)
sublet all or part of the Leased Premises to any related corporation or other
entity which controls Tenant, is controlled by Tenant or is under common control
with Tenant; (b) assign all or any part of this Lease to any related corporation
or other entity which controls Tenant, is controlled by Tenant, or is under
common control with Tenant, or to a successor entity into which or with which
Tenant is merged or consolidated or which acquires substantially all of Tenant's
assets or property; or (c) effectuate any public offering of Tenant's stock on
the NASDAQ Stock Market, provided that in the event of a transfer pursuant to
clause (b), such successor entity assumes all of the obligations and liabilities
of Tenant (any such entity hereinafter referred to as a "Permitted Transferee").
For the purpose of this Article 11 (i) "control" shall mean ownership of not
less than fifty percent (50%) of all voting stock or legal and equitable
interest in such corporation or entity. Any such transfer shall not relieve
Tenant of its obligations under this Lease. Nothing in this paragraph is
intended to nor shall permit Tenant to transfer its interest under this Lease as
part of a fraud or subterfuge to intentionally avoid its obligations under this
Lease (for example, transferring its interest to a shell corporation that
subsequently files a bankruptcy), and any such transfer shall constitute a
Default hereunder. Any change in control of Tenant resulting from a merger,
consolidation, or a transfer of partnership or membership interests, a stock
transfer, or any sale of substantially all of the assets of Tenant that do not
meet the requirements of this Section 11.02 shall be deemed an assignment or
transfer that requires Landlord's prior written consent pursuant to Section
11.01 above.
-11-
ARTICLE 12 - TRANSFERS BY LANDLORD
Section 12.01. Sale of the Building. Landlord shall have the right to sell
the Building at any time during the Lease Term, subject only to the rights of
Tenant hereunder; and such sale shall operate to release Landlord from liability
hereunder for obligations accruing after the date of such conveyance.
Section 12.02. Estoppel Certificate. Within fifteen (15) days following
receipt of a written request from Landlord, Tenant shall execute and deliver to
Landlord, without cost to Landlord, an estoppel certificate in such form as
Landlord may reasonably request certifying (a) that this Lease is in full force
and effect and unmodified or stating the nature of any modification, (b) the
date to which rent has been paid, (c) that there are not, to Tenant's knowledge,
any uncured defaults or specifying such defaults if any are claimed, and (d) any
other matters or state of facts reasonably required respecting the Lease. Such
estoppel may be relied upon by Landlord and by any purchaser or mortgagee of the
Building.
Section 12.03. Subordination. Landlord shall have the right to subordinate
this Lease to the lien of any mortgage, deed to secure debt, deed of trust or
other instrument in the nature thereof, and any amendments or modifications
thereto (collectively, a "Mortgage") presently existing or hereafter encumbering
the Building by so declaring in such Mortgage. Within fifteen (15) days
following receipt of a written request from Landlord, Tenant shall execute and
deliver to Landlord, without cost, any instrument that Landlord deems reasonably
necessary or desirable to confirm the subordination of this Lease.
Notwithstanding the foregoing, if the holder of the Mortgage shall take title to
the Leased Premises through foreclosure or deed in lieu of foreclosure, Tenant
shall be allowed to continue in possession of the Leased Premises as provided
for in this Lease so long as Tenant is not in Default.
ARTICLE 13 - DEFAULT AND REMEDY
Section 13.01. Default. The occurrence of any of the following shall be a
"Default":
(a) Tenant fails to pay any Monthly Rental Installments or Additional Rent
within five (5) days after the same is due.
(b) Tenant fails to perform or observe any other term, condition, covenant
or obligation required under this Lease for a period of thirty (30) days after
written notice thereof from Landlord; provided, however, that if the nature of
Tenant's default is such that more than thirty (30) days are reasonably required
to cure, then such default shall be deemed to have been cured if Tenant
commences such performance within said thirty (30) day period and thereafter
diligently completes the required action within a reasonable time.
(c) Tenant shall vacate or abandon the Leased Premises, or fail to occupy
the Leased Premises or any substantial portion thereof for a period of thirty
(30) days.
(d) Tenant shall assign or sublet all or a portion of the Leased Premises
in contravention of the provisions of Article 11 of this Lease.
(e) All or substantially all of Tenant's assets in the Leased Premises or
Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is filed
by or against Tenant (and Tenant fails to secure a stay or discharge thereof
within sixty (60) days thereafter); Tenant is insolvent and unable to pay its
debts as they become due; Tenant makes a general assignment
-12-
for the benefit of creditors; Tenant takes the benefit of any insolvency action
or law; the appointment of a receiver or trustee in bankruptcy for Tenant or its
assets if such receivership has not been vacated or set aside within thirty (30)
days thereafter; or, dissolution or other termination of Tenant's corporate
charter if Tenant is a corporation.
Section 13.02. Remedies. Upon the occurrence of any Default, Landlord
shall have the following rights and remedies, in addition to those stated
elsewhere in this Lease and those allowed by law or in equity, any one or more
of which may be exercised without further notice to Tenant:
(a) Landlord may re-enter the Leased Premises and cure any Default of
Tenant, and Tenant shall reimburse Landlord as Additional Rent for any costs and
expenses which Landlord thereby incurs; and Landlord shall not be liable to
Tenant for any loss or damage which Tenant may sustain by reason of Landlord's
action.
(b) Without terminating this Lease, Landlord may terminate Tenant's right
to possession of the Leased Premises, and thereafter, neither Tenant nor any
person claiming under or through Tenant shall be entitled to possession of the
Leased Premises, and Tenant shall immediately surrender the Leased Premises to
Landlord, and Landlord may re-enter the Leased Premises and dispossess Tenant
and any other occupants of the Leased Premises by any lawful means and may
remove their effects, without prejudice to any other remedy that Landlord may
have. Upon termination of possession, Landlord may (i) re-let all or any part
thereof for a term different from that which would otherwise have constituted
the balance of the Lease Term and for rent and on terms and conditions different
from those contained herein, whereupon Tenant shall be immediately obligated to
pay to Landlord an amount equal to the present value (discounted at the Prime
Rate) of the difference between the rent provided for herein and that provided
for in any lease covering a subsequent re-letting of the Leased Premises, for
the period which would otherwise have constituted the balance of the Lease Term
(the "Accelerated Rent Difference"), or (ii) without re-letting, declare the
present value (discounted at the Prime Rate) of all rent which would have been
due under this Lease for the balance of the Lease Term to be immediately due and
payable as liquidated damages (the "Accelerated Rent"). Upon termination of
possession, Tenant shall be obligated to pay to Landlord (A) the Accelerated
Rent Difference or the Accelerated Rent, whichever is applicable, (B) all loss
or damage that Landlord may sustain by reason of Tenant's Default ("Default
Damages"), which shall include, without limitation, reasonable expenses of
preparing the Leased Premises for re-letting, demolition, repairs, tenant finish
improvements, brokers' commissions and attorneys' fees, and (C) all unpaid
Minimum Annual Rent and Additional Rent that accrued prior to the date of
termination of possession, plus any interest and late fees due hereunder (the
"Prior Obligations").
(c) Landlord may terminate this Lease and declare the Accelerated Rent to
be immediately due and payable, whereupon Tenant shall be obligated to pay to
Landlord (i) the Accelerated Rent, (ii) all of Landlord's Default Damages, and
(iii) all Prior Obligations. It is expressly agreed and understood that all of
Tenant's liabilities and obligations set forth in this subsection (c) shall
survive termination.
(d) Landlord and Tenant acknowledge and agree that the payment of the
Accelerated Rent Difference or the Accelerated Rent as set above shall not be
deemed a penalty, but merely shall constitute payment of liquidated damages, it
being understood that actual damages to Landlord are extremely difficult, if not
impossible, to ascertain. Neither the filing of a dispossessory proceeding nor
an eviction of personalty in the Leased Premises shall be deemed to terminate
the Lease.
(e) Landlord may sue for injunctive relief or to recover damages for any
loss resulting from the Default.
-13-
(f) Notwithstanding anything to the contrary contained in this Lease,
Landlord shall use commercially reasonable efforts to mitigate its damages in
the event of a Default by Tenant as required by applicable law.
Section 13.03. Landlord's Default and Tenant's Remedies. Landlord shall be
in default if it fails to perform any term, condition, covenant or obligation
required under this Lease for a period of thirty (30) days after written notice
thereof from Tenant to Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is such that it cannot
reasonably be performed within thirty (30) days, such default shall be deemed to
have been cured if Landlord commences such performance within said thirty-day
period and thereafter diligently undertakes to complete the same within a
reasonable period of time. Upon the occurrence of any such default, Tenant may
sue for injunctive relief or to recover damages for any loss directly resulting
from the breach, but Tenant shall not be entitled to terminate this Lease or
withhold, offset or abate any sums due hereunder.
Section 13.04. Limitation of Landlord's Liability. If Landlord shall fail
to perform any term, condition, covenant or obligation required to be performed
by it under this Lease and if Tenant shall, as a consequence thereof, recover a
money judgment against Landlord, Tenant agrees that it shall look solely to
Landlord's right, title and interest in and to the Building for the collection
of such judgment; and Tenant further agrees that no other assets of Landlord
shall be subject to levy, execution or other process for the satisfaction of
Tenant's judgment.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or delay in
exercising any of its rights or remedies or other provisions of this Lease shall
constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the Lease Term shall be
deemed an acceptance of a surrender of the Leased Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
Section 13.06. Attorneys' Fees. If either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the non-defaulting party obtains a
judgment against the defaulting party, then the defaulting party agrees to
reimburse the non-defaulting party for reasonable attorneys' fees incurred in
connection therewith. In addition, if a monetary Default shall occur and
Landlord engages outside counsel to exercise its remedies hereunder, and then
Tenant cures such monetary Default, Tenant shall pay to Landlord, on demand, all
expenses incurred by Landlord as a result thereof, including reasonable
attorneys' fees, court costs and expenses actually incurred.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
Landlord shall have the right upon at least ninety (90) days' prior written
notice to Tenant to relocate Tenant and to substitute for the Leased Premises
other space in the Building that is acceptable to tenant or in another building
owned by Landlord (or an affiliated entity of Landlord) so long as such other
building is acceptable to Tenant and is within a one (1) mile radius of the
Building and contains at least as much square footage as the Leased Premises.
Landlord shall improve such substituted space, at its expense, with improvements
at least equal in quantity and quality to those in the Leased Premises. Landlord
shall reimburse Tenant for all reasonable third party expenses incurred in
connection with, and caused by, such
-14-
relocation. In no event shall Landlord be liable to Tenant for any consequential
damages as a result of any such relocation, including, but not limited to, loss
of business income or opportunity.
ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES
Section 15.01. Environmental Definitions.
(a) "Environmental Laws" shall mean all present or future federal, state
and municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, and the rules and
regulations of the Federal Environmental Protection Agency and any other
federal, state or municipal agency or governmental board or entity having
jurisdiction over the Leased Premises.
(b) "Hazardous Substances" shall mean those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances"
"solid waste" or "infectious waste" under Environmental Laws and petroleum
products.
Section 15.02. Restrictions on Tenant. Tenant shall not cause or permit
the use, generation, release, manufacture, refining, production, processing,
storage or disposal of any Hazardous Substances on, under or about the Leased
Premises, or the transportation to or from the Leased Premises of any Hazardous
Substances, except as necessary and appropriate for its Permitted Use in which
case the use, storage or disposal of such Hazardous Substances shall be
performed in compliance with the Environmental Laws and the highest standards
prevailing in the industry.
Section 15.03. Notices, Affidavits, Etc. Tenant shall immediately (a)
notify Landlord of (i) any violation by Tenant, its employees, agents,
representatives, customers, invitees or contractors of any Environmental Laws
on, under or about the Leased Premises, or (ii) the presence or suspected
presence of any Hazardous Substances on, under or about the Leased Premises, and
(b) deliver to Landlord any notice received by Tenant relating to (a)(i) and
(a)(ii) above from any source. Tenant shall execute affidavits, representations
and the like within ten (10) days of Landlord's written request therefor
concerning Tenant's best knowledge and belief regarding the presence of any
Hazardous Substances on, under or about the Leased Premises.
Section 15.04. Tenant's Indemnification. Tenant shall indemnify Landlord
and Landlord's managing agent from any and all claims, losses, liabilities,
costs, expenses and damages, including attorneys' fees, costs of testing and
remediation costs, incurred by Landlord in connection with any breach by Tenant
of its obligations under this Article 15. The covenants and obligations under
this Article 15 shall survive the expiration or earlier termination of this
Lease.
Section 15.05. Existing Conditions. Notwithstanding anything contained in
this Article 15 to the contrary, Tenant shall not have any liability to Landlord
under this Article 15 resulting from any conditions existing, or events
occurring, or any Hazardous Substances existing or generated, at, in, on, under
or in connection with the Leased Premises prior to the Commencement Date of this
Lease (or any earlier occupancy of the Leased Premises by Tenant) or if caused
by any party other than Tenant except to the extent Tenant exacerbates the same.
-15-
ARTICLE 16 - MISCELLANEOUS
Section 16.01. Benefit of Landlord and Tenant. This Lease shall inure to
the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
Section 16.02. Governing Law. This Lease shall be governed in accordance
with the laws of the State where the Building is located.
Section 16.03. Force Majeure. Landlord and Tenant (except with respect to
the payment of any monetary obligation) shall be excused for the period of any
delay in the performance of any obligation hereunder when such delay is
occasioned by causes beyond its control, including but not limited to work
stoppages, boycotts, slowdowns or strikes; shortages of materials, equipment,
labor or energy; unusual weather conditions; or acts or omissions of
governmental or political bodies.
Section 16.04. Examination of Lease. Submission of this instrument by
Landlord to Tenant for examination or signature does not constitute an offer by
Landlord to lease the Leased Premises. This Lease shall become effective, if at
all, only upon the execution by and delivery to both Landlord and Tenant.
Execution and delivery of this Lease by Tenant to Landlord constitutes an offer
to lease the Leased Premises on the terms contained herein.
Section 16.05. Indemnification for Leasing Commissions. The parties hereby
represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are the Brokers and that no other party
is entitled, as a result of the actions of the respective party, to a commission
or other fee resulting from the execution of this Lease. Each party shall
indemnify the other from any and all liability for the breach of this
representation and warranty on its part and shall pay any compensation to any
other broker or person who may be entitled thereto. Landlord shall pay any
commissions due Brokers based on this Lease pursuant to separate agreements
between Landlord and Brokers.
Section 16.06. Notices. Any notice required or permitted to be given under
this Lease or by law shall be deemed to have been given if it is written and
delivered in person or by overnight courier or mailed by certified mail, postage
prepaid, to the party who is to receive such notice at the address specified in
Section 1.01(l). If sent by overnight courier, the notice shall be deemed to
have been given one (1) day after sending. If mailed, the notice shall be deemed
to have been given on the date that is three (3) business days following
mailing. Either party may change its address by giving written notice thereof to
the other party.
Section 16.07. Partial Invalidity; Complete Agreement. If any provision of
this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions shall remain in full force and effect. This Lease represents the
entire agreement between Landlord and Tenant covering everything agreed upon or
understood in this transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties. No change or addition shall be made to this Lease except by a written
agreement executed by Landlord and Tenant.
Section 16.08. Financial Information. From time to time during the Lease
Term, Tenant shall deliver to Landlord information and documentation describing
and concerning Tenant's financial condition, and in form and substance
reasonably acceptable to Landlord, within twenty (20) days following Landlord's
written request therefor. Upon Landlord's request, Tenant shall provide to
Landlord the most currently available audited financial statement of Tenant; and
if no such audited
-16-
financial statement is available, then Tenant shall instead deliver to Landlord
its most currently available balance sheet and income statement. Furthermore,
upon the delivery of any such financial information from time to time during the
Lease Term, Tenant shall be deemed to automatically represent and warrant to
Landlord that the financial information delivered to Landlord is true, accurate
and complete in all material respect, and that except as explained by Tenant to
Landlord in writing, there has been no material and adverse change in the
financial condition of Tenant since the date of the then-applicable financial
information.
Section 16.09. Waiver of Jury Trial. THE LANDLORD AND THE TENANT, TO THE
FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BROUGHT BY ANY PARTY TO THIS LEASE WITH RESPECT TO THIS
LEASE, THE LEASED PREMISES, OR ANY OTHER MATTER RELATED TO THIS LEASE OR THE
LEASED PREMISES.
Section 16.10. Representations and Warranties.
(a) Tenant hereby represents and warrants that (i) Tenant is duly
organized, validly existing and in good standing (if applicable) in accordance
with the laws of the State under which it was organized; (ii) Tenant is
authorized to do business in the State where the Building is located; and (iii)
the individual(s) executing and delivering this Lease on behalf of Tenant has
been properly authorized to do so, and such execution and delivery shall bind
Tenant to its terms.
(b) Landlord hereby represents and warrants that (i) Landlord is duly
organized, validly existing and in good standing (if applicable) in accordance
with the laws of the State under which it was organized; (ii) Landlord is
authorized to do business in the State where the Building is located; and (iii)
the individual(s) executing and delivering this Lease on behalf of Landlord has
been properly authorized to do so, and such execution and delivery shall bind
Landlord to its terms.
Section 16.11. Signage. Tenant may, at its own expense, erect a sign
concerning the business of Tenant that shall be in keeping with the decor and
other signs on the Building. All signage (including the signage described in the
preceding sentence) in or about the Leased Premises shall be first approved by
Landlord and shall be in compliance with the any codes and recorded restrictions
applicable to the sign or the Building. The location, size and style of all
signs shall be approved by Landlord. Tenant agrees to maintain any sign in good
state of repair, and upon expiration of the Lease Term, Tenant agrees to
promptly remove such signs and repair any damage to the Leased Premises.
Section 16.12. Parking. Tenant shall be entitled to the non-exclusive use
of the parking spaces designated for the Building by Landlord. Tenant agrees not
to overburden the parking facilities and agrees to cooperate with Landlord and
other tenants in the use of the parking facilities. Landlord reserves the right
in its absolute discretion to determine whether parking facilities are becoming
crowded and, in such event, to allocate parking spaces between Tenant and other
tenants. There will be no assigned parking unless Landlord, in its sole
discretion, deems such assigned parking advisable. No vehicle may be repaired or
serviced in the parking area and any vehicle brought into the parking area by
Tenant, or any of Tenant's employees, contractors or invitees, and deemed
abandoned by Landlord will be towed and all costs thereof shall be borne by the
Tenant. All driveways, ingress and egress, and all parking spaces are for the
joint use of all tenants. There shall be no parking permitted on any of the
streets or roadways located within the Park. In addition, Tenant agrees that its
employees will not park in the spaces designated visitor parking.
Section 16.13. Consent. Where the consent of a party is required, such
consent will not be unreasonably withheld.
-17-
Section 16.14. Time. Time is of the essence of each term and provision of
this Lease.
Section 16.15. Tenant's Trade Fixtures. Landlord acknowledges and agrees
that Tenant has or will be installing certain signs, furnishings, fixtures,
equipment, and other personal property in the Leased Premises ("Tenant's Trade
Fixtures"). Landlord further acknowledges and agrees that Tenant's Trade
Fixtures are and will remain the personal property of Tenant which may be
removed from the Leased Premises at any time by Tenant, and that Tenant's Trade
Fixtures shall not be subject to any landlord's lien or other lien or security
interest against the Leased Premises or the Building.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
-18-
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
LANDLORD:
FirstCal Industrial 2 Acquisition, LLC,
a Delaware limited liability company
By: FirstCal 2 Industrial Leasing Manager, LLC, a
Delaware limited liability company and its
leasing manager
By: First Industrial, L.P., a Delaware
limited partnership, its sole
member
By: First Industrial Realty
Trust, Inc., a Maryland
corporation and its sole
general partner
By:________________________
Name:______________________
Title:_____________________
TENANT:
Universal Electronics Inc., a Delaware corporation
By: _________________________________________________
Name: _______________________________________________
Title: ______________________________________________
-19-
STATE OF OHIO
COUNTY OF _________
Before me, the undersigned, a Notary Public for _______________ County,
personally appeared __________________________, of First Industrial Realty
Trust, Inc., the Landlord in the foregoing instrument who acknowledged the
signing of the foregoing instrument to be his free act and deed on behalf of the
Landlord for the uses and purpose set forth therein.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed my official seal
on the _______ day of __________________,
_____________________________________________
Notary Public
_____________________________________________
Type or Print Name
STATE OF __________________________
COUNTY OF ________________________
Before me, the undersigned, a Notary Public for _________________________
County, personally appeared _____________________, the _________________________
of Universal Electronics Inc., the Tenant in the foregoing instrument who
acknowledged the signing of the foregoing instrument to be his free act and deed
on behalf of the Tenant for the uses and purpose set forth therein.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed my official seal
on the _______ day of __________________,
_____________________________________________
Notary Public
_____________________________________________
Type or Print Name
-20-
EXHIBIT A
LEASED PREMISES
[FLOOR PLAN]
Exhibit A
Page 1 of 1
EXHIBIT A-1
THE DOWNSIZE PORTION
[FLOOR PLAN]
Exhibit A-1
Page 1 of 1
EXHIBIT A-2
LEASED PREMISES AFTER THE DOWNSIZE DATE
(If Downsize Option is properly exercised)
[FLOOR PLAN]
Exhibit A-2
Page 1 of 1
EXHIBIT B
TENANT IMPROVEMENTS
1. Landlord's Obligations. Tenant has personally inspected the Leased
Premises and accepts the same "AS IS" without representation or warranty by
Landlord of any kind and with the understanding that Landlord shall have no
responsibility with respect thereto except to construct and install within the
Leased Premises, lien-free, in a good and workmanlike manner, in accordance with
the Construction Drawings, and in compliance with all applicable laws, codes,
rules and regulations, the Tenant Improvements, in accordance with this EXHIBIT
B.
2. Construction Drawings and the Tenant Amount. Attached hereto as EXHIBIT
B-1 is the construction drawing which has been approved by the Tenant. Landlord
shall make modifications to the first floor of the premises in accordance with
EXHIBIT B-1 (the "Construction Drawings"). Tenant shall be responsible for the
cost to construct and install the Tenant Improvements not to exceed One Hundred
Thirteen Thousand and No/100 Dollars ($113,000.00) (the "Tenant Amount");
provided, however, the Tenant Amount shall not include any increases resulting
from any Change Orders (as hereinafter defined) initiated by Tenant. Tenant
shall pay to Landlord an amount equal to one-half (1/2) of the Tenant Amount
within ten (10) days following Landlord's written request therefor. Following
Substantial Completion of the Tenant Improvements, Tenant shall pay to Landlord
the remaining difference between the unpaid portion of the Tenant Amount
(together with any increases resulting from any Change Orders initiated by
Tenant as set forth in paragraph 4 below) and the amount previously received by
Landlord from Tenant within ten (10) days of Landlord's request therefor.
Tenant's failure to deliver the payments required in this paragraph shall
entitle Landlord to stop construction and installation of the Tenant
Improvements until such payment is received, and any resulting delay shall
constitute a Tenant Delay (as hereinafter defined) hereunder. In addition, all
delinquent payments shall accrue interest at 15% per annum.
3. Schedule and Early Occupancy. Landlord shall provide Tenant with a
proposed schedule for the construction and installation of the Tenant
Improvements and shall notify Tenant of any material changes to said schedule.
Tenant agrees to coordinate with Landlord regarding the installation of Tenant's
phone and data wiring and any other trade related fixtures that will need to be
installed in the Leased Premises prior to Substantial Completion. In addition,
if and to the extent permitted by applicable laws, rules and ordinances, Tenant
shall have the right to enter the Leased Premises for thirty (30) days prior to
the scheduled date for Substantial Completion (as may be modified from time to
time) in order to install fixtures (such as workstations) and otherwise prepare
the Leased Premises for occupancy, which right shall expressly exclude making
any structural modifications. During any entry prior to the Commencement Date
(a) Tenant shall comply with all terms and conditions of this Lease other than
the obligation to pay rent, (b) Tenant shall not interfere with Landlord's
completion of the Tenant Improvements, (c) Tenant shall cause its personnel and
contractors to comply with the terms and conditions of Landlord's rules of
conduct (which Landlord agrees to furnish to Tenant upon request), and (d)
Tenant shall not begin operation of its business. Tenant acknowledges that
Tenant shall be responsible for obtaining all applicable permits and inspections
relating to any such entry by Tenant.
4. Change Orders. Tenant shall have the right to request changes to the
Construction Drawings at any time following the date hereof by way of written
change order (each, a "Change Order", and collectively, "Change Orders").
Provided such Change Order is reasonably acceptable to Landlord, Landlord shall
prepare and submit promptly to Tenant a memorandum setting forth the impact on
cost and schedule resulting from said Change Order (the "Change Order Memorandum
of Agreement"). Tenant shall, within three (3) days following Tenant's receipt
of the Change Order Memorandum of Agreement,
Exhibit B
Page 1 of 2
either (a) execute and return the Change Order Memorandum of Agreement to
Landlord, or (b) retract its request for the Change Order. At Landlord's option,
Tenant shall pay to Landlord (or Landlord's designee), within ten (10) days
following Landlord's request, any increase in the cost to construct the Tenant
Improvements resulting from the Change Order, as set forth in the Change Order
Memorandum of Agreement. Landlord shall not be obligated to commence any work
set forth in a Change Order until such time as Tenant has delivered to Landlord
the Change Order Memorandum of Agreement executed by Tenant and, if applicable,
Tenant has paid Landlord in full for said Change Order.
5. Tenant Delay. Notwithstanding anything to the contrary contained in the
Lease, if Substantial Completion of the Tenant Improvements is delayed beyond
the Target Commencement Date solely as a result of Tenant Delay (as hereinafter
defined), then, for purposes of determining the Commencement Date, Substantial
Completion of the Tenant Improvements shall be deemed to have occurred on the
date that Substantial Completion of the Tenant Improvements would have occurred
but for such Tenant Delay. Without limiting the foregoing, Landlord shall use
commercially reasonable speed and diligence to Substantially Complete the Tenant
Improvements on or before the Target Commencement Date.
6. Letter of Understanding. Promptly following the Commencement Date,
Tenant shall execute Landlord's Letter of Understanding in substantially the
form attached hereto as EXHIBIT C and made a part hereof, acknowledging (a) the
Commencement Date of this Lease, and (b) except for any punchlist items, that
Tenant has accepted the Leased Premises. If Tenant takes possession of and
occupies the Leased Premises, Tenant shall be deemed to have accepted the Leased
Premises and that the condition of the Leased Premises and the Building was at
the time satisfactory and in conformity with the provisions of this Lease in all
respects, subject to any punchlist items.
7. Definitions. For purposes of this Lease (a) "Substantial Completion"
(or any grammatical variation thereof) shall mean completion of construction of
the Tenant Improvements, subject only to punchlist items to be identified by
Landlord and Tenant in a joint inspection of the Leased Premises prior to
Tenant's occupancy, in accordance with the Construction Drawings and as
established by a certificate of occupancy for the Leased Premises or other
similar authorization issued by the appropriate governmental authority, if
required, and (b) "Tenant Delay" shall mean any delay in the completion of the
Tenant Improvements attributable to Tenant, including, without limitation: (i)
Tenant's failure to meet any time deadlines specified herein, (ii) Change
Orders, (iii) the performance of any other work in the Leased Premises by any
person, firm or corporation employed by or on behalf of Tenant, or any failure
to complete or delay in completion of such work, (iv) Landlord's inability to
obtain an occupancy permit for the Leased Premises because of the need for
completion of all or a portion of improvements being installed in the Leased
Premises directly by Tenant, and (v) any other act or omission of Tenant.
Exhibit B
Page 2 of 2
EXHIBIT B-1
CONSTRUCTION DRAWING
Exhibit B-1
Page 1 of 1
EXHIBIT C
LETTER OF UNDERSTANDING
____________________________________
Attention: ______________________, Property Manager
____________________________________
____________________________________
RE: Lease Agreement between _________________________ ("Landlord")
and __________________________________________ ("Tenant") for
the Leased Premises located at ______________________________,
__________________, __________ (the "Leased Premises"),
dated ________________ (the "Lease").
Dear _________________________:
The undersigned, on behalf of Tenant, certifies to Landlord as follows:
1. The Commencement Date under the Lease is ____________________.
2. The rent commencement date is ___________________.
3. The expiration date of the Lease is ___________________.
4. The Lease (including amendments, if any) is the entire
agreement between Landlord and Tenant as to the leasing of the
Leased Premises and is in full force and effect.
5. The Landlord has completed the improvements designated as
Landlord's obligation under the Lease (excluding punchlist
items as agreed upon by Landlord and Tenant), if any, and
Tenant has accepted the Leased Premises as of the Commencement
Date.
6. To the best of the undersigned's knowledge, there are no
uncured events of default by either Tenant or Landlord under
the Lease.
IN WITNESS WHEREOF, the undersigned has caused this Letter of
Understanding to be executed this ____ day of _________________, 20____.
_________________________________________________________
By: _____________________________________________________
Printed Name: ___________________________________________
Title: __________________________________________________
Exhibit C
Page 1 of 1
EXHIBIT D
Intentionally Omitted
Exhibit D
Page 1 of 1
EXHIBIT E
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways and roadways serving and
adjacent to the Leased Premises shall not be obstructed or used for any purpose
other than ingress and egress. Landlord shall control the Common Areas.
2. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be attached
to or hung in, or used in connection with, any window or door of the Leased
Premises other than Landlord standard window coverings without Landlord's prior
written approval. All electric ceiling fixtures hung in offices or spaces along
the perimeter of the Building must be fluorescent, of a quality, type, design
and tube color approved by Landlord. Neither the interior nor the exterior of
any windows shall be coated or otherwise sunscreened without written consent of
Landlord.
3. No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by any tenant on, about or from any part of the
Leased Premises, the Building or in the Common Areas including the parking area
without the prior written consent of Landlord. In the event of the violation of
the foregoing by any tenant, Landlord may remove or stop same without any
liability, and may charge the expense incurred in such removal or stopping to
tenant.
4. The sinks and toilets and other plumbing fixtures shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose subtenants, assignees or any of their servants, employees, agents,
visitors or licensees shall have caused the same.
5. No boring, cutting or stringing of wires or laying of any floor
coverings shall be permitted, except with the prior written consent of the
Landlord and as the Landlord may direct. Landlord shall direct electricians as
to where and how telephone or data cabling are to be introduced. The location of
telephones, call boxes and other office equipment affixed to the Leased Premises
shall be subject to the approval of Landlord.
6. No bicycles, vehicles, birds or animals of any kind (except seeing
eye dogs) shall be brought into or kept in or about the Leased Premises, and no
cooking shall be done or permitted by any tenant on the Leased Premises, except
microwave cooking, and the preparation of coffee, tea, hot chocolate and similar
items for tenants and their employees. No tenant shall cause or permit any
unusual or objectionable odors to be produced in or permeate from the Leased
Premises.
7. The Leased Premises shall not be used for manufacturing, unless such
use conforms to the zoning applicable to the area, and the Landlord provides
written consent. No tenant shall occupy or permit any portion of the Leased
Premises to be occupied as an office for the manufacture or sale of liquor,
narcotics, or tobacco in any form, or as a medical office, or as a barber or
manicure shop, or a dance, exercise or music studio, or any type of school or
daycare or copy, photographic or print shop or an employment bureau without the
express written consent of Landlord. The Leased Premises shall not be used for
lodging or sleeping or for any immoral or illegal purpose.
8. No tenant shall make, or permit to be made any unseemly, excessive
or disturbing noises or disturb or interfere with occupants of this or
neighboring buildings or premises or those having business with
Exhibit E
Page 1 of 3
them, whether by the use of any musical instrument, radio, phonograph, unusual
noise, or in any other way. No tenant shall throw anything out of doors, windows
or down the passageways.
9. No tenant, subtenant or assignee nor any of its servants, employees,
agents, visitors or licensees, shall at any time bring or keep upon the Leased
Premises any flammable, combustible or explosive fluid, chemical or substance or
firearm.
10. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any tenant, nor shall any changes be made to existing
locks or the mechanism thereof. Each tenant must upon the termination of his
tenancy, restore to the Landlord all keys of doors, offices, and toilet rooms,
either furnished to, or otherwise procured by, such tenant and in the event of
the loss of keys so furnished, such tenant shall pay to the Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such changes.
11. No tenant shall overload the floors of the Leased Premises. All
damage to the floor, structure or foundation of the Building due to improper
positioning or storage items or materials shall be repaired by Landlord at the
sole cost and expense of tenant, who shall reimburse Landlord immediately
therefor upon demand.
12. Each tenant shall be responsible for all persons entering the
Building at tenant's invitation, express or implied. Landlord shall in no case
be liable for damages for any error with regard to the admission to or exclusion
from the Building of any person. In case of an invasion, mob riot, public
excitement or other circumstances rendering such action advisable in Landlord's
opinion, Landlord reserves the right without any abatement of rent to require
all persons to vacate the Building and to prevent access to the Building during
the continuance of the same for the safety of the tenants and the protection of
the Building and the property in the Building.
13. Canvassing, soliciting and peddling in the Building are prohibited,
and each tenant shall report and otherwise cooperate to prevent the same.
14. All equipment of any electrical or mechanical nature shall be
placed by tenant in the Leased Premises in settings that will, to the maximum
extent possible, absorb or prevent any vibration, noise and annoyance.
15. There shall not be used in any space, either by any tenant or
others, any hand trucks except those equipped with rubber tires and rubber side
guards.
16. The scheduling of tenant move-ins shall be before or after normal
business hours and on weekends, subject to the reasonable discretion of
Landlord.
17. The Building is a smoke-free Building. Smoking is strictly
prohibited within the Building. Smoking shall only be allowed in areas
designated as a smoking area by Landlord. Tenant and its employees,
representatives, contractors or invitees shall not smoke within the Building or
throw cigar or cigarette butts or other substances or litter of any kind in or
about the Building, except in receptacles for that purpose. Landlord may, at its
sole discretion, impose a charge against monthly rent of $50.00 per violation by
tenant or any of its employees, representatives, contractors or invitees, of
this smoking policy.
18. Tenants will insure that all doors are securely locked, and water
faucets, electric lights and electric machinery are turned off before leaving
the Building.
Exhibit E
Page 2 of 3
19 Tenant, its employees, customers, invitees and guests shall, when
using the parking facilities in and around the Building, observe and obey all
signs regarding fire lanes and no-parking and driving speed zones and designated
handicapped and visitor spaces, and when parking always park between the
designated lines. Landlord reserves the right to tow away, at the expense of the
owner, any vehicle which is improperly parked or parked in a no-parking zone or
in a designated handicapped area, and any vehicle which is left in any parking
lot in violation of the foregoing regulation. All vehicles shall be parked at
the sole risk of the owner, and Landlord assumes no responsibility for any
damage to or loss of vehicles.
20. Tenant shall be responsible for and cause the proper disposal of
medical waste, including hypodermic needles, created by its employees.
21. No outside storage is permitted including without limitation the
storage of trucks and other vehicles.
22. No tenant shall be allowed to conduct an auction from the Leased
Premises without the prior written consent of Landlord.
It is Landlord's desire to maintain in the Building and Common Areas the highest
standard of dignity and good taste consistent with comfort and convenience for
tenants. Any action or condition not meeting this high standard should be
reported directly to Landlord. The Landlord reserves the right to make such
other and further rules and regulations as in its judgment may from time to time
be necessary for the safety, care and cleanliness of the Building and Common
Areas, and for the preservation of good order therein.
Exhibit E
Page 3 of 3
EXHIBIT F
TENANT OPERATIONS INQUIRY FORM
1. Name of Company/Contact___________________________________________________
2. ADDRESS/PHONE_____________________________________________________________
__________________________________________________________________________
3. Provide a brief description of your business and operations: _____________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
4. Will you be required to make filings and notices or obtain permits as
required by Federal and/or State regulations for the operations at the
proposed facility? Specifically:
a. SARA Title III Section 312 (Tier II) reports YES NO
(> 10,000lbs. of hazardous materials STORED at any one time)
b. SARA Title III Section 313 (Tier III) Form R reports YES NO
(> 10,000lbs. of hazardous materials USED per year)
c. NPDES or SPDES Stormwater Discharge permit YES NO
(answer "No" if "No-Exposure Certification" filed)
d. EPA Hazardous Waste Generator ID Number YES NO
5. Provide a list of chemicals and wastes that will be used and/or generated
at the proposed location. Routine office and cleaning supplies are not included.
Make additional copies if required.
STORAGE CONTAINER(S)
CHEMICAL/WASTE APPROXIMATE ANNUAL QUANTITY (I.E. DRUMS, CARTONS, TOTES, BAGS,
USED OR GENERATED ASTS, USTS, ETC)
- -------------- --------------------------- ----------------------------------
Exhibit F
Page 1 of 1
LEASE ADDENDUM A
DOWNSIZE OPTION
DOWNSIZE OPTION. Subject to the terms and conditions contained herein, Tenant
shall have a one-time option (the "Downsize Option") to downsize the Leased
Premises and remove that certain portion of the Leased Premises containing
approximately 13,000 square feet and depicted on EXHIBIT A-1 attached hereto
(the "Downsize Portion"). If the Downsize Option is properly exercised by Tenant
pursuant to the terms of this Lease Addendum A, then as of March 31, 2009 (the
"Downsize Date"), the Downsize Portion shall no longer be considered a part of
the Leased Premises, such that, from and after the Downsize Date, the "Leased
Premises," for all purposes under this Lease, shall consist of only that
approximately 8,509 square feet depicted on EXHIBIT A-2 attached hereto. If
Tenant desires to exercise the Downsize Option, Tenant shall give Landlord
written notice ("Downsize Notice") of Tenant's exercise of this Downsize Option
together with a downsize fee in the amount of $45,000 (the "Downsize Fee"),
which Downsize Notice and Downsize Fee must be delivered by Tenant to Landlord
no later than the date that is six (6) full months prior to the Downsize Date.
Landlord estimates that the Additional Downsize Fee as of the Downsize Date
shall be $108,163.00. Within forty-five (45) days after the Commencement Date,
Landlord shall provide Tenant with written notice of the actual amount of the
Additional Downsize Fee. Upon receipt of the Downsize Notice and Downsize Fee by
Landlord, Landlord shall provide Tenant with a statement (a "Statement") setting
forth the amount of any unamortized leasing commissions and unamortized Tenant
Improvements costs relating to this Lease (collectively, the "Additional
Downsize Fee"). Tenant shall pay the Additional Downsize Fee to Landlord within
thirty (30) days after Tenant's receipt of the Statement. Upon receipt of the
Downsize Notice and Downsize Fee, Landlord shall have the right to enter the
Leased Premises to market the Leased Premises to prospective tenants. If Tenant
delivers the Downsize Notice, the Downsize Fee and the Additional Downsize Fee
and otherwise complies with all the provisions in this Lease Addendum A, then
the Downsize Portion shall no longer be considered part the Leased Premises as
of 11:59 p.m. on the Downsize Date and Tenant shall vacate the Downsize Portion
in accordance with the terms of this Lease, including without limitation with
Sections 2.03 and 2.04 of this Lease, on or prior to the Downsize Date. If
Tenant shall fail to deliver possession of the Downsize Portion on or before the
Downsize Date in accordance with the terms hereof, Tenant shall be deemed to be
in Default under this Lease and a holdover tenant with respect to the Downsize
Portion from and after the Downsize Date, and in such event, Tenant shall be
liable to Landlord for payments for the use and occupancy of the Downsize
Portion equal to the fair market value thereof, and shall also be liable to
Landlord for all costs and expenses incurred by Landlord in securing possession
of the Downsize Portion. Landlord may accept any such sums from Tenant without
prejudice to Landlord's right to evict Tenant from the Downsize Portion by any
lawful means. If this Lease has been assigned or all or a portion of the Leased
Premises has been sublet or if Tenant is in Default, this Downsize Option shall
be deemed null and void and neither Tenant nor any assignee or subtenant shall
have the right to exercise such option during the term of such assignment or
sublease.
Notwithstanding anything contained in this Lease to the contrary, if Tenant
properly exercises the Downsize Option pursuant to this Lease Addendum A, from
and after the Downsize Date, Sections 1.01 (b), (c), (d) and (e) shall
automatically be amended and modified as follows:
"(c) Tenant's Proportionate Share: 12.87%.
(d) Minimum Annual Rent: $39,907.20 per annum
(e) Monthly Rental Installments: $3,325.60 per month
Lease Addendum A
The foregoing shall be evidenced by an amendment to this Lease.
Lease Addendum A
Lease Addendum B
Renewal Option
RENEWAL OPTION. Provided Tenant is not in default under this Lease at the time
the option to renew described below (the "Renewal Option") is exercised or at
the commencement of the applicable Renewal Period (hereinafter defined), Tenant
shall have one (1) option to extend the Lease Term for a successive three (3)
year period (the "Renewal Period") commencing on the first day following the
last day of the Lease Term, upon the same terms and conditions as are contained
in this Lease, except as hereinafter provided. The Minimum Annual Rent for each
Renewal Period shall be equal to the then "fair market rent" (as determined by
an appraiser selected by Landlord) for similarly used and comparable space in
the Twinsburg, Ohio area for a similar term (the "Renewal Rate"), provided that
in no event shall the Minimum Annual Rent for a Renewal Period be less than the
Minimum Annual Rent in effect for the period immediately prior to the
commencement of the applicable Renewal Period. Landlord shall notify Tenant in
writing (the "Renewal Rate Notice") of the Renewal Rate within thirty (30) days
of Tenant's delivery of a Renewal Notice (hereinafter defined). Tenant shall
have no further or additional right to extend the Lease Term. The Renewal Option
shall be exercised, if at all, by written notice from Tenant to Landlord (the
"Renewal Notice") given no earlier than twelve (12) months and no later than
nine (9) months prior to the expiration of the Lease Term. Notwithstanding
anything contained herein to the contrary, in the event Tenant does not wish to
exercise the Renewal Option at the Renewal Rate, Tenant may withdraw its Renewal
Notice by written notice to Landlord given no later than five (5) business days
from the date Landlord delivers the Renewal Rate Notice.
Lease Addendum B