Texas-Grand Prairie-630 Avenue K Lease - Prologis Trust and Burke Industries Inc.
[Net Lease]
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 22 day of June 1999, between
PROLOGIS TRUST, ("Landlord"), and the Tenant named below.
TENANT: BURKE INDUSTRIES, INC.
TENANT'S
REPRESENTATIVE, DAVID WORTHINGTON
ADDRESS, AND 2250 SOUTH TENTH STREET
TELEPHONE: SAN JOSE, CA 95112
PREMISES: That portion of the Building, containing
approximately 24,450 rentable square feet, as
determined by Landlord, as shown on Exhibit A.
PROJECT: GREAT SOUTHWEST INDUSTRIAL CENTER #1
BUILDING: GREAT SOUTHWEST INDUSTRIAL CENTER# 1 - 44601A
630 AVENUE K
GRAND PRAIRIE, TX 75050
TENANT'S
PROPORTIONATE
SHARE OF PROJECT: 39.760%
TENANT'S
PROPORTIONATE
SHARE OF BUILDING: 39.760%
LEASE TERM: Beginning on the Commencement Date and ending on
the last day of the 60th full calendar month
thereafter.
COMMENCEMENT DATE: July 15, 1999
INITIAL MONTHLY
BASE RENT: $6,621.88
INITIAL ESTIMATED 1. Amortized Improvements: $107.47
MONTHLY OPERATING
EXPENSE PAYMENTS: 2. Common Area Charges: $570.50
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(estimates only and
subject to 3. Taxes: $1,324.38
adjustment to actual
costs and expenses 4. Insurance: $40.75
according to the
provisions of this 5. Others: MGMT. FEE $203.75
Lease
INITIAL ESTIMATED
MONTHLY OPERATING
EXPENSE PAYMENTS: $2,246.85
INITIAL MONTHLY
BASE RENT AND
OPERATING EXPENSE
PAYMENTS: $8,868.73
SECURITY DEPOSIT: $8,868.73
BROKER: JAMIE WHITE - TRAMMEL CROW COMPANY
ADDENDA: 1. ONE RENEWAL OPTION AT MARKET 2. CONSTRUCTION
(TURNKEY) 3. ASSIGNMENT AND SUBLETTING
EXHIBITS: A. SITE PLAN
1. GRANTING CLAUSE. In consideration of the obligation of Tenant
to pay rent as herein provided and in consideration of the other terms,
covenants, and conditions hereof, Landlord leases to Tenant, and Tenant takes
from Landlord, the Premises, to have and to hold for the Lease Term, subject
to the terms, covenants and conditions of this Lease.
2. ACCEPTANCE OF PREMISES. Tenant shall accept the Premises in
its condition as of the Commencement Date, subject to all applicable laws,
ordinances, regulations, covenants and restrictions. Tenant shall have thirty
(30) days from the commencement date to submit a punchlist of defects in the
Premises to Landlord. Landlord has made no representation or warranty as to
the suitability of the Premises for the conduct of Tenant's business, and
Tenant waives any implied warranty that the Premises are suitable for
Tenant's intended purposes. Except as provided in Paragraph 10, in no event
shall Landlord have any obligation for any defects in the Premises or any
limitation on its use. The taking of possession of the Premises shall be
conclusive evidence that Tenant accepts the Premises and that the Premises
were in good condition at the time possession was taken except for items that
are Landlord's responsibility under Paragraph 10 and any punchlist items
agreed to in writing by Landlord and Tenant.
3. USE. The Premises shall be used only for the purpose of
receiving, storing, shipping and selling (but limited to wholesale sales)
products, materials and merchandise made and/or distributed by Tenant and for
such other lawful purposes as may be incidental thereto; provided, however,
with Landlord's prior written consent, Tenant may also use the Premises for
light manufacturing. Tenant shall not conduct or give notice of any auction,
liquidation, or going
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out of business sale on the Premises. Tenant will use the Premises in a
careful, safe and proper manner and will not commit waste, overload the floor
or structure of the Premises or subject the Premises to use that would damage
the Premises. Tenant shall not permit any objectionable or unpleasant odors,
smoke, dust, gas, noise, or vibrations to emanate from the Premises, or take
any other action that would constitute a nuisance or would disturb,
unreasonably interfere with, or endanger Landlord or any tenants of the
Project. Outside storage, including without limitation, storage of trucks and
other vehicles, is prohibited without Landlord's prior written consent.
