OFFICE LEASE BETWEEN EDGEWATER CORPORATE PARK LLC, A DELAWARE LIMITED LIABILITY COMPANY (“LANDLORD”) AND CLEARONE COMMUNICATIONS, INC., A UTAH CORPORATION (“TENANT”) DATE OF LEASE: JUNE 5, 2006 BUILDING: EDGEWATER CORPORATE PARK - SOUTH TOWER
EXHIBIT
10.19
BETWEEN
EDGEWATER
CORPORATE PARK LLC,
A
DELAWARE LIMITED LIABILITY COMPANY (“LANDLORD”)
AND
CLEARONE
COMMUNICATIONS, INC., A UTAH CORPORATION (“TENANT”)
DATE
OF LEASE: JUNE 5, 2006
BUILDING:
EDGEWATER CORPORATE PARK - SOUTH TOWER
TABLE
OF CONTENTS
|
1
|
DEFINITIONS
|
2
|
|
2
|
LEASE
GRANT
|
5
|
|
3
|
ADJUSTMENT
OF COMMENCEMENT OF DATE/POSSESSION
|
5
|
|
4
|
USE
|
6
|
|
5
|
BASE
RENTAL
|
7
|
|
6
|
INTENTIONALLY
DELETED
|
7
|
|
7
|
SERVICES
TO BE FURNISHED BY LANDLORD
|
8
|
|
8
|
LEASEHOLD
IMPROVEMENTS/TENANT’S PROPERTY
|
9
|
|
9
|
SIGNAGE
|
9
|
|
10
|
REPAIRS
AND ALTERATIONS
|
10
|
|
11
|
USE
OF ELECTRICAL SERVICES BY TENANT
|
10
|
|
12
|
ENTRY
BY LANDLORD
|
10
|
|
13
|
ASSIGNMENT
AND SUBLETTING
|
11
|
|
14
|
MECHANICS
LIENS
|
11
|
|
15
|
INSURANCE
|
11
|
|
16
|
INDEMNITY
|
12
|
|
17
|
CASUALTY
DAMAGE
|
13
|
|
18
|
CONDEMNATION
|
13
|
|
19
|
HAZARDOUS
SUBSTANCES
|
14
|
|
20
|
AMERICANS
WITH DISABILITIES ACT
|
15
|
|
21
|
EVENTS
OF DEFAULT
|
15
|
|
22
|
REMEDIES
|
16
|
|
23
|
NO
WAIVER
|
19
|
|
24
|
PEACEFUL
ENJOYMENT
|
19
|
|
25
|
HOLDING
OVER
|
19
|
|
26
|
SUBORDINATION
TO MORTGAGE/ESTOPPEL CERTIFICATE
|
20
|
|
27
|
NOTICE
|
20
|
|
28
|
SURRENDER
OF PREMISES
|
21
|
|
29
|
RIGHTS
RESERVED TO LANDLORD
|
21
|
|
30
|
MISCELLANEOUS
|
21
|
|
31
|
ENTIRE
AGREEMENT
|
23
|
|
32
|
LIMITATION
OF LIABILITY
|
23
|
|
33
|
EXPANSION
RIGHTS
|
23
|
EXHIBIT
A
- OUTLINE AND LOCATION OF PREMISES
EXHIBIT
B
- RULES AND REGULATIONS
EXHIBIT
C
- PAYMENT OF BASIC COSTS
EXHIBIT
D
- WORK LETTER
EXHIBIT
E
- ADDITIONAL PROVISIONS
EXHIBIT
F
- COMMENCEMENT LETTER
EXHIBIT
G
- PROPERTY CAPITAL IMPROVEMENTS
1
OFFICE
LEASE AGREEMENT
This
Office Lease Agreement (the
"Lease"),
made
and entered into on this the 5th day of June, 2006, between Edgewater Corporate
Park LLC, a Delaware limited liability company ("Landlord")
and
Clear One Communications a Utah Corporation ("Tenant").
W I T N E S S E T H:
1. Definitions.
The
following are definitions of some of the defined terms used in this Lease.
The
definition of other defined terms are found throughout this Lease.
A. "Building"
shall
mean the office building at 5225 ▇▇▇▇▇ ▇▇▇▇ Way, County of Salt Lake, State
of
Utah, currently known as Edgewater Corporate Park South Tower.
B. “Base
Rent”:
Base
Rent will be paid according to the following schedule, subject to the provisions
of Section 5. hereof. For the purposes of this Section 1.B.,
"Lease
Year"
shall
mean the twelve (12) month period commencing on the Commencement Date
(hereinafter defined), and on each anniversary of the Commencement
Date.
|
Period
|
Annual
Base Rent
|
Monthly
Installments
of
Base Rent
|
|
November
2006 - December 2006
|
$00.00
|
$00.00
|
|
January
2007 - October 2007
|
$498,836.25
|
$49,883.63
|
|
November
2007 - October 2008
|
$614,561.61
|
$51,380.13
|
|
November
2008 - October 2009
|
$635,058.45
|
$52,921.54
|
|
November
2009 - October 2010
|
$654,110.21
|
$54,509.18
|
|
November
2010 - October 2011
|
$673,733.51
|
$56,144.46
|
|
November
2011 - October 2012
|
$693,945.52
|
$57,828.79
|
|
November
2012 - October 2013
|
$714,763.88
|
$59,563.66
|
|
November
2013 - December 2013
|
$122,701.14
|
$61,350.57
|
The
Base
Rent due for the first month during the Lease Term (hereinafter defined) shall
be paid by Tenant to Landlord contemporaneously with Tenant’s execution hereof.
C. “Additional
Rent”:
shall
mean Tenant’s Pro Rata Share (hereinafter defined) of Basic Costs (hereinafter
defined) and any other sums (exclusive of Base Rent) that are required to be
paid to Landlord by Tenant hereunder, which sums are deemed to be Additional
Rent under this Lease. Additional Rent and Base Rent are sometimes collectively
referred to herein as “Rent.”
D. “Basic
Costs”
shall
mean all direct and indirect costs and expenses incurred in connection with
the
Building as more fully defined in Exhibit
C
attached
hereto.
E. Intentionally
Deleted.
F. “Commencement
Date”, “Lease Term”
,“Termination
Date” and “Extension Period”
shall
have the meanings set forth:
2
The
“Lease
Term”
shall
mean an initial period of 86 months commencing on the later to occur of (a)
November 1, 2006 (the “Target
Commencement Date”)
and (b)
the date upon which Landlord’s Work in the Premises has been substantially
completed as such date is determined pursuant to Section 3.A. hereof (the later
to occur of such dates being defined as the “Commencement
Date”).
The
“Termination
Date”
shall,
unless sooner terminated as provided herein, mean the last day of the Lease
Term. Notwithstanding the foregoing, if the Termination Date, as determined
herein, does not occur on the last day of a calendar month, the Lease Term
shall
be extended by the number of days necessary to cause the Termination Date to
occur on the last day of the last calendar month of the Lease Term. Tenant
shall
pay Base Rent and Additional Rent for such additional days at the same rate
payable for the portion of the last calendar month immediately preceding such
extension. The Commencement Date, Lease Term (including any extension by
Landlord pursuant to this subsection I.F.(2) and Termination Date shall be
set
forth in a Commencement Letter prepared by Landlord and executed by Tenant
in
accordance with the provisions of Section 3.A. hereof. Tenant shall have a
one-time opportunity to cancel this Lease at the end of the 62nd
month
(December 31, 2011) of the Lease Term by giving Landlord written notice at
the
end of the 52nd
month
(February 28, 2011) and by paying Landlord a penalty payment equal to two (2)
months Base Rent which is calculated to be $115,657.58.
At
the
end of the initial Lease Term, Tenant shall have the right to extend the Lease
Term by an additional Sixty (60) months upon the same terms and conditions
contained herein. Base Rent for the Extension Period shall be mutually agreed
upon by Landlord and Tenant and shall be based on the then prevailing market
rental rate. The Base Year for the Extension Period will be 2011.
Tenant
shall be allowed to occupy the Premises prior to the Commencement Date at no
charge if the Premises is substantially completed and the Premises has been
issued a certificate of occupancy. While there shall not be rent charged during
this period, Tenant will be insured according to the conditions of Section
15
and shall provide Landlord with a copy of the insurance
certificate.
G. "Premises"
shall
mean the office space located within the Building and outlined on Exhibit A
to this
Lease.
H. "Approximate
Rentable Area in the Premises”
shall
mean the area contained within the demising walls of the Premises and any other
area designated for the exclusive use of Tenant plus an allocation of the
Tenant's Pro Rata Share of the square footage of the "Common Areas" and the
"Service Areas" (hereinafter defined). For purposes of the Lease it is agreed
and stipulated by both Landlord and Tenant that the Approximate Rentable Area
in
the Premises is 36,279 square feet, subject, however, to adjustment pursuant
to
Section 1.I. hereof.
I. The“Approximate
Rentable Area in the Building”
for
purposes of the Lease is agreed and stipulated by both Landlord and Tenant
to be
102,205 square feet. The Approximate Rentable Area in the Premises and the
Approximate Rentable Area in the Building as set forth herein shall be revised
if Landlord's architect determines such estimate to be inaccurate in any
material degree after examination of the final drawings of the Premises and
the
Building.
J. “Tenant’s
Pro Rata Share”
shall
mean 35.50% which is the quotient (expressed as a percentage), derived by
dividing the Approximate Rentable Area in the Premises by the Approximate
Rentable Area in the Building.
K. “Permitted
Use”
shall
mean general office and electronic lab space for R&D use and no other use or
purpose.
L. “Base
Year”
shall
mean 2007.
M. Intentionally
Deleted.
3
N. “Broker”
shall
mean NAI Utah Commercial Real Estate Inc.
O. “Building
Manager”
shall
mean NAI Utah Commercial Real Estate Inc. or such other company as Landlord
shall designate from time to time.
P. "Building
Standard",
shall
mean the type, brand, quality and/or quantity of materials Landlord reasonably
designates from time-to-time to be the minimum quality and/or quantity to be
used in the Building or the exclusive type, grade, quality and/or quantity
of
material to be used in the Building.
Q. "Business
Day(s)"
shall
mean Mondays through Fridays exclusive of the normal business holidays of New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day (“Holidays”).
Landlord, from time to time during the Lease Term, shall have the right to
designate additional Holidays, provided such additional Holidays are commonly
recognized by other office buildings in the area where the Building is
located.
R. "Common
Areas"
shall
mean those areas located within the Building or on the Property used for
corridors, elevator foyers, mail rooms, restrooms, mechanical rooms, elevator
mechanical rooms, property management office, janitorial closets, electrical
and
telephone closets, vending areas, and lobby areas (whether at ground level
or
otherwise), entrances, exits, sidewalks, skywalks, tunnels, driveways, parking
areas and parking garages and landscaped areas and other similar facilities
provided for the common use or benefit of tenants generally and/or the
public.
S. “Default
Rate”
shall
mean the Prime Rate plus six percent (6%), but in no event shall the Default
Rate be greater than twelve percent (12%).
T. "Normal
Business Hours"
for the
Building shall mean 8:00 a.m. to 9:00 p.m. Mondays through Fridays.
U. "Prime
Rate"
shall
mean the per annum interest rate announced by and quoted in the Wall Street
Journal from time-to-time as the prime or base rate.
V. “Property”
shall
mean the Building and the parcel(s) of land on which it is located, other
improvements located on such land, adjacent parcels of land that Landlord
operates jointly with the Building, and other buildings and improvements located
on such adjacent parcels of land.
W. "Service
Areas"
shall
mean those areas within the Building used for stairs, elevator shafts, flues,
vents, stacks, pipe shafts and other vertical penetrations (but shall not
include any such areas for the exclusive use of a particular
tenant).
X. “Notice
Addresses”
shall
mean the following addresses for Tenant and Landlord, respectively:
Tenant:
Clear
One Communications
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Landlord:
Edgewater
Corporate Park, LLC
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇
▇▇▇▇▇
4
with
a
copy to:
NAI
Utah
Commercial Real Estate Inc.
▇▇▇
▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇
Payments
of Rent only shall be made payable to the order of:
Edgewater
Corporate Park LLC
at
the
following address:
c/o
U.S. Bank
Department
1249
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
or
such
other name and address as Landlord shall, from time to time,
designate.
2. Lease
Grant.
Subject
to and upon the terms herein set forth, Landlord leases to Tenant and Tenant
leases from Landlord the Premises together with the right, in common with
others, to use the Common Areas.
3. Adjustment
of Commencement Date/Possession.
A. If
the
Lease Term, Commencement Date and Termination Date are to be determined in
accordance with Section I.F above, the Lease Term shall not commence until
the
later to occur of the Target Commencement Date and the date that Landlord has
substantially completed the work to be performed by Landlord as set forth in
the
Work Letter Agreement attached hereto as Exhibit
D
(“Landlord’s
Work”);
provided, however, that if Landlord shall be delayed in substantially completing
the Landlord Work as a result of the occurrence of any of the following (a
“Delay”):
|
(1)
|
Tenant’s
failure to furnish information in accordance with the Work Letter
Agreement or to respond to any request by Landlord for any approval
of
information within any time period prescribed, or if no time period
is
prescribed, then within two (2) Business Days of such request;
or
|
|
(2)
|
Tenant’s
insistence on materials, finishes or installations that have long
lead
times after having first been informed by Landlord that such materials,
finishes or installations will cause a Delay;
or
|
|
(3)
|
Material
changes in any plans and specifications requested by Tenant;
or
|
|
(4)
|
The
performance or nonperformance by a person or entity employed by on
or
behalf of Tenant in the completion of any work in the Premises (all
such
work and such persons or entities being subject to prior approval
of
Landlord); or
|
|
(5)
|
Any
request by Tenant that Landlord delay the completion of any of the
Landlord’s Work; or
|
|
(6)
|
Any
breach or default by Tenant in the performance of Tenant’s obligations
under this Lease; or
|
|
(7)
|
Any
delay resulting from Tenant’s having taken possession of the Premises for
any reason prior to substantial completion of the Landlord’s Work;
or
|
|
(8)
|
Any
other delay reasonably chargeable to Tenant, its agents, employees
or
independent contractors;
|
5
then,
for
purposes of determining the Commencement Date, the date of substantial
completion shall be deemed to be the day that said Landlord’s Work would have
been substantially completed absent any such Delay(s). The Landlord’s Work shall
be deemed to be substantially completed on the date that Landlord’s Work has
been performed (or would have been performed absent any Delay(s), other than
any
details of construction, mechanical adjustment or any other matter, the
noncompletion of which does not materially interfere with Tenant’s use of the
Premises. Promptly after the determination of the Commencement Date, Landlord
and Tenant shall enter into a letter agreement (the “Commencement
Letter”)
on the
form attached hereto as Exhibit
F
setting
forth the Commencement Date, the Termination Date and any other dates that
are
affected by the adjustment of the Commencement Date. If this Lease requires
Landlord to perform Landlord’s Work in the Premises, the Commencement Letter
shall identify any minor incomplete items of the Landlord’s Work as reasonably
determined by Landlord's architect (the "Punchlist
Items"),
which
Punchlist Items Landlord shall promptly remedy. Tenant, within five (5) days
after receipt thereof from Landlord, shall execute the Commencement Letter
and
return the same to Landlord. Notwithstanding anything herein to the contrary,
Landlord may elect, by written notice to Tenant, not to adjust the Commencement
Date as provided above if such adjustment would cause Landlord to be in
violation of the existing rights granted to any other tenant of the Building.
If
Landlord elects not to adjust the Commencement Date, the Commencement Date
shall
be the Target Commencement Date, provided that Base Rent and Additional Rent
shall not commence until the date that Landlord’s Work has been substantially
completed (or would have been substantially completed absent any Delays). If,
through no fault of Tenant, Landlord fails to complete the Landlord’s Work
within 60 days after execution of this Lease, Tenant may terminate the Lease,
and shall be relieved of any further liability or obligation
hereunder.
B. By
taking
possession of the Premises, Tenant is deemed to have accepted the Premises
and
agreed that the Premises is in good order and satisfactory condition, with
the
exception of latent defects and subject to completion by Landlord of the
Punchlist Items., with no representation or warranty by Landlord as to the
condition of the Premises or the Building or suitability thereof for Tenant’s
use.
C. If
Tenant
takes possession of the Premises prior to the Commencement Date, such possession
shall be subject to all the terms and conditions of the Lease and Tenant shall
not pay Base Rent and Additional Rent to Landlord for each day of occupancy
prior to the Commencement Date. Notwithstanding the foregoing, if Tenant takes
possession of the Premises prior to the Commencement Date for the sole purpose
of performing any Landlord-approved improvements therein or installing
furniture, equipment or other personal property of Tenant, such possession
shall
be subject to all of the terms and conditions of the Lease, except that Tenant
shall not be required to pay Rent with respect to the period of time prior
to
the Commencement Date during which Tenant performs such work. Nothing herein
shall be construed as granting Tenant the right to take possession of the
Premises prior to the Commencement Date, whether for construction, fixturing
or
any other purpose, without the prior consent of Landlord.
4. Use.
The
Premises shall be used for the Permitted Use and for no other purpose. Tenant
agrees not to use or permit the use of the Premises for any purpose which is
illegal, dangerous to life, limb or property or which, in Landlord's reasonable
judgement, creates a nuisance or which would increase the cost of insurance
coverage with respect to the Building. Tenant will conduct its business and
control its agents, servants, employees, customers, licensees, and invitees
in
such a manner as not to interfere with, annoy or disturb other tenants or
Landlord in the management of the Building and the Property. Tenant will
maintain the Premises in a clean and healthful condition, and comply with all
laws, ordinances, orders, rules and regulations of any governmental entity
with
reference to the use, condition, configuration or occupancy of the Premises.
Tenant, within ten (10) days after the receipt thereof, shall provide Landlord
with copies of any notices it receives with respect to a violation or alleged
violation of any such laws, ordinances, orders, rules and regulations. Tenant,
at its expense, will comply with the rules and regulations of the Building
attached hereto as
Exhibit B
and such
other rules and regulations adopted and altered by Landlord from time-to-time
and will cause all of its agents, employees, invitees
6
and
visitors to do so. All such changes to rules and regulations will be reasonable
and shall be sent by Landlord to Tenant in writing.
5. Base
Rent.
A. Tenant
covenants and agrees to pay to Landlord during the Lease Term, without any
setoff or deduction except as otherwise expressly provided herein, the full
amount of all Base Rent and Additional Rent, as defined in Exhibit C, due
hereunder and the full amount of all such other sums of money as shall become
due under this Lease (including, without limitation, any services, goods or
materials furnished by Landlord at Tenant’s request), all of which hereinafter
may be collectively called “Rent.”
Any
such payments shall be paid concurrently with the payments of the Rent on which
the tax is based. The Base Rent and Additional Rent for each calendar year
or
portion thereof during the Lease Term, shall be due and payable in advance
in
monthly installments of the first day of each calendar month during the Lease
Term and any extensions or renewals hereof, and Tenant hereby agrees to pay
such
Base Rent and Additional Rent to Landlord without demand or any right of set-off
or deduction whatsoever. If the Lease Term commences on a day other than the
first day of a month or terminates on a day other than the last day of a month,
then the installments of Base Rent and Additional Rent for such month or months
shall be prorated, based on the number of days in such month. No payment by
Tenant or receipt or acceptance by Landlord of a lesser amount than the correct
installment of Rent due under this Lease shall be deemed to be other than a
payment on account of the earliest Rent due hereunder, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance or pursue any
other
available remedy. The acceptance by Landlord of an installment of Rent on a
date
after the due date of such payment shall not be construed to be a waiver of
Landlord's right to declare a default for any other late payment. All amounts
received by Landlord from Tenant hereunder shall be applied first to the
earliest accrued and unpaid Rent then outstanding. Tenant’s covenant to pay Rent
shall be independent of every other covenant set forth in this
Lease.
B. To
the
extent allowed by law, all installments of Rent not paid within five (5) days
of
Rent due date shall bear interest at the Default Rate from the date due until
paid. In addition, if Tenant fails to pay any installment of Base Rent and
Additional Rent or any other item of Rent when due and payable hereunder, and
Tenant fails to make such payment after written notice to Tenant and the right
to cure, a “Late
Charge”
equal to
five percent (5%) of such unpaid amount will be due and payable immediately
by
Tenant to Landlord.
C. The
Additional Rent payable hereunder shall be adjusted from time-to-time in
accordance with the provisions of Exhibit C
attached
hereto and incorporated herein for all purposes.
6. Intentionally
Deleted.
7
7. Services
to be Furnished by Landlord.
A. Landlord
agrees to furnish Tenant the following services:
|
(1)
|
Water
for use in the lavatories on the floor(s) on which the Premises is
located
and in the break room and shower in the Premises.
|
|
(2)
|
Central
heat and air conditioning in season during Normal Business Hours,
at such
temperatures and in such amounts as are commercially reasonable
for
buildings of similar class, size, age and location, or as required
by
governmental authority. In the event that Tenant requires central
heat,
ventilation or air conditioning service at times other than Normal
Business Hours, such additional service shall be furnished only
upon the
written request of Tenant delivered to Landlord prior to 3:00
p.m. at
least one Business Day in advance of the date for which such
usage is
requested. Tenant shall bear the cost of additional service determined
to
be $45.00 per hour as Additional Rent upon presentation of a
statement
therefore by
Landlord.
|
At
Landlord’s option, If Tenant shall require water or electric current in excess
of that usually furnished or supplied for use of the Premises as general office
space, or after Normal Business Hours, Landlord may cause a water meter (or
submeter) or electric current meter (or submeter) to be installed in the
Premises, so as to measure the amount of water and electric current consumed
by
Tenant whether during Normal Business Hours or after hours. The cost of such
meters and of installation, maintenance and repair thereof shall be paid for
by
Tenant and Tenant agrees to pay Landlord promptly upon demand by Landlord for
all such water and electric current consumed as shown by said meters, at the
rates charged for such services by the City in which the Building is located
or
the local public utility, as the case may be, furnished the same. In the event
Landlord installs such meters, then an appropriate adjustment to the Base Rent
shall be made since Tenant will be paying for its utilities
separately.
All
additional heating, ventilating and air conditioning required (if any) to
accommodate Tenant’s design shall be installed at the Tenant’s expense (and may
be included as part of the Tenant improvement expense referenced in Section
5)
subject to Landlord’s prior written approval.
|
(3)
|
Maintenance
and repair of all Common Areas in the manner and to the extent reasonably
deemed by Landlord to be standard for buildings of similar class,
age and
location.
|
|
(4)
|
Janitorial
and cleaning service in and about the Premises on Business Days.
Tenant
shall not provide or use any other janitorial or cleaning services
without
Landlord’s consent, and then only subject to the supervision of Landlord
and at Tenant’s sole cost and responsibility and by a janitor, cleaning
contractor or employees at all times reasonably satisfactory to
Landlord.
|
|
(5)
|
Electricity
to the Premises for general office use, in accordance with and subject
to
the terms and conditions of Section 11 of this
Lease.
|
|
(6)
|
Fluorescent
bulb replacement in the Premises necessary to maintain building standard
the lighting as established by Landlord and fluorescent and incandescent
bulb and ballast replacement in the Premises, Common Areas and Service
Areas.
|
|
(7)
|
Passenger
elevator service in common with Landlord and other persons and freight
elevator service in common with the Landlord and other persons.
|
|
(8)
|
Provided
Tenant and its employees will be allowed access to the Premises at
all
times, day or night, access control to the Building during other
than
Normal Business Hours shall be provided in such form as Landlord
reasonably deems appropriate. Tenant shall
|
8
cooperate
fully in Landlord's reasonable efforts to maintain access control to the
Building and shall follow all reasonable regulations promulgated by Landlord
with respect thereto. Notwithstanding anything herein to the contrary Tenant
expressly acknowledges and agrees that Landlord is not warranting the efficacy
of any access personnel, service, procedures or equipment and that Tenant is
not
relying and shall not hereafter rely on any such personnel service, procedures
or equipment.
B. If
Tenant
requests any other utilities or building services in addition to those
identified above, or any of the above utilities or building services in
frequency, scope, quality or quantities substantially greater than the standards
set by Landlord for the Building, then Landlord shall use reasonable efforts
to
attempt to furnish Tenant with such additional utilities or building services.
Landlord may impose a reasonable charge for such additional utilities or
building services, which shall be paid monthly by Tenant as Additional Rent
on
the same day that the monthly installment of Base Rent is due.
C. Except
as
otherwise expressly provided herein, the failure by Landlord to any extent
to
furnish, or the interruption or termination of these defined services in whole
or in part, resulting from adherence to laws, regulations and administrative
orders, wear, use, repairs, improvements alterations or any causes beyond the
reasonable control of Landlord shall not render Landlord liable in any respect
nor be construed as a constructive eviction of Tenant, nor give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill any
covenant or agreement hereof, unless such failure is caused by the negligent
or
intentional acts or omissions of Landlord and continues without commencement
of
a cure for more than forty-eight (48) hours at any time, or for more than a
cumulative total of ninety-six (96) hours in any calendar year. Should any
of
the equipment or machinery used in the provision of such services for any cause
cease to function properly, Landlord shall use reasonable diligence to repair
such equipment or machinery.
8. Leasehold
Improvements/Tenant’s Property.
All
fixtures, equipment, improvements and appurtenances attached to, or built into,
the Premises at the commencement of or during the Lease Term, whether or not
by,
or at the expense of, Tenant (“Leasehold
Improvements”),
shall
be and remain a part of the Premises; shall be the property of Landlord; and
shall not be removed by Tenant except as expressly provided herein. All
unattached and moveable partitions, trade fixtures, moveable equipment or
furniture located in the Premises (including the telephone KSU and related
equipment located near the Premises) and acquired by or for the account of
Tenant, which can be removed without structural damage to the Building or
Premises, and all personalty brought into the Premises by Tenant (“Tenant’s
Property”)
shall
be owned and insured by Tenant. Landlord may, nonetheless, at any time prior
to,
or within one (1) month after, the expiration or earlier termination of this
Lease or Tenant’s right to possession, require Tenant to remove any Leasehold
Improvements performed by or for the benefit of Tenant including the removal
of
all telephone equipment in the telephone room and all exposed electronic, phone
and data cabling and other electronic, phone and data cabling which can be
readily pulled and which was installed
by or for Tenant as are designated by Landlord (the “Required
Removables”)
at
Tenant’s sole cost. In the event that Landlord so elects, Tenant shall remove
such Required Removables within ten (10) days after notice from Landlord,
provided that in no event shall Tenant be required to remove such Required
Removables prior to the expiration or earlier termination of this Lease or
Tenant’s right to possession. In addition to Tenant’s obligation to remove the
Required Removables, Tenant shall repair any damage caused by such removal
and
perform such other work as is reasonably necessary to restore the Premises
to
“broom-clean” condition.. If Tenant fails to remove any specified Required
Removables or to perform any required repairs and restoration (ordinary wear
and
tear excepted) within the time period specified above, Landlord, at Tenant’s
sole cost and expense, may remove the Required Removables (and repair any damage
occasioned thereby) and dispose thereof or deliver the Required Removables
to
any other place of business of Tenant, or warehouse the same, and Tenant shall
pay the cost of such removal, repair, delivery, or warehousing of the Required
Removables within five (5) days after demand from Landlord.
9. Signage.
Landlord
shall provide and install, at Landlord’s cost, all letters or numerals on the
exterior of the Premises; all such letters and numerals shall be in the standard
graphics for the Building and no others shall be used or permitted on the
Premises without Landlord's prior written consent. In addition, Landlord will
list Tenant’s name on the Building’s directory in the lobby.
9
Tenant
is
granted crown building signage on the south wall of the South Tower, subject
to
City and SLICCAMA sign codes and ordinances and subject to Landlord’s approval
of exact location, size, color and design of sign. The cost of the sign(s)
and
maintenance thereof shall be the sole responsibility of Tenant. Landlord and
Tenant agree to make application for crown signage approval to SLICCAMA and
any
other municipality within five (5) business days of lease
execution.
10. Maintenance,
Repairs
and Alterations.
A. Landlord
Maintenance and Repairs.
Landlord
shall maintain in good order, condition and repair the Building except the
Premises and those other portions of the Building leased, rented or otherwise
occupied by persons not affiliated with Landlord. Landlord shall supply and
pay
for normal janitorial and cleaning services as specified within this Lease
to
keep the Building in a clean, sanitary and orderly condition, the cost and
expenses of which shall be included in Basic Costs. Landlord shall pay for
major
maintenance and repairs of the Premises as originally leased (but not including
Tenant’s additions or fixtures). However, if repairs or maintenance are required
by reason of the special requirements, acts, or negligence of Tenant or of
the
agents, employees, licensees or invitees of Tenant, then Landlord shall make
the
necessary repairs at the expense of Tenant, which shall be paid by Tenant to
Landlord within ten (10) days of Landlord’s written demand
therefore.
B. Tenant’s
Maintenance and Repair.
Tenant,
at Tenant’s sole cost and expense and without prior demand, shall maintain the
Premises in good order, condition and repair, reasonable wear and tear
expected.
C. Alterations.
Except
as set forth on Exhibit A, attached hereto, Tenant shall not make or cause
to be
made any alterations, additions or improvements or install or cause to be
installed any fixtures, signs, floor coverings, interior or exterior lighting,
plumbing fixtures, or shades or awnings, or make any other changes to the
Premises without first obtaining Landlord’s written approval. Such approval
shall not be unreasonably withheld. Tenant shall present to Landlord plans
and
specifications for such work at the time approval is sought. In the event
Landlord consents to the making of any alterations, additions, or improvements
to the Premises by Tenant, the same shall be made by Tenant at Tenant’s sole
cost and expense. All such work with respect to any alterations, additions,
and
changes shall be done in a first-class and workmanlike manner and diligently
completed so that, expect as absolutely necessary during the course of such
work, the Premises shall at all times be a complete operating unit. Any such
alerations, additions, or changes shall be performed and done strictly in
accordance with all laws and ordinances relating thereto. In performing the
work
or any such alterations, additions, or changes, Tenant shall have the same
performed in such a manner as not to obstruct access to any portion of the
Building. Any alterations, additions, or improvements to the Premises,
including, but not limited to, wall covering, paneling, and built-in cabinet
work shall at once become a part of the realty and shall be surrendered with
the
Premises unless Landlord otherwise elects at the end of the term
hereof.
11. Use
of Electrical Services by Tenant. Tenant's
use of electrical services furnished by Landlord shall not exceed in voltage,
rated capacity, or overall load that which is standard for the Building. In
the
event Tenant shall request that it be allowed to consume electrical services
in
excess of Building Standard, Landlord may refuse to consent to such usage or
may
consent upon such conditions as Landlord reasonably elects (including the
installation of utility service upgrades, submeters, air handlers or cooling
units), and all such additional useage (to the extent permitted by law),
installation and maintenance thereof shall be paid for by Tenant as Additional
Rent.
12. Entry
by Landlord.
Tenant
shall permit Landlord or its agents or representatives to enter into and upon
any part of the Premises to inspect the same, or to show the Premises to
prospective purchasers, mortgagees, tenants (during the last (12) twelve months
of the Lease Term) or insurers, or to clean or make repairs, alterations, or
additions thereto, including any work that Landlord deems necessary for the
safety, protection or preservation of the Building or any occupants thereof,
or
to facilitate repairs,
10
alterations
or additions to the Building or any other tenant’s premises. Except for any
entry by Landlord in an emergency situation or to provide normal cleaning and
janitorial service, Landlord shall provide Tenant with reasonable prior notice
of any entry into the Premises, which notice may be given verbally. Any entry
by
Landlord shall be done in a manner that does not unreasonably interfere with
Tenant’s use of the Premises. Provided Tenant is not deprived of reasonable
access to the Premises, Landlord shall have the right to temporarily close
the
Premises or the Building to perform repairs, alterations or additions in the
Premises or the Building, provided that Landlord shall use reasonable efforts
to
perform all such work on weekends and after Normal Business Hours. Entry by
Landlord hereunder shall not constitute a constructive eviction or entitle
Tenant to any abatement or reduction of Rent by reason thereof.
13. Assignment
and Subletting
A.
Except
in connection with a Permitted Transfer, Tenant shall not assign, sublease,
transfer or encumber any interest in this Lease or allow any third party to
use
any portion of the Premises (collectively or individually, a “Transfer”)
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld. In no event shall any Transfer or Permitted Transfer
release or relieve Tenant from any obligation under this Lease or any liability
hereunder.
B.
Tenant
shall pay to Landlord fifty percent (50%) of all cash and other consideration
which Tenant receives as a result of a Transfer that is in excess of the rent
payable to Landlord hereunder for the portion of the Premises and Term covered
by the Transfer within ten (10) days following receipt thereof by Tenant, after
subtracting reasonable transaction costs Tenant has incurred to effect a
sublease (i.e. legal fees and brokerage fees). If Tenant is in Monetary Default
(defined in Section 22. below), Landlord may require that all sublease payments
be made directly to Landlord, in which case Tenant shall receive a credit
against rent in the amount of any payments received (less Landlord’s share of
any excess).
C.
Except
as provided below with respect to a Permitted Transfer, if Tenant is a
corporation, limited liability company, partnership or similar entity, and
the
entity which owns or controls a majority of the voting shares/rights at the
time
changes for any reason (including but not limited to a merger, consolidation
or
reorganization), such change of ownership or control shall constitute a
Transfer. The foregoing shall not apply so long as Tenant is an entity whose
outstanding stock is listed on a nationally recognized security exchange, or
if
at least eighty percent (80%) of its voting stock is owned by another entity,
the voting stock of which is so listed.
14. Mechanic's
Liens.
Tenant
will not permit any mechanic's liens or other liens to be placed upon the
Premises, the Building, or the Property and nothing in this Lease shall be
deemed or construed in any way as constituting the consent or request of
Landlord, express or implied, by inference or otherwise, to any person for
the
performance of any labor or the furnishing of any materials to the Premises,
the
Building, or the Property or any part thereof, nor as giving Tenant any right,
power, or authority to contract for or permit the rendering of any services
or
the furnishing of any materials that would give rise to any mechanic's or other
liens against the Premises, the Building, or the Property. In the event any
such
lien is attached to the Premises, the Building, or the Property, then, in
addition to any other right or remedy of Landlord, Landlord may, but shall
not
be obligated to, discharge the same. Any amount paid by Landlord for any of
the
aforesaid purposes including, but not limited to, reasonable attorneys’ fees,
shall be paid by Tenant to Landlord promptly on demand as Additional Rent.
Tenant shall within ten (10) days of receiving such notice of lien or claim
(a)
have such lien or claim released or (b) deliver to Landlord a bond in form,
content, amount and issued by surety, satisfactory to Landlord, indemnifying,
protecting, defending and holding harmless the Indemnities against all costs
and
liabilities resulting from such lien or claim and the foreclosure or attempted
foreclosure thereof. Tenant’s failure to comply with the provisions of the
foregoing sentence shall be deemed an Event of Default under Section 22. hereof
entitling Landlord to exercise all of its remedies therefore without the
requirement of any additional notice or cure period.
15. Insurance.
A. Coverage.
Tenant
shall, at all times during the term of this Lease, and at its own cost and
expense procure and continue in force the following insurance
coverage:
11
|
(1)
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Bodily
injury and Property Damage Liability insurance with a combined single
limit for bodily injury and property damage of not less than $1,000,000
per occurrence/$2,000,000 annual aggregate per
person.
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|
(2)
|
Fire
and Extended Coverage Insurance, including vandalism and malicious
mischief coverage, in an amount equal to the full replacement value
of all
fixtures, furniture and improvements installed by or at the expense
of
Tenant.
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B. Insurance
Policies. The
aforementioned minimum limits of policies shall in no event limit the liability
of Tenant hereunder. The aforesaid insurance shall name Landlord as an
additional insured. Said insurance shall be with companies having a rating
of
not less than A-VII in "Best's Insurance Guide". Tenant shall furnish from
the
insurance companies or cause the insurance companies to furnish certificates
of
coverage. No such policy shall be cancelable or subject to reduction of coverage
or other modification or cancellation except after thirty (30) days prior
written notice to Landlord by the insurer. All such policies shall be written
as
primary policies, not contributing with and not in excess of the coverage which
Landlord may carry. Tenant shall, at least twenty (20) days prior to the
expiration of such policies, furnish Landlord with renewed or new certificates
of coverage. Tenant agrees that if Tenant does not take out and maintain such
insurance, Landlord may (but shall not be required to) procure said insurance
on
Tenant's behalf and charge Tenant the premiums together with a twenty-five
per
cent (25%) handling charge, payable upon demand. Tenant shall have the right
to
provide such insurance coverage pursuant to blanket policies obtained by Tenant
provided such blanket policies expressly afford coverage to the Premises and
to
Tenant as required by this Lease.
Landlord
shall at all times during the Lease have commercial general liability coverage
of at least $1,000,000 on the Building and Property as well as property
insurance on the Building.
C. Waiver
of Subrogation. Landlord
and Tenant each hereby waive any and all rights of recovery against the other
or
against the officers, employees, agents and representatives of the other, on
account of loss or damage occasioned to such waiving party or its property
or
the property of others under its control to the extent that such loss or damage
is insured against under any fire and extended coverage insurance policy which
either may have in force at the time of such loss or damage. Tenant shall,
upon
obtaining the policies of insurance required under this Lease, give notice
to
the insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
16.
Indemnity. Tenant
agrees to indemnify, defend and hold harmless Landlord and its officers,
directors, partners and employees from and against all loss liabilities,
judgments, demands, actions, expenses or claims, including reasonable attorney's
fees and court costs, for injury to or death of any person, the release of
any
hazardous materials, or for damages to any property to the extent arising
out of
or connected with (i) the use, occupancy or enjoyment of the Leased Premises,
Building, or Common Area by Tenant or Tenant's agents, employees, invitees,
licensees, or contractors (the "Tenant's
Agents"),
or
any work or activity performed by Tenant or by Tenant's Agents in, or about
the
Leased Premises, Building, or Common Area, including any Tenant improvements,
(ii) any breach or default in the performance of any obligation of Tenant
under
this lease (other than a default arising solely from the failure by Tenant
to
pay Rents, which default shall be governed by the other provisions of this
Lease) (iii) any negligent or intentional tortious act of Tenant or Tenant's
Agents (excluding Tenant's licensees) on or about the Leased Premises, Building,
or Common Area or any negligent or intentional tortious act of Tenant's
licensees on or about the Leased Premises, Building or Common Area.
Notwithstanding the foregoing, Tenant shall not be liable to the extent that
damage or injury is determined ultimately to be caused by the negligent or
intentional tortious act of Landlord, or of Landlord's employees, agents,
invitees, licensees, or contractors ("Landlord's
Agents").
All
property of Tenant kept or stored on the Leased Premises or in the Building
shall be so kept or stored at the risk of Tenant only, and Tenant shall hold
Landlord free and harmless from any claims arising out of damage to the same,
unless such damage shall be caused by the negligent or intentional tortious
act
of Landlord or Landlord's Agents. The
12
indemnification
contained herein shall survive the expiration or earlier termination of this
lease as to acts occurring prior to such expiration or termination. If any
action or proceeding is brought against Landlord, its employees or agents by
reason of any such claim, Tenant, upon notice from Landlord, will defend the
claim at Tenant’s expense with counsel reasonably satisfactory to
Landlord.
Except
to
the extent covered by insurance, Landlord agrees to indemnify, defend and hold
harmless Tenant and its officers, directors, partners and employees from and
against all liabilities, judgments, demands, actions, expenses or claims,
including reasonable attorneys' fees and court costs, for injury to or death
of
any person, the release of any hazardous materials or for damages to any
property to the extent arising out of or connected with (i) the use, management
or operation of the Building by Landlord or by Landlord's Agents, or any work
or
activity performed by Landlord or by Landlord's Agents in, on or about the
Building, (ii) any breach or default in the performance of any obligation of
Landlord under this lease, or (iii) any negligent or intentional tortious act
of
Landlord or Landlord's Agents on or about the Leased Premises or the Building.
Notwithstanding the foregoing, Landlord shall not be liable to the extent that
damage or injury is determined ultimately to be caused by the negligent or
intentional tortious act of Tenant or Tenant's Agents. The indemnification
contained herein shall survive the expiration or earlier termination of this
lease as to acts occurring prior to such expiration or termination. If any
action or proceeding is brought against Tenant, its employees or agents by
reason of any such claim, Landlord, upon notice from Tenant, will defend the
claim at Landlord’s expense with counsel reasonably satisfactory to
Tenant.
17. Casualty
Damage.
If the
Premises or any part thereof shall be damaged by fire or other casualty, Tenant
shall give prompt written notice thereof to Landlord. In case the Building
and
the Premises shall be so damaged that, in Landlord’s reasonable opinion,
substantial alteration or reconstruction of the Building and the Premises shall
be required, and such damage occurs in the last one (1) year of the Lease Term,
Landlord, at its option, may terminate this Lease by notifying Tenant of such
termination within ninety (90) days after the date of such casualty. If the
Premises have been substantially damaged by such casualty to another part of
the
Building, and Tenant is still able to occupy the Premises, Landlord shall not
have the right to terminate the Lease.
(a) If
the
Premises or Building shall be partially damaged by fire or other casualty
insured against under Landlord’s property damage insurance policies, Landlord
shall, upon receipt of the insurance proceeds, repair the Building to a
condition which is substantially similar to the condition in existence prior
to
such casualty. In the event Landlord’s mortgagee should require that the
insurance proceeds payable as a result of such casualty be applied to the
payment of the mortgage debt, then Landlord shall have no obligation to repair
the Building or the Premises, if the cost of such repair would reasonably be
expected to exceed Fifty Thousand Dollars ($50,000.00).
(b) Notwithstanding
the foregoing, if the Premises or Building is damaged as result of a casualty
or
other risk which is not covered by Landlord's insurance, or if the Premises
or
the Building are damaged to the extent of fifty percent (50%) or more of their
then replacement value, or if the repair of the Premises or the Building, would
require more than ninety (90) days, Landlord shall either terminate this Lease
upon written notice given to Tenant within fifteen (15) days following such
casualty or commence as soon as is reasonably possible the restoration of the
Building and the Premises.
(c) In
the
event this Lease is not terminated and Landlord undertakes to repair any portion
of the Premises, until such repair is complete, rent shall ▇▇▇▇▇ proportionately
as to the portion of the Premises rendered untenable. Notwithstanding the
foregoing, however, if the damage being repaired was caused by the negligence
or
willful act of Tenant or its employees, agents, licensees or concessionaires,
there shall be no abatement of rent during the repair period.
(d) Unless
this Lease is terminated, Tenant shall, at its expense (unless covered by
Landlord’s insurance), repair the fixtures and improvements installed by Tenant
within the Premises and repair or replace any of Tenant’s furniture or equipment
damaged by such casualty.
18. Condemnation.
If the
whole or any substantial part of the Premises or if the Building or any portion
thereof which would leave the remainder of the Building unsuitable for use
as an
office building comparable to its use on the Commencement Date, or if the land
on which the Building is located or any
13
material
portion thereof, shall be taken or condemned for any public or quasi-public
use
under governmental law, ordinance or regulation, or by right of eminent domain,
or by private purchase in lieu thereof, then Landlord may, at its option,
terminate this Lease and the rent shall be abated during the unexpired portion
of this Lease, effective when the physical taking of said Premises or said
portion of the Building or land shall occur. In the event this Lease is not
terminated, the rent for any portion of the Premises so taken or condemned
shall
be abated during the unexpired term of this Lease effective when the physical
taking of said portion of the Premises shall occur. All compensation awarded
for
any such taking or condemnation, or sale proceeds in lieu thereof, with the
exception of any award for an independent claim by Tenant for Tenant’s damages,
shall be the property of Landlord, and Tenant shall have no claim thereto,
the
same being hereby expressly waived by Tenant, except for any portions of such
award or proceeds which are specifically allocated by the condemning or
purchasing party for the taking of or damage to trade fixtures of Tenant, which
Tenant specifically reserves to itself.
19. Hazardous
Substances.
A. Tenant
hereby represents and covenants to Landlord the following: No toxic or hazardous
substances or wastes, pollutants or contaminants (including, without limitation,
asbestos, urea formaldehyde, the group of organic compounds known as
polychlorinated biphenyls, petroleum products including gasoline, fuel oil,
crude oil and various constituents of such products, radon, and any hazardous
substance as defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. 9601-9657, as amended (“CERCLA”)
(collectively,
“Environmental Pollutants”)
other
than customary office supplies and cleaning supplies stored and handled within
the Premises in accordance with all applicable laws, will be generated, treated,
stored, released or disposed of, or otherwise placed, deposited in or located
on
the Property, and no activity shall be taken on the Property, by Tenant, its
agents, employees, invitees or contractors, that would cause or contribute
to
(i) the Property or any part thereof to become a generation, treatment, storage
or disposal facility within the meaning of or otherwise bring the Property
within the ambit of the Resource Conservation and Recovery Act of 1976
(“RCRA”),
42
U.S.C. 5901
et.
seq., or any similar state law or local ordinance, (ii) a release or threatened
release of toxic or hazardous wastes or substances, pollutants or contaminants,
from the Property or any part thereof within the meaning of, or otherwise result
in liability in connection with the Property within the ambit of CERCLA, or
any
similar state law or local ordinance, or (iii) the discharge of pollutants
or
effluents into any water source or system, the dredging or filling of any
waters, or the discharge into the air of any emissions, that would require
a
permit under the Federal Water Pollution Control Act, 33 U.S.C. 1251 et. seq.,
or the Clean Air Act, 42 U.S.C. 7401 et. seq., or any similar state law or
local
ordinance.
B. Tenant
shall immediately notify Landlord in writing of any release or threatened
release of toxic or hazardous wastes or substances, pollutants or contaminants
of which Tenant has knowledge whether or not the release is in quantities that
would require under law the reporting of such release to a governmental or
regulatory agency.
C. Tenant
shall also immediately notify Landlord in writing of, and shall
contemporaneously provide Landlord with a copy of:
|
(1)
|
Any
written notice of release of hazardous wastes or substances, pollutants
or
contaminants on the Property that is provided by Tenant or any subtenant
or other occupant if the Premises to a governmental or regulatory
agency;
|
|
(2)
|
Any
notice of a violation, or a potential or alleged violation, of any
Environmental Law (hereinafter defined) that is received by Tenant
or any
subtenant or other occupant of the Premises from any governmental
or
regulatory agency;
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|
(3)
|
Any
inquiry, investigation, enforcement, cleanup, removal, or other action
that is instituted or threatened by a governmental or regulatory
agency
against Tenant or any subtenant or other occupant of the Premises
and that
relates to the release or discharge of hazardous wastes or substances,
pollutants or contaminants on or from the
Property;
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14
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(4)
|
Any
claim that is instituted or threatened by any third-party against
Tenant
or any subtenant or other occupant of the Premises and that relates
to any
release or discharge of hazardous wastes or substances, pollutants
or
contaminants on or from the Property;
and
|
|
(5)
|
Any
notice of the loss of any environmental operating permit by Tenant
or any
subtenant or other occupant of the
Premises.
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D. s
used
herein “Environmental Laws” mean all present and future federal, state and
municipal laws, ordinances, rules and regulations applicable to environmental
and ecological conditions, and the rules and regulations of the U.S.
Environmental Protection Agency, and any other federal, state or municipal
agency, or governmental board or entity relating to environmental
matters.
20. Americans
with Disabilities Act.
Should
Tenant make alterations to the Premises, Tenant agrees to comply with all
requirements of the Americans with Disabilities Act and the regulations
promulgated thereunder (“ADA”)
applicable to the portion of the Premises altered by Tenant and such other
current acts or other subsequent acts, (whether federal or state) addressing
like issues as are enacted or amended which relate to the portion of the
Premises altered by Tenant. Tenant agrees to indemnify and hold Landlord
harmless from any and all expenses, liabilities, costs or damages suffered
by
Landlord as a result of additional obligations which may be imposed on the
Building or the Property under any of such acts by virtue of Tenant’s operations
and/or occupancy.
21. Events
of Default.
A. The
following events shall be deemed to be “Events
of Default”
under
this Lease:
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(1)
|
Tenant
shall fail to pay when due any Base Rent, Additional Rent or other
amount
payable by Tenant to Landlord under this Lease, which failure is
not cured
within five (5) days after written notice to Tenant of such default
(hereinafter sometimes referred to as a "Monetary
Default").
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|
(2)
|
Any
failure by Tenant (other than a Monetary Default) to comply with
any term,
provision or covenant of this Lease, which failure is not cured within
thirty (30) days after delivery to Tenant of notice of the occurrence
of
such failure provided,
however, that if the term, condition, covenant or obligation to be
performed by Tenant is of such nature that the same cannot reasonably
be
performed within such thirty-day period, such default shall be deemed
to
have been cured if Tenant commences such performance within said
thirty-day period and thereafter diligently undertakes to complete
the
same, and in fact, completes same within sixty (60) days after
notice.
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|
(3)
|
Any
failure by Tenant to observe or perform any of the covenants with
respect
to (a) assignment and subletting set forth in Section 13, (b) mechanic’s
liens set forth in Section 14, or (c) insurance set forth in Section
15.
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(4)
|
Tenant
shall (a) become insolvent, (b) make a transfer in fraud of creditors
(c)
make an assignment for the benefit of creditors, (d) admit in writing
its
inability to pay its debts as they become due, (e) file a petition
under
any section or chapter of the United States Bankruptcy Code, as amended,
pertaining to bankruptcy, or under any similar law or statute of
the
United States or any State thereof, or Tenant or any Guarantor shall
be
adjudged bankrupt or insolvent in proceedings filed against Tenant
or any
Guarantor thereunder; or a petition or answer proposing the adjudication
of Tenant or any Guarantor as a bankrupt or its reorganization under
any
present or future federal or state bankruptcy or similar law shall
be
filed in any court and such petition or answer shall not be discharged
or
denied within sixty (60) days after the filing
thereof.
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|
(5)
|
A
receiver or trustee shall be appointed for all or substantially all
of the
assets of Tenant or of the Premises or of any of Tenant's property
located
thereon in any proceeding brought by Tenant, or any such receiver
or
trustee shall be appointed in any proceeding brought
|
15
against
Tenant and shall not be discharged within sixty (60) days after such appointment
or Tenant or such Guarantor shall consent to or acquiesce in such
appointment.
|
(6)
|
The
leasehold estate hereunder shall be taken on execution or other process
of
law in any action against Tenant.
|
|
(7)
|
Tenant
shall abandon or vacate any substantial portion of the Premises and
discontinues paying Rent.
|
|
(8)
|
The
liquidation, termination, dissolution, forfeiture of right to do
business
of Tenant, which termination, dissolution or forfeiture is not cured
within five (5) days after receipt of written notice to
Tenant.
|
|
(9)
|
Landlord
fails to perform any Landlord obligation under this Lease and such
failure
is not cured within thirty (30) days after delivery to Landlord of
notice
of the occurrence of such failure provided,
however, that if the term, condition, covenant or obligation to be
performed by Landlord is of such nature that the same cannot reasonably
be
performed within such thirty-day period, such default shall be deemed
to
have been cured if Landlord commences such performance within said
thirty-day period and thereafter diligently undertakes to complete
the
same, and in fact, completes same within sixty (60) days after notice.
If
a default by Landlord materially interferes with Tenant’s use of the
Premises, Tenant shall provide written notice of such default and
Tenant’s
intent to remedy such default, and if Landlord does not thereafter
remedy
such default within five (5) days after such notice, Tenant may remedy
such default and Landlord shall reimburse Tenant for the reasonable
cost
of such remedy.
|
22. Remedies.
A. Upon
the
occurrence of any Event of Default, Landlord shall have the following rights
and
remedies, in addition to those allowed by law or equity, any one or more of
which may be exercised without further notice to or demand upon Tenant and
which
may be pursued successively or cumulatively as Landlord may elect:
|
(1)
|
Notify
Tenant in writing of such default and if Tenant does not remedy such
default within a reasonable period of time, Landlord may re-enter
the
Premises and cure any default of Tenant, in which event Tenant shall,
upon
demand, reimburse Landlord as Additional Rent for any reasonable
cost and
expenses which Landlord may incur to cure such
default;
|
|
(2)
|
Landlord
may terminate this Lease by giving to Tenant notice of Landlord's
election
to do so, in which event the Term shall end, and all right, title
and
interest of Tenant hereunder shall expire, on the date stated in
such
notice;
|
|
(3)
|
Landlord
may terminate the right of Tenant to possession of the Premises without
terminating this Lease by giving notice to Tenant that Tenant's right
to
possession shall end on the date stated in such notice, whereupon
the
right of Tenant to possession of the Premises or any part thereof
shall
cease on the date stated in such notice;
and
|
|
(4)
|
Landlord
may enforce the provisions of this Lease and may enforce and protect
the
rights of Landlord hereunder by a suit or suits in equity or at law
for
the specific performance of any covenant or agreement contained herein,
or
for the enforcement of any other appropriate legal or equitable remedy,
including recovery of all moneys due or to become due from Tenant
under
any of the provisions of this
Lease.
|
Landlord
shall not be required to serve Tenant with any notices or demands as a
prerequisite to its exercise of any of its rights or remedies under this Lease,
other than those notices and demands specifically required by law or otherwise
under this Lease. Tenant waives any right to trial by jury in any lawsuit
brought by Landlord to recover possession of the premises following Landlord's
16
termination
of this lease pursuant to section 22a(2) or the right of tenant to
possession of the Premises pursuant to section 22a(3) and on any
claim for delinquent rent which Landlord may join in its lawsuit to recover
possession.
B. If
Landlord exercises either of the remedies provided in Sections 22.A.(2) or
22.A.(3), Tenant shall surrender possession and vacate the Premises and
immediately deliver possession thereof to Landlord, and Landlord may re-enter
and take complete and peaceful possession of the Premises, with process of
law,
full and complete license to do so being hereby granted to Landlord, and
Landlord may remove all occupants and property therefrom, using such force
as
may be necessary to the extent allowed by law without relinquishing Landlord's
right to Rent or any other right given to Landlord hereunder or by operation
of
law.
C. If
Landlord terminates the right of Tenant to possession of the Premises without
terminating this Lease, Landlord shall have the right to immediate recovery
of
all amounts then due hereunder. Such termination of possession shall not release
Tenant, in whole or in part, from Tenant's obligation to pay Rent hereunder
for
the full Term, and Landlord shall have the right, from time to time, to recover
from Tenant, and Tenant shall remain liable for, all Base Rent, Additional
Rent
and any other sums accruing as they become due under this Lease during the
period from the date of such notice of termination of possession to the stated
end of the Term. In any such case, Landlord shall use reasonable good faith
efforts to relet the Premises or any part thereof for the account of Tenant
for
such rent, for such time (which may be for a term extending beyond the Term)
and
upon such terms as Landlord shall determine and may collect the rents from
such
reletting. Landlord shall not be required to accept any tenant offered by Tenant
or to observe any instructions given by Tenant relative to such reletting.
Also,
in any such case, Landlord may make repairs in or to the Premises to the extent
reasonably deemed by Landlord necessary or desirable and in connection therewith
change the locks to the Premises. The rents from any such reletting shall be
applied first to the payment of the expenses of reentry and repair and the
expenses of reletting and second to the payment of Rent herein provided to
be
paid by Tenant. Any excess or residue shall operate only as an offsetting credit
against the amount of Rent due and owing as the same thereafter becomes due
and
payable hereunder, and the use of such offsetting credit to reduce the amount
of
Rent due Landlord, if any, shall not be deemed to give Tenant any right, title
or interest in or to such excess or residue and any such excess or residue
shall
belong to Landlord solely, and in no event shall Tenant be entitled to a credit
on its indebtedness to Landlord in excess of the aggregate sum (including Base
Rent and Additional Rent) which would have been paid by Tenant for the period
for which the credit to Tenant is being determined, had no Event of Default
occurred. No such reentry or repossession, repairs, alterations and additions,
or reletting shall be construed as an eviction or ouster of Tenant or as an
election on Landlord's part to terminate this Lease, unless a written notice
of
such intention is given to Tenant, or shall operate to release Tenant in whole
or in part from any of Tenant's obligations hereunder, and Landlord, at any
time
and from time to time, may ▇▇▇ and recover judgment for any deficiencies
remaining after the application of the proceeds of any such
reletting.
D. If
this
Lease is terminated by Landlord pursuant to Section 22.A.(2), Landlord
shall be entitled to recover from Tenant all Rent accrued and unpaid for the
period up to and including such termination date, as well as all other
additional sums payable by Tenant, or for which Tenant is liable or for which
Tenant has agreed to indemnify Landlord under any of the provisions of this
Lease, which may be then owing and unpaid, and all costs and expenses, including
without limitation court costs and attorneys' fees incurred by Landlord in
the
enforcement of its rights and remedies hereunder, and, in addition, Landlord
shall be entitled to recover as damages for loss of the bargain and not as
a
penalty (i) the unamortized portion of any concessions offered by Landlord
to Tenant in connection with this Lease, including without limitation Landlord's
contribution to the cost of tenant improvements and alterations, if any,
installed by either Landlord or Tenant pursuant to this Lease or any work letter
in connection with this Lease, (ii) the aggregate sum which at the time of
such termination represents the excess, if any, of the present value of the
aggregate rents which would have been payable after the termination date had
this Lease not been terminated, including, without limitation, Base Rent at
the
annual rate or respective annual rates for the remainder of the Term provided
for in this Lease and the amount projected by Landlord to represent Additional
Rent for the remainder of the Term over the then present value of the then
aggregate fair rent value of the
17
Premises
for the balance of the Term, such present worth to be computed in each case
on
the basis of a seven percent (7%) per annum discount from the respective dates
upon which such Rents would have been payable hereunder had this Lease not
been
terminated, and (iii) any damages in addition thereto, including without
limitation reasonable attorneys' fees and court costs, which Landlord sustains
as a result of the breach of any of the covenants of this Lease other than
for
the payment of Rent.
E. Landlord
shall use such efforts to mitigate any damages resulting from an Event of
Default by Tenant under this Lease that are determined appropriate by Landlord
under the circumstances in its reasonable discretion. Landlord's obligation
to
mitigate damages after an Event of Default by Tenant under this Lease shall
be
satisfied in full if Landlord undertakes to lease the Premises to another tenant
(a "Substitute
Tenant")
in
accordance with the following criteria:
|
(1)
|
Subject
to Landlord’s obligations under the laws of the state of Utah to mitigate
damages, Landlord shall have no obligations to solicit or entertain
negotiations with any other prospective tenants for the Premises
until
Landlord obtains full and complete posses-sion of the Premises including,
without limitation, the final and unappealable legal right to relet
the
Premises free of any claim of
Tenant;
|
|
(2)
|
Landlord
shall not be obligated to lease or show the Premises, on a priority
basis,
offer the Premises to a prospective tenant when other premises in
the
Building suitable for that prospective tenant's use are
available;
|
|
(3)
|
Landlord
shall not be obligated to lease the Premises to a Substitute Tenant
for a
Rent less than the current fair market Rent then prevailing for similar
uses in comparable buildings in the same market area as the Building,
nor
shall Landlord be obligated to enter into a new lease under other
terms
and conditions that are reasonably unacceptable to Landlord under
Landlord's then current leasing policies for comparable space in
the
Building;
|
|
(4)
|
Landlord
shall not be obligated to enter into a lease with a Substitute Tenant
whose use would:
|
|
(i)
|
violate
any restriction, covenant, or requirement contained in the lease
of
another tenant of the Building;
|
|
(ii)
|
adversely
affect the reputation of the Building;
or
|
| (iii) |
be
incompatible with the operation of the Building as an office
building;
|
|
(5)
|
Landlord
shall not be obligated to enter into a lease with any proposed Substitute
Tenant which does not have, in Landlord's reasonable opinion, sufficient
financial resour-ces to operate the Premises in a first class manner;
and
|
|
(6)
|
Landlord
shall not be required to expend any amount of money to alter, remodel,
or
otherwise make the Premises suitable for use by a proposed Substitute
Tenant unless:
|
|
(i)
|
Tenant
pays any such sum to Landlord in advance of Landlord's execution
of a
lease with such tenant (which payment shall not be in lieu of any
damages
or other sums to which Landlord may be entitled as a result of Tenant's
default under this Lease); or
|
|
(ii)
|
Landlord,
in Landlord's reasonable discretion, determines that any such expenditure
is financially justified in connection with entering into any such
substitute lease.
|
F. All
property of Tenant removed from the Premises by Landlord pursuant to any
provision of this Lease or applicable law may be handled, removed or stored
by
Landlord at the cost and expense of
18
Tenant,
and Landlord shall not be responsible in any event for the value, preservation
or safekeeping thereof except as required by applicable law. Tenant shall pay
Landlord for all expenses incurred by Landlord with respect to such removal
and
storage so long as the same is in Landlord's possession or under Landlord's
control. All such property not retaken from storage by Tenant within thirty
(30)
days after such property has been placed in storage, may, at Landlord's option,
be sold by Landlord with any proceeds applied toward any amount owed by Tenant
under this Lease, or Landlord may donate the property to charity if the donation
is a commercially reasonable alternative.
G. If
Tenant
is adjudged bankrupt, or a trustee in bankruptcy is appointed for Tenant,
Landlord and Tenant, to the extent permitted by law, agree to request that
the
trustee in bankruptcy determine within sixty (60) days thereafter whether to
assume or to reject this Lease.
H. The
receipt by Landlord of less than the full rent due shall not be construed to
be
other than a payment on account of rent then due, nor shall any statement on
Tenant's check or any letter accompanying Tenant's check be deemed an accord
and
satisfaction, and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of the rent due or to pursue any other
remedies provided in this lease. The acceptance by Landlord of rent hereunder
shall not be construed to be a waiver of any breach by Tenant of any term,
covenant or condition of this Lease. No act or omission by Landlord or its
employees or agents during the term of this Lease shall be deemed an acceptance
of a surrender of the Premises, and no agreement to accept such a surrender
shall be valid unless in writing and signed by Landlord.
I. In
the
event of any litigation -between Tenant and Landlord to enforce any provision
of
this Lease or any right of either party hereto, the unsuccessful party to such
litigation shall pay to the successful party all costs and expenses, including
reasonable attorney's fees, incurred therein. Furthermore, if Landlord, without
fault, is made a party to any litiga-tion instituted by or against Tenant,
Tenant shall indemnify Landlord against, and pro-tect, defend, and save it
harmless from, all costs and expenses, including reasonable attorney's fees,
incurred by it in connection therewith. If Tenant, without fault, is made party
to any litigation instituted by or against Landlord, Landlord shall indemnify
Tenant against, and protect, defend, and save it harmless from, all costs and
expenses, including reasonable attorney's fees, incurred by it in connection
therewith.
J. In
the
event of a default by Landlord, Tenant shall be entitled to exercise any remedy
available to Tenant under applicable law.
23. No
Waiver.
Failure
of Landlord to declare any default immediately upon its occurrence, or delay
in
taking any action in connection with an event of default, shall not constitute
a
waiver of such default, nor shall it constitute an estoppel against Landlord,
but Landlord shall have the right to declare the default at any time and take
such action as is lawful or authorized under this Lease. Failure by Landlord
to
enforce its rights with respect to any one default shall not constitute a waiver
of its rights with respect to any subsequent default.
24. Peaceful
Enjoyment.
Tenant
shall, and may peacefully have, hold, and enjoy the Premises, subject to the
other terms hereof, provided that Tenant pays the Rent and other sums herein
recited to be paid by Tenant and timely performs all of Tenant's covenants
and
agreements herein contained. This covenant and any and all other covenants
of
Landlord shall be binding upon Landlord and its successors only with respect
to
breaches occurring during its or their respective periods of ownership of the
Landlord's interest hereunder.
25. Holding
Over.
In the
event of holding over by Tenant after expiration or other termination of this
Lease or in the event Tenant continues to occupy the Premises after the
termination of Tenant's right of possession pursuant to Section 22.A(3) hereof,
occupancy of the Premises subsequent to such termination or expiration shall
be
that of a tenancy at sufferance and in no event for month-to-month or
year-to-year. Tenant shall, throughout the entire holdover period, be subject
to
all the terms and provisions of this Lease and shall pay for its use and
occupancy an amount (on a per month basis without reduction for any partial
months during any such holdover) equal to One Hundred Fifty Percent (150%)
of
the Base Rent which would have been applicable had the Lease Term continued
through the period of
19
such
holding over by Tenant. No holding over by Tenant or payments of money by Tenant
to Landlord after the expiration of the Lease Term shall be construed to extend
the Lease Term or prevent Landlord from recovery of immediate possession of
the
Premises by summary proceedings or otherwise unless Landlord has sent written
notice to Tenant that Landlord has elected to extend the Lease Term.
26. Subordination
to Mortgage/Estoppel Certificate.
Subject
to acknowledgement by any lienholder of this Lease, and the agreement not to
disturb Tenant’s possession and enjoyment of the Premises so long a Tenant is
not in default hereunder, Tenant accepts this Lease subject and subordinate
to
any mortgage, deed of trust or other lien presently existing or hereafter
arising upon the Premises, or upon the Building and/or the Property and to
any
renewals, modifications, refinancings and extensions thereof, but Tenant agrees
that any such mortgagee shall have the right at any time to subordinate such
mortgage, deed of trust or other lien to this Lease on such terms and subject
to
such conditions as such mortgagee may deem appropriate in its discretion. The
provisions of the foregoing sentence shall be self-operative and no further
instrument of subordination shall be required. However, subject to receipt
by
Tenant of an acceptable Nondisturbance Agreement, Landlord is hereby irrevocably
vested with full power and authority to subordinate this Lease to any mortgage,
deed of trust or other lien now existing or hereafter placed upon the Premises,
or the Building and/or the Property and Tenant agrees within ten (10) days
after
demand to execute such further instruments subordinating this Lease or attorning
to the holder of any such liens as Landlord may request. The terms of this
Lease
are subject to approval by the Landlord's existing lender(s) and any lender(s)
who, at the time of the execution of this Lease, have committed or are
considering committing to Landlord to make a loan secured by all or any portion
of the Property, and such approval is a condition precedent to Landlord's
obligations hereunder. Tenant agrees that it will from time-to-time upon request
by Landlord execute and deliver to such persons as Landlord shall request a
statement in recordable form certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is
in
full force and effect as so modified), stating the dates to which rent and
other
charges payable under this Lease have been paid, stating that Landlord is not
in
default hereunder (or if Tenant alleges a default stating the nature of such
alleged default) and further stating such other matters as Landlord shall
reasonably require. Tenant agrees periodically to furnish within ten (10) days
after so requested by Landlord, ground lessor or the holder of any deed of
trust, mortgage or security agreement covering the Building, the Property,
or
any interest of Landlord therein, a certificate signed by Tenant certifying
(a) that this Lease is in full force and effect and unmodified (or if there
have been modifications, that the same is in full force and effect as modified
and stating the modifications), (b) as to the Commencement Date and the
date through which Base Rent and Tenant’s Additional Rent have been paid, (c)
that except as stated in the certificate, Tenant has accepted possession of
the
Premises and that any improvements required by the terms of this Lease to be
made by Landlord have been completed to the satisfaction of Tenant,
(d) that except as stated in the certificate no rent has been paid more
than thirty (30) days in advance of its due date, (e) that the address for
notices to be sent to Tenant is as set forth in this Lease (or has been changed
by notice duly given and is as set forth in the certificate), (f) that
except as stated in the certificate, Tenant, as of the date of such certificate,
has no charge, lien, or claim of offset against rent due or to become due,
(g) that except as stated in the certificate, Landlord is not then in
default under this Lease, (h) as to the amount of the Approximate Rentable
Area of the Premises then occupied by Tenant, (i) that there are no renewal
or extension options, purchase options, rights of first refusal or the like
in
favor of Tenant except as set forth in this Lease, (j) the amount and nature
of
accounts payable to Landlord under terms of this Lease, and (k) as to such
other matters as may be reasonably requested by Landlord or ground lessor or
the
holder of any such deed of trust, mortgage or security agreement. Any such
certificate may be relied upon by any ground lessor, prospective purchaser,
secured party, mortgagee or any beneficiary under any mortgage, deed of trust
on
the Building or the Property or any part thereof or interest of Landlord
therein. Landlord agrees to execute and deliver to Tenant such estoppel
certificates as Tenant may reasonably request.
27. Notice.
Any
notice required or permitted to be given under this Lease or by law shall be
deemed to have been given if it is written and delivered in person or mailed
by
Registered or Certified mail, postage prepaid, or sent by a nationally
recognized overnight delivery service to the party who is to receive such notice
at the address specified in Section 1.Y. of this Lease. When so mailed, the
notice shall be deemed to have been given two (2) business days after the date
it was mailed. When sent by overnight delivery service, the notice shall be
deemed to have been given on the next business day after deposit with such
20
overnight
delivery service. The address specified in Section 1.Y. of this Lease may
be changed from time to time by giving written notice thereof to the other
party.
28. Surrender
of Premises.
Upon the
termination, whether by lapse of time or otherwise, or upon any termination
of
Tenant’s right to possession without termination of the Lease, Tenant will at
once surrender possession and vacate the Premises, together with all Leasehold
Improvements (except those Leasehold Improvements Tenant is required to remove
pursuant to Section 8 hereof), to Landlord in good condition and repair,
ordinary wear and tear excepted; conditions existing because of Tenant’s failure
to perform maintenance, repairs or replacements as required of Tenant under
this
Lease shall not be deemed “reasonable wear and tear.” Tenant shall surrender to
Landlord all keys to the Premises and make known to Landlord the explanation
of
all combination locks which Tenant is permitted to leave on the Premises.
Subject to the Landlord’s rights under Section 22 hereof, if Tenant fails to
remove any of Tenant’s Property within one (1) day after the termination of this
Lease, or Tenant’s right to possession hereunder, Landlord, at Tenant’s sole
cost and expenses, shall be entitled to remove and/or store such Tenant’s
Property pursuant to law. Tenant shall pay Landlord, upon demand, any and all
reasonable expenses caused by such removal and all storage charges against
such
property so long as the same shall be in possession of Landlord or under the
control of Landlord. All such property not retaken from storage by Tenant within
thirty (30) days after such property has been placed in storage, may, at
Landlord's option, be sold by Landlord with any proceeds applied toward any
amount owed by Tenant under this Lease, or Landlord may donate the property
to
charity if the donation is a commercially reasonable alternative.
29. Rights
Reserved to Landlord.
Landlord
reserves the following rights, exercisable without notice, except as provided
by
law or otherwise herein, and without liability to Tenant for damage or injury
to
property, person or business and without affecting an eviction or disturbance
of
Tenant’s use or possession or giving rise to any claim for setoff or abatement
of rent or affecting any of Tenant’s obligations under this Lease: (1) upon
thirty (30) days prior notice to change the name or street address of the
Building; (2) to install and maintain signs on the exterior and interior of
the
Building; (3) to designate and approve window coverings to present a uniform
exterior appearance; (4) to make any decorations, alterations, additions,
improvements to the Building or Property, or any part thereof (including, with
prior notice, the Premises) which Landlord shall desire, or deem necessary
for
the safety, protection, preservation or improvement of the Building or Property,
or as Landlord may be required to do by law; (5) to have access to the Premises
at reasonable hours to perform its duties and obligations and to exercise its
rights under this Lease; (6) to retain at all times and to use in appropriate
instances, pass keys to all locks within and to the Premises; (7) to approve
the
weight, size, or location of heavy equipment, or articles within the Premises;
(8) to close or restrict access to the Building at all times other than Normal
Business Hours subject to Tenant’s right to admittance at all times under such
regulations as Landlord may reasonably prescribe from time to time, or to close
(temporarily) any of the entrances to the Building at any time Landlord
determines it is necessary to do so to minimize the risk of injuries or death
to
persons or damage to property (9) to change the arrangement and/or location
of
entrances of passageways, doors and doorways, corridors, elevators, stairs,
toilets and public parts of the Building or Property, so long as such change
does not unreasonably interefere with access to or use of the Premises; (10)
to
reasonably regulate access to telephone, electrical and other utility closets
in
the Building and to require use of designated contractors for any work involving
access to the same; (11) if Tenant has vacated the Premises during the last
six
(6) months of the Lease Term, to perform additions, alterations and improvements
to the Premises in connection with a reletting or anticipated reletting thereof
without being responsible or liable for the value or preservation of any then
existing improvements to the Premises; and (12) to grant to anyone the exclusive
right to conduct any business or undertaking in the Building provided Landlord’s
exercise of its rights under this clause 12, shall not be deemed to prohibit
Tenant from the operation of its business in the Premises and shall not
constitute a constructive eviction.
30. Miscellaneous.
A. If
any
term or provision of this Lease, or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder
of
this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and enforced to the fullest extent permitted by law.
21
B. Tenant
agrees not to record this Lease or any short form or memorandum
hereof.
C. This
Lease and the rights and obligations of the parties hereto shall be interpreted,
construed, and enforced in accordance with the laws of the state in which the
Building is located. Landlord and Tenant agree to use mediation and/or
arbitration first, prior to using the legal process involving the courts, to
settle issues other than those dealing with the payment of Rent.
D. Events
of
“Force
Majeure”
shall
include strikes, riots, acts of God, acts of terror, epidemics, shortages of
labor or materials, war, governmental laws, regulations or restrictions, or
any
other cause whatsoever beyond the control of Landlord or Tenant, as the case
may
be. Whenever a period of time is herein prescribed for the taking of any action
by Landlord or Tenant (other than the payment of Rent and all other such sums
of
money as shall become due hereunder), such party shall not be liable or
responsible for, there shall be excluded from the computation of such period
of
time, any delays due to events of Force Majeure.
E. Except
as
expressly otherwise herein provided, with respect to all required acts of Tenant
or Landlord, time is of the essence of this Lease.
F. Landlord
shall have the right to transfer and assign, in whole or in part, all of its
rights and obligations hereunder and in the Building and Property referred
to
herein, and in such event and upon such transfer Landlord shall be released
from
any further obligations hereunder, and Tenant agrees to look solely to such
successor in interest of Landlord for the performance of such
obligations.
G. Tenant
hereby represents to Landlord that it has dealt directly with and only with
the
Broker as a broker in connection with this Lease. Landlord and Tenant hereby
indemnify and hold each other harmless against any loss, claim, expense or
liability with respect to any commissions or brokerage fees claimed on account
of the execution and/or renewal of this Lease due to any action of the
indemnifying party.
H. If
there
is more than one Tenant, or if the Tenant as such is comprised of more than
one
person or entity, the obligations hereunder imposed upon Tenant shall be joint
and several obligations of all such parties. All notices, payments, and
agreements given or made by, with or to any one of such persons or entities
shall be deemed to have been given or made by, with or to all of
them.
I. The
individual signing this Lease on behalf of Tenant represents (1) that such
individual is duly authorized to execute or attest and deliver this Lease on
behalf of Tenant in accordance with the organizational documents of Tenant;
(2)
that this Lease is binding upon Tenant; (3) that Tenant is duly organized and
legally existing in the state of its organization, and is qualified to do
business in the state in which the Premises is located.
J. Tenant
acknowledges that the financial capability of Tenant to perform its obligations
hereunder is material to Landlord and that Landlord would not enter into this
Lease but for its belief, based on its review of Tenant's financial statements,
that Tenant is capable of performing such financial obligations. Tenant hereby
represents, warrants and certifies to Landlord that its financial statements
previously furnished to Landlord were at the time given true and correct in
all
material respects and that there have been no material subsequent changes
thereto as of the date of this Lease.
K. Notwithstanding
anything to the contrary contained in this Lease, the expiration of the Lease
Term, whether by lapse of time or otherwise, shall not relieve Tenant from
Tenant’s obligations accruing prior to the expiration of the Lease Term, and
such obligations shall survive any such expiration or other termination of
the
Lease Term.
L. Landlord
has delivered a copy of this Lease to Tenant for Tenant's review only, and
the
delivery hereof does not constitute an offer to Tenant or an option. This Lease
shall not be effective until an original of this Lease executed by both Landlord
and Tenant and an original Guaranty, if applicable, executed by each Guarantor
is delivered to and accepted by Landlord, and this Lease has been approved
by
Landlord's mortgagee, if required.
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M. Landlord
and Tenant understand, agree and acknowledge that (i) this Lease has been freely
negotiated by both parties; and (ii) in any controversy, dispute or contest
over
the meaning, interpretation, validity, or enforceability of this Lease or any
of
its terms or conditions, there shall be not inference, presumption, or
conclusion drawn whatsoever against either party by virtue of that party having
drafted this Lease or any portion thereof.
N. The
headings and titles to the paragraphs of this Lease are for convenience only
and
shall have no affect upon the construction or interpretation of any part
hereof.
O. Receipt
by Landlord of Tenant's keys to the Premises shall not constitute an acceptance
of surrender of the Premises.
31. Entire
Agreement.
This
Lease, including the following Exhibits:
Exhibit
A
- Outline and Location of Premises
Exhibit B
- Rules
and Regulations
Exhibit
C
- Payment of Basic Costs
Exhibit
D
- Work Letter
Exhibit
E
- Additional Provisions (if required)
Exhibit
F
- Commencement Letter (Sample)
constitutes
the entire agreement between the parties hereto with respect to the subject
matter of this Lease and supersedes all prior agreements and understandings
between the parties related to the Premises, including all lease proposals,
letters of intent and similar documents. Tenant expressly acknowledges and
agrees that Landlord has not made and is not making, and Tenant, in executing
and delivering this Lease, is not relying upon, any warranties, representations,
promises or statements, except to the extent that the same are expressly set
forth in this Lease. All understandings and agreements heretofore had between
the parties are merged in this Lease which alone fully and completely expresses
the agreement of the parties, neither party relying upon any statement or
representation not embodied in this Lease. This Lease may be modified only
be a
written agreement signed by Landlord and Tenant. Landlord and Tenant expressly
agree that there are and shall be no implied warranties of merchantability,
fitness for a particular purpose or of any other kind arising out of this Lease,
all of which are hereby waived by Tenant, and that there are no warranties
which
extend beyond those expressly set forth in this Lease unless otherwise provided
by law.
32. Limitation
of Liability.
Notwithstanding anything to the contrary contained in this lease, the liability
of Landlord to Tenant for any default by Landlord under this Lease shall be
limited to the interest of Landlord in the Building and the Property and Tenant
agrees to look solely to Landlord’s interest in the Building and the Property
for the recovery of any judgment against the Landlord, it being intended that
Landlord shall not be personally liabile for any judgment or deficiency. Tenant
hereby covenants that, prior to the filing of any suit for direct and proximate
damages, it shall give Landlord and all mortgagees whom Tenant has been
notified, hold mortgages or deed of trust liens on the Property, Building or
Premises (“Landlord Mortgagees”) notice and reasonable time to cure any alleged
default by Landlord.
33. Expansion
Rights.
During
the first twelve (12) months of the Lease Term, Tenant has a one-time first
right of refusal to lease the remaining space on the 4th
floor at
the same terms and conditions, including Base Rent and Tenant Improvement
Allowance, given to Tenant in the initial Lease. If Tenant has not exercised
this first right of refusal during the initial twelve (12) months of the Lease
Term, then this right shall revert to a first right of offer. Tenant shall
be
provided a first right of offer on all contiguous space. Tenant shall have
ten
(10) days to notify Landlord in writing of their decision to either accept
the
terms and conditions of the offer or pass. In the event Tenant passes, then
Landlord shall be free to enter into a lease with the prospective tenant.
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IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease in multiple
original counterparts as of the day and year first above written.
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WITNESS/ATTEST
By:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
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LANDLORD:
Edgewater Corporate Park LLC, a Delaware limited liability
company
By:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Vice President
|
|
WITNESS/ATTEST
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Interim Chief Financial Officer
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TENANT:
ClearOne Communications, a Utah corporation
By:
/s/ Zee Hakimoglu
Name:
Zee Hakimoglu
Title:
President and Chief Executive
officer
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