Exhibit 10.25
DEED OF INDUSTRIAL LEASE
------------------------
(TRIPLE NET)
Basic Lease Information
Date: November 15, 2004
Landlord: CalEast Industrial Investors. LLC. a California limited liability
company.
Tenant: GigaBeam Corporation, a Delaware corporation
Premises (section 1.1): The space(s) in the building(s) outlined in Exhibit
A, containing approximately 5,397 square feet (more or less) of
building area, the street address(es) of which is (are) known as ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Suite 900, Herndon. Virginia 20170 (subject to
adjustment in accordance with the terms of Paragraph 1 of the
Addendum)
Building (section 1.1): The building containing approximately 52,855 square
feet (more or less of building area), the street address of which is
known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Hemdon. Virginia 20170
Property (section 1.1): The land and the building(s) outlined in Exhibit A,
containing approximately 357,463 square feet (more or less) of total
building area, located in Herndon. Virginia and known as Spring Park
Technology Center
Term (section 2.1): Three (3) years and two (2) days
Commencement Date (section 2.1): November 29. 2004 (subject to Tenant's rights
under section 2.2 herein)
Expiration Date (section 1.1): November 30, 2007
Monthly Base Rent (dollars per month) (section 3. l(a)):
Commencement Date - 11/ 30/05 - $5,621.88
12/01/05 - Date Immediately Preceding the Expansion Date - $5.790.53
Expansion Date - 11/30/06 - S9.870.83
12/01/06 - 11/30/07 - $ 10,166.96
Tenant's Percentage Share (section 3.l(b)): 1.51% (provided, however, that on
and after the Expansion. Date, the Tenant's Percentage Share shall
be automatically increased to 2.57%)* *subject to further increase
in the event Tenant exercises its Right of First Offer under
Paragraph 5 of the Addendum
Tenant's Tax Percentage Share (section 3.1(b)): 5.14 %(provided, however,
that on and after the Expansion Date, the Tenant's Fax Percentage
Share shall be automatically increased to 8.77%)* *subject to
further increase in the event Tenant exercises its Right of First
Offer under Paragraph 5 of the Addendum
Initial Additional Monthly Rent Estimate (dollars per month) (section 3.2):
$1,785.51
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Security Deposit (section 3.3): $20.000.00 (subject to reduction in accordance
with the terms of section 3.3 herein)
Rent Payment Address (section 3.2): CalEast Industrial Investors. LLC
Herndon - Spring Park
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇. Illinois 60693
Permitted Use of the Premises (section 4.1): Design, development and
manufacturing of wireless communications equipment and general
office and warehousing related thereto
Landlord's Address (section 14.1): CalEast Industrial Investors. LLC, c/o
LaSalle Investment Management, Inc.. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
Baltimore. Maryland 21202 attention: ▇▇ ▇▇▇▇▇▇▇▇ . and a copy
simultaneously c/o CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Suite 600. Herndon, Virginia 20170, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tenant's Address (section 14.1): GigaBeam Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Suite 900
Herndon, Virginia 20170
Real Estate Broker(s) (section 14.6): CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. and Advantis Real
Estate Services Company
Exhibit A - Plan(s) Outlining the Premises and the Property
Exhibit B - Description of Landlord's Work
Exhibit C - Form of Memorandum Confirming Term
Exhibit D - Permitted Use of Hazardous Materials
Exhibit E - Rules and Regulations
Other Attachments (if any): Addendum
The foregoing BASIC LEASE INFORMATION is incorporated in and made a part
of the Lease to which it is attached. If there is any conflict between the BASIC
LEASE INFORMATION and the Lease, the BASIC LEASE INFORMATION shall control.
G1GABEAM CORPORATION, CALEAST INDUSTRIAL INVESTORS. LLC.
a Delaware corporation a California limited liability company,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: CFO
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By: LASALLE INVESTMENT MANAGEMENT,
INC.. a Maryland corporation, Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
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TABLE OF CONTENTS
Page
ARTICLE 1 Premises ....................................................... 1
1.1 Lease of Premises .............................................. 1
ARTICLE 2 Term ........................................................... 1
2.1 Term of Lease .................................................. 1
2.2 Improvements ................................................... 1
2.3 Adjustment of Expiration Date .................................. 1
2.4 Holding Over ................................................... 1
ARTICLE 3 RENT ........................................................... 2
3.1 Base Rent and Additional Rent .................................. 2
3.2 Procedures ..................................................... 2
3.3 Security Deposit ............................................... 2
3.4 Late Payment ................................................... 3
3.5 Other Taxes Payable by Tenant .................................. 3
3.6 Certain Definitions ............................................ 3
3.7 No Accord and Satisfaction ..................................... 4
ARTICLE 4 Use of the Premises ............................................ 4
4.1 Permitted Use .................................................. 4
4.2 Environmental Definitions ...................................... 4
4.3 Environmental Requirements ..................................... 4
4.4 Compliance With Law ............................................ 5
4.5 Entry by Landlord .............................................. 5
4.6 Rules and Regulations .......................................... 5
ARTICLE 5 Utilities and Services ......................................... 5
5.1 Tenant's Responsibilities ...................................... 5
ARTICLE 6 Maintenance and Repairs ........................................ 6
6.1 Obligations of Landlord ........................................ 6
6.2 Obligations of Tenant .......................................... 6
ARTICLE 7 Alteration of the Premises ..................................... 7
7.1 No Alterations by Tenant ....................................... 7
7.2 Landlord's Property ............................................ 7
ARTICLE 8 Indemnification and Insurance .................................. 7
8.1 Damage or Injury ............................................... 7
8.2 Insurance ...................................................... 7
8.3 Waiver of Subrogation .......................................... 8
8.4 Landlord Insurance Requirements ................................ 8
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TABLE OF CONTENTS
(continued)
Page
ARTICLE 9 Assignment or Sublease ......................................... 8
9.1 Prohibition .................................................... 8
ARTICLE 10 Events of Default and Remedies ................................ 9
10.1 Default by Tenant ............................................. 9
10.2 Termination ................................................... 9
10.3 Tenant's Primary Duty ......................................... 10
10.4 Abandoned Property ............................................ 10
10.5 Landlord Default .............................................. 10
ARTICLE 11 Casualty ...................................................... 10
11.1 Casualty ...................................................... 10
ARTICLE 12 Eminent Domain ................................................ 10
12.1 Condemnation .................................................. 10
ARTICLE 13 Subordination and Sale ........................................ 11
13.1 Subordination ................................................. 11
13.2 Estoppel Certificate .......................................... 11
ARTICLE 14 Miscellaneous ................................................. 11
14.1 Notices ....................................................... 11
14.2 General ....................................................... 12
14.3 No Waiver ..................................................... 12
14.4 Attorneys' Fees ............................................... 12
14.5 Exhibits ...................................................... 12
14.6 Broker(s) ..................................................... 12
14.7 Waivers of Jury Trial and Certain Damages ..................... 12
14.8 Entire Agreement .............................................. 12
EXHIBIT A PLAN(S) OUTLINING THE PREMISES AND THE PROPERTY ................ 1
EXHIBIT B DESCRIPTION OF LANDLORD'S WORK ................................. 1
EXHIBIT B-1 WORK PLAN .................................................... 1
EXHIBIT C MEMORANDUM CONFIRMING TERM ..................................... 1
EXHIBIT D PERMITTED USE OF HAZARDOUS MATERIALS ........................... 1
EXHIBIT E RULES AND REGULA TIONS ......................................... 1
ADDENDUM ................................................................. 1
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DEED OF INDUSTRIAL LEASE
THIS DEED OF INDUSTRIAL LEASE, made as of the date specified in the Basic
Lease Information, is by and between Landlord and Tenant.
WITNESSETH:
ARTICLE I
Premises
1.1 Lease of Premises. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, the Premises located on the Property, all as outlined on
the plan(s) attached hereto as Exhibit A. The Property includes the land and the
building(s) in which the Premises is located. During the term of this Lease.
Tenant shall have the nonexclusive right to use only for their intended purposes
the common areas in the Property that are designated by Landlord as common
areas. Landlord shall have the right from time to time to change the size,
location, configuration, character or use of any such common areas, construct
additional improvements or facilities in any such common areas, or close any
such common areas.
ARTICLE 2
Term
2.1 Term of Lease. The term of this Lease shall be the term specified in
the BASIC LEASE Information, which shall commence on the Commencement Date and,
unless sooner terminated as hereinafter provided, shall end on the Expiration
Date. If Landlord, for any reason whatsoever, does not deliver possession of the
Premises to Tenant on the Commencement Date, this Lease shall not be void or
voidable and Landlord shall not be liable to Tenant for any loss or damage
resulting therefrom, but, in such event, the Commencement Date shall be
postponed until the date on which Landlord delivers possession of the Premises
to Tenant. Except for the improvements to be constructed or installed by
Landlord pursuant to Exhibit B (if any), Landlord shall have no obligation to
construct or install any improvements in the Premises or the Property and Tenant
shall accept the Premises "as is" on the Commencement Date. Landlord and Tenant
expressly agree that there are and shall be no implied warranties of
merchantability, habitability, fitness, for a particular purpose or of any other
kind arising out of this Lease and there are no warranties which extend beyond
those expressly set forth in this Lease.
2.2 Improvements. Landlord shall construct or install the improvements to
be constructed or installed by Landlord pursuant to Exhibit B (the "Landlord's
Work") and Landlord shall deliver possession of the Premises to Tenant on the
Commencement Date or the date of substantial completion of the Landlord's Work,
whichever is later, and Tenant shall accept such delivery of the Premises. The
date of substantial completion of the Landlord's Work shall be the date on which
construction is sufficiently complete so the improvements may be used or
occupied for their intended purpose as permitted under this Lease. If the
Landlord's Work is substantially complete and the Premises is ready for
occupancy by Tenant prior to the Commencement Date, Tenant shall have the right
to take early occupancy of the Premises prior to the Commencement Date and the
term of this Lease shall commence on such date of early occupancy by ▇▇▇▇▇▇, in
which event the Commencement Date shall be advanced to such date of early
occupancy.
2.3 Adjustment of Expiration Date. If the Expiration Date as determined in
accordance with section 2.1 or section 2.2 hereof is not the last day of a
calendar month, then a period of time equal to the number of days between the
scheduled Expiration ▇▇▇▇ and the last day of such calendar month shall be added
to the term such that the actual Expiration Date shall occur on the last day of
the calendar month. Landlord and Tenant each shall, promptly after the actual
Commencement Date and the actual Expiration Date have been determined, execute
and deliver to the other a Memorandum Confirming Term in the form of Exhibit C
attached hereto, but the term of this Lease shall commence and end in accordance
with this Lease whether or not the Memorandum Confirming Term is executed.
2.4 Holdover Rent. If, with consent by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ holds possession
of the Premises after expiration of the term of this Lease. Tenant shall become
a tenant from month to month under this Lease, but the Base Rent during such
month to month tenancy shall be equal to one hundred fifty percent (150%) of the
Base Rent in effect at the expiration of the term of this Lease. Landlord and
Tenant each shall have the right to terminate such month to month tenancy by
giving at least thirty (30) days" written notice of termination to the other at
any time, in which event such tenancy shall terminate on the termination date
set forth in such termination notice.
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ARTICLE 3
Rent
3.1 Base Rent and Additional Rent. Tenant shall pay to Landlord the
following amounts as rent for the Premises:
(a) During the term of this Lease, Tenant shall pay to Landlord, us base
monthly rent, the amount of monthly Base Rent specified in the Basic Lease
Information.
(b) During each calendar year (or part thereof) during the term of this
Lease, Tenant shall pay to Landlord, as additional monthly rent, (x) Tenant's
Percentage Share of all CAM Expenses paid or incurred by Landlord in such year;
(y) Tenant's Percentage Share of all Insurance Costs paid or incurred by
Landlord in such year, and (z) Tenant's Tax Percentage Share of all Property
Taxes incurred by Landlord in such year for the two buildings within Spring Park
Technology Center that contain approximately 104,922 aggregate rentable square
feet and are known as 470 and ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Tax
Lot").
(c) Throughout the term of this Lease, Tenant shall pay, as additional
rent, all other amounts of money and charges required to be paid by Tenant under
this Lease. As used in this Lease, 'rent" shall mean and include all Base Rent,
additional monthly rent and additional rent payable by Tenant in accordance with
this Lease. Tenant shall pay without notice, demand, deduction or offset all
Base Rent and additional monthly rent under section 3.1 hereof to Landlord, in
advance, on or before the first day of each calendar month during the term of
this Lease, at the address for the payment f rent specified in the Basic Lease
Information, or to such other person or at such other place us Landlord may from
time to time designate in writing.
3.2 Procedures. ▇▇▇▇▇▇▇▇'s estimate of the initial monthly rent payable by
Tenant under Section 3.1 (b) hereof each month for the balance of the first
calendar year after the Commencement Date is specified in the Basic Lease
Information. On or before the first day of each subsequent calendar year during
the term of this Lease, or as soon thereafter as practicable, Landlord shall
give Tenant written notice of ▇▇▇▇▇▇▇▇'s estimate of the amounts payable under
section 3.1 (b) for the ensuing calendar year. Tenant shall pay such estimated
amounts to Landlord in equal monthly installments, in advance, on or before the
Commencement Date and on or before the first day of each calendar month during
the term of this Lease. If such notice is not given for any calendar year,
Tenant shall continue to pay on the basis of the prior year's estimate until the
month after such notice is given, and subsequent payments by Tenant shall be
based on Landlord's current estimate. On or before April 30lh of each calendar
year Landlord will deliver to Tenant a statement of the actual CAM Expenses.
Property Taxes and Insurance Costs for the previous year, and, as applicable,
Tenant shall pay Landlord within 30 days of Tenant's receipt of such statement,
the amount of any deficiency of the estimated amounts actually collected by
Landlord during the previous calendar year compared to the actual amounts shown
on such statement or Landlord shall credit any excess amounts collected to the
next monthly installments of the amounts payable by Tenant under section 3. 1(b)
hereof fur, if the term of this Lease has ended. Landlord shall refund the
excess to Tenant with such statement). Tenant or Tenant's authorized agent or
representative shall have the right once each calendar year to inspect the books
of Landlord relating to CAM Expenses. Property Taxes and Insurance Costs for he
prior calendar year at the office of ▇▇▇▇▇▇▇▇'s property manager for the
Property for the purpose of verifying the information in such statement. If the
term of this Lease commences or ends on a day other than the first or last day
of a calendar year, respectively, the amounts payable by Tenant under section
3.1(b) hereof applicable to the calendar year in which such term commences or
ends shall be prorated according to the ratio which the number of days during
the term of this Lease in such calendar year boars to three hundred sixty-five
(365). Termination of this Lease shall not affect the obligations of Landlord
and Tenant pursuant to tins section to be performed after such termination.
3.3 Security Deposit. Upon signing this Lease, Tenant shall pay to
Landlord the Security Deposit, which shall be held by Landlord as security for
the performance by Tenant of all of its obligations under this Lease and Tenant
shall not be entitled to interest thereon. Notwithstanding anything to the
contrary contained in this Lease, (i) provided that no Event of Default has then
occurred, the amount of the Security Deposit shall be reduced to $15,000 on the
sixth (6th) month anniversary of the Commencement Day, and (ii) provided that no
Event of Default has then occurred, the amount of the Security Deposit shall be
reduced to $10,000 on the second (2nd) anniversary of the Commencement Date, if
Tenant fails to perform any of its obligations under this Lease, then Landlord
shall have the right, but no obligation, to apply the Security Deposit, or so
much thereof as may be necessary, to cure any such failure by Tenant. If
Landlord applies the
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Security Deposit or any part thereof to cure any such failure by Tenant, then
Tenant shall immediately pay to Landlord the sum necessary to restore the
Security Deposit to the full amount required by this section 3.3. Landlord shall
return any remaining portion of the Security Deposit to Tenant within thirty
(30) days after termination of this Lease. Upon termination of the original
Landlord's or any successor owner's interest in the Premises, the original
Landlord or such successor owner shall be released from further liability with
respect to the Security Deposit upon the original Landlord's or such successor
owner's transferring the Security Deposit to the new owner.
3.4 Late Payment. If any monthly installment of Base Rent or additional
monthly rent is not received by Landlord within ten (10) days after such
installment is due. Tenant shall immediately pay to Landlord a late charge equal
to five percent (5%) of such delinquent installment as liquidated damages. All
amounts of money payable by Tenant to Landlord hereunder, if not paid when due,
shall bear interest from the due date until paid at the rate of seven and
one-half percent (7.5%) per annum, and Tenant shall pay such interest to
Landlord on written demand.
3.5 Other Taxes Payable by ▇▇▇▇▇▇. Tenant shall reimburse Landlord, as
additional rent, upon written demand for all taxes, assessments, excises,
levies, fees and charges, including all payments related to the cost of
providing facilities or services, whether or not now customary or within the
contemplation of Landlord and Tenant, that are payable by ▇▇▇▇▇▇▇▇ and levied,
assessed, charged, confirmed or imposed by any public or government authority
upon, or measured by, or reasonably attributable to (a) the cost or value of
Tenant's furniture, fixtures, equipment and other personal property located in
the Premises or the cost or value of any improvements made in or to the Premises
by or for Tenant, regardless of whether title to such improvements is vested in
Tenant or Landlord, (b) any rent payable under this Lease, including any gross
income tax or excise tax levied by any public or government authority with
respect to the receipt of any such rent so long as such tax is a tax on rent,
(c) the possession, leasing, operation, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Premises, or (d) this transaction or
any document to which Tenant is a party creating or transferring an interest or
an estate in the Premises. Such taxes, assessments, excises, levies, fees and
charges shall not include net income (measured by the income of Landlord from
all sources or from sources other than solely rent) or franchise taxes of
Landlord, unless levied or assessed against Landlord in whole or in part in lieu
of, as a substitute for. or as an addition to any such taxes, assessments,
excises, levies, fees and charges.
3.6 Certain Definitions. As used in this Lease, certain words are defined
as follows:
(a) "CAM Expenses" shall mean all direct and indirect costs and expenses
paid or incurred by Landlord in connection with the ownership, management,
operation, maintenance or repair of the Property or providing services in
accordance with this Lease, including, but not limited to. all utilities:
management fees and expenses: snow and ice removal: maintenance of the fire
suppression systems; accounting and other professional fees and expenses;
painting the exterior of the Property: maintaining and repairing the
foundations, the exterior walls and roof, the parking and loading area, the
sidewalks, landscaping and common areas, and the other parts of the Property:
costs and expenses required by or resulting from compliance with any laws,
ordinances, rules, regulations or orders applicable to the Property: and costs
and expenses of contesting by appropriate proceedings any matter concerning
managing, operating, maintaining or repairing the Property, or the validity or
applicability of any law. ordinance, rule, regulation or order relating to the
Property, or the amount or validity of any Property Taxes. CAM Expenses shall
not include Property Taxes. Insurance Costs, charges payable by Tenant pursuant
to section 3.5 hereof, depreciation on the Property, costs of tenants'
improvements, real estate brokers' commissions, interest, or capital costs for
major roof or major parking lot replacement or restoration work necessitated by
lire or other casualty damage lo the extent of net insurance proceeds received
by Landlord with respect thereto.
(b) "Property Taxes" shall mean all taxes, assessments, excises, levies,
fees and charges and any tax. assessment, excise, levy, fee or charge levied
wholly or partly in lieu thereof or as a substitute therefor or as an addition
thereto of .'very kind and description, whether or not now customary or within
the contemplation Landlord and Tenant, that are levied, assessed, charged,
confirmed or imposed by any public or government authority on or against the Tax
Lot or any part thereof or any personal property used in connection with the Tax
Lot. Property Taxes shall not include net income (measured by the income of
Landlord from all sources or from sources other than solely rent) or franchise
taxes of Landlord, unless levied or assessed against Landlord in whole or in pan
in lieu
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of, as a substitute for. or as an addition to any Property Taxes. Property Taxes
shall not include charges payable by Tenant pursuant to section 3.5 hereof.
(c) "Insurance Costs" shall mean all premiums and other charges for all
property, earthquake, flood, loss of rental income, business interruption,
liability and other insurance relating to the Property carried by Landlord.
3.7 No Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount of monthly Base Rent and additional rent or any
other sum due hereunder. shall be deemed to be other than on account of the
earliest due rent or payment, nor shall any endorsement or statement on any
check or any letter accompanying any such check or payment be deemed an accord
and satisfaction.
ARTICLE 4
Use of the Premises
4.1 Permitted Use. Tenant shall use the Premises only for the Permitted
Use of the Premises and for no other purpose whatsoever. Tenant shall not do or
permit to be done in, on or about the Premises, nor bring or keep or permit to
be brought or kept therein, anything which is prohibited by or will in any way
conflict with any law, ordinance, rule, regulation or order now in force or
which may hereafter be enacted, or which is prohibited by any insurance policy
carried by Landlord for the Property, or will in any way increase the existing
rate of, or disallow any fire rating or sprinkler credit, or cause a
cancellation of, or affect any insurance for the Property. Tenant shall not do
or permit anything to be done in or about the Premises which will in any way
obstruct or interfere with the rights of Landlord or other tenants of the
Property, or injure or annoy them. Tenant shall not store any materials,
equipment or vehicles outside the Premises and agrees that no washing of any
type including washing vehicles) shall take place in or outside the Premises.
Tenant shall not receive, store or otherwise handle any product or material that
is explosive or highly inflammable. Tenant shall not install any signs on the
Premises without the prior written consent of Landlord.
4.2 Environmental Definitions. As used in this Lease. "Hazardous Material"
shall mean any hazardous substance, hazardous waste, hazardous material, toxic
substance, asbestos, polychlorinated biphenyl, infectious or medical waste,
petroleum or petroleum product as defined by any federal, state or local law,
now existing or later adopted during the term of this Lease. As used in this
Lease. "Environmental Law" shall mean all federal, state and local laws,
statutes, ordinances, regulations, rules, judicial and administrative orders and
decrees, permits, licenses, approvals, authorizations and similar requirements
of all federal, state and local governmental agencies or other governmental
authorities pertaining to the protection of human health and safety or the
environment, now existing or later adopted during the term of this Lease. As
used in this Lease, "Permitted Materials" shall mean the materials, which are
not Hazardous Materials, handled by Tenant in the ordinary course of conducting
the Permitted Use and any Hazardous Material that is listed by name and maximum
quantity and approved by Landlord on Exhibit D attached hereto.
4.3 Environmental Requirements. Tenant shall not (nor permit others to)
use, .store or otherwise handle any Hazardous Material which is not a Permitted
Material on or about the Premises and all Permitted Materials shall be stored in
a manner that protects the Premises, the Property and the environment from
accidental spills and releases. Tenant shall obtain and maintain in effect all
permits and licenses required pursuant to any the ENVironmental Law for Tenant's
activities on the Premises, and Tenant shall at all times comply with all
applicable Environmental Laws. Tenant shall not store or cause or permit to
occur any release of any Hazardous Material or any condition of pollution or
nuisance on or about the Premises and if kind release of a Hazardous Material to
the environment, or any condition of pollution or nuisance, occurs on or about
or beneath the Premises as a result of any act or omission of Tenant or its
agents, officers, employees, contractors, invitees or licensees. Tenant shall,
at Tenant's sole cost and expense, promptly undertake all remedial measures
required to clean up and ▇▇▇▇▇ or otherwise respond to the release, pollution or
nuisance in accordance with all applicable Environmental Laws. On or before the
date Tenant ceases to occupy the Premises. Tenant shall remove from the Premises
all Hazardous Materials and all Permitted Materials handled by or permitted on
the Premises by ▇▇▇▇▇▇. Tenant shall not use. store or handle any chlorinated
solvent except for de minimus amounts contained in cleaning supplies provided
that such chlorinated solvents and their de minimus amounts are listed and
approved by Landlord on Exhibit D and are used in conformance with Environmental
Laws and good environmental practice. Landlord and Landlord's representatives
shall have the right, but not the obligation, to enter the Premises at any
reasonable time
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for the purpose of inspecting the storage, use and handling of any Hazardous
Material on the Premises in order to determine Tenant's compliance with the
requirements of this Lease and applicable Environmental Law and Tenant shall
correct any violation within five (5) days after ▇▇▇▇▇▇'s receipt of notice of
such violation from Landlord. Tenant shall indemnity and defend Landlord against
and hold Landlord harmless from all claims, demands, actions, judgments,
liabilities, costs, expenses, losses, damages, penalties, fines and obligations
of any nature (including reasonable attorneys' fees and disbursements incurred
in the investigation, defense or settlement of claims) that Landlord may incur
as a result of, or in connection with, claims arising from the presence, use,
storage, transportation, treatment, disposal, release or other handling, on or
about or beneath the Premises, of any Hazardous Material introduced or permitted
on or about or beneath the Premises by any act or omission of Tenant or its
agents, officers, employees, contractors, invitees or licensees. The liability
of Tenant under this section 4.3 shall survive the termination of this Lease
with respect to acts or omissions that occur before such termination.
4.4 Compliance With Law. Tenant shall, at Tenant's sole cost and expense,
promptly comply with all laws, ordinances, rules, regulations, orders and other
requirements of any government or public authority now in force or which may
hereafter be in force, with all requirements of any board of fire underwriters
or other similar body now or hereafter constituted, and with all directions and
certificates of occupancy issued pursuant to any law by any governmental agency
or officer, insofar as any thereof relate to or are required by the condition,
use or occupancy of the Premises or the operation, use or maintenance of any
personal property, fixtures, machinery, equipment or improvements in the
Premises, but Tenant shall not be required to make structural changes unless
structural changes are related to or required by ▇▇▇▇▇▇'s acts or use of the
Premises or by improvements made by or for Tenant.
4.5 Entry by Landlord. Landlord shall have the right to enter the Premises
at any time upon 24-hour advance notice (except in the event of an emergency in
which event no notice shall be required) to (a) inspect the Premises, (bl
exhibit the Premises to prospective purchasers, lenders or tenants, (c)
determine whether Tenant is performing all of Tenant's obligations, (d) supply
any service to be provided by Landlord, (e) post notices of nonresponsibility,
and (f) make any repairs to the Premises or any adjoining space or utility
services, or make any repairs, alterations or improvements to any other portion
of the Property, provided all such work shall be done as promptly as reasonably
practicable and so as to cause as little interference to Tenant as reasonably
practicable. Tenant waives all claims for damages for any injury or
inconvenience to or interference with ▇▇▇▇▇▇'s business, any loss of occupancy
or quiet enjoyment of the Premises or any other loss occasioned by such entry.
All locks for all doors in, on or about the Premises (excluding Tenant's vaults,
safes and similar special security areas designated in writing by Tenant) shall
be keyed to the master system for the Property. Landlord shall at all times have
a key to unlock all such doors and Landlord shall have the right to use any and
all means which Landlord may deem proper to open such doors in an emergency to
obtain entry to the Premises.
4.6 Rules and Regulations. Tenant shall faithfully observe and fully
comply with all reasonable rules and regulations (the "Rules and Regulations")
from time to time made in writing by Landlord and provided to Tenant for the
safety, care, use and cleanliness of the Property or the common areas of the
Property and the preservation of good order therein which are not materially
inconsistent with Tenant's rights under this Lease. It there is any conflict,
this Lease shall prevail over the Rules and Regulations. A copy of all existing
Rules and Regulations (including any Rules and Regulations governing alterations
or other tenant improvements to be constructed by Tenant within the Premises) is
attached hereto as Exhibit E.
ARTICLE 5
Utilities and Services
5.1 Tenant's Responsibilities. Tenant shall pay directly to the
appropriate supplier before delinquency, for all utilities and services supplied
to the Premises, together with all taxes, assessments, surcharges and similar
expenses relating; to such utilities and services. If any such utilities or
services are jointly metered with the Premises and another part of the Property.
Tenant pay as additional rent Tenant's Building Percentage Share (as defined
below) of the cost of such jointly metered utilities and services to Landlord
within ten (10) days after receipt of Landlord's written statement for such
cost. For purposes of this section 5.1, "Tenant's Building Percentage Share"
shall be deemed to be 10.21%; provided however, that on and after the Expansion
Date, Tenant's Building Percentage Share shall be automatically increased to
17.41%. Tenant shall furnish the Premises with all telephone service, window
washing, security service, janitor, scavenger and disposal services,
5
and other services required by Tenant for the use of the Premises permitted by
this Lease. Tenant shall furnish all electric light bulbs and tubes and restroom
supplies used in the Premises. Landlord shall not be in default under this Lease
or be liable for any damage or loss directly or indirectly resulting from, nor
shall the rent be abated or a constructive ordering eviction be deemed to have
occurred by reason of. any interruption of or failure to supply or delay in
supplying any such utilities and services or any limitation, curtailment,
rationing or restriction on use of water, electricity, gas or any resource or
form of energy or other service serving the Premises or the Property, whether
such results from mandatory restrictions or voluntary compliance with
guidelines.
ARTICLE 6
Maintenance and Repairs
6.1 Obligations of Landlord. Landlord shall maintain and repair only the
foundations, the exterior walls (which shall not include windows, glass or plate
glass, doors, special fronts, entries, or the interior surfaces of exterior
walls), the roof and other structural components of the Premises and the common
areas of the Property and keep them in good condition, reasonable wear and tear
excepted. Tenant shall give Landlord written notice of the need for any
maintenance or repair for which Landlord is responsible, after which Landlord
shall have a reasonable opportunity to perform the maintenance or make the
repair. Tenant gives such written notice to Landlord. Tenant waives any right to
perform maintenance or make repairs for which Landlord is responsible at
Landlord's expense. Any damage to any part of the Property for which Landlord is
responsible that is caused by Tenant or any agent, officer, employee,
contractor, licensee or invitee of Tenant shall be repaired by Landlord at
Tenant's expense. Landlord represents and warrants that on the Commencement
Date, all base-building systems (including, but not limited to, electrical,
lighting, plumbing, and HVAC) serving the Premises will be in good working order
and operating condition.
6.2 Obligations of Tenant. Tenant shall, at Tenant's sole cost and
expense, maintain and repair the Premises (except only the parts for which
Landlord is expressly made responsible under this Lease) and all equipment,
fixtures and improvements therein (including windows, glass, plate glass, doors,
special fronts, entries, the interior surfaces of exterior walls, interior
walls, floors, heating and air conditioning systems, dock boards, truck doors,
dock bumpers, plumbing fixtures and equipment, electrical components and
mechanical systems) and keep all of the foregoing clean and in good order and
operating condition, ordinary wear and tear excepted. Tenant shall not damage
the Premises or disturb the integrity and support provided by any wall. Tenant
shall take good care of the Premises and keep the Premises free from dirt,
rubbish, waste arid debris at all times. Tenant shall not exceed the
load-bearing capacity of the floors in the Premises. Tenant shall, at Tenant's
expense, enter into a regularly scheduled preventative maintenance and service
contract with a maintenance contractor approved in writing by Landlord for
servicing all hot water, heating, ventilating and air conditioning ("HVAC")
systems and equipment in the Premises. The maintenance and service contract
shall include all services suggested by the equipment manufacturer and shall
become effective (and.Tenant shall deliver a copy to Landlord) within thirty
(30) days after the Commencement Date. Tenant and Tenant's maintenance
contractor shall at all times conduct maintenance on the IIVAC equipment at the
Premises in accordance with all Federal, state or local laws and repair any leak
in the HVAC equipment within the deadline imposed by such Federal, state or
local laws. In the event of a replacement of a part or portion of the HVAC
equipment which is warranted by the manufacturer and/or guaranteed by the
installer, Tenant shall provide the Landlord with a duplicate original of the
warranty and/or guarantee. Tenant shall, at the end of the term of this Lease,
surrender to Landlord the Premises and all alterations, additions, fixtures and
improvements therein or thereto in the same condition as when received, ordinary
wear and tear excepted. Landlord represents and warrants that the HVAC systems
and equipment serving the Premises shall be in good working order on the
Commencement Date. In addition, and notwithstanding anything to the contrary
contained in this Section 6.2, in the event the HVAC equipment serving the
Premises requires any repair during the first twelve months of the term of this
Lease (and provided that such repair is not the result of the negligence or
misuse of Tenant, its employees, agents, customers or invitees, or the failure
of Tenant to maintain the HVAC equipment as set forth above), then Landlord
shall, at its sole cost and expense, complete such repair to the HVAC equipment
at the Promises.
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ARTICLE 7
Alteration of the Premises
7.1 Mo Alterations bv Tenant. Tenant shall not make any alterations or
improvements in or to the Premises or any part thereof, or attach any fixtures
thereto, without Landlord's prior written consent. Notwithstanding the preceding
sentence, upon prior written notice to Landlord, Tenant may make such
alterations or improvements without Landlord's consent only if the total cost of
such alterations or improvements is five thousand dollars ($5,000) or less and
such alterations or improvements will not affect in any way the structural,
exterior or roof elements of the Property or the mechanical, electrical,
plumbing or life safety systems of the Property. Tenant shall submit to
Landlord, for Landlord's written approval, complete plans and specifications
prepared by responsible licensed architect(s) and engineer(s) in compliance with
all applicable codes, laws, ordinances, rules and regulations. Tenant shall
engage responsible licensed contractor(s) to perform all work and all work shall
be performed in accordance with the plans and specifications approved by
Landlord, in a good and workmanlike manner, in till compliance with all
applicable laws, codes, ordinances, rules and regulations, and free and clear of
any mechanics' liens. Tenant shall pay for all work required to make the
alterations and improvements. Tenant shall pay to Landlord all direct costs and
shall reimburse Landlord for all expenses incurred by Landlord in connection
with the review, approval and supervision of any alterations or improvements
made by Tenant.
7.2 Landlord's Property. All alterations, additions, fixtures and
improvements, including any Landlord's Work, made in or to the Premises by
Landlord or Tenant, shall become part of the Property and Landlord's property
and upon termination of this Lease. Landlord shall have the right to retain all
such alterations, additions, fixtures and improvements in the Premises, without
compensation to Tenant, or to remove all such alterations, additions, fixtures
and improvements from the Premises, repair all damage caused by any such removal
and restore the Premises to the condition in which the Premises existed before
such alterations, additions, fixtures and improvements were made, and in the
latter case Tenant shall pay to Landlord, upon billing by Landlord, the cost of
such removal, repair and restoration (including a reasonable charge for
Landlord's overhead and profit). All movable furniture, equipment, trade
fixtures, computers, office machines and other personal property shall remain
the property of Tenant and upon termination of this Lease shall be removed by
Tenant from the Property and Tenant shall repair all damage caused by any such
removal. Termination of this Lease shall not affect the obligations of Tenant
pursuant to this section 7.2 to be performed after such termination.
ARTICLE 8
Indemnification and Insurance
8.1 Damage or Injury. Landlord shall not be liable to Tenant, and Tenant
hereby waives all claims against Landlord, for any damage to or loss or theft of
any property or for any bodily or personal injury, illness or death of any
person in. on or about the Promises or the Property arising at any time and from
any cause whatsoever, except to the extent caused by the gross negligence or
willful misconduct of Landlord. Tenant shall indemnify and defend Landlord
against and hold Landlord harmless from all claims, demands, liabilities,
damages, losses, costs and expenses, including reasonable attorneys' fees and
disbursements, arising from or related to any use or occupancy of the Premises,
or any condition of the Premises, or any default in the performance of Tenant's
obligations under this Lease, or any damage to any property (including property
of employees and invitees of Tenant) or any bodily or personal injury, illness
or death of any person (including employees and invitees of Tenant) occurring
in, on or about the Premises or any part thereof arising at any time and from
any cause whatsoever (except lo the extent caused by the gross negligence or
willful misconduct of Landlord) or occurring in, on or about any part of the
Property other than the Premises when such damage, bodily or personal injury,
illness or death is caused by any act or omission of Tenant or its agents,
officers, employees, contractors, invitees or licensees. This section 8.1 shall
survive the termination of this Lease with respect to any damage, bodily or
personal injury, illness or death occurring prior to such termination.
8.2 Insurance. Tenant agrees and hereby covenants that it shall, during
the entire term hereof, keep in force and effect a policy or policies of (i)
commercial general liability insurance with respect to the Premises and the
Property, and the business operated by Tenant and any subtenants of Tenant in
the Premises, in which the limits shall not be less than $1,000.000 per
occurrence and $2,000,000 general aggregate: (ii) business auto liability
insurance with limits not less than $1,000,000 for any owned, hired or non owned
auto; if tenant has no owned autos. tenant may provide hired and non owned auto
liability coverage or agree to provide evidence of auto liability coverage prior
to using a vehicle for its business activity on the property: (iii) workers
compensation insurance in statutory limits for all or' its employees in the
state in which the Property is located and employers liability insurance with
limits of $1,000,000 all lines; (iv) umbrella excess liability insurance in
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excess of underlying coverages required above with limits not less than
$5,000,000; (v) all risk property insurance, including business income and extra
expense, which insures the improvements, fixtures, inventory, and all other
property of Tenant, within the Premises or on the Property, against any loss
arising from fire, flooding, lightning, earthquake, windstorm, hail, rain, water
leakage, seepage, the elements or other casualty, for the Rill replacement value
of such property. The liability policies shall name Landlord and any person,
firm, or corporation designated by Landlord as an additional named insured,
evidenced by an additional insured endorsement reasonably acceptable to
Landlord, and shall contain a clause stating that the insured will not cancel or
materially reduce the insurance below the limits required without first giving
Landlord (30) days prior written notice. Such insurance shall be primary to
Landlord and the coverage afforded by such policy will not be subject or
entitled to any contribution, reduction, or other benefit from or by reason of
any insurance coverage carried by Landlord and will be issued by and earned with
an insurance company with a minimum Best's Rating of A- VII or better or as
otherwise approved by Landlord. A certificate of insurance, as Landlord may
require, shall be immediately delivered to Landlord prior to commencement and at
each renewal.
8.3 Waiver of Subrogation. Each of Landlord and Tenant waives on behalf of
all insurers under all policies of property insurance now or hereafter carried
by such insuring or covering the Premises or the Property, or any portion or any
contents thereof, or any operations therein, all rights of subrogation which any
such insurer might otherwise, if at all, have to any claims of Tenant against
Landlord or Landlord against Tenant, as applicable. Landlord and Tenant shall
procure from each of the insurers under all policies of property insurance now
or hereafter carried by such party insuring or covering the Premises, or any
portion or any contents thereof, or any operations therein, a waiver of all
rights of subrogation which the insurer might otherwise, if at all, have to any
claims of either party against the other as required by this section 8.3.
8.4 Landlord Insurance Requirements. Landlord shall, at all times during
the term of this Lease, secure and maintain:
(a) All risk property insurance coverage on the Property. Landlord shall
not be obligated to insure any furniture, equipment, trade fixtures, machinery,
goods, or supplies which Tenant may keep or maintain in the Premises or any
alteration, addition or improvement which Tenant may make upon the Premises. In
addition Landlord shall secure and maintain rental income insurance and any
other insurance coverage required to be maintained by any mortgagee of the
property. If the annual cost to Landlord for such property or rental income
insurance exceeds the standard rates because of the nature of Tenant's
operations. Tenant shall, upon the receipt of appropriate invoices, reimburse
Landlord for such increased cost.
(b) Commercial general liability insurance with limits not less than
$5,000,000 per occurrence and aggregate. Such insurance shall be in addition to.
and not in lieu of insurance required to be maintained by Tenant. Tenant shall
not be named as an additional insured on any policy of liability insurance
maintained by Landlord.
ARTICLE9
Assignment or Sublease
9.l Prohibition. Tenant shall not. directly or indirectly, without the
prior written consent of Landlord (which consent shall not be unreasonably
withheld), assign I including, any assignment by operation of law) this Lease or
any interest herein or sublease the Premises or any pan thereof, or permit the
use or occupancy of the Premises by any person or entity other than Tenant. No
assignee or subtenant of Tenant shall have a right further to assign this Lease
or sublease the Premises, and all money and other economic consideration to be
paid by the assignee or subtenant as a result of an assignment or sublease in
excess of the total amount of rent which Tenant is obligated to pay to Landlord
under this Lease (prorated to reflect the rent allocable to the portion of the
Premises subject to such assignment or sublease) shall be paid by Tenant to
Landlord as additional rent. No assignment or sublease whatsoever shall release
Tenant from Tenant's obligations and liabilities under this Lease or alter the
primary liability of Tenant to pay all rent and to perform all obligations to be
paid and performed by ▇▇▇▇▇▇. Tenant shall pav to Landlord all direct costs and
shall reimburse Landlord for all expenses incurred by Landlord in connection
with any assignment or sublease requested by ▇▇▇▇▇▇.
8
ARTICLE 10
Events of Default and Remedies
10.1 Default by Tenant. The occurrence of any one or more of the following
events ("Event of Default") shall constitute a breach of this Lease by ▇▇▇▇▇▇:
(a) Tenant fails to pay any Base Rent, or any additional monthly rent
under section 3.1 hereof, or any other amount of money payable by Tenant
hereunder as and when such rent becomes due and payable and such failure
continues for more than five (5) days after ▇▇▇▇▇▇▇▇ gives written notice
thereof to Tenant: provided, however, that after the second such failure in a
calendar year, only the passage of time, but no further written notice, shall be
required to establish an Event of Default in the same calendar year: or
(b) Tenant fails to perform or breaches any other agreement or covenant of
this Lease to be performed or observed by ▇▇▇▇▇▇ as and when performance or
observance is due and such failure or breach continues for more than ten (10)
days after ▇▇▇▇▇▇▇▇ gives written notice thereof to Tenant: provided, however,
that if. by the nature of such agreement or covenant, such failure or breach
cannot reasonably be cured within such period often (10) days, an Event of
Default shall not exist as long as Tenant commences with due diligence and
dispatch the curing of such failure or breach within such period often (10) days
and, having so commenced, thereafter prosecutes with diligence and dispatch and
completes the curing of such failure or breach; or
(c) Tenant (i) files, or consents by answer or otherwise to the filing
against it of, a petition for relief or reorganization or arrangement or any
other petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy, insolvency or other debtors' relief law of any jurisdiction. (ii)
makes an assignment for the benefit of its creditors, or (iii) consents to the
appointment of a custodian, receiver, trustee or other officer with similar
powers of Tenant or of any substantial part of Tenant's property: or
(d) Without consent by ▇▇▇▇▇▇, a court or government authority enters an
order, and such order is not vacated within thirty (30) days, (i) appointing a
custodian, receiver, trustee or other officer with similar powers with respect
to Tenant or with respect to any substantial part of Tenant's property, or (ii)
constituting an order for relief or approving a petition for relief or
reorganization or arrangement or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy, insolvency or other debtors'
relief law of any jurisdiction, or (iii) ordering the dissolution, winding-tip
or liquidation of Tenant: or
(e) This Lease or any estate of Tenant hereunder is levied upon under any
attachment or execution and such attachment or execution is not vacated within
thirty (30) days.
10.2 Termination. If an Event of Default occurs. Landlord shall have the
right at any time to give a written termination notice to Tenant and. on the
date specified in such notice. Tenant's right to possession shall terminate and
this Lease shall terminate. Upon such termination. Landlord shall have the full
and immediate right to possession of the Premises and Landlord shall have the
right to recover from Tenant all unpaid rent which had been earned at the time
of termination, all unpaid rent for the balance of the term of this Lease after
termination, and all other amounts necessary to compensate Landlord for all the
detriment proximately caused by ▇▇▇▇▇▇'s failure to perform all of Tenant's
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom: provided, however, that upon such termination.
Landlord shall use its reasonable good faith efforts to mitigate its damages and
any rental from reletting paid to Landlord during the remainder of what would
have been the term of this Lease (less all costs of reletting incurred by
Landlord, including, without limitation, tenant improvements and leasing
commissions) shall be credited against Tenant's obligations under this Section
10.2. If an Event of Default occurs and Landlord does not exercise its right to
terminate, then this Lease shall continue in effect for so long as Landlord does
not terminate Tenant's right to possession, and Landlord shall have the right to
enforce all its rights and remedies under this Lease, including the right 10
recover all rent as it becomes due under this Lease. Notwithstanding anything to
the contrary contained herein, upon the occurrence of an Event of Default.
Landlord shall have the rights to exercise and enforce all rights and remedies
granted or permitted by law and the remedies provided for in this Lease are
cumulative and in addition to all other remedies available to Landlord at law or
in equity by .statute or otherwise surrender of the Premises can be effected
only by the written agreement of Landlord and ▇▇▇▇▇▇ and exercise by Landlord of
any remedy shall not be deemed to be an acceptance of surrender of the Premises
by Tenant, cither by agreement or by operation of law.
9
10.3 Tenant's Primary Duty. All agreements and covenants to be performed
or observed by Tenant under this Lease shall be at Tenant's sole cost and
expense and without any abatement of rent. If Tenant fails to pay any sum of
money to be paid by Tenant or to perform any other act to be performed by Tenant
under this Lease, Landlord shall have the right, but shall not be obligated, and
without waiving or releasing Tenant from any obligations of Tenant, to make any
such payment or to perform any such other act on behalf of Tenant in accordance
with this Lease. All sums so paid by ▇▇▇▇▇▇▇▇ and all costs incurred or paid by
Landlord shall be deemed additional rent hereunder and Tenant shall pay the same
to Landlord on written demand, together with interest on all such sums and costs
from the date of expenditure by Landlord to the date of repayment by Tenant at
the rate often percent (10%) per annum.
10.4 Abandoned Property. If Tenant abandons the Premises, or is
dispossessed by process of law or otherwise, any movable furniture, equipment,
trade fixtures or personal property belonging to Tenant and left in the Premises
shall be deemed to be abandoned, at the option of Landlord, and Landlord shall
have the right to sell or otherwise dispose of such personal property in any
commercially reasonable manner.
10.5 Landlord Default. If Landlord defaults under this Lease, Tenant shall
give written notice to Landlord specifying such default with particularity, and
Landlord shall have thirty (30) days after receipt of such notice within which
to cure such default. In the event of any default by Landlord, ▇▇▇▇▇▇'s
exclusive remedy shall be an action for damages. Notwithstanding any other
provision of this Lease. Landlord shall not have any personal liability under
this Lease. In the event of any default by Landlord under this Lease, ▇▇▇▇▇▇
agrees to look solely to the equity or interest then owned by Landlord in the
Property, and in no event shall any deficiency judgment or personal money
judgment of any kind be sought or obtained against Landlord.
ARTICLE II
Casualty
11.1 Casualty. If fire or other casualty damages the Premises or common
areas of the Property necessary for Tenant's use and occupancy of the Premises
and if such damage is not the result of the negligence or willful misconduct of
Tenant or Tenant's agents, officers, employees, contractors, licensees or
invitees, then, during the period the Premises is rendered unusable by such
damage. Tenant shall be entitled to a reduction in Base Rent in the proportion
that the area of the Premises rendered unusable by such damage bears to the
total area of the Premises. Notwithstanding anything to the contrary contained
in the immediately preceding sentence, if the Property or the Premises, or any
part thereof, is damaged by tire or other casualty before the Commencement Date
or during the term of this Lease and (a) such fire or other casualty occurs
during the last twelve (12) months of the term of this Lease, or (b) the
insurance proceeds received by Landlord in respect of such damage are not
adequate to pay the entire cost, as reasonably estimated by ▇▇▇▇▇▇▇▇, of the
repair and restoration work to be performed by ▇▇▇▇▇▇▇▇, or (c) the repair and
restoration work to be performed by Landlord cannot, as reasonably estimated by
Landlord, be completed within four (4) months after the occurrence of such tire
or other casualty, then, in any such event. Landlord shall have the right, by
giving written notice to Tenant within sixty (60) days alter the occurrence of
such fire or other casualty, to terminate this Lease as of the date of such
notice, if Landlord does not exercise the right to terminate this Lease in
accordance with this section, this Lease shall (subject to the terms of this
section) remain in full force and effect and Landlord shall repair such damage
and restore the Property and the Premises to substantially the same condition in
which the Property and the Premises existed before the occurrence of such lire
or other casualty. Landlord shall not be obligated to repair any damage to. or
to make any replacement of. any movable furniture, equipment, trade fixtures or
personal property in the Premises. Tenant shall, at Tenant's sole cost and
expense, repair and replace all such movable furniture, equipment, trade
fixtures and personal property. A total destruction of the Property shall
automatically terminate this Lease effective as of the date of such total
destruction.
ARTICLE 12
Eminent Domain
12.1 Condemnation. Landlord shall have the right to terminate this Lease
if any part of the Premises or any substantial part of the Property (whether or
not it includes the Premises) is taken by exercise of the power , it eminent
domain including any voluntary conveyance in lieu thereof) before the
Commencement ▇▇▇▇ or during the term of this Lease. Tenant shall have the right
to terminate this
10
Lease if a substantial portion of the Premises is taken by exercise of the power
of eminent domain before the Commencement Date or during the term of this Lease
and the remaining portion of the Premises is not reasonably suitable for
Tenant's purposes. In each such case, Landlord or Tenant shall exercise such
termination right by giving written notice to the other within thirty (30) days
after the date of such taking, if either Landlord or Tenant exercises such right
to terminate this Lease in accordance with this section 12.1, this Lease shall
terminate as of the date of such taking. If neither Landlord nor Tenant
exercises such right to terminate this Lease in accordance with this section
12.1, this Lease shall terminate as to the portion of the Premises so taken as
of the date of such taking and shall remain in full force and effect as to the
portion of the Premises not so taken, and the Base Rent and Tenant's Percentage
Share shall be reduced as of the date of such taking in the proportion that the
area of the Premises so taken bears to the total area of the Premises. If all of
the Premises is taken by exercise of the power of eminent domain before the
Commencement Date or during the term of this Lease, this Lease shall terminate
as of the date of such taking. All awards, compensation, damages, income, rent
and interest payable in connection with such taking shall, except as expressly
set forth below, be paid to and become the property of Landlord, and Tenant
hereby assigns to Landlord all of the foregoing. Tenant shall have the right to
claim and receive directly from the entity exercising the power of eminent
domain only the share of any award determined to be owing to Tenant for the
taking of improvements installed in the portion of the Premises so taken by
Tenant at Tenant's sole cost and expense based on the unamortized cost actually
paid by Tenant for such improvements, for the taking of Tenant's movable
furniture, equipment, trade fixtures and personal property, for loss of
goodwill, for interference with or interruption of Tenant's business, or for
removal and relocation expenses.
ARTICLE 13
Subordination and Sale
13.1 Subordination. This Lease shall be subject and subordinate at all
times to the lien of all mortgages and deeds of trust securing any amount or
amounts whatsoever which may now exist or hereafter be placed on or against the
Property or on or against Landlord's interest or estate therein, all without the
necessity of having further installments executed by Tenant to effect such
subordination. Notwithstanding the foregoing, in the event of a foreclosure of
any such mortgage or deed of trust or of any other action or proceeding for the
enforcement thereof, or of any sale thereunder, this Lease shall not be
terminated or extinguished, nor shall the rights and possession of Tenant
hereunder be disturbed, if no Event of Default then exists under this Lease, and
Tenant shall attorn to the person who acquires Landlord's interest hereunder
through any such mortgage or deed of trust. ▇▇▇▇▇▇ agrees to execute,
acknowledge and deliver upon demand such further instruments evidencing such
subordination of this Lease to the lien of all such mortgages and deeds of trust
as may reasonably be required by Landlord.
13.2 Estoppel Certificate. At any time and from time to time, Tenant
shall, within ten (10) days after written request by ▇▇▇▇▇▇▇▇, execute,
acknowledge and deliver to Landlord a certificate certifying: (a ) that this
Lease is unmodified and in full force and effect; (b) the Commencement Date and
the Expiration Date determined in accordance with Article 2 hereof and the date,
if any, to which all rent and other sums payable hereunder have been paid; (c)
that neither Landlord or Tenant is not in default under this Lease, except as to
defaults specified in such certificate; and (d)such other matters as may be
reasonably requested by Landlord or any actual or prospective purchaser or
mortgage lender. Any such certificate may be relied upon by Landlord and any
actual or prospective purchaser or mortgage lender of the Property or any part
thereof. At any time and from time to time, Tenant shall, within ten (10) days
after written request by ▇▇▇▇▇▇▇▇, deliver to Landlord copies of all current
financial statements (including a balance sheet, an income statement, and an
accumulated retained earnings statement), annual reports, and oilier financial
and operating information and data of Tenant prepared by Tenant in the course of
Tenant's business. Unless available to the public. Landlord shall disclose such
financial statements, annual reports and other information or data only to
actual or prospective purchasers or mortgage lenders of the Property or any part
thereof, and otherwise keep them confidential unless other disclosure is
required by law.
ARTICLE 14
Miscellaneous
14.1 Notices. All requests, approvals, consents, notices and other
communications given by Landlord or Tenant under this Lease shall be properly
given only if made in writing and either deposited in the United States mail,
postage prepaid, certified with return receipt requested, or delivered by hand
(which may be through a messenger or recognized delivery, courier or air express
11
service) and addressed to Landlord at the address to Landlord specified in the
BASIC LEASE INFORMATION for at such other place as Landlord may from lime to
time designate in a written notice to Tenant) or to Tenant at the address of
Tenant specified in the BASIC LEASE INFORMATION (or at such other place as
Tenant may from time to time designate in a written notice to Landlord). Such
requests, approvals, consents, notices and other communications shall be
effective on the date of receipt (evidenced by the certified mail receipt) if
mailed or on the date of hand delivery if hand delivered. Any request, approval,
consent, notice or other communication under this Lease may be given on behalf
of a party by the attorney for such party.
14.2 General. Time is of the essence of this Lease and each and all of its
provisions. This Lease shall benefit and bind Landlord and ▇▇▇▇▇▇ and the
permitted personal representatives, heirs, successors and assigns of Landlord
and ▇▇▇▇▇▇. If any provision of this Lease is determined to be illegal or
unenforceable, such determination shall not affect any other provision of this
Lease and all such other provisions shall remain in full force and effect.
Tenant shall not record this Lease or any memorandum or short form of it. This
Lease shall be governed by and consumed in accordance with the laws of the state
in which the Property is located. All capitalized terms used but not defined in
the body of the Lease shall have the same meaning given to such term in the
BASIC LEASE INFORMATION.
14.3 No Waiver. The waiver by Landlord or Tenant of any breach of any
covenant in this Lease shall not be deemed to be a waiver of any subsequent
breach of the same or any other covenant in this Lease, nor shall any custom or
practice which may grow up between Landlord and Tenant in the administration of
this Lease be construed to waive or to lessen the right of Landlord or Tenant to
insist upon the performance by Landlord or Tenant in strict accordance with this
Lease. The subsequent acceptance of rent hereunder by ▇▇▇▇▇▇▇▇ or the payment of
rent by Tenant shall not waive any preceding breach by Tenant of any covenant in
this Lease, nor cure any Event of Default, nor waive any forfeiture of this
Lease or unlawful detainer action, other than the failure of Tenant to pay the
particular rent so accepted, regardless of Landlord's or Tenant's knowledge of
such preceding breach at the time of acceptance or payment of such rent.
14.4 Attorneys' Fees. If there is any legal action or proceeding between
Landlord and Tenant to enforce this Lease or to protect or establish any right
or remedy under this Lease, the unsuccessful party to such action or proceeding
shall pay to the prevailing party all costs and expenses, including reasonable
attorneys' fees and disbursements, incurred by such prevailing party in such
action or proceeding and in any appeal in connection therewith. If such
prevailing party recovers a judgment in any such action, proceeding or appeal,
such costs, expenses and attorneys' fees and disbursements shall be included in
and as a part of such judgment.
14..5 Exhibits. Exhibit A (Plan(s) Outlining the Premises and the
Property), Exhibit B Description of Landlord's Work), Exhibit ▇-▇ (Work Plan),
Exhibit C (Form of Memorandum Confirming Term), Exhibit D (Hazardous Materials).
Exhibit E (Rules and Regulations), addendum and any other attachments specified
in the BASIC LEASE INFORMATION, are attached to and made a part of this Lease.
14.6 Broker(s). Tenant warrants and represents to Landlord that ▇▇▇▇▇▇ has
negotiated this Lease directly with the real estate broker(s) specified in the
BASIC LEASE INFORMATION and has not authorized or employed, or acted by
implication to authorize or to employ, any other real estate broker to act for
Tenant in connection with this Lease.
14.7 Waivers of Jury Trial and Certain Damages. Landlord and Tenant each
hereby expressly, irrevocably, fully and forever releases, waives and
relinquishes any and all right to trial by jury and any and all right to receive
punitive, exemplary and consequential damages from the other (or any past,
present or future board member, trustee, director, officer, employee, agent,
representative, or advisor of the other) in any claim, demand, action, suit,
proceeding or cause of action in which Landlord and Tenant are parties, which in
any way (directly or indirectly) arises out of, results from or relates to any
of the following, in each case whether now existing or hereafter arising and
whether based on contract or tort or any other legal basis: This Lease: any
past, present or future act, omission, conduct or activity with respect to this
Lease: any transaction, event or occurrence contemplated by this Lease; the
performance of any obligation or the exercise of any right under this Lease: or
the enforcement of thus Lease. Landlord and Tenant reserve the right to recover
actual or compensatory damages, with interest, attorneys' fees, costs and
expenses as provided in this Lease, for any breach of this Lease.
12
14.8 Entire Agreement. There are no oral agreements between Landlord and
Tenant affecting this Lease, and this Lease supersedes and cancels any and all
previous negotiations, arrangements, brochures, offers, agreement and
understandings, oral or written, if any between Landlord and Tenant or displayed
by Landlord to Tenant with respect to the subject matter of this Lease, the
Premises or the Property. There are no commitments, representations or
assurances between Landlord and Tenant or between any real estate broker and
Tenant other than those expressly set forth in this Lease and all reliance with
respect to any commitments, representations or assurances is solely upon
commitments, representations and assurances expressly set forth in this Lease.
This Lease may not be amended or modified in any respect whatsoever except by an
agreement in writing signed by Landlord and ▇▇▇▇▇▇.
IN WITNESS WHEREOF, Landlord and ▇▇▇▇▇▇ have executed this Lease of the
date specified in the BASIC LEASE INFORMATION.
GIGABEAM CORPORATIION, CALEAST INDUSTRIAL INVESTORS, LLC.,
a Delaware corporation a California limited liability company.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 11/18/04 By: LASALLE INVESTMENT MANAGEMENT, INC.,
--------------------------------- a Maryland corporation, Manager
Title: CFO By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------ ----------------------------------
Title: Vice President
-------------------------------
13
EXHIBIT A
PLAN(S) OUTLINING THE PREMISES AND THE PROPERTY
The site plan or floor plan is used solely for the purpose of identifying the
approximate location and size of' the Premises. Building sizes, site dimensions,
access, common and parking areas, and existing tenants and locations are subject
to change at Landlord s discretion.
Exhibit A-1
EXHIBIT B
DESCRIPTION OF LANDLORD'S WORK.
1. Paint, using ▇▇▇▇▇ paint (Color No. CW002W/ Rain Shinner) the entire
Premises.
2. Install Patcraft carpet (Color No. 00296-00097/Professor) and vinyl base cove
(using Johnsonnite base cove -Color No.30/Ink) in those portions of the Premises
(which includes the kitchen and the breakroom) marked to be carpeted on the
attached Exhibit B-1
3. Install building standard vinyl composite tile (using Armstrong vinyl
composite tile - Color Mo. 51933, Blue Cloud) in those portions of the Premises
marked to be tiled on the attached Exhibit B-1.
4. Replace the damaged ceiling tiles.
Exhibit B-1
EXHIBIT ▇-▇ WORK PLAN
Exhibit B-1
EXHIBIT C
MEMORANDUM CONFIRMING TERM
THIS MEMORANDUM, made as of December 13, 2004, by and between CALEAST
INDUSTRIAL INVESTORS, LLC, a California limited liability company (-Landlord"),
and GIGABE AM CORPORATION, a Delaware corporation ("Tenant").
W I T N E S S E T H:
Recital of Facts:
Landlord and ▇▇▇▇▇▇ entered into the Deed of Industrial Lease (the
"Lease") dated November __, 2004. Words defined in the Lease have the same
meanings in this Memorandum.
NOW. THEREFORE, in consideration of the covenants in the Lease, Landlord
and ▇▇▇▇▇▇ agree as follows:
1. Landlord and Tenant hereby confirm that:
(a) The Commencement Date under the Lease is December 13, 2004 and the
Expiration Date under the Lease is December 14, 2007;and
(b) The date on which ▇▇▇▇▇▇▇▇ completed the improvements pursuant to
Exhibit B to the Lease (if any) is December 13, 2004. The date on which ▇▇▇▇▇▇▇▇
delivered possession of the Premises to Tenant as required by the Lease, and
▇▇▇▇▇▇'s obligation to pay rent begins under the Lease is Dec 13 2004.
2. ▇▇▇▇▇▇ ▇▇▇▇▇▇ confirms that:
(a) All commitments, representations and assurances made to induce Tenant
to enter into the Lease have been fully satisfied:
(b) All improvements to the Property and in the Premises to be constructed
or installed by Landlord have been completed and furnished in accordance with
the Lease to the satisfaction of Tenant and Tenant has accepted and is in full
and complete possession of the Premises.
3. This Memorandum shall be binding upon and inure to the benefit of
Landlord and ▇▇▇▇▇▇ and their permitted successors and assigns under the Lease.
The Lease is in full force and effect.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ have executed this Memorandum as
of the date first hereinabove written.
GIGABEAM CORPORATION, CALEAST INDUSTRIAL INVESTORS, LLC,
a Delaware corporation a California limited liability company.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: CFO By: LASALLE INVESTMENT MANAGEMENT
-----------------------------
Bv: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
-----------------------------
Exhibit C-1
EXHIBIT D
PERMITTED USE OF HAZARDOUS MATERIALS
Name of Hazardous Material Maximum Amount Per Year
Acetone Approximately one quart
Flux Approximately one gallon
Solder Approximately one gallon
IPO (alcohol) Approximately one gallon
Batteries for Liebert system Five
Exhibit D-1
EXHIBIT E
RULES AND REGULATIONS
ADDENDUM
1. Expansion of Premises. Tenant acknowledges that as of the date of this
Lease, the approximately 3,803 square feet of space contiguous to the Premises
and more clearly shown on the attached Exhibit A (the "Expansion Premises") is
currently leased to The Lincoln Electric Company (the "Existing Tenant"), and
Tenant intends to enter into an agreement (the "Expansion Premises Agreement")
with the Existing Tenant whereby the Existing Tenant will either sublet the
Expansion Premises to Tenant or assign to Tenant all of the Existing ▇▇▇▇▇▇'s
right to occupy the Expansion Premises. Upon the earlier of (y) the receipt of a
fully-executed Expansion Premises Agreement (and provided that Landlord has
consented to the terms of such Expansion Premises Agreement), and (z) the
Expansion Date (as defined below). Landlord shall, at its sole cost and expense,
(i) install an approximately 6' x 7' opening in the demising wall that currently
separates the Premises from the Expansion Premises in substantially the location
shown on the attached Exhibit A. (ii) install an approximately 3' x 7' opening
in the demising wall that currently separates the Premises from the Expansion
Premises in substantially the location shown on the attached Exhibit A. (iii)
paint the Expansion Premises using ▇▇▇▇▇ paint (Color No. CVVO()2W/▇▇▇ ▇▇▇▇▇▇▇),
(iv) replace the existing carpet in the Expansion Premises with Patcraft carpet
(Color No. 00296-00097/Professor), (v) replace the existing vinyl composite tile
m the Premises with Armstrong vinyl composite tile (Color No. 51933/Blue Cloud),
(vi) replace the existing carpet in the demo area of the Expansion Premises with
Armstrong vinyl composite tile (Color No. 51933/Blue Cloud), and (vi) replace
all damaged ceiling tiles in the Expansion Premises.
Effective as of the later of (i) January 22, 2006, and (ii) the date upon
which the lease agreement with the Existing Tenant expires and the Existing
Tenant surrenders possession of the Premises to Landlord (the "Expansion Date"),
Landlord shall lease to Tenant, and Tenant shall lease from Landlord, the
Expansion Premises on the same terms and conditions set forth in this Lease, and
on and after the Expansion Date, all references to the Premises in the Lease
will be deemed to include the Expansion Premises.
2. Parking. Tenant and its customers and employees shall have the right to use,
on a non-exclusive basis in common with the other tenants of the Property, 3.6
parking spaces for every 1,000 square teet of space then being leased by Tenant.
All such parking spaces may be used without charge by Tenant during the initial
term of this Lease.
3. Use of Roof. Subject to the terms and conditions of this Paragraph 3, Tenant
shall have the right, for no additional rental charge or other fee to Landlord
except as expressly provided below, throughout the term of this Lease, to
install and maintain, at its sole cost and expense, communication equipment and
additional mechanical/11 VAC units (the "Additional Equipment") on the roof of
the Building, provided that: (a) such Additional Equipment complies with all
applicable governmental laws, statutes, regulations, rules, codes and
ordinances: (b) the size, weight, design, materials, colors, content, exact
location and the manner of installation or attachment of such Additional
Equipment shall have first been approved by Landlord in writing, which approval
shall not be unreasonably withheld, (c) the operation of the Additional
Equipment shall not cause any interference to any other tenants of the Property
or interfere with any rights granted to any other tenant of the Property, (d)
Tenant, provides Landlord with at least one (I) day prior written notice of
Tenant's intention to access the roof of the Building and Tenant, ai its sole
cost and expense, coordinates with the roofing manufacturer, contractor or
installer designated by Landlord to ensure that the installation, maintenance
and removal of the Additional Equipment shall not in any way unreasonably
damage the roof of the Building or void any roof warranty or guaranty then in
effect, (e) reliant provides to Landlord an insurance certificate from Tenant's
contractors evidencing the insurance coverages required under section 8.2 of
this Lease and complying with the terms of section 8.2 herein, and (f) Landlord
shall have the right to have a representative present at the lime any
installation, maintenance or removal of the Additional Equipment is performed.
Notwithstanding the foregoing, in the event of an emergency involving the
Additional Equipment. Tenant may access the roof of the Building without
notifying Landlord (but Tenant shall use all reasonable efforts to contact a
specified representative of Landlord by phone at ▇▇▇-▇▇▇-▇▇▇▇. or such other
representative of which ▇▇▇▇▇▇▇▇ notified Tenant in writing) and ▇▇▇▇▇▇ shall
remain responsible to indemnity and defend Landlord in accordance with the terms
of this Paragraph 3. All costs and expenses in connection with the construction,
installation, governmental approval, maintenance and removal of such .Additional
Equipment and (he reasonable costs incurred by Landlord in reviewing and
approving the plans for such Additional Equipment, shall he paid by Tenant. If
the operations of the Additional Equipment by Tenant shall at any time cause any
interference to any other tenants of the Property or shall interfere with any
rights of any other tenant of the Property, then Tenant shall, at Landlord's
request and ▇▇▇▇▇▇'s expense, take all steps necessary to remedy such situation
and or eliminate
Addendum-l
such interference. If such interference cannot be corrected in a reasonable
amount of time, not to exceed ten (10) business days, Tenant shall terminate ail
usage of the Additional Equipment until such interference is eliminated or until
such time that the activity being interfered with is not being conducted.
Tenant, at its sole cost and expense, shall maintain such property and liability
insurance for the Additional Equipment as Landlord shall reasonably require.
Upon termination of this Lease (whether by expiration of the term or otherwise),
Tenant shall (subject to Tenant's obligation to coordinate with the roofing
manufacturer, contractor or installer designated by Landlord to ensure that the
removal of the Additional Equipment shall not in any way unreasonably damage the
roof of the Building or void -my roof warranty or guaranty then in effect)
remove its Additional Equipment from the roof of the Building and restore the
roof of the Building to the condition that existed before installation of such
Additional Equipment, ordinary wear and tear and casualty excepted. If upon the
termination or expiration of this Lease, Tenant fails to so remove such
Additional Equipment from the roof of the Building and repair such damage.
Landlord may remove such Additional Equipment, dispose of the same in any manner
determined by Landlord in its sole discretion and repair all damage caused
thereby, and Tenant shall reimburse Landlord for all reasonable costs and
expenses thereby incurred by Landlord within thirty (30) days after receipt of
written notice from Landlord to Tenant demanding such reimbursement. ▇▇▇▇▇▇
agrees that Landlord shall have no liability to Tenant for such removal and
restoration. Tenant shall indemnify and defend Landlord against and hold
Landlord harmless from all claims, demands, liabilities, damages (including, but
not limited to, any damage to any property (including property of employees and
invitees of Tenant) or any bodily or personal injury, illness or death of any
person (including employees and invitees of Tenant), losses, costs (including
any costs incurred by Landlord in the event Tenant's access of the roof or any
installation, maintenance or removal of the Additional Equipment voids any
warranties or guaranties then in effect) and expenses, including reasonable
attorneys' fees and disbursements, arising from or related to Tenant accessing
the roof or the installation, maintenance or removal of the Additional
Equipment.
4. Signage. Subject to the terms and conditions of this Paragraph 4, Tenant
shall have the right, throughout the term of this Lease, to install and
maintain, at its sole cost and expense, a sign identifying Tenant on the
exterior of the Building, provided that: (a) the installation and maintenance of
such sign complies with all applicable governmental laws, statutes, regulations,
rules, codes and ordinances; (b) such sign shall have been approved in advance
of installation by all appropriate governmental agencies; and (c) the size,
design, materials, colors, content, exact location and the manner of attachment
of such sign shall have first been approved by Landlord in writing, which
approval shall not be unreasonably withheld, conditioned or delayed. All
expenses in connection with the construction, installation, removal,
governmental approval and maintenance of Tenant's sign, and the reasonable,
documented costs incurred by Landlord in reviewing and approving the plans for
such sign, shall be paid by ▇▇▇▇▇▇. Tenant, at its sole cost and expense, shall
maintain such property and liability insurance for the sign as Landlord shall
reasonably require. Upon termination of this Lease (whether by expiration of the
term or otherwise), Tenant shall, at its sole cost and expense, remove its
signage from the exterior of the Building and restore the exterior of the
Building to the condition that existed before installation of such sign,
ordinary wear and tear excepted. If Tenant fails to remove such signage from the
exterior of the Building and repair such damage. Landlord may remove such sign,
dispose of the same in any manner determined by Landlord in its sole discretion
and repair all damage caused thereby, and Tenant shall reimburse Landlord for
all reasonable costs and expenses thereby incurred by Landlord within thirty
(30) days after receipt of written notice from Landlord to Tenant demanding such
reimbursement. ▇▇▇▇▇▇ agrees that Landlord shall have no liability to Tenant for
such removal and restoration.
5. Right of First Offer. Tenant shall have a right of first offer (the "Right of
First Offer") with respect to any space within the Building located immediately
contiguous to the Premises, as the same may be expanded from time to time (the
"First Offer Space"). Provided that no Event of Default then exists, Landlord
shall notify Tenant in writing (the "Availability Notice") if at any time during
the term of this Lease (a) ail or any portion of the First Offer Space is
available for lease, or (b) will be available for lease within thirty (30) days
after such notice is given. Tenant may, within fifteen (15) business days after
the receipt of such notice, submit to Landlord a written offer to lease all of
the First Offer Space referenced in the Availability Notice, which offer
Landlord may accept or reject in us sole discretion. If Tenant timely submits an
offer to Landlord to lease all of the First Otter Space referenced in the
Availability Notice and such offer is accepted by Landlord, then the Lease shall
be amended (which amendment shall be effective on the later of I i) I he first
day that such First Offer Space is available for lease, and (ii) the date of
Tenant's notice to Landlord exercising its Right of First Offer) to include the
First Offer Space referenced in the Availability Notice and to increase the
Tenant's Percentage Share to an amount equal to the ratio of the building area
of the Premises (including the First Offer Space referenced in the Availability
Notice) to the building area of i he Property specified in the BASIC LEASE
INFORMATION and to increase the Tenant's Building Percentage Share to an
Addendum-2
amount equal to the ratio of the building area of" the Premises (including the
First Offer Space referenced in the Availability Notice) to the building area of
the Building specified in the BASIC LEASE INFORMATION. If Tenant does not timely
make an offer pursuant to the terms of this Paragraph 5, or if Landlord does not
accept Tenant's offer, Landlord may enter into a lease or leases for all or any
portion of the First Offer Space noted in the Availability Notice upon such
terms and conditions and with such tenants as Landlord shall determine in its
sole discretion and ▇▇▇▇▇▇'s Right of First Offer as it relates to the portion
of the First Offer Space noted in the Availability Notice shall become null and
void. Nothing in this Paragraph 5 shall prohibit Landlord from granting any
tenant occupying all or any portion of the First Offer Space a lease renewal or
extension. The terms and provisions of this Paragraph 5 shall not be applicable
to the Expansion Premises.
6. Option to Renew. Tenant shall have the right and option to extend the term of
this Lease for one (1) additional period of five (5) years (the "Extended
Term"). The Extended Term shall commence (if at all) immediately upon the
Expiration Date. Tenant shall exercise its right and option to extend the term
of this Lease for the Extended Term (if at all) by giving Landlord notice of
same on or before the two hundred seventieth (270th) day prior to the date that
would be the first day of the Extended Term (but in no event shall Tenant be
entitled to deliver such notice before the three hundred and sixty fifth (365lh)
day prior to the date that would be the first day of the Extended Term).
Anything herein to the contrary notwithstanding, Tenant may not exercise any
right and option provided for in this Paragraph 6 at any time (a) as of which an
Event of Default pursuant to Article 10 of this Lease shall exist, (b) after
Landlord shall have terminated ▇▇▇▇▇▇'s right to possession of the Premises
pursuant to Section 10.2 of this Lease, or (c) after this Lease shall have
otherwise been terminated. The Extended Term shall be upon the same terms and
conditions as the initial term, except as follows: (a) Tenant shall have no
additional right or option to extend the term of this Lease, (b) no additional
Landlord's Work shall be performed, and (c) the monthly Base Rent for the
Extended Term shall be the fair market rental of the Premises, as the Premises
exists at the time of such renewal or, if then damaged or destroyed, as the same
would exist after repair or restoration of such damage or destruction, but in no
event less than the monthly Base Rent for the month immediately preceding the
Extended Term. The fair market rental for the Extended Term shall be determined
by Landlord. Within fifteen (15) business days after Landlord receives ▇▇▇▇▇▇'s
notice exercising the right to extend the term of the Lease, Landlord shall give
Tenant a notice stating Landlord's determination of the monthly Base Rent for
the Extended Term. Within fifteen (15) business days after receiving Landlord's
notice. Tenant shall give a written notice to Landlord in which ▇▇▇▇▇▇ either
accepts ▇▇▇▇▇▇▇▇'s determination of the monthly Base Rent for the Extended Term
or rejects such determination. If Tenant accepts ▇▇▇▇▇▇▇▇'s determination of the
monthly Base Rent for the Extended Term, the term of this Lease shall be
extended for the Extended Term, subject to the agreements, covenants and
conditions of this Lease and the monthly Base Rent shall be the amount so
determined by Landlord. If ▇▇▇▇▇▇ does not accept such determination (either by
rejecting such determination or failing to accept Landlord's determination),
▇▇▇▇▇▇'s right to extend the term of this Lease for the Extended Term shall
terminate.
7. Contingency. Landlord and ▇▇▇▇▇▇ acknowledge and agree that the effectiveness
of this Lease is contingent upon Tenant entering into the Expansion Premises
Agreement with the Existing Tenant and Landlord consenting to the same (which
consent Landlord agrees not to unreasonably withhold) and no obligations of
Landlord or Tenant shall arise under this Lease unless and until such Expansion
Premises Agreement has been executed and consented to bv Landlord. If the
Expansion Premises Agreement has not been executed and consented to by Landlord
by November 19, 2004, then, at either party's option (which option shall be
exercised by delivering written notice to the .otter party on or before November
19, 2004), this Lease shall be of no further force or effect. In the event that
neither party exercises its right to terminate this Lease under this Paragraph 7
on or before November 19, 2004, then such termination right shall be null and
void and the term of this Lease shall continue in full force and effect.
S. Early Access. Notwithstanding anything to the contrary contained in this
Lease, Landlord and ▇▇▇▇▇▇ herein acknowledge and agree that at any lime after
the execution of this Lease. Landlord shall grant to Tenant the right to access
the Premises for the sole purpose of installing cabling in the Premises. Upon
accessing the Premises in accordance with the immediately preceding sentence,
Tenant shall be responsible for the performance and observance of all of us
obligations and covenants under this Lease with respect to the Premises, except
its obligation to pay monthly Base Rent and additional rent under section 3. l
(b), which obligations shall not commence until the Commencement Date. In the
event that either party exercises its right to terminate this Lease in
accordance with the terms of Paragraph 7 above, then Landlord shall have the
right to either retain any such cabling installed by Tenant or to cause Tenant
to remove all such cabling and restore the Premises to the condition in which
the Premises existed before such cabling was installed.
Addendum-3