Tenant, at its sole expense, shall use and occupy the Premises in compliance
with all laws, including, without limitation, the Americans With Disabilities
Act, orders, judgments, ordinances, regulations, codes, directives, permits,
licenses, covenants and restrictions now or hereafter applicable to (the
Premises (collectively, "Legal Requirements"). The Premises shall not be used
as a place of public accommodation under the Americans With Disabilities Act
or similar state statutes or local ordinances or any regulations promulgated
thereunder, all as may be amended from time to time. Tenant shall, at its
expense, make any alterations or modifications, within or without the
Premises, that are required by Legal Requirements related to Tenant's use or
occupation of the Premises. Tenant will not use or permit the Premises to be
used for any purpose or in any manner that would void Tenant's or Landlord's
insurance, increase the insurance risk, or cause the disallowance of any
sprinkler credits. If any increase in the cost of any insurance on the
Premises or the Project is caused by Tenant's use or occupation of the
Premises, or because Tenant vacates the Premises, then Tenant shall pay the
amount of such increase to Landlord. Any occupation of the Premises by Tenant
prior to the Commencement Date shall be subject to all obligations of Tenant
under this Lease.
4. BASE RENT. Tenant shall pay Base Rent in the amount set forth
above. The first month's Base Rent, the Security Deposit, and the first
monthly installment of estimated Operating Expenses (as hereafter defined)
shall be due and payable on the date hereof, and Tenant promises to pay to
Landlord in advance, without demand, deduction or set-off, monthly
installments of Base Rent on or before the first day of each calendar month
succeeding the Commencement Date. Payments of Base Rent for any fractional
calendar month shall be prorated. All payments required to be made by Tenant
to Landlord hereunder shall be payable at such address as Landlord may
specify from time to time by written notice delivered in accordance herewith.
The obligation of Tenant to pay Base Rent and other sums to Landlord and the
obligations of Landlord under this Lease are independent obligations. Tenant
shall have no right at any time to abate, reduce, or set-off any rent due
hereunder except as may be expressly provided in this Lease. If Tenant is
delinquent in any monthly installment of Base Rent or of estimated Operating
Expenses for more than 5 days, Tenant shall pay to Landlord on demand a late
charge equal to 5 percent of such delinquent sum. The provision for such late
charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as a penalty.
5. SECURITY DEPOSIT. The Security Deposit shall be held by
Landlord as security for the performance of Tenant's obligations under this
Lease. The Security Deposit is not an advance rental deposit or a measure of
Landlord's damages in case of Tenant's default. Upon each occurrence of an
Event of Default (hereinafter defined), Landlord may use all or part of the
Security Deposit to pay delinquent payments due under this Lease, and the
cost of any damage, injury, expense or liability caused by such Event of
Default, without prejudice to any other remedy provided herein or provided by
law. Tenant shall pay Landlord on demand the amount
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that will restore the Security Deposit to its original amount. Landlord's
obligation respecting the Security Deposit is that of a debtor, not a
trustee; no interest shall accrue thereon. The Security Deposit shall be the
property of Landlord, subject to Landlord's obligation to return the Security
Deposit to Tenant provided Tenant is not in default hereunder, and provided
Tenant's obligations under this Lease have been completely fulfilled.
Landlord shall be released from any obligation with respect to the Security
Deposit upon transfer of this Lease and the Premises to a person or entity
assuming Landlord's obligations under this Paragraph 5.
6. OPERATING EXPENSE PAYMENTS. During each month of the Lease
Term, on the same date that Base Rent is due, Tenant shall pay Landlord an
amount equal to 1/12 of the annual cost, as estimated by Landlord from time
to time, of Tenant's Proportionate Share (hereinafter defined) of Operating
Expenses for the Project. Payments thereof for any fractional calendar month
shall be prorated. The term "Operating Expenses" means all costs and expenses
incurred by Landlord with respect to the ownership, maintenance, and
operation of the Project including, but not limited to costs of: Taxes
(hereinafter defined) and fees payable to tax consultants and attorneys for
consultation and contesting taxes; insurance; utilities; maintenance, repair
and replacement of all portions of the Project, including without limitation,
paving and parking areas, roads, roofs, alleys, and driveways, mowing,
landscaping, exterior painting, utility lines, heating, ventilation and air
conditioning systems, lighting, electrical systems and other mechanical and
building systems; amounts paid to contractors and subcontractors for work or
services performed in connection with any of the foregoing; charges or
assessments of any association to which the Project is subject; property
management fees payable to a property manager which are currently 3% of the
gross payables to Landlord, including any affiliate of Landlord, or if there
is no property manager, an administration fee of 15 percent of Operating
Expenses payable to Landlord; security services, if any; trash collection,
sweeping and removal; and additions or alterations made by Landlord to the
Project or the Building in order to comply with Legal Requirements (other
than those expressly required herein to be made by Tenant) or that are
appropriate to the continued operation of the Project or the Building as a
bulk warehouse facility in the market area, provided that the cost of
additions or alterations that are required to be capitalized for federal
income tax purposes shall be amortized on a straight line basis over a period
equal to the lesser of the useful life thereof for federal income tax
purposes or 10 years. Operating Expenses do not include costs, expenses,
depreciation or amortization for capital repairs and capital replacements
required to be made by Landlord under Paragraph 10 of this Lease, debt
service under mortgages or ground rent under ground leases, costs of
restoration to the extent of net insurance proceeds received by Landlord with
respect thereto, leasing commissions, or the costs of renovating space for
tenants.
If Tenant's total payments of Operating Expenses for any year
are less than Tenant's Proportionate Share of actual Operating Expenses for
such year, then Tenant shall pay the difference to Landlord within 30 days
after demand, and if more, then Landlord shall retain such excess and credit
it against Tenant's next payments. For purposes of calculating Tenant's
Proportionate Share of Operating Expenses, a year shall mean a calendar year
except the first year, which shall begin on the Commencement Date, and the
last year, which shall end on the expiration of this Lease. With respect to
Operating Expenses which Landlord allocates to the entire Project, Tenant's
"Proportionate Share" shall be the percentage set forth on the first page of
this Lease as Tenant's Proportionate Share of the Project as reasonably
adjusted by Landlord in the future for changes in the physical size of the
Premises or the Project; and, with respect to
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Operating Expenses which Landlord allocates only to the Building, Tenant's
"Proportionate Share" shall be the percentage set forth on the first page of
this Lease as Tenant's Proportionate Share of the Building as reasonably
adjusted by Landlord in the future for changes in the physical size of the
Premises or the Building. Landlord may equitably increase Tenant's
Proportionate Share for any item of expense or cost reimbursable by Tenant
that relates to a repair, replacement, or service that benefits only the
Premises or only a portion of the Project or Building that includes the
Premises or that varies with occupancy or use. The estimated Operating
Expenses for the Premises set forth on the first page of this Lease are only
estimates, and Landlord makes no guaranty or warranty that such estimates
will be accurate.
7. UTILITIES. Tenant shall pay for all water, gas, electricity,
heat, light, power, telephone, sewer, sprinkler services, refuse and trash
collection, and other utilities and services used on the Premises, all
maintenance charges for utilities, and any storm sewer charges or other
similar charges for utilities imposed by any governmental entity or utility
provider, together with any taxes, penalties, surcharges or the like
pertaining to Tenant's use of the Premises. Landlord may cause at Tenant's
expense any utilities to be separately metered or charged directly to Tenant
by the provider. Tenant shall pay its share of all charges for jointly
metered utilities based upon consumption, as reasonably determined by
Landlord. No interruption or failure of utilities shall result in the
termination of this Lease or the abatement of rent. Tenant agrees to limit
use of water and sewer for normal restroom use and normal distribution
warehouse use.
8. TAXES. Landlord shall pay all taxes, assessments and
governmental charges (collectively referred to as "Taxes") that accrue
against the Project during the Lease Term, which shall be included as part of
the Operating Expenses charged to Tenant. Landlord may contest by appropriate
legal proceedings the amount, validity, or application of any Taxes or liens
thereof. All capital levies or other taxes assessed or imposed on Landlord
upon the rents payable to Landlord under this Lease and any franchise tax,
any excise, transaction, sales or privilege tax, assessment, levy or charge
measured by or based, in whole or in part, upon such rents from the Premises
and/or the Project or any portion thereof shall be paid by Tenant to Landlord
monthly in estimated installments or upon demand, at the option of Landlord,
as additional rent; provided, however, in no event shall Tenant be liable for
any net income taxes imposed on Landlord unless such net income taxes are in
substitution for any Taxes payable hereunder. If any such tax or excise is
levied or assessed directly against Tenant, then Tenant shall be responsible
for and shall pay the same at such times and in such manner as the taxing
authority shall require. Tenant shall be liable for all taxes levied or
assessed against any personal property or fixtures placed in the Premises,
whether levied or assessed against Landlord or Tenant.
9. INSURANCE. Landlord shall maintain all risk property insurance
covering the full replacement cost of the Building. Landlord may, but is not
obligated to, maintain such other insurance and additional coverages as it
may deem necessary, including, but not limited to, commercial liability
insurance and rent loss insurance. All such insurance shall be included as
part of the Operating Expenses charged to Tenant. The Project or Building may
be included in a blanket policy (in which case the cost of such insurance
allocable to the Project or Building will be determined by Landlord based
upon the insurer's cost calculations). Tenant shall also reimburse Landlord
for any increased premiums or additional insurance which Landlord reasonably
deems necessary as a result of Tenant's use of the Premises.
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Tenant, at its expense, shall maintain during the Lease
Term: all risk property insurance covering the full replacement cost of all
property and improvements installed or placed in the Premises by Tenant at
Tenant's expense; worker's compensation insurance with no less than the
minimum limits required by law; employer's liability insurance with such
limits as required by law; and commercial liability insurance, with a minimum
limit of $1,000,000 per occurrence and a minimum umbrella limit of
$1,000,000, for a total minimum combined general liability and umbrella limit
of $2,000,000 (together with such additional umbrella coverage as Landlord
may reasonably require) for property damage, personal injuries, or deaths of
persons occurring in or about the Premises. Landlord may from time to time
require reasonable increases in any such limits. The commercial liability
policies shall name Landlord as an additional insured, insure on an
occurrence and not a claims-made basis, be issued by insurance companies
which are reasonably acceptable to Landlord, not be cancelable unless 30
days' prior written notice shall have been given to Landlord, contain a
hostile fire endorsement and a contractual liability endorsement and provide
primary coverage to Landlord (any policy issued to Landlord providing
duplicate or similar coverage shall be deemed excess over Tenant's policies).
Such policies or certificates thereof shall be delivered to Landlord by
Tenant upon commencement of the Lease Term and upon each renewal of said
insurance.
The all risk property insurance obtained by Landlord and
Tenant shall include a waiver of subrogation by the insurers and all rights
based upon an assignment from its insured, against Landlord or Tenant, their
officers, directors, employees, managers, agents, invitees and contractors,
in connection with any loss or damage thereby insured against. Neither party
nor its officers, directors, employees, managers, agents, invitees or
contractors shall be liable to the other for loss or damage caused by any
risk coverable by all risk property insurance, and each party waives any
claims against the other party, and its officers, directors, employees,
managers, agents, invitees and contractors for such loss or damage. The
failure of a party to insure its property shall not void this waiver.
Landlord and its agents, employees and contractors shall not be liable for,
and Tenant hereby waives all claims against such parties for, business
interruption and losses occasioned thereby sustained by Tenant or any person
claiming through Tenant resulting from any accident or occurrence in or upon
the Premises or the Project from any cause whatsoever, including without
limitation, damage caused in whole or in part, directly or indirectly, by the
negligence of Landlord or its agents, employees or contractors.
10. LANDLORD'S REPAIRS. Landlord shall maintain, at its expense, the
structural soundness of the roof, foundation, and exterior walls of the Building
in good repair, reasonable wear and tear and uninsured losses and damages caused
by Tenant, its agents and contractors excluded. The term "walls" as used in this
Paragraph 10 shall not include windows, glass or plate glass, doors or overhead
doors, special store fronts, dock bumpers, dock plates or levelers, or office
entries. Tenant shall promptly give Landlord written notice of any repair
required by Landlord pursuant to this Paragraph 10, after which Landlord shall
have a reasonable opportunity to repair. Landlord shall install a new HVAC at
Landlord's expense.
11. TENANT'S REPAIRS. Landlord, at Tenant's expense as provided in
Paragraph 6, shall maintain in good repair and condition the parking areas
and other common areas of the Building, including, but not limited to
driveways, alleys, landscape and grounds surrounding the Premises. Subject to
Landlord's obligation in Paragraph 10 and subject to Paragraphs 9 and 15,
Tenant, at its expense, shall repair, replace and maintain in good condition
all portions of the
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Premises and all areas, improvements and systems exclusively serving the
Premises including, without limitation, dock and loading areas, truck doors,
plumbing, water and sewer lines up to points of common connection, fire
sprinklers and fire protection systems, entries, doors, ceilings and roof
membrane (to be maintained by Landlord at Tenant's cost), windows, interior
walls, and the interior side of demising walls, and heating, ventilation and
air conditioning systems. Such repair and replacements include capital
expenditures and repairs whose benefit may extend beyond the Term. Heating,
ventilation and air conditioning systems and other mechanical and building
systems serving the Premises shall be maintained at Tenant's expense pursuant
to maintenance service contracts entered into by Tenant or, at Landlord's
election, by Landlord. The scope of services and contractors under such
maintenance contracts shall be reasonably approved by Landlord. If Tenant
fails to perform any repair or replacement for which it is responsible,
Landlord may perform such work and be reimbursed by Tenant within 10 days
after demand therefor. Subject to Paragraphs 9 and 15, Tenant shall bear the
full cost of any repair or replacement to any part of the Building or Project
that results from damage caused by Tenant, its agents, contractors, or
invitees and any repair that benefits only the Premises.
12. TENANT-MADE ALTERATIONS AND TRADE FIXTURES. Except for
cosmetic alterations, any alterations, additions, or improvements made by or
on behalf of Tenant to the Premises ("Tenant-Made Alterations") shall be
subject to Landlord's prior written consent. Tenant shall cause, at its
expense, all Tenant-Made Alterations to comply with insurance requirements
and with Legal Requirements and shall construct at its expense any alteration
or modification required by Legal Requirements as a result of any Tenant-Made
Alterations. All Tenant-Made Alterations shall be constructed in a good and
workmanlike manner by contractors reasonably acceptable to Landlord and only
good grades of materials shall be used. All plans and specifications for any
Tenant-Made Alterations shall be submitted to Landlord for its approval.
Landlord may monitor construction of the Tenant-Made Alterations. Tenant
shall reimburse Landlord for its costs in reviewing plans and specifications
and in monitoring construction. Landlord's right to review plans and
specifications and to monitor construction shall be solely for its own
benefit, and Landlord shall have no duty to see that such plans and
specifications or construction comply with applicable laws, codes, rules and
regulations. Tenant shall provide Landlord with the identities and mailing
addresses of all persons performing work or supplying materials, prior to
beginning such construction, and Landlord may post on and about the Premises
notices of non-responsibility pursuant to applicable law. Tenant shall
furnish security or make other arrangements satisfactory to Landlord to
assure payment for the completion of all work free and clear of liens and
shall provide certificates of insurance for worker's compensation and other
coverage in amounts and from an insurance company satisfactory to Landlord
protecting Landlord against liability for personal injury or property damage
during construction. Upon completion of any Tenant-Made Alterations, Tenant
shall deliver to Landlord sworn statements setting forth the names of all
contractors and subcontractors who did work on the Tenant-Made Alterations
and final lien waivers from all such contractors and subcontractors. Upon
surrender of the Premises, all Tenant-Made Alterations and any leasehold
improvements constructed by Landlord or Tenant shall remain on the Premises
as Landlord's property, except to the extent Landlord requires removal at
Tenant's expense of any such items or Landlord and Tenant have otherwise
agreed in writing in connection with Landlord's consent to any Tenant-Made
Alterations. Tenant shall repair any damage caused by such removal.
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Tenant, at its own cost and expense and without Landlord's
prior approval, may erect such shelves, bins, machinery and trade fixtures
(collectively "Trade Fixtures") in the ordinary course of its business
provided that such items do not alter the basic character of the Premises, do
not overload or damage the Premises, and may be removed without injury to the
Premises, and the construction, erection, and installation thereof complies
with all Legal Requirements and with Landlord's requirements set forth above.
Tenant shall remove its Trade Fixtures and shall repair any damage caused by
such removal.
13. SIGNS. Tenant shall not make any changes to the exterior of
the Premises, install any exterior lights, decorations, balloons, flags,
pennants, banners, or painting, or erect or install any signs, windows or
door lettering, placards, decorations, or advertising media of any type which
can be viewed from the exterior of the Premises, without Landlord's prior
written consent which shall not be unreasonably withheld. Upon surrender or
vacation of the Premises, Tenant shall have removed all signs and repair,
paint, and/or replace the building facia surface to which its signs are
attached. Tenant shall obtain all applicable governmental permits and
approvals for sign and exterior treatments. All signs, decorations,
advertising media, blinds, draperies and other window treatment or bars or
other security installations visible from outside the Premises shall be
subject to Landlord's approval and conform in all respects to Landlord's
requirements.
14. PARKING. Tenant shall be entitled to park in common with other
tenants of the Project in those areas designated for non-reserved parking.
Landlord may allocate parking spaces among Tenant and other tenants in the
Project if Landlord determines that such parking facilities are becoming
crowded. Landlord shall not be responsible for enforcing Tenant's parking
rights against any third parties.
15. RESTORATION. If at any time during the Lease Term the Premises
are damaged by a fire or other casualty, Landlord shall notify Tenant within
60 days after such damage as to the amount of time Landlord reasonably
estimates it will take to restore the Premises. If the restoration time is
estimated to exceed 6 months, either Landlord or Tenant may elect to
terminate this Lease upon notice to the other party given no later than 30
days after Landlord's notice. If neither party elects to terminate this Lease
or if Landlord estimates that restoration will take 6 months or less, then,
subject to receipt of sufficient insurance proceeds, Landlord shall promptly
restore the Premises excluding the improvements installed by Tenant or by
Landlord and paid by Tenant, subject to delays arising from the collection of
insurance proceeds or from Force Majeure events. Tenant at Tenant's expense
shall promptly perform, subject to delays arising from the collection of
insurance proceeds, or from Force Majeure events, all repairs or restoration
not required to be done by Landlord and shall promptly re-enter the Premises
and commence doing business in accordance with this Lease. Notwithstanding
the foregoing, either party may terminate this Lease if the Premises are
damaged during the last year of the Lease Term and Landlord reasonably
estimates that it will take more than one month to repair such damage. Tenant
shall pay to Landlord with respect to any damage to the Premises the amount
of the commercially reasonable deductible under Landlord's insurance policy
(currently $10,000) within 10 days after presentment of Landlord's invoice.
If the damage involves the premises of other tenants, Tenant shall pay the
portion of the deductible that the cost of the restoration of the Premises
bears to the total cost of restoration, as determined by Landlord. Base Rent
and Operating Expenses shall be abated for the period of repair and
restoration in the proportion which the area of the Premises, if any, which
is not usable by Tenant bears to the total area of the
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Premises. Such abatement shall be the sole remedy of Tenant, and except as
provided herein, Tenant waives any right to terminate the Lease by reason of
damage or casualty loss.
16. CONDEMNATION. If any part of the Premises or the Project
should be taken for any public or quasi-public use under governmental law,
ordinance, or regulation, or by right of eminent domain, or by private
purchase in lieu thereof (a "Taking" or "Taken"), and the Taking would
prevent or materially interfere with Tenant's use of the Premises or in
Landlord's judgment would materially interfere with or impair its ownership
or operation of the Project, then upon written notice by Landlord this Lease
shall terminate and Base Rent shall be apportioned as of said date. If part
of the Premises shall be Taken, and this Lease is not terminated as provided
above, the Base Rent payable hereunder during the unexpired Lease Term shall
be reduced to such extent as may be fair and reasonable under the
circumstances. In the event of any such Taking, Landