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EXHIBIT 10.7
MODIFIED TRIPLE NET LEASE
Lease Preparation Date: APRIL 14, 2000
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Lessor: TPLP OFFICE PARK PROPERTIES
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Lessee: CIRRUS LOGIC, INC.
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1. LEASE TERMS
1.01 Premises: The leased Premises located within the Project as
indicated on Exhibit "A-1" and outlined on Exhibit "A-2" contains approximately
54385 rentable square feet. The address of the leased Premises is:
4210 S. INDUSTRIAL DRIVE, AUSTIN, TEXAS 78744
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1.02 Building: The Premises is located in the Building indicated on
Exhibit "A-1" and contains 54385 rentable square feet and is part of the
Project.
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1.03 Project: The Project, as indicated on Exhibit "A-1", which consists
of all buildings on the Property, of the Premises is a part is commonly referred
to as: BEN WHITE 1 and contains approximately 54385 rentable square feet
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1.04 Property: The Premises, the Project, and all Lessor's land thereunder
or appurtenant thereto as describe Exhibit "A" represent the Property.
1.05 Lessee's Notice Address: Lessee's Notice Address is the address of
the leased Premises as stated in Paragraph 1.01 above unless otherwise
specified here: CIRRUS LOGIC, INC.
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3100 WEST WARREN AVENUE, FREMONT, CA 94538
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1.06 Lessor's Notice Address: Lessor's Notice Address is: PS BUSINESS
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PARKS, INC., 5555 NORTH LAMAR BOULEVARD, SUITE J111, AUSTIN, TX 78751-1036
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1.07 Lessee's Permitted Use: Lessee and Lessor agree that Lessee may only
use the Premises for the following purpose(s): MANUFACTURING, TESTING, STORAGE
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AND DISTRIBUTION OF SEMI-CONDUCTOR PARTS
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1.08 Lease Term: The Lease Term commences on AUGUST 1, 2000 and ends on
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JULY 31, 2005 (SIXTY months, and NO days).
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1.09 Base Rent: During the original term of this Lease, Base Rent shall be
paid monthly, in lawful money United States of America in the amounts specified
below, during the applicable periods noted:
Base Rent Applicable Period
$43,508.00 Beginning AUGUST 1, 2000 Ending JULY 31, 2001
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$44,867.63 Beginning AUGUST 1, 2001 Ending JULY 31, 2002
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$46,227.25 Beginning AUGUST 1, 2002 Ending JULY 31, 2003
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$47,586.88 Beginning AUGUST 1, 2003 Ending JULY 31, 2004
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$48,946.50 Beginning AUGUST 1, 2004 Ending JULY 31, 2005
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1.10 Security Deposit: $ 48,946.50 payable in lawful money of the United
States of America.
1.11 Lease Documentation Fee: $ NONE
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1.12 Initial Monthly Rent Charges: Base Rent (1.09) $43,508.00
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CAM (1.14) $ 5,776.83
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Taxes (1.14) $ 7,625.00
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Insurance (1.14) $ 432.50
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Total initial monthly payment $57,342.33
1.13 Proportionate Share: Lessee's Proportionate share of the Project,
which represents the approximate Proportionate Share of the Premises to the
Project is 100%. Lessee's Proportionate Share of the Building within which it is
located, which represents the approximate proportionate share of the Premises
Building is 100%. Proportionate Share may be adjusted during the Lease Term if
the size of the Project,
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Premises or Building changes.
1.14 Operating Expense Estimate: Lessee's Operating Expense
Estimate is N/A
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1.15 Broker(s): NONE
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1.16 Additional Attachments: NONE
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2. LETTING; CONDITION; POSSESSION
2.01 Lessor leases to Lessee, and Lessee leases from Lessor, the
Premises, as indicated in Paragraph 1.01 in consideration of Lessee's payment of
Base Rent and other payments hereunder subject to all of the terms, covenants
and conditions of this Lease and all recorded matters, laws, ordinances and
governmental regulations and orders. Lessee's possession and occupancy of the
Premises constitutes Lessee's acknowledgment that it has satisfied itself with
respect to the overall condition of the Premises, the present and future
suitability of the Premises for Lessee's intended use and the substantial
completion of Lessor constructed Lessee Improvements, if any, consistent with
Paragraph 10 below and specifically set forth in Exhibit "B".
2.02 Lessee shall only use the Premises for its permitted use. Lessee
shall not occupy or use the Premises or any part thereof for other than its
permitted use and not for any use or purpose which is unlawful or deemed by
Lessor to be disreputable in any manner or dangerous to life, limb or property.
2.03 Unless otherwise provided herein, any statement of square footage
set forth in this Lease is an approximation which Lessor and Lessee agree is
reasonable for all purposes and shall be the basis for this Lease. Lessor
reserves the right to change Lessee's proportionate share to reflect any
increase or decrease in the common area. Any use of the terms "rentable" and
"usable" is for convenience only, and such descriptions represent Lessor's
interpretation of such terms. If there are no Tenant Improvements or Exhibit B
is not attached hereto, then Lessee accepts the Premises in "AS-IS" condition
and Lessor shall have no obligation to provide or pay for any repair or other
work therein, except as stated in this Lease; and Lessee shall obtain and
deliver to Lessor a certificate of occupancy for the Premises from the
appropriate governmental authority.
2.04 Lessor will deliver, where applicable, all systems in the Premises
to Lessee with existing plumbing, electrical, fire sprinkler, lighting, air
conditioning, heating and mechanical, in good working condition. Lessee has
thirty (30) days after the Lease Term commences, or Lessee's occupancy,
whichever is sooner, to notify Lessor, in writing, of any non-operative items,
and Lessor will promptly rectify same at Lessor's sole cost. However, if Lessee
does not give Lessor written notice of any non-operative items within this
notification period, all repairs to the Premises which are Lessee's
responsibility per Paragraph 11.01 of this Lease will become the obligation of
Lessee at Lessee's sole cost and expense.
2.05 On the date Lessee takes possession of the Premises, to Lessor's
best knowledge, all Lessor-constructed Lessee Improvements on or in the
Premises as set forth in Exhibit "B", if any, will comply with all then
applicable governmental agency laws, codes, regulations, ordinances, covenants
and restrictions. However, Lessor makes no warranty nor accepts any
responsibility for specifically meeting such compliance presently or in the
future with respect to any Lessee activity, including but not limited to: a.)
any Lessee Improvements or Lessee Alterations, as defined in Paragraph 10.02
below, made or to be made by Lessee or at Lessee's direction; b.) Lessee's
Permitted Use; c.) Lessee's occupancy of the Premises and/or the Property; and
d.) the presence of Lessee's employees, agents, contractors, suppliers, invitees
or licensees on or about the Property.
2.06 If for any reason Lessor cannot deliver possession of the Premises
on the Commencement Date of the Lease Term, Lessor will not be subject to any
liability nor will the validity of this Lease be affected in any manner.
However, if Lessee has not caused such delay, there will be a proportionate
adjustment of rent to cover the period between the Commencement Date of the
Lease Term and the actual date when possession is delivered, and based on the
actual date possession is delivered, both the commencement and ending dates of
the Lease Term, and the Beginning and Ending dates of each Applicable Period,
shall be adjusted accordingly, while the lengths of the Lease Term and each
Applicable Period shall remain constant. If for any reason possession of the
Premises is not delivered within ninety (90) days of the date the Lease Term
commences, Lessor or Lessee, (provided Lessee is not the cause of such delay),
may cancel this Lease with written notification. If for any reason Lessee fails
to take possession of the Premises within fifteen (15) days after Lessor
notifies Lessee in writing that the Premises is ready for Lessee's occupancy,
Lessee will be in Breach, as defined in Paragraph 20.02 below, of this Lease.
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2.07 Subject to Paragraph 10.05 and Lessor's right to retain
improvements, upon termination of this Lease, Lessee agrees to return the
Premises to Lessor in the same condition as received by Lessee as of the
original date Lessor delivers the Premises to Lessee, normal wear and tear
excepted.
2.08 If Lessee, with Lessor's prior written consent, occupies the
Premises prior to the Commencement Date, Lessee's occupancy of the Premises
shall be subject to all the provisions of the Lease. Early occupancy of the
Premises shall not advance the expiration date of the Lease. Lessee shall not
pay Base Rent during the early occupancy period but all other charges shall
begin to accrue on the date of such early occupancy. Lessee shall, however,
provide Lessor with evidence of insurance coverage pursuant to Paragraph 12,
prior to such early occupancy.
3. BASE RENT
3.01 On or before the first day of each calendar month of the Lease
Term, Lessee will pay to Lessor in lawful monies of the United States of
America, without deduction or offset, prior notice or demand, Base Rent at the
place Lessor designates. However, the first month's Base Rent and the Security
Deposit will be due and payable concurrently with Lessee's execution of this
Lease.
3.02 If indicated in Exhibit "B", Base Rent includes an amortized
estimation of Lessor's cost of making Lessee Improvements on Lessee's behalf
which, subject to the terms and conditions of this Lease, shall be paid in equal
installments as part of Base Rent by Lessee over the Lease Term. Subject to the
provisions of Exhibit "B", should Lessor and Lessee agree to any additional
Lessee Improvements not included in this estimate or if actual Lessee
Improvement costs and expenses exceed this estimate, Lessor may increase Base
Rent according to the terms and conditions outlined in Exhibit "B".
4. ADDITIONAL RENT
4.01 Unless otherwise specifically stated, any charge payable by Lessee
under this Lease other than Base Rent is called "Additional Rent". Additional
Rent is to be paid concurrently with and subject to the same terms and
conditions of Base Rent. The term "rent" whenever used in this Lease means Base
Rent, Additional Rent and/or any other monies payable by Lessee under the terms
of this Lease. In the event any rent payable under this Lease commences or ends
on a day other than the first day of a calendar month, the actual number of days
in the prorated month will be used as the basis for the calculation.
4.02 "Operating Expenses" as used herein shall include all costs and
expenses, operation, maintenance, and repair of the Premises, Building, Project
and Property, or any part thereof, incurred by Lessor including but not limited
to: (1) Property supplies, materials, labor, equipment, and tools; (2)
Lessor-incurred utility and service costs and expenses (as further described in
Paragraph 4.03B below), security, janitorial, and all applicable service and
maintenance agreements; (3) Property related legal, accounting, and consulting
fees, costs and expenses; (4) insurance premiums for all policies deemed
necessary by Lessor and/or its lenders, and all deductible amounts under such
policies (as further described in Paragraph 4.03C below); (5) costs and expenses
of operating, maintaining, and repairing common areas of the Property, including
but not limited to, hallways, restrooms, conference rooms, exercise rooms,
equipment and telephone rooms, driving, parking and other paved or unpaved areas
(including but not limited to, resurfacing and striping), landscaped areas
(including but not limited to, tree trimming), walkways, building exteriors
(including but not limited to, painting and roof repairs), signs and
directories, and elevators and stairways; (6) capital improvements and
replacements (including all financing costs and interest charges) which have
been made to improve the operating efficiency of the Property; (7) capital
improvements and replacements (including but not limited to, all financing costs
and interest charges) required by any governmental authority or law including
but not limited to, compliance required under the Americans with Disabilities
Act of 1990; (8) compensation (including but not limited to, any payroll taxes,
worker's compensation for employees, and customary employee benefits) of all
persons, including independent contractors, who perform duties, or render
services on behalf of, or in connection with the Property, or any part thereof,
including but not limited to, Property operations, maintenance, repair, and
rehabilitation; (9) Property management fees; (10) Real Property Taxes (as
further described in Paragraph 4.03A below), provided, however, wherever the
Lessee and/or any other lessee of space within the Property has agreed in its
lease or otherwise to provide any item of such services partially or entirely at
its own expense, or wherever in the Lessor's judgment any such significant item
of expense is not incurred with respect to or for the benefit of all of the
space within the Property, in allocating the Operating Expenses pursuant to the
foregoing provisions of this subsection the Lessor shall make an appropriate
adjustment, as aforesaid, so as to avoid allocating to the Lessee or to such
other lessee (as the case may be) those Operating Expenses covering such
services already being provided by the Lessee or by such other lessee at its own
expense, or to avoid allocating to all of the net rentable space within the
Property those Operating Costs incurred only with respect to a portion thereof,
as aforesaid.
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4.03A "Real Property Taxes" as used herein shall include any fee,
license, tax, late fee, levy, charge, assessment, penalty (if a result of
Lessee's delinquency or negligence), or surcharge (hereinafter individually
and/or collectively referred to as "Tax") imposed by any authority (including
but not limited to, any federal, state, county, or local government, or any
school, agricultural, lighting, drainage, or other improvement district, or
public or private association) having the direct or indirect power to tax and
where such Tax is imposed against the Property; or any part thereof, or Lessor
in connection with its ownership or operation of the Property, including but not
limited to: (1) any Tax on Lessor's right to receive, or the receipt of, rent or
income from the Property, or any part thereof, or Tax against Lessor's business
of leasing the Property; (2) any Tax by any authority for services or
maintenance provided to the Property, or any part thereof, including but not
limited to, fire protection, streets, sidewalks, and utilities; (3) any Tax on
real estate or personal property levied with respect to the Property, or any
part thereof, and any fixtures and equipment and other property of Lessor or the
Property used in connection with the operation, maintenance or repair of the
Property; (4) any Tax imposed on this transaction, or based upon a reassessment
of the Property, or any part thereof, due to a change in ownership or transfer
of all or part of Lessor's interest in the Property, or any part thereof and,
(5) any Tax replacing, substituting for, or in addition to any Tax previously
included with this definition. Real Property Taxes do not include: (1) Lessor's
federal or state income, franchise, inheritance, or estate taxes; or (2)
Lessee's personal property taxes (taxes charged against Lessee's trade fixtures,
furnishings, equipment, or other personal property) which are the sole
responsibility of Lessee, and shall be billed directly to, and paid in a timely
manner by Lessee.
4.03B "Utility and Service Costs" as used herein shall include all
Lessor incurred utility and service costs and expenses including, but not
limited to water, electricity, gas, heating, lighting, steam sewer, waste
disposal, air conditioning, heating and ventilation.
4.03C "Insurance" as used herein shall include all insurance premiums
for all policies deemed necessary by Lessor and/or its lenders, including but
not limited to, worker's compensation, liability, commercial general liability,
automobile, rental interruption insurance and any and all additional
endorsements, extended coverage, riders under or attached to such policies.
4.04 Throughout the Lease Term, Lessee will pay as Additional Rent its
proportionate share (of the Project and/or building, as applicable) of Operating
Expenses which will be equal to each calendar year's total Operating Expenses
multiplied by Lessee's Proportionate Share. In the event Lessee is only
responsible for a portion of a given calendar year, Lessee's share will be based
on the actual number of elapsed applicable days. All Operating Expenses will be
adjusted to reflect an average Project occupancy level of eighty percent (80%)
during any calendar year in which the Project is not at least eighty percent
(80%) occupied. Operating Expense Estimates and actualized Operating expenses
will be determined as outlined in 4.05A, 4.05B below and subject to the
provisions of 4.07.
4.05 Lessee's Operating Expense estimates shall be determined as
follows:
4.05A. Lessee's Operating Expense estimates: On or about April 1st of
each calendar year, Lessor will provide Lessee with a statement of: (1) Lessee's
annual share of estimated Operating Expenses for the then current calendar year;
(2) Lessee's new monthly Operating Expense estimate for the then current year;
and, (3) Lessee's retroactive estimate correction billing (for the period of
January 1st through the date immediately prior to the commencement date of
Lessee's new monthly Operating Expense estimate) for the difference between
Lessee's new and previously billed monthly Operating Expense estimates for the
then current year.
4.05A(1). Annual estimate share: Lessee's annual share of
estimated Operating Expenses for the then current calendar
year shall be determined by multiplying Lessor's estimated
total Operating Expenses for the then current calendar year,
by Lessee's Proportionate Share (of the Project or Building,
as applicable) identified in Paragraph 1.11.
4.05A(2). Monthly Operating Expense estimate: Lessee's new
monthly Operating Expense estimate for the then current
calendar year shall be calculated by dividing Lessee's annual
share of estimated Operating Expenses, as determined above, by
12.
4.05A(3). Retroactive estimate correction: Lessee's share of
the change in Operating Expense estimates retroactive to
January 1st of each year shall be determined as follows:
For the then current calendar year, the total of Lessee
monthly Operating Expense estimates billed prior to the
commencement of Lessee's new monthly Operating Expense
estimate shall be subtracted from Lessee's new monthly
Operating Expense estimate multiplied by the number of elapsed
months within the same period.
4.05B. Lessee's share of actualized annual Operating Expenses: On or
about April 1st of each year, Lessor will provide Lessee with a statement
reflecting the total Operating Expenses for the calendar year just ended. If the
total of Lessee's Operating Expense estimates billed for the calendar year just
ended
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are less than Lessee's share of the actualized Operating Expenses for the
calendar year just ended, the statement will indicate the payment amount and
date due. If Lessee has paid more than its share of Operating Expenses for the
preceding calendar year, Lessor will credit the overpayment towards Lessee's
future Operating Expense obligations. IF LESSEE IS DUE A CREDIT AT THE
EXPIRATION OF THE LEASE TERM, SUCH CREDIT WILL BE REFUNDED TO LESSEE BY MAIL.
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4.06 Under this Lease, monthly Operating Expense estimates, retroactive
estimate corrections, and Lessee's share of actualized annual Operating Expenses
are considered Additional Rent. Monthly Operating Expense estimates are due on
the 1st of each month and shall commence in the month specified by Lessor.
Lessee's retroactive estimate correction, and actualized annual Operating
Expense charges, if any, shall be due, in full, on the date(s) specified by
Lessor.
4.07 Lessee will not be entitled to any reduction, refund, offset,
allowance or rebate should any Real Property Taxes be retroactively reduced,
credited, abated or exempted by any direct or indirect taxing authority for any
prior taxation or assessment period. If Lessor fails to provide Lessee with an
Operating Expense statement by April 1st of any calendar year, or elects not to
bill Lessee its share of actualized Operating Expenses, and/or Operating
Expenses estimate(s), or estimate increase(s) for any period of time, Lessors
right to bill and collect these charges from Lessee at a later time is not
waived.
4.08 Whether now in force or hereafter in force, Lessee will pay as
Additional Rent its share of any duties, levies or fees resulting from any
statutes or regulations, or interpretations thereof, enacted by any governing
authority which pertains to Lessor's or Lessee's use, ownership, occupancy or
alteration of the Premises, Project, or Property, or any part thereof. Lessee's
share of such duties or fees will be based on Lessee's Proportionate Share as
indicated in Paragraph 1.13 or other equitable method determined by Lessor in
its sole discretion. In the event the Property, or any part thereof, shares
common Operating Expenses, commonly used areas, land or other items not
exclusive to the Property, Lessor shall allocate and bill Lessee its share of
any costs and expenses attributable to such sharing on an equitable basis, as
determined by Lessor in its sole discretion.
4.09 In the event Lessee wishes to audit any Lessee rent charge, such a
review shall be performed only at a time and location designated solely by
Lessor, and only if Lessee is not in Default, as defined in Paragraph 20.02
below at the time of the audit request and/or at any time during the course of
the audit. Lessor and Lessee agree that any Lessee audit must be conducted
within six (6) months of the date the rent charge becomes due, and if this audit
is not conducted within this period of time, Lessee's right to audit is waived,
and the rent charge, as originally billed, including all calculations used as
the basis for the Base Year or expense stop shall be deemed conclusive and final
for all purposes under this Lease.
5. LATE CHARGES
Any installment, including any partial installment, of Base Rent,
Additional Rent, rent or any other rent charge payable which is not received by
Lessor within five (5) days after it becomes due, shall be considered past due,
and shall constitute a default per Paragraph 20.02 below and Lessee shall,
without the necessity of notification from Lessor, pay Lessor a late charge
equal to fifty dollars ($50.00) or ten percent (10%) of the then delinquent
amount, whichever is greater. Additionally, a fifty dollar ($50.00) handling fee
will be paid to Lessor by Lessee for each bank returned check which return shall
constitute a Default, and Lessee will be required to make all future payments to
Lessor by money order or cashier's check. The acceptance of late charges and
returned check charges by Lessor will in no way constitute a waiver of Lessee's
Default with respect to any overdue amount nor prevent Lessor from exercising
any of its rights or remedies resulting from such late payment.
6. SECURITY DEPOSIT
6.01 Upon Lessee's execution of this Lease, Lessee will deposit with
Lessor an initial Security Deposit in the amount specified in Paragraph 1.10 as
security for Lessee's full and faithful performance of every provision under
this Lease. Lessor will not be required to keep the Security Deposit separate
from its general funds and has no obligation or liability for payment of
interest thereon (except when required by law). Any time the Base Rent increases
during the Lease Term, Lessee will deposit additional monies with Lessor as an
addition to the Security Deposit so that the total amount of the Security
Deposit will at all times at a minimum bear the same proportion to the then
current Base Rent as the initial Security Deposit bears to the initial Base Rent
set forth in Paragraph 1.09. Such additional Security Deposit monies will be due
and payable concurrently with the next payment of Base Rent, after receipt of
written notice from Lessor of the need to increase this Security Deposit as
required by this Paragraph.
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6.02 In no event will Lessee have the right to apply any part of the
Security Deposit to any amounts payable under the terms of this Lease nor is it
a measure of Lessor's damages in event of a Default or Breach by Lessee. If
Lessee fails to pay any rent due herein, or otherwise is in Default or in Breach
of any provision of this Lease, Lessor may use, apply or retain all or any
portion of the Security Deposit for the payment of any amount due Lessor, or to
compensate Lessor, for any loss or damage suffered by Lessee's Default or
Breach. Within five (5) days after written notification by Lessor, Lessee will
pay monies to Lessor sufficient to restore the Security Deposit to the full
amount required under this Lease.
6.03 Within sixty (60) days (or as otherwise prescribed by law) after
the expiration or earlier termination of the Lease Term and after Lessee has
vacated the Premises, Lessor will return to Lessee that portion of the Security
Deposit not used or applied by Lessor to fulfill any and all of Lessee's
obligations under this Lease.
6.04 At any time during the Lease Term, within ten (10) days after
written request from Lessor, Lessee shall deliver to Lessor such financial
statements as Lessor reasonably requires to verify the net worth of Lessee or
any assignee, subtenant, or guarantor of Lessee. In addition, Lessee shall
deliver to any lender designated by Lessor any financial statements required by
such lender to facilitate the financing or refinancing of the Property. Lessee
represents and warrants to Lessor that each financial statement is a true and
accurate statement as of the date of such statement. All financial statements
shall be confidential and shall be used only for the purposes set forth in this
Lease.
7. USE OF PREMISES; QUIET ENJOYMENT; TRASH
7.01 The Premises will be used and occupied only for Lessee's Permitted
Use, as described in Paragraph 1.07. Lessee agrees it has negotiated its
Permitted Use in a fair and reasonable manner and, as so written, the Permitted
Use is enforceable for all purposes under this Lease. Further, Lessee expressly
waives the right to challenge the validity of its Permitted Use, including but
not limited to, as defined in Paragraph 20. below, challenges which pertain to
Default or Breach of this Lease, mitigation of damages, and any and all
Transfers under this Lease.
7.02 Lessee will comply with all conditions and covenants of this
Lease, and all applicable governmental agency laws, codes, regulations,
ordinances, covenants and restrictions affecting the Property or any part
thereof. Lessee will not use or permit the use of the Premises, the Property or
any part thereof, in a manner that is unlawful, diminishes the appearance or
aesthetic quality of any part of the Property, creates waste or a nuisance,
disturbs Lessor, other lessees or any neighboring property occupants, or causes
damage to the Property, or any part thereof, or to any neighboring property,
personal property or person. Any animals, excepting guide dogs, on or about the
Property or any part thereof are expressly prohibited.
7.03 Lessor agrees that so long as Lessee performs all of its
obligations under the Lease, Lessee's possession, quiet enjoyment and use of the
Premises for the term of the Lease will not be disturbed by Lessor, subject only
to the provisions of the Lease.
7.04 Lessee shall be responsible for providing all trash receptacles
and pickup for its premises. In the event of any excessive trash in or outside
Lessee's premises, as determined by Lessor in its sole discretion, Lessor will
have the right to remove such excess trash, charge all costs and expenses
attributable to its removal to Lessee, and require Lessee to obtain, at its sole
cost and expense, additional trash receptacles, to be placed in a location
designated by Lessor for Lessee's specific use. Under no circumstances may any
"Hazardous Materials", as defined in Paragraph 14 below, any materials not
permitted by law, any materials improperly or illegally handled, stored,
contained or released, or any materials which are not permitted by Lessor, as
determined in its sole discretion, be disposed of in any trash receptacles
located in or about the Property. Lessee will not cause, maintain or permit any
outside storage on or about the Property without prior written consent by
Lessor, which consent, if given, may be revoked at any time. In the event of any
unauthorized outside storage by Lessee, Lessor will have the right, without
notice, in addition to such other rights and remedies it may have, to remove any
such storage and charge all direct and associated costs and expenses to Lessee.
8. PARKING
All parking will comply with the terms and conditions of this Lease and
the parking criteria set forth in Exhibit "D". Unless otherwise stated, Lessee,
its employees, agents, contractors, suppliers, invitees and licensees will have
a non-exclusive privilege, in conjunction with Lessor, other lessees of the
Property, and such other persons as Lessor may designate, to use those parking
spaces designated by Lessor for public parking. Vehicles parked in public
parking areas will be no larger than full-sized passenger automobiles or
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pick-up trucks. Larger vehicles, if permitted in writing by Lessor, will be
parked, loaded and unloaded in locations designated by Lessor. Lessor reserves
the right, without notice to Lessee, to tow away at Lessee's sole cost and
expense any vehicles parked in any parking area for any continuous period of
24 hours or more, or earlier if Lessor, in its sole discretion, determines such
parking to be a hazard or inconvenience to other lessees or Lessor, upon prior
written notice to Lessee, or violates any rules or regulations or posted notices
related to parking. Lessor shall not be responsible for enforcing Lessee's
parking rights against third parties. From time to time, Lessor reserves the
right, upon written notice to Lessee, to change the location, the availability
and nature of parking spaces, establish reasonable time limits on parking, and,
on an equitable basis, assign specific spaces with or without charge to Lessee
as Additional Rent.
9. UTILITIES
9.01 Lessor agrees to provide at its cost water and electric service
connections (and gas where applicable) to the Premises and telephone service
connections to the Building, but Lessee agrees to make all arrangements for and
pay directly to the appropriate utility company all costs and expenses of
utility services supplied to, and for the use of, Lessee in or about the
Premises, including but not limited to, water, gas, heat, light, power,
telephone, sewer, sprinkler charges, usage costs and expenses, service fees,
connection charges, deposits and any duties or taxes for such utilities.
9.02 If for any reason, Lessor incurs any utility costs and expenses
which are attributed to Lessee, as determined by Lessor, Lessee, upon
notification from Lessor, shall immediately reimburse Lessor for all such costs
and expenses.
9.03 In the event it is not possible for Lessee to pay directly for any
utility service, the utility service may, at Lessor's discretion, be obtained in
Lessor's name, and Lessee will pay Lessor, as Additional Rent, Lessor's best
estimate of Lessee's share of such utility costs and expenses. Lessor's best
estimate will be determined by Lessor in its sole discretion and will be subject
to change as Lessor deems necessary. Periodically during the Lease Term, Lessor
will compare Lessee's utility estimates to actual utility costs and expenses
incurred, and bill or credit, whichever is applicable, Lessee for any
difference. Lessor reserves the right to separately meter any such service not
so separately metered at Lessee's sole cost and expense at any time during the
Lease Term, at which time Lessee shall be directly responsible for payment of
such expense directly to the utility service provider, if possible.
9.04 Lessor will not be liable or deemed in Default or Breach, nor will
there be any abatement of rent, for any interruption or reduction of utilities,
utility services or telecommunication services. Additionally, Lessee agrees to
comply with any energy conservation programs implemented by Lessor by reason of
enacted laws or ordinances, or otherwise.
9.05 Lessor reserves the right, in its sole discretion, to designate,
at any time, Lessee's utility equipment and service providers for any utility
available for Lessee's use within the Property.
9.06 By execution of this Lease, Lessee acknowledges it has satisfied
itself as to the adequacy of any Lessor owned telephone equipment, if any, and
the quantity of telephone lines and service connections to the Building
available for Lessee's use. Should Lessee require additional equipment, lines or
wiring, beyond the initial installation of the outside line to the building
itself, any and all associated costs and expense will be borne directly by
Lessee and be subject to the provisions of this Lease and Lessor's written
approval. Additionally prior to termination of this Lease, Lessee at its sole
cost and expense, will remove all equipment, both above and below the ceiling to
the phone closet where applicable, (if required by Lessor), including but not
limited to, all lines, wiring and all telephone boards belonging to Lessee and
restore the Premises to the same condition as before such installation.
9.07 Lessee acknowledges and agrees that the number and installation of
telephone lines to its Premises, including any telephone, telecommunication or
other communication equipment (specifically including any antennas, towers
(microwave or otherwise) or other exterior equipment of any nature) which either
utilizes telephone or telecommunications equipment or technology or in any other
manner affects Lessor's ability to provide telephone or communications
facilities to the Project is subject to Lessor's approval, which will not be
unreasonably withheld. Additionally, in the event that Lessee wishes additional
telephone, telecommunication or other communication lines or access after the
date of Lessee's execution of this Lease, no such additional lines or access
shall be permitted nor other telephone, telecommunication or communication
related equipment installed without first securing the prior written consent of
Lessor, which will not be unreasonably withheld. Any telecommunications
installation shall be subject to the following:
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(1) Lessor shall incur no expense whatsoever with respect to any aspect of
Lessee's need for additional access or equipment, including without limitation,
the costs of installation, consultants, materials, permits, service, etc.
(2) Prior to the commencement of any work in or about the Building to install
such additional access, lines or equipment, Lessee shall agree to abide by such
rules and regulations as solely determined by Lessor.
(3) Lessor reasonably determines that there is sufficient space in the Building
for the placement of all of the lines, access and equipment.
(4) Lessee agrees to compensate Lessor the reasonable amount determined by
Lessor for space used in the Building for the storage and maintenance of the
equipment, if any lies outside the leased Premises, and for all costs that may
be incurred by Lessor in arranging for access by the Lessee's personnel,
security for Lessee's equipment, and any other such costs as Lessor may expect
to incur.
(5) Any other requirements Lessor may deem reasonable.
The refusal of Lessor to consent to any request shall not be deemed a Default or
Breach by Lessor of its obligation under this Lease nor be grounds for any
termination or offset by Lessee. Lessee agrees that to the extent service by any
telephone or communication equipment is interrupted, curtailed, or discontinued,
Lessor shall have no obligation or liability with respect thereto and it shall
be the sole obligation of Lessee at its expense to obtain substitute service,
but only with Lessor's prior written permission, which shall not be unreasonably
withheld. Lessor's consent under this section shall not be deemed a warranty or
representation by Lessor as to the availability or suitability of the present or
future telephone or communications equipment, connections, compatibility or
space available for any additional equipment, lines or access. The provisions of
this clause may be enforced solely by the Lessee and Lessor, and are not for the
benefit of another party, specifically, without limitation, no telephone or
telecommunications provider shall be deemed a third party beneficiary of the
Lease.
10. LESSEE IMPROVEMENTS; LESSEE ALTERATIONS AND MECHANIC'S LIENS
10.01 Any improvements constructed under this Lease on behalf of Lessee
or at Lessee's expense prior to Lessor's initial delivery of the Premises are
referred to throughout this Lease as "Lessee Improvements". All Lessee
Improvements will be performed in accordance with the terms and conditions
outlined in Exhibit "B". Upon substantial completion, as determined by Lessor,
of the Lessee Improvements outlined in Exhibit "B", Lessor will be relieved of
any further obligation to alter, change, decorate or improve the Premises, or
any part thereof.
10.02 Lessor's prior written consent is required for any: (a) Lessee
constructed Lessee Improvements; and (b) any alterations, utility installations,
additions, or other improvements made by Lessee, at its sole cost and expense,
after Lessor's initial delivery of the Premises (hereafter collectively referred
to as Lessee Alterations). Lessor's consent will be conditioned upon its
approval of: (i) Lessee's contractor(s); (ii) detailed plans and work
specifications of Lessee Alterations; and (iii) certificates of insurance from
Lessee's contractor(s) for commercial general liability, automobile liability
and property damage insurance with limits not less than $2,000,000 / $250,000 /
$500,000 respectively endorsed to show Lessor as an additional insured
evidencing Lessor's requirement to be notified at least thirty (30) days in
advance of any change, expiration or cancellation of any such policies along
with proof of a current worker's compensation policy. In addition, Lessee must
obtain all approvals and permits required by any and all governmental
authorities and provide same to Lessor prior to commencement of any work, and
after work commences must comply with all conditions of such approvals and
permits and perform work in a prompt and expeditious manner with good and
sufficient materials. Lessor also retains the right, as a condition of its
consent, to require Lessee to provide Lessor with a lien and completion bond in
a form acceptable to Lessor in an amount equal to one and one-half times the
estimated cost of Lessee constructed Lessee Improvements and Lessee Alterations
and/or require the inclusion of Lessor's non-responsibility language in all
contracts in a form approved by Lessor. Lessor shall be entitled to a contract
management fee of 15% of the total cost of such construction. Lessee will give
Lessor a minimum of fifteen (15) days prior written notice of the commencement
of any Lessee constructed Lessee Improvements and Lessee Alterations to allow
Lessor sufficient time in which to post notices of non-responsibility or no
liability for work then in progress in, on, or about the Premises as provided by
law. Upon completion of any improvements, all alterations or additions, Lessee
shall deliver to Lessor accurate, reproducible as-built plans of such
construction.
10.03 Lessor's approval of any Lessee constructed Lessee Improvements
and Lessee Alterations will not create any liability whatsoever on the part of
Lessor. By way of example and without limitation, Lessor's approval of Lessee's
plans and work specifications will not create any responsibility or liability on
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the part of Lessor for their sufficiency, completeness or compliance with any
and all governmental laws, codes, regulations, ordinances, covenants and
restrictions (including without reservation any and all provisions of the
Americans with Disabilities Act of 1990 applicable to the Property, or any part
thereof).
10.04 Lessee will pay when due, all claims for services, labor and
materials furnished by, or at the request of Lessee, including any claims which
are secured by any mechanic's or materialmen's or other lien against the
Property, or any interest therein. Lessee agrees that should any lien be posted
on the Property due to work performed, materials furnished, or obligations
incurred by Lessee, or its employees, agents, contractors, suppliers, invitees
or licensees, Lessee will immediately notify Lessor and proceed to remove such
lien. Lessee further acknowledges that it will remain liable to Lessor and
indemnify Lessor for any costs and expenses or damages to Lessor or the Property
or any interest therein as a result of such lien(s). If Lessee, in good faith,
contests the validity of any such lien, claim or demand, Lessee will, at its
sole expense, defend and protect itself, Lessor and the Property, or any part
thereof. To ensure such protection of Lessor and the Property and any part
thereof, Lessor may, at its sole option, require Lessee to provide Lessor with a
surety bond satisfactory to Lessor in an amount deemed appropriate by Lessor
which will indemnify Lessor against any liability and ensure the Property, or
any part thereof, is free from the effect of such a lien or claim. In addition,
Lessor may require Lessee to pay all legal fees of Lessor's attorney(s) of
choice and any other associated costs and expenses should Lessor decide it is in
its best interest to participate in such an action. If Lessee fails to keep the
Property, or any part thereof, free from any lien or provide a Lessor approved
surety bond, then, in addition to any other rights and remedies available to
Lessor, Lessor may take any action necessary to discharge such a lien, including
but not limited to, payment to the claimant on whose behalf the lien was filed,
and regardless of the corrective action taken by Lessor, Lessee will be liable
to Lessor for all costs and expenses of such action to discharge the lien,
including, but not limited to, any legal fees and costs.
10.05 All Lessee Improvements and Lessee Alterations are part of the
realty and belong to Lessor. As a condition of Lessor consenting to any Lessee
Improvements or Lessee Alterations, Lessor reserves the right, at any time to:
(i) require Lessee to pay an amount determined by Lessor to cover the costs of
demolishing part or all of any Lessee Improvements or Lessee Alterations and or
the cost of returning the Premises to their condition before any such work
commenced (normal wear and tear excepted); or (ii) elect to make Lessee the
owner of all or any specified part and, upon termination of this Lease, require
Lessee to remove same at its sole cost and expense. The provisions of this
Paragraph shall survive the termination of this Lease.
10.06 Lessee may, without prior written consent of Lessor, make
non-structural installations, within the Premises of its trade fixtures,
equipment, and machinery in conformance with all applicable governing agency
laws, codes, regulations, ordinances, covenants and restrictions, and they may
be removed upon termination of this Lease provided the Premises are restored to
its condition at the commencement of this Lease and no material damage to the
Premises will occur. All such installations shall be made by a licensed and
bonded contractor, approved by Lessor, with all permits obtained when required
by law.
10.07 Lessor retains the right to construct or permit construction of
improvements, and/or Lessee Alterations, for new and existing lessees and to
alter any commonly used areas in or about the Property. Notwithstanding anything
which may be contained in this Lease, Lessee understands this right of Lessor
and agrees that such construction will not be deemed to constitute a Default or
a Breach of this Lease by Lessor. Lessee waives any such claims which it might
have arising from such construction.
11. REPAIRS
11.01 This is a net lease. Lessee will, at all times and at its sole
cost and expense, keep all parts of the Premises, interior and exterior, in good
order, condition and repair, and all equipment and facilities within or serving
the Premises, including but not limited to: windows, glass and plate glass,
doors and office entry(s), walls and finish work, floors and floor coverings,
interior of the roof, foundation, down spouts, gutters, heating and air
conditioning systems, electrical systems, dock boards, truck doors, chain link
gates and fences, dock bumpers, life safety-sprinkler systems, signage, speed
bumps, paving, plumbing work and fixtures, termite and pest extermination,
regular removal of trash and debris, snow removal, regular mowing of any grass,
trimming, weed removal and general landscape maintenance, keeping the parking
areas, driveways, alleys and whole of the Premises in a clean and sanitary
condition. Lessee shall at its own costs and expense repaint exterior overhead
doors, canopies, entries, handrails, gutters, and other exposed parts of the
Building which reasonably require periodic repainting to prevent deterioration
or to maintain aesthetic standards. The cost of maintenance and repair of any
common party wall (any wall, divider, partition or other structure separating
the premises from any adjacent premises occupied by other Lessees) shall be
shared equally by Lessee and the lessee occupying the adjacent premises. Lessee
shall not damage any party wall or disturb the integrity and support provided by
any party wall and shall, at its sole cost and expense, promptly repair any
damage or injury to any party wall caused by Lessee or its employees, agents
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or invitees. Lessee will keep the Premises and every part thereof in good order,
condition and repair regardless of whether any portion of the Premises requiring
repairs, or the means of repairing same are reasonably or readily accessible.
Additionally, Lessee shall be obligated to maintain and repair the Premises
whether the need for such repairs or maintenance occurs as a result of Lessee's
use, any prior use, vandalism, acts of third parties, Force Majeure or the age
of the Premises. The standard for comparison of condition will be the condition
of the Premises as of the original date of Lessor's delivery of the Premises and
failure to meet such standard shall create the need to repair. All Lessee
repairs will be made by a licensed and bonded contractor, approved by Lessor,
with permits and any other governmental agency approvals and requirements
obtained and observed, and conform to all requirements of Paragraph 10.02
herein. Lessor's maintenance and repair obligations are limited to
air-conditioning and other equipment, facilities and areas used in common with
other lessees, exterior walls, foundations and exterior roofs which Lessor
agrees to repair and maintain on behalf of Lessee unless such repairs are due to
negligent or intentional acts of Lessee or its employees, agents, contractors,
suppliers, invitees or licensees.
11.02 Lessee expressly waives the benefit of any statute or other legal
right now or hereafter in effect which would otherwise afford Lessee the right
to make repairs at Lessor's expense, whether by deduction of rent or otherwise,
or to terminate this Lease because of Lessor's failure to keep the Property, or
any part thereof in good order, condition and repair. If Lessee does not keep
the Premises in good order, condition, conforming to and consistent with
Lessor-specified standard colors, materials and quality, or fails to make any
Lessor required maintenance or repairs, Lessor reserves the right to perform
such obligations of Lessee on Lessee's behalf, and Lessee will reimburse Lessor
for any direct and indirect costs and expenses incurred immediately upon demand.
Failure by Lessee to pay for such costs and expenses within five (5) days of
written notification by Lessor is a Breach of this Lease.
11.03 In the event the Premises constitute a portion of a multiple
occupancy building, Lessor shall perform the roof, paving, and landscape
maintenance, exterior painting and common sewage line plumbing which are
otherwise Lessee's obligation under Paragraph 11.01 above, and Lessee shall, in
lieu of the obligations set forth under Paragraph 11.01 above with respect to
such items, be liable for its Proportionate Share of the Building (as defined in
Paragraph 1.13 above) of the costs and expense of Building maintenance and the
care for the grounds around the Building, including but not limited to, the
mowing of grass, care of shrubs, general landscaping, maintenance of parking
areas, driveways and alleys, roof maintenance, exterior repainting and common
sewage line; plumbing; provided, however, that Lessor shall have the right to
require Lessee to pay such other reasonable proportion for said mowing, shrub
care and general landscaping costs as may be determined by Lessor in its sole
discretion, and further provided that if Lessee or any other particular lessee
of the Building can be clearly identified as being responsible for obstruction
or stoppage of the common sanitary sewage line, then Lessee, if Lessee is
responsible, or such other responsible lessee, shall pay the entire cost
thereof, upon demand, as Additional Rent.
11.04 Lessee shall, at its own cost and expense, enter into regularly
scheduled preventative maintenance/service contract(s) with a maintenance
contractor for servicing all heating and air conditioning systems and equipment
within the Premises and shall provide Lessor with copies of all service reports.
The maintenance contractor and contract must be approved by Lessor. The service
contract must include all services suggested by the equipment manufacturer
within the operation/maintenance manual and must become effective (and a copy
thereof delivered to Lessor) within thirty (30) days of the date Lessee takes
possession of the Premises. Each Lease year Lessor, at its option, may inspect
the HVAC system to determine that the aforementioned maintenance is being
performed. If the HVAC system is not being maintained pursuant to this Section,
Lessor will send notice of such lack of maintenance to Lessee and Lessee shall
thereafter have thirty (30) days to perform the necessary maintenance. Failure
by Lessee to complete the necessary maintenance in such thirty (30) day period
shall be a material Event of Default and Lessor shall have the right to cure
such Event of Default. Should the inspection demonstrate a lack of maintenance
of the HVAC system, Lessee shall pay for the cost of such inspection. Thirty
days before Lessee vacates the Premises, Lessor will have the HVAC equipment
inspected by a qualified HVAC mechanic at Lessor's expense. If, in the opinion
of the HVAC mechanic, the equipment has not been properly maintained, then
Lessor may authorize necessary repairs and/or replacements to be made to the
system. Such repairs will be deducted from the Lessee's Security Deposit. Lessee
shall reimburse Lessor for any and all costs associated with such repairs which
exceed the amount of any Security Deposit. The remainder of the Security
Deposit, if any, shall be refunded to Lessee in accordance with the terms of the
Lease.
12. INSURANCE
12.01 Except as expressly provided as Lessee's Permitted Use, or as
otherwise consented to by Lessor in writing, Lessee will not do or permit
anything to be done within or about the Premises or the Property which will
increase the existing rate of any insurance on any portion of the Property or
cause the
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cancellation of any insurance policy covering any portion of the Property.
Lessee will not keep, use or sell, or permit anyone to keep, use or sell,
anything in or about the Premises, which may be prohibited by the standard form
of fire and other insurance policies. Lessee will, at its sole cost and expense,
comply with any requirements of any insurer of Lessor and of Lessee.
12.02 Lessee agrees to maintain in full force and effect at all times
during the Lease Term, at its sole cost and expense, for the protection of
Lessee and Lessor, policies of insurance which afford the following coverage:
(a) Worker's Compensation Statutory Requirements
Employers Liability Not less than $1,000,000.00
(b) Commercial General Liability Not less than $1,000,000.00
per occurrence
Not less than $2,000,000.00
aggregate this location
Commercial policies shall insure on an occurrence and not a claims-made basis
and cover the Premises, Project and Property. The policy shall cover liability
arising from premises, operations, independent contractors, products-completed
operations, personal injury, advertising injury and liability assumed under an
insured contract and not be excess.
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(c) Automobile Liability Not less than $300,000.00
combined single limit
including property damage
(d) "All Risk" coverage including fire and extended
coverage, vandalism, malicious mischief and any other perils
normally covered therein. This insurance coverage must be upon
the Premises and all property owned by Lessee, for which Lessee
is legally liable, or which is made at the expense of or at the
request of Lessee, including but not limited to, any Lessee
Improvements, Lessee Alterations, furniture, fixtures,
equipment, installations and any other personal property of
Lessee, in an amount not less than their full replacement
value, and with a deductible, which is usual and customary to a
company of Lessee's size and business. All proceeds of this
insurance shall only be used for the repair and replacement of
property so insured, and Lessee hereby assigns to Lessor all
its rights to receive any proceeds of such insurance policies
attributable to any Lessee Improvements and Lessee Alterations.
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The limits of the insurance coverage required under this Lease will not limit
the liability of Lessee nor relieve Lessee of any obligation hereunder. All
insurance to be carried by Lessee will be primary to, and non-contributory with
Lessor's insurance, and contain cross-liability endorsements.
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12.03 Lessee will name Lessor (and, at Lessor's request, any Mortgagee)
and each of its officers, subsidiaries, partners, officers, directors, and
employees as additional insureds on all insurance policies required of Lessee
under this Lease, other than Auto Liability, Worker's Compensation and Fire and
Extended coverage (except on improvements or alterations to Lessees' Premises
for which Lessor shall be named an additional insured). Such insurance policies
carried by Lessee will include an express waiver of subrogation by the insurer
in favor of Lessor, permit the insured, prior to any loss, to agree with a third
party to waive any claim it might have against said third party without
invalidating the coverage under the insurance policy, and will release Lessor
and any of its agents and employees from any claims for damage to any person, to
the Property of which the Premises are a part, any existing improvements, etc.,
Lessee Improvements and Lessee Alterations to the Premises, and to any
furniture, fixtures, equipment, installations and any other personal property of
Lessee caused by or resulting from, risks which are to be insured against by
Lessee under this Lease, regardless of cause, except for grossly negligent or
intentional acts by Lessor. Lessee's failure to provide evidence of this
required insurance coverage to Lessor shall constitute a Default under this
Lease, and Lessee's failure, at any time during the Lease Term, to maintain, in
full force and effect, this coverage, as required, shall constitute a Breach
under this Lease.
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12.04 Lessee will deliver to Lessor, (and, at Lessor's request any
Mortgagee, Assignee or Receiver) simultaneously with its execution of this
Lease, (and thereafter at least thirty (30) days prior to expiration,
cancellation or change in any Lessor required certificates of insurance),
certificates of insurance evidencing, at a minimum, the coverage specified in
Paragraph 12.02. All insurance required hereunder will be with companies
licensed and authorized to do business in the state in which the Property is
located and holding a "General Policyholders Rating" of "A-, VII" or better, as
set forth in the most current Best's Insurance Guide.
12.05 Lessor will secure and maintain, at Lessee's expense, Insurance
coverage in such limits as Lessor may deem reasonable in its sole judgment to
afford Lessor adequate protection. Lessor's coverage, where applicable, will
contain an express waiver of subrogation.
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12.06 Lessor makes no representation that the insurance policies and
coverage amounts specified to be carried by Lessee or Lessor under the terms of
this Lease are adequate to protect Lessee, and in the event Lessee believes that
such insurance is insufficient, Lessee will provide, at its own expense, such
additional insurance as Lessee deems adequate.
12.07 As to any insurance proceeds received by Lessor, such proceeds
shall for all purposes be deemed Lessor's sole property, free from any claims of
Lessee, and unless otherwise stated, available for Lessor's exclusive use as it
may alone determine in the exercise of its sole discretion.
13. INDEMNIFICATION AND WAIVER OF CLAIMS
EXCEPT FOR DAMAGES AND/OR INJURY RESULTING FROM THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF LESSOR, Lessee waives all claims against Lessor for any
damage to any property in or about the Property and for injury to any persons,
including death resulting therefrom, regardless of cause or time of occurrence.
Lessee will indemnify, protect, defend and hold harmless Lessor from and against
all claims, losses, damages, costs, expenses and liabilities, including legal
fees, arising out of, involving, or in connection with Lessee's occupancy of the
Premises, presence on the Property, the conducting of Lessee's business and any
act, omission or neglect of Lessee, its agents, contractors, employees,
suppliers, licensees or invitees except for any damage or injury which is the
direct result of the gross or intentional acts by Lessor, its agents,
contractors, employees, suppliers, licensees or invitees. In the event any
action or proceeding is brought against Lessor, its agents, contractors,
employees, suppliers, licensees or invitees, by reason of the foregoing, Lessee,
upon notice by Lessor, will defend Lessor, its agents, contractors, employees,
suppliers, licensees or invitees, at Lessee's sole cost and expense, and by
counsel reasonably satisfactory to Lessor.
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14. HAZARDOUS MATERIALS
14.01 For purposes of this Lease, "Hazardous Materials" will mean any
product, substance, chemical, material or waste whose presence, nature, quantity
and/or intensity of existence, use, manufacture, disposal, transportation,
spill, release or effect, either by itself or in combination with other
materials expected to be on the Property, now or in the future, is either: (i)
potentially injurious to the public health, safety or welfare, the environment
or the Property, or any part thereof; (ii) regulated or monitored by any
governmental authority; or (iii) a basis for potential liability of Lessor to
any governmental authority or third party. Hazardous Materials will include, but
not be limited to, solvents, petrochemical products, flammable materials,
explosives, asbestos, urea formaldehyde, PCB's, chlorofluorocarbons, freon or
radioactive materials. Lessor, however, grants Lessee permission to keep small
amounts of materials or substances in the Premises which are necessary for
Lessee's normal business operations. Lessee agrees to provide Lessor, prior to
its occupancy of the Premises, a list of all materials and substances, their
locations within the Premises, and methods of storage. Lessee further agrees to
comply with all future requests for information by Lessor including but not
limited to copies of all applicable Material Safety Data Sheets (MSDS sheets).
14.02 Lessee will not cause or permit any Hazardous Materials to be
brought upon, kept, stored, discharged, released or used in, under or about any
portion of the Property by itself, its agents, employees, contractors,
subcontractors, licensees or invitees, without the prior written consent of
Lessor, and Lessor's consent will be in its sole discretion. Should Lessor grant
such consent, Lessee shall: (1) use such Hazardous Material only as is
reasonably necessary to Lessee's business, in small, properly labeled
quantities; 2) handle, use, keep, store, and dispose of such Hazardous Material
using the highest accepted industry standards and in compliance with all
applicable regulatory agencies and governmental Hazardous Materials
requirements; (3) maintain at all times with Lessor a copy of the most current
MSDS sheet for each such Hazardous Material; and (4) comply with such other
rules and requirements Lessor may from time to time impose.
14.03 Should Lessor give Lessee its consent to bring on or about the
Property any Hazardous Materials, Lessee will comply with all federal, state and
local laws, ordinances, and rules and regulations relating to Hazardous
Materials, including but not limited to, current rules and regulations or levels
and standards as set from time to time by the Environmental Protection Agency,
the U.S. Occupational Safety and Health Administration, or any other
governmental agency. It is not necessary that any presence or contamination of
the Premises reflect any government mandated threshold or quantity in order for
Lessor to take any action under this Paragraph 14.
14.04 Upon expiration or earlier termination of this Lease, Lessee
will, at Lessee's sole cost and expense, cause all Hazardous Materials brought
on the Property by Lessee, its agents, contractors, employees, suppliers,
licensees or invitees, to be removed from the Property in compliance with any
and all applicable Hazardous Material disposal laws. If Lessee or its agents,
contractors, employees, suppliers,
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licensees or invitees, violates the provisions of this Paragraph 14, or performs
any act or omission, or contaminates, or expands the scope of contamination of
the Premises, the Property, or any part thereof, the underlying groundwater, or
any property adjacent to Lessor's Property, then Lessee will promptly, at
Lessee's expense, take all investigatory and/or remedial action (collectively
called "Remediation") that is necessary to clean up, remove and dispose of such
Hazardous Materials and any contamination so caused in compliance with any
applicable Hazardous Material laws and regulations. Lessee will also repair any
damage to the Premises and any other affected portion(s) of the Property caused
by such Hazardous Material presence, investigation and Remediation.
14.05 With respect to any Remediation of the Premises, the Property or
any portion thereof, Lessee will provide Lessor with written notice of Lessee's
intended Remediation, including Lessee's method, time and procedure of
Remediation, and Lessor will have the right to require reasonable changes in
such method, time or procedure before Lessee commences any such work. Lessee
will not commence any Remediation of Hazardous Materials in any way connected
with the Property, or any portion thereof, without first notifying Lessor, in
writing, of Lessee's intention to do so and affording Lessor ample opportunity
to appear, intervene or otherwise appropriately assert and protect Lessor's
interest.
14.06 Lessee will immediately notify Lessor in writing of any
governmental or regulatory action threatened, any claim, demand, or complaint
made or threatened by any person against Lessee or any portion of the Property
relating to damage, contribution, cost recovery compensation, or loss or injury
resulting from any Hazardous Materials, and any report made to any governmental
authority arising out of any Hazardous Materials on, or removed from, the
Property or any portion thereof. Lessor retains the right to join and
participate, as a party, in any legal actions affecting the Property or any
portion thereof initiated in connection with Hazardous Materials laws.
14.07 Lessee will indemnify, protect, defend and forever hold Lessor,
its agents, employees, lenders and ground lessor, if any, and the Premises, the
Property, or any portion thereof, harmless from any and all damages, losses,
liabilities, judgments, penalties, claims, obligations, attorneys' and
consultants' fees and any other costs and expenses arising out of any failure of
Lessee, its agents, contractors, employees, suppliers, licensees or invitees to
observe any covenants of this Paragraph 14 of this Lease. Non-compliance by
Lessee with any provisions of this Paragraph 14 shall constitute a Breach under
this Lease, and all provisions of this Paragraph 14 shall survive any
termination of this Lease.
15. AUCTIONS AND SIGNS
15.01 Lessee will not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction on or about the Property, without
having the express written consent of Lessor, and Lessor will not be obligated
to exercise any standard of reasonableness in determining whether or not to
grant such consent. Should Lessor grant such consent, Lessee will comply with
any requirements of Lessor and any applicable laws governing such an auction.
15.02 Lessee will not place any Signage on or about the Property, or on
any part thereof, without the prior written consent of Lessor, which Lessor may
withhold in its sole discretion. All approved Lessee Signage will comply with
the terms and conditions of this Lease and the sign criteria set forth in
Exhibit "C" and Exhibit "D", or other criteria which Lessor may establish from
time to time. Non-compliance with any of the provisions of this Paragraph 15,
Exhibit "C" or Exhibit "D" shall constitute a Default under this Lease.
16. LESSOR'S ACCESS
16.01 Lessor, its agents, contractors, consultants, servants and
employees, will have the right to enter the Premises at any time in the case of
an emergency, and otherwise at reasonable times to (a) examine the Premises; (b)
perform any obligation to or exercise any right or remedy of Lessor under this
Lease; (c) make repairs, alterations, improvements or additions to the Premises
or to other portions of the Property as Lessor deems necessary or desirable; (d)
perform work necessary to comply with laws, ordinances, rules or regulations of
any governing authority or insurance underwriter; (e) serve, post or keep posted
any notices required or allowed under the provisions of this Lease or by law;
(f) show, at reasonable times within 180 days of the expiration of this lease,
Lessee's Premises to prospective lessees; (g) post on or about the Premises any
ordinary "For Lease" signs during the last sixty (60) days of the Lease Term;
and (h) perform work at Lessee's sole cost that Lessor deems necessary to
prevent waste or deterioration of the Premises should Lessee fail to commence to
make, and diligently pursue to completion, its required repairs.
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16.02 For each of the purposes described in Paragraph 16.01 above,
Lessor will at all times have and retain any necessary keys with which to unlock
all doors in, upon and about the Premises, excluding Lessee's vaults and safes.
Lessee will not alter any lock or install new or additional locks or bolts on
any
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door in or about the Premises without obtaining Lessors prior written approval
and will, in each event, furnish Lessor with a new key. All access activities of
Lessor will be without abatement of rent or liability on the part of Lessor.
17. ABANDONMENT
Lessee will not vacate or abandon the Premises, or permit the Premises
to remain unoccupied for any period longer than fifteen (15) consecutive days
any time during the Lease Term. If Lessee abandons, vacates or surrenders the
Premises, or is dispossessed by process of law, or otherwise, any personal
property belonging to Lessee left in or about the Premises will, at the option
of Lessor, be deemed abandoned and may be disposed of by Lessor.
18. DAMAGE OR DESTRUCTION
18.01 If the Premises, or any portion of the Property, is damaged or
destroyed by fire or other casualty, Lessee will immediately give written notice
to Lessor of the casualty and Lessor will promptly repair the damage as set
forth in Paragraph 18.03 unless Lessor has the right to terminate this Lease as
provided in Paragraphs 18.02 and 18.04, and Lessor elects to so terminate.
18.02 If Lessee, or its agents, contractors, employees, suppliers,
licensees or invitees is not the cause of the casualty, Lessor will have the
right, but not the obligation, to terminate this Lease following a casualty if
any of the following occurs: (i) insurance proceeds (excluding Lessor's
deductible and including Lessee's deductible) together with any additional
monies Lessee elects, at its option, to contribute are not available to Lessor
to pay one hundred percent (100%) of the cost to fully repair the damage; (ii)
Lessor determines that the Premises cannot, with reasonable diligence, within
six (6) months after Lessor obtains knowledge of the casualty, be fully repaired
by Lessor or cannot be safely repaired because of the presence of hazardous
factors and conditions, including but not limited to, Hazardous Materials,
earthquakes, utility outages and any other similar dangers; (iii) the Premises
are damaged or destroyed within the last twelve (12) months of the Lease Term;
(iv) the building within which the Premises is located, or any other portion of
the Property, is damaged or destroyed and Lessor (as determined in its sole
discretion) cannot reasonably complete such repair within six (6) months of
Lessor obtaining knowledge of the casualty; (v) Lessee is in Default or Breach
of this Lease at the time of the casualty; or (vi) Lessor would be required
under Paragraph 18.05 to abate or reduce Lessee's rent for a period in excess of
six (6) months if the repairs were undertaken. If Lessor elects to terminate
this Lease pursuant to this Paragraph 18.02, Lessor will give Lessee written
notice of this election, and fifteen (15) days after Lessee's receipt of such
notice, this Lease will terminate. If Lessor elects to terminate this Lease,
subject to the rights of any mortgagee, Lessor will be entitled to retain all
applicable Lessee insurance proceeds excepting those attributable to Lessee's
furniture, fixtures, equipment, installations, and any other personal property.
18.03 If Lessee, or its agents, contractors, employees, suppliers,
licensees or invitees is not the cause of the casualty, and Lessor elects not to
terminate this Lease, this Lease will remain in full force and effect, and
Lessor will, within ten (10) days after receipt of all applicable insurance
proceeds and monies required to fully repair 100% of the Premises, begin the
process of obtaining all necessary permits and approvals, and upon receipt
thereof, diligently pursue the repair through completion. IF LESSOR CANNOT
COMPLETE REPAIRS WITHIN 180 DAYS OF THE CASUALTY LESSEE SHALL HAVE THE RIGHT TO
TERMINATE THIS LEASE.
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18.04 If Lessee, or its agents, contractors, employees, suppliers,
licensees or invitees is the cause of the casualty, or any portion thereof,
Lessor may elect any of the following: (i) to continue this Lease in full force
and effect; (ii) to make Lessor or Lessee, as determined in Lessors sole
discretion, responsible for the completion of all, or any portion, of the
repairs necessitated by the casualty, and all such repairs shall be at Lessee's
sole cost and expense; and/or (iii) terminate this Lease with fifteen (15) days
written notice and retain all applicable Lessee insurance proceeds excepting
those specifically attributable to Lessee's furniture, fixtures, equipment,
installations, and other personal property. No election by Lessor of any remedy
hereunder shall be deemed a limitation on Lessee's liability.
18.05 If Lessor elects not to terminate this Lease, during the period
of repair, Lessee's rent will be temporarily abated or reduced in proportion to
the degree to which Lessee's use of the Premises is impaired, as determined by
Lessor in its sole discretion, beginning the date Lessor obtains knowledge of
the casualty and ending on the date all repairs affecting Lessee's use of the
Premises are substantially completed, as determined by Lessor in its sole
discretion. However, the total amount of such rent abatement or reduction shall
not exceed the total amount of insurance proceeds, directly attributable to
Lessee's Premises, Lessor may receive from any rental loss insurance coverage it
may carry free from any claim of Lessee. Except for the abatement of rent as
herein described, Lessee will not be entitled to any compensation or damages for
the loss of or interference with Lessee's personal, property (including but not
limited to, furniture, fixtures, equipment, and installations), or existing
improvements of the Premises, Lessee Improvements, Lessee Alterations or any
other improvements on or about any portion of the Property, or business, or use,
or
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access to all or any part of the Premises or the Property resulting from such
damage, destruction or repair, including but not limited to, any consequential
damages, opportunity costs or lost profits incurred or suffered by Lessee. In no
event, however, will Lessor be responsible for any abatement of rent if Lessee,
or its agents, contractors, employees, suppliers, licensees or invitees is the
cause of the casualty, or any part thereof.
19. TRANSFER (ASSIGNMENT/SUBLETTING)
19.01 Lessee will not assign, sell, mortgage, encumber, convey, pledge,
sublet or otherwise transfer all or any part of Lessee's right or interest in
this Lease, or allow any other person or entity to occupy or use all or any part
of the Premises (collectively called "Transfer") without first obtaining the
written consent of Lessor. The following shall be deemed a "Transfer" for
purposes of this section: a transfer of any ownership interest in Lessee (unless
Lessee is an entity whose stock is publicly traded) so as to result in a change
in the current control of Lessee; (ii) a grant of a license, concession, or
other right of occupancy of any portion of the Premises, or (iii) the use of the
Premises by any party other than Lessee. Should Lessee desire a Transfer, Lessee
will notify Lessor in writing of: (i) Lessee's intent to Transfer; (ii) the name
of the proposed transferee; (iii) the nature of the proposed transferee's
business to be conducted on the Premises; (iv) the terms and provisions of the
proposed Transfer, and (v) any other information Lessor may reasonably request
concerning the proposed Transfer; including but not limited to, a statement of
net worth, financial statements covering a specified period of time,
environmental reports and a completed environmental questionnaire supplied by
Lessor.
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19.02 Lessee agrees, by way of example and without limitation, that
Lessor may withhold its consent to a proposed Transfer if Lessor in its
reasonable judgment determines that the proposed transferee: (a) is of a
character or is engaged in a business which is not in keeping with Lessor's
standards for the Property, as determined solely by Lessor; (b) has a use which
conflicts with a provision of this Lease or proposes an unacceptable risk to
Lessor, as determined by Lessor; (c) does not meet the then current financial
standards required by Lessor; (d) has been required by any prior lessor, lender
or governmental authority to take a remedial action in connection with Hazardous
Materials contaminating a property; (e) is unacceptable because Lessee is in
Default or Breach under this Lease at the time of the request for Transfer or as
of the effective date of the Transfer. Notwithstanding the foregoing, Lessee's
right to a Transfer is subject to Lessor's approval of Lessee's financial
condition at the time the Transfer is requested by Lessee.
19.03 In the event Lessor consents to a Transfer, the Transfer will not
be effective until Lessor is in receipt of a fully executed agreement to
Transfer, in a form and of substance acceptable to Lessor, and a Transfer fee of
two hundred and fifty dollars ($250.00) which shall represent Lessee's minimum
liability for such service. The receipt and cashing of any check by Lessor
wherein such check is in a name other than that of Lessee will not constitute a
Transfer. Lessor also reserves the right to collect any rents due under this
Lease directly from the transferee, and such direct collection will not
constitute recognition of the transferee as Lessee or release Lessee or any
guarantor of Lessee from any of its obligations under this Lease. Any
consideration received by Lessee in excess of Lessee's Base Rent (including
Additional Rent) as a result of a Lessor approved transfer shall be due and
payable to Lessor and any rights of first refusal, options or expansions under
the original lease shall be null and void.
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19.04 Lessor may, within thirty (30) days after submission of Lessee's
written request for Lessors consent to a Transfer, cancel this Lease (or, as to
a subletting or assignment, cancel as to the portion of the Premises proposed to
be sublet or assigned) as of the date the proposed Transfer was to be effective.
If Lessor cancels this Lease as to any portion of the Premises, then this Lease
shall cease for such portion of the Premises, and Lessee shall pay to Lessor all
Base Rent and other amounts accrued through the cancellation date relating to
the portion of the Premises covered by the proposed Transfer and all brokerage
commissions paid or payable by Lessor in connection with this Lease that are
allocable to such portion of the Premises. Thereafter, Lessor may lease such
portion of the Premises to the prospective transferee (or to any other person)
without liability to Lessee.
19.05 If Lessor has not agreed in writing to a Transfer within thirty
(30) days of Lessee's request hereunder, Lessor will be deemed to have rejected
Lessee's request.
20. DEFAULT AND BREACH
20.01 Lessee's performance of each of Lessee's obligations under this
Lease is a condition as well as a covenant. Lessee's right to continue in
possession of the Premises is conditioned upon such
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performance. Time is of the essence in the performance of all covenants and
conditions. Lessee's failure to perform any of its obligations shall put it in
Default or Breach under this Lease.
20.02 A "Default" is a failure to fulfill any terms, conditions,
covenants or rules under this Lease. A "Breach" is a Default which has no cure
period, stated or otherwise, or a Default which is not cured within the stated
cure period provided under this Lease or set by Lessor. Lessor and Lessee agree
that if an attorney is consulted by Lessor in connection with a Lessee Default
or Breach, $250.00 is a reasonable minimum sum to charge Lessee as Additional
Rent to cover Lessor's legal preparation and service costs. Unless otherwise
stated in this Lease, Lessee will be in Breach if at any time during the Lease
Term:
(a) Lessee fails to make any payment of Base Rent, Additional
Rent, or any other monetary payment required to be made by
Lessee herein and Lessee does not cure such failure within
three (3) days after receipt of Lessor's written notice to
Lessee.
(b) Lessee fails to provide Lessor with proof of insurance or
performance or surety bond as required under this Lease; and
Lessee does not cure such failure within three (3) days after
Lessor's written notice to Lessee.
(c) Lessee, at any time during the Lease Term, fails to maintain,
in full force and effect, its required insurance coverage.
(d) Lessee fails to ensure that life and property are not
endangered, as determined by Lessor in its sole discretion.
(e) Lessee vacates the Premises without the intention to reoccupy
same, or abandons the Premises as further described in
Paragraph 17.
(f) Lessee fails to observe, perform or comply with any of the
non-monetary terms, covenants, conditions, provisions or rules
and regulations applicable to Lessee under this Lease and such
failure is curable, in the sole opinion of Lessor, and then is
not cured within ten (10) days after Lessor's written notice
to Lessee; provided, however, that if the nature of Lessee's
obligation is such that more than ten (10) days are required
for performance, then Lessee will not be in Breach if Lessee
commences performance within such ten (10) day period and
thereafter diligently, in Lessor's sole opinion, pursues such
cure to completion.
(g) Lessor discovers that any financial statement of Lessee or of
any guarantor of this Lease given to Lessor, was materially
false.
(h) Lessee makes any general arrangement or assignment for the
benefit of creditors, becomes a "debtor" as defined in 11 U.
S. Code Section 101 or any successor statute, has
substantially all it assets located at the Premises or its
interest in this Lease appointed to a receiver or trustee,
indicates in Lessor's reasonable opinion an inability to pay
its debts or obligations as they occur, has an attachment, or
execution or other judicial seizure of substantially all of
its assets located at the Property or its interest in this
Lease.
(i) Lessee is in Breach of any other term or condition of this
Lease.
21. REMEDIES OF LESSOR
21.01 If Lessee fails to perform any duty or obligation of Lessee under
this Lease, Lessor may at its option perform any such duty or obligation on
Lessee's behalf. The costs and expenses of any such performance by Lessor will
be immediately due and payable by Lessee upon receipt from Lessor of the
reimbursement amount required. In the event of a Breach of this Lease by Lessee
as defined in Paragraph 20.02, with or without notice or demand, and without
limiting any other of Lessor's rights or remedies, Lessor may:
(a) Terminate Lessee's right to possession of the Premises, in
which case this Lease will terminate and Lessee will
immediately surrender possession of the Premises to Lessor.
Lessor reserves all right and remedies available to it
pursuant to the terms and conditions of this Lease as well as
under state law (whether by terms of this Lease or otherwise),
including, but not limited to any right to change locks.
Lessee hereby grants Lessor the full and free right, whether
by changing or picking of locks, to enter the Premises with or
without process of law. Lessee releases Lessor of any
liability for any damage resulting therefrom and waives any
right to claim damage for such re-entry. Lessee also agrees
that
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Lessor's right to re-lease or any other right given to Lessor
as a consequence of Lessee's breach hereunder or by operation
of law is not relinquished. On such termination, Lessor will
be entitled to recover from Lessee: (i) the worth at the time
of the award of the unpaid rent which had been earned at the
time of the termination; (ii) the worth at the time of the
award of the amount by which the unpaid rents which would have
been earned after termination until the time of award exceeds
the amount of such rental loss that Lessee proves could have
been avoided; (iii) the worth at the time of the award of the
amount by which the unpaid rents for the balance of the Lease
Term after the time of award exceeds the amount of such rental
loss for such period that Lessee proves could be reasonably
avoided; and (iv) any other amount necessary to compensate
Lessor for all the damage approximately caused by Lessee's
failure to perform its obligations under this Lease or which
in the ordinary course of events would likely result
therefrom, including but not limited to, all costs and
expenses attributable to recovering possession of the
Premises, reletting expenses (including the costs and expenses
of any necessary repairs, renovations and alterations to the
Premises), costs of carrying the Premises (including but not
limited to, Lessor's payment of real property taxes and
insurance premiums), actual legal fees and associated costs
and expenses, any unearned brokerage commissions paid in
connection with this Lease, any unamortized Lessee
Improvements, and reimbursement of any deferred rent or other
Lease execution inducement.
(b) Continue the Lease and Lessee's right to possession and
recover rent as it becomes due. Acts of maintenance or
preservation, efforts to relet the Premises, removal or
storage of Lessee's personal property or the appointment of a
receiver to protect Lessor's interest under this Lease, will
not constitute a termination of Lessee's right to possession.
Lessor agrees to make reasonable efforts to mitigate its
damages provided however, Lessor shall not be required to
relet any or all of the Premises prior to leasing other vacant
space on the Project, nor shall Lessor be required to accept a
tenant of lesser financial quality than Lessee was as of the
commencement date of this Lease.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the
Premises are located.
21.02 In the event of bankruptcy of Lessee, or if Lessee becomes a
debtor as defined under the Bankruptcy Code, Lessee assigns to Lessor all its
rights, title and interest in the Premises as security for its obligations under
this Lease. The expiration or termination of this Lease, and/or the termination
of Lessee's right to possession, will not relieve Lessee from any liability
accruing during Lessee's Lease Term or by reason of Lessee's occupancy of the
Premises. Any efforts by Lessor to mitigate the damages caused by Lessee's
Breach of this Lease will not waive Lessor's right to recover damages.
21.03 The "worth at the time of award" referred to in 21.01(a)(i) and
21.01(a)(ii) will additionally include interest computed by allowing interest
at the maximum rate allowed by law. The "worth at the time of award" referred to
in 21.01(a)(iii) will be computed by discounting the amount at the discount
rate of the Federal Reserve Bank of San Francisco in effect at the time of
award, plus one percent (1%).
21.04 No right or remedy conferred upon or reserved to Lessor in this
Lease is intended to be exclusive of any right or remedy granted to Lessor by
statute or common law, and each and every such right and remedy will be
cumulative.
22. LANDLORD'S LIEN/STORAGE
22.01 As security for payment of rent, damages and all other payments
required to be made by this Lease, Lessee hereby grants to Lessor a lien upon
all property of Lessee now or subsequently located upon the leased Premises. If
Lessee abandons or vacates any substantial portion of the leased Premises or is
in default in the payment of any rent or additional rent, damages or other
payments required to be made by this Lease or is in default of any other
provision of this Lease, Lessor may enter upon the leased Premises, whether by
changing or picking locks, and take possession pursuant to Paragraph 21.01(a)
of this Lease of all or any part of the personal property, and may sell all or
any part of the personal property at a public or private sale, in one or
successive sales to the highest bidder all of Lessee's title and interest in the
personal property sold to him. The proceeds of the sale of the personal property
shall be applied by Lessor toward the reasonable costs and expenses of the sale,
including attorney's fees, and then toward the payment of all sums then due by
Lessee to Lessor under the terms of this Lease; any excess remaining shall be
paid to Lessee or any other person entitled thereto by law.
22.02 Any and all property which may be removed from the Premises by
Lessor pursuant to the authority of this Lease or of law, to which Lessee is or
may be entitled, may be handled, removed and
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stored, as the case may be, by or at the direction of Lessor at the risk, cost
and expense of Lessee, and Lessor shall in no event be responsible for the
value, preservations or safekeeping thereof. Lessee shall pay to Lessor, upon
demand, any and all expenses incurred in such removal and all storage charges
against such property so long as the same shall be in Lessor's possession or
under Lessor's control. Any such property of Lessee not retaken by Lessee from
storage within sixty (60) days after removal from the Premises shall, at
Lessor's option, be deemed conveyed by Lessee to Lessor under this Lease as by
bill of sale without further payment or credit by Lessor to Lessee.
23. SURRENDER OF LEASE NOT MERGER
Unless specifically stated otherwise in writing by Lessor, the
voluntary or other surrender of this Lease by Lessee, the mutual termination or
cancellation of this Lease, or the termination of this Lease by Lessor due to a
Breach by Lessee, will not work as a merger, and will, at the option of Lessor,
terminate all or any Transfer of the Premises or operate as a Transfer to Lessor
of any or all such Transfers.
24. PROFESSIONAL FEES, COSTS AND EXPENSES
24.01 In the event that any party to this Lease initiates an action or
proceeding to enforce the terms or this Lease or to declare the rights of a
party to this Lease, the prevailing party will be entitled to all actual costs
and expenses, including but not limited to, all fees and costs and expenses of
appraisers, experts, accountants and attorneys, which obligations shall be
deemed to have accrued as of the commencement date of such action or proceeding.
Should Lessor be named as a defendant in any legal action or proceeding brought
against Lessee in connection with, or arising out of, Lessee's occupancy within
the Property, Lessee will pay to Lessor all of Lessor's actual costs and
expenses incurred, including its legal fees. Attorneys' fees will not be
computed in accordance with any court fee schedule, but will be the actual
amount of any fees incurred.
24.02 If Lessor utilizes the services of any attorney with regard to
Lessee's occupancy or tenancy under this Lease, Lessor will be entitled to
reimbursement by Lessee of its legal fees, and all other costs and expenses,
whether or not a legal action is commenced by Lessor.
25. CONDEMNATION
If any portion of the Premises or any portion of the Building in which
the Premises is located, or any portion of the Property which would
substantially interfere with Lessor's ownership, or Lessor's or Lessee's ability
to conduct business is taken for any public or quasi-public purpose by any
governmental authority, including but not limited to, by exercise of the right
of appropriation, inverse condemnation, condemnation or eminent domain, or sold
to prevent such taking, Lessor, at its option, may terminate this Lease without
recourse by Lessee. Any award for such taking or payment made under such threat
of exercise of such power will be the property of Lessor, whether such award be
made as compensation for diminution of value of the leasehold or for the taking
of the fee, or as severance damages; however, Lessee will be entitled to any
compensation, separately awarded to Lessee for Lessee's relocation expenses. If
this Lease is not terminated, Lessor will promptly proceed to restore the
Premises and/or any portion of the Property used in common by all lessees to
substantially the same condition as prior to such taking allowing for any
reasonable effects of such taking. Should a partial taking directly affect a
portion of Lessee's Premises and Lessor does not exercise its right to terminate
this Lease, Lessor will make an appropriate allowance to Lessee for the rent
corresponding to the term during which, and to the part of the Premises which,
Lessee is deprived on account of such taking and restoration.
26. RULES AND REGULATIONS
Lessee agrees to abide by, keep and observe all rules and regulations
Lessor has set forth in Exhibit "D". Lessor reserves the right to modify and
amend them upon prior written notice to Lessee as it deems necessary and will
not be responsible to Lessee for any nonperformance by any other lessee,
occupant or invitee of the Property of any said rules and regulations. Violation
by Lessee, its employees, agents, contractors, suppliers, invitees or licensees
will be deemed a Default under this Lease.
27. ESTOPPEL CERTIFICATE
Lessee will execute and deliver, in a form prepared by Lessor, to
Lessor within ten (10) days after written receipt of notice from Lessor, a
written statement certifying: (i) that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification);
(ii) the date to which rent and
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any other charges are paid in advance, if any; (iii) acknowledgment that there
are not, to Lessee's knowledge, any uncured Defaults on the part of Lessor, or
stating the nature of any uncured Defaults; (iv) the current Base Rent amount
and the amount and form of the Security Deposit on deposit with Lessor; and (v)
any other information as Lessor, Lessor's agents, mortgagees and prospective
purchasers may reasonably request, including but not limited to, any requested
information regarding Hazardous Materials. Lessee's failure to deliver such
statement within ten (10) days of its receipt will be deemed as Lessee's
conclusive confirmation that: (1) this Lease (including specifically the Base
Rent, Additional Rent and Lease Term) is in full force and effect and without
modification except as may be represented by Lessor; (2) neither Lessor nor
Lessee are in Default under the Lease; and (3) not more than one (1) month's
rent charges, if any, are paid in advance. Such failure shall be deemed, at
Lessor's option, a Breach of this Lease.
28. SALE BY LESSOR
Upon the sale or any other conveyance by Lessor of the Property, or any
portion thereof, Lessor will be relieved of all liability under any and all of
its covenants and obligations contained in or derived from this Lease or arising
out of any act, encumbrance, occurrence or omission occurring after the date of
such conveyance.
29. NOTICES
All written communications and notices required under this Lease shall
be considered sufficiently given and served if sent to: 1) Lessee by U.S. mail
(First Class, postage prepaid), personal delivery or by other reasonable method
(including posting on or about the Premises), unless otherwise required by law,
to the address indicated in Paragraph 1.05 and shall be deemed received three
(3) days after such mailing, personal delivery or posting; 2) Lessor by U.S.
mail (First Class, postage prepaid), registered or certified (unless otherwise
required by law) to the address indicated in Paragraph 1.06 and shall be deemed
received five (5) days after such mailing; and 3) Lessee by facsimile or
overnight delivery and shall be deemed received twenty-four (24) hours after
transmission of such facsimile or placement in an overnight depository. At any
time during the Lease Term, Lessor or Lessee may specify a different Notice
Address by providing written notification to the other.
30. WAIVER
No waiver by Lessor of a Default or Breach of any term, covenant or
condition of this Lease by Lessee, will be deemed a waiver of any other term,
covenant or condition of this Lease, or of any subsequent Default or Breach of
Lessee of the same or any other term, covenant or condition of this Lease, nor
will any delay or omission by Lessor to seek a remedy for any Lessee Default or
Breach of this Lease be deemed a waiver by Lessor of its remedies or rights with
respect to such Default or Breach. Additionally, regardless of Lessor's
knowledge of a Default or Breach at the time of accepting rent, the acceptance
of rent by Lessor whether on account of monies or damages due Lessor, or
otherwise, will not constitute a waiver by Lessor of any Default or Breach by
Lessee.
31. LESSEE'S INTENT; HOLDOVER
Unless otherwise specified in this Lease, Lessee will give Lessor, not
less than ninety (90) days prior to the expiration date of this Lease Term,
written notice of its intent to remain or vacate the Premises on the expiration
date of this Lease. If Lessee remains in possession of all or any part of the
Premises with Lessors written consent after the expiration of the Lease Term,
such possession will constitute a month-to-month tenancy, which may be
terminated by either Lessor or Lessee with thirty (30) days written notice and
will not constitute a renewal or extension of the Lease Term. If Lessee remains
in possession after the Lease Term without Lessor's written permission, such
possession will constitute a tenancy-at-will terminable upon forty-eight (48)
hour notice by either Lessee or Lessor and will not constitute a renewal or
extension of the Lease Term. In the event of a month-to-month tenancy or
tenancy-at-will, Lessee's Base Rent will be two hundred percent (200%) of the
Base Rent payable during the last month of the Lease Term, and any other sums
due under this Lease will be payable in the amounts and at the times specified
in this Lease and all options, rights of refusal, expansions and/or renewals
shall be null and void. Such tenancy will be subject to every other term,
condition and covenant contained in this Lease.
32. RELOCATION OF THE PREMISES
Lessor may, at any time during the Lease Term, relocate Lessee to
substantially comparable space
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within the Project. Lessor will give Lessee a written notice of its intention to
relocate the Premises and Lessee will complete such relocation within the thirty
(30) days after receipt of such written notice. Lessor shall pay all reasonable
costs and expenses of such relocation (excluding any Lessee owned
telecommunication equipment, lines, boards and wiring which Lessee must bear the
cost of relocating and installing), and the terms and conditions of the Lease
will remain in full force and effect except for any actual adjustments in square
footage, Base Rent, or Lessee's Proportionate Share that may result from such
relocation. If the space to which Lessor proposes to relocate the Lessee are not
substantially the same in configuration and finishout as those of the Premises,
or if the Base Rent of the new space is not substantially the same as the prior
Base Rent, Lessee may so notify Lessor, and if Lessor fails to offer other space
satisfactory to Lessee, Lessee may terminate this Lease effective as of the
thirtieth (30th) day after Lessor's initial notice.
33. DEFAULT BY LESSOR; LIMITATION OF LIABILITY; REAL ESTATE INVESTMENT
TRUST
33.01 In the event Lessor is deemed in Default or Breach in the
performance of any obligation required to be performed under this Lease, Lessee
will notify Lessor in writing, pursuant to the provisions of Paragraph 29, of
Lessor's Default or Breach at Lessor's Notice Address as specified in Paragraph
1.06, and within thirty (30) days of receipt of such notice, Lessor will
commence to make a good faith effort to cure the Default or Breach and in a
diligent and prudent manner continue to do so until completion.
33.02 The obligations of Lessor under this Lease shall be binding only
on Lessor and not upon any of the individual partners, investors, trustees,
directors, officers, employees, agents, shareholders, advisors or managers of
Lessor in their individual capacities, and with respect to any obligations of
Lessor to Lessee, Lessee's sole and exclusive remedy shall be against Lessor.
33.03 In consideration of the benefits, accruing hereunder, Lessee on
behalf of itself and all of its Transferees covenants and agrees that, in the
event of any actual or alleged failure, Default or Breach of this Lease by
Lessor, Lessee's recourse against Lessor for any monetary damages will be
limited to the lesser of Lessor's interest in the Property including, subject to
the prior rights of any mortgagee, Lessor's interest in the rents of the
Property, or Lessor's equity interest in the Property if the Property were
encumbered by debt in an amount equal to eighty percent (80%) of its value of
the Property as of the initial date Lessee notifies Lessor of the actual or
alleged failure, Default or Breach, and any insurance proceeds payable to
Lessor. Any action by Lessee will be limited to actual damages only and will
not, under any circumstances, include future profits or consequential damages.
33.04 If Lessor is a real estate investment trust, and if Lessor in
good faith determines that its status as a real estate investment trust under
the applicable provisions of the Internal Revenue Code of 1986, as heretofore or
hereafter amended, will be jeopardized because of any provision of this Lease,
Lessor may require reasonable amendments to this Lease and Lessee shall not
unreasonably withhold or delay its consent thereto, provided that such
modifications do not in any way, (i) increase the obligations of Lessee under
this Lease or (ii) adversely affect any rights or benefits to Lessee under this
Lease. Lessor shall pay all reasonable costs incurred by Lessee, including
without limitation, legal fees incurred for reviewing any such proposed
modifications.
34. SUBORDINATION
Without the necessity of any additional document being executed by
Lessee for the purposes of effecting a subordination, and at the election of
Lessor or any mortgagee or any ground lessor with respect to the land of which
the Premises are a part, this Lease will be subject and subordinate at all times
to: (i) all ground leases or underlying leases which may now exist or hereafter
be executed affecting the Property and (ii) the lien of any mortgage or deed of
trust which may now exist or hereafter be executed in any amount for which the
Property, ground leases or underlying leases, or Lessor's interest or estate in
any of said items is specified as security. Lessor or any mortgagee or ground
lessor will have the right, at its election, to subordinate or cause to be
subordinated any ground lessee or underlying leases or any such liens to this
Lease. If Lessor's interest in the Premises is acquired by any ground lessor or
mortgagee, or in the event any proceedings are brought for the foreclosure of,
or in the event of exercise of power of sale under, any mortgage or deed of
trust made by Lessor covering the Premises, or in the event a conveyance in lieu
of foreclosure is made for any reason, Lessee will, notwithstanding any
subordination and upon the request of such successor in interest to Lessor,
attorn to and become the Lessee of the successor in interest to Lessor and
recognize such successor in interest as the Lessor under this Lease. Lessee
acknowledges that although this Paragraph 34 is self-executing, Lessee covenants
and agrees to execute and deliver, upon demand by Lessor and in the form
requested by Lessor, or any other mortgagee or ground lessor, any
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additional documents evidencing the priority or subordination of this Lease with
respect to any such ground leases or underlying leases or the lien of any such
mortgage or deed of trust. Lessee's failure to timely execute and deliver such
additional documents will, at Lessor's option, constitute a Breach of this
Lease.
35. FORCE MAJEURE
Except for Lessee's payment of rent and all other charges due under the
Lease, for which Lessee shall remain liable regardless of Force Majeure, neither
party will have liability to the other, nor will a party have any right to
terminate this Lease nor Lessee assert a claim of partial or constructive
eviction, because of a party's failure to perform any of its obligations under
this Lease if the failure is due in part or in full to reasons beyond its
reasonable control. Such reasons will include but not be limited to: strike,
other labor trouble, fuel, labor or supply shortages, utility failure or defect,
the inability to obtain any necessary governmental permit or approval
(including building permits and certificates of occupancy), war, riot,
mandatory or prohibitive injunction issued in connection with the enforcement of
the Americans with Disabilities Act of 1990, civil insurrection, accidents, acts
of God, any governmental preemption in connection with a national emergency or
any other cause, whether similar or dissimilar, which is beyond the reasonable
control of a party. If this Lease specifies a time period for performance of an
obligation by a party, that time period will be extended by the period of any
delay in that party's performance caused by such events as described herein.
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36. MISCELLANEOUS PROVISIONS
36.01 Whenever the context of this Lease requires, the neuter, the
masculine and the feminine gender shall include the other, and the word person
shall include partnership or corporation or joint venture, and the singular
shall include the plural and the plural shall include the singular.
36.02 If more than one person or entity is Lessee, the obligations
Imposed on each such person or entity will be joint and several.
36.03 The captions and headings of this Lease are used for the purpose
of convenience only and shall not be construed to interpret, limit or extend the
meaning of any part of this Lease.
36.04 This Lease contains all of the agreements and conditions made
between Lessor and Lessee and may not be modified in any manner other than by a
written agreement signed by both Lessor and Lessee. Any statements, promises,
agreements, warranties or representations, whether oral or written, not
expressly contained herein will in no way bind either Lessor or Lessee, and
Lessor and Lessee expressly waive all claims for damages by reason of any
statements, promises, agreements, warranties or representations, if any, not
contained in this Lease. No provision of this Lease shall be deemed to have been
waived by Lessor unless such waiver is in writing signed by a regional vice
president or higher of Lessor or the management company, and no custom or
practice which may develop between the parties during the Lease Term shall waive
or diminish the Lessor's right to enforce strict performance by Lessee of any
terms of the Lease.
36.05 Time is of the essence for the performance of each term,
condition and covenant of this Lease.
36.06 Except as otherwise expressly noted, each payment required to be
made by Lessee is in addition to and not in substitution for other payments to
be made by Lessee.
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36.07 Subject to Paragraph 19, the terms, conditions and provisions of
this Lease will apply to and bind the heirs, successors, executors,
administrators and assigns of Lessor and Lessee.
36.08 If any provision contained herein is determined to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality, or
unenforceability will not affect any other provision of this Lease.
36.09 In consideration of Lessor's covenants and agreements hereunder,
Lessee hereby agrees not to disclose any terms, covenants or conditions of this
Lease to any non-related party other than its officers, directors, attorneys or
accountants without the prior written consent of Lessor. Additionally, Lessee
shall not record this Lease or any short form memorandum hereof without the
prior written consent of Lessor, which Lessor may withhold in its sole
discretion.
36.10 The rights and obligations of the parties under this Lease shall
survive its termination.
36.11 The duties and warranties of Lessor are limited to those
expressly stated in this Lease and does not and shall not include any implied
duties or implied warranties, now or in the future. No representations or
warranties have been made by Lessor other than those contained in this Lease.
36.12 Lessee promises and it is a condition to the continuance of this
Lease that there will be no discrimination against or segregation of any person
or group of persons on the basis of race, color, sex, creed, national origin or
ancestry in the leasing, subleasing, transferring occupancy, tenure, or use of
the Property, the Premises, or any portion thereof.
36.13 Lessor and Lessee each warrant to the other that it has not dealt
with any broker or agent in connection with this Lease, other than the person(s)
listed in Paragraph 1.15 above. Except for any broker(s) who shall be
compensated in accordance with the provisions of a separate agreement, Lessor
and Lessee each agree to indemnify the other against all costs, expenses, legal
fees and other liability for commissions or other compensation claimed by any
other broker or agent.
37. EXAMINATION OF LEASE; GOOD FAITH DEPOSITS
Submission of this document for examination and signature by Lessee
does not create a reservation or option to lease. Lessee hereby agrees that
Lessor will be entitled to immediately endorse and cash any good faith check(s)
forwarded by Lessee along with this document. It is further agreed that such
cashing of good faith checks by Lessor will not guarantee acceptance of this
document by Lessor, but, in the event Lessor does not accept or execute this
document, the amount of such good faith check(s) will be refunded to Lessee.
This document will become this "Leasee" and be effective and binding only upon
full execution by authorized representatives of both Lessee and Lessor as
defined in this Lease. Thereafter, a fully executed copy of this Lease will be
deemed an original for all purposes.
38. GOVERNING LAW
This Lease is governed by and construed in accordance with the laws of
the state in which the Premises are located, and venue of any legal action will
be in the county where the Premises are located.
39. LESSOR'S LIEN
LESSOR HEREUNDER WILL HAVE THE BENEFIT OF, AND THE RIGHT TO, ANY AND
ALL LESSOR'S LIENS PROVIDED UNDER THE LAW BY WHICH THIS LEASE IS GOVERNED.
40. SPECIAL PROVISIONS AND EXHIBITS
The following Exhibits are attached to this Lease and by this reference
made a part hereof: "A", "A-1", "B", "C", and "D".
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IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of
the day and year indicated by Lessors execution date as written below.
If Lessee is a corporation, each person signing this Lease on behalf of
Lessee represents and warrants that he or she has full authority to do so and
that this Lease binds the corporation. Prior to the execution of this Lease,
Lessee shall deliver to Lessor a certified copy of a resolution of Lessee's
Board of Directors authorizing the execution of this Lease or other evidence of
such authority reasonably acceptable to Lessor. If Lessee is a partnership or
limited liability company, each person or entity signing this Lease for Lessee
represents and warrants that he, she or it is a general partner of the
partnership or limited liability company, as applicable. Lessee shall give
written notice to Lessor of any general partner's or member's withdrawal or
addition. Simultaneous with the delivery of Lessee's signed lease, Lessee shall
deliver to Lessor a copy of Lessee's recorded statement of partnership or
certificate of limited partnership or articles of organization, as applicable.
THIS LEASE, WHETHER OR NOT EXECUTED BY LESSEE, IS SUBJECT TO ACCEPTANCE
BY LESSOR, ACTING BY ITSELF OR BY ITS AGENT BY THE SIGNATURE ON THIS LEASE OF
ITS SENIOR VICE PRESIDENT, VICE PRESIDENT, REGIONAL MANAGER OR DIRECTOR OF
LEASING.
LESSOR:
TPLP OFFICE PARK PROPERTIES, A TEXAS LIMITED
PARTNERSHIP, BY: AMERICAN OFFICE PARK
PROPERTIES, TPGP, INC., A CALIFORNIA
CORPORATION DOING BUSINESS IN TEXAS AS TPGP
OFFICE PARK PROPERTIES, INC., GENERAL
PARTNER
By: /s/ KATHLEEN L. JOHNSON
--------------------------------
Name: Kathleen L. Johnson
--------------------------------
Title: Assistant Vice President/
Regional Manager
--------------------------------
Date: 5/24/00
--------------------------------
LEASE EXECUTION DATE
Lessor Fed. ID # 95-461-3916
----------------------
LESSEE:
CIRRUS LOGIC, INC.
/s/ RW FAY
--------------------------------
By:
--------------------------------
Name: Robert W. Fay
--------------------------------
Title: Vice President/
Chief Financial Officer
--------------------------------
Date: May 19, 2000
--------------------------------
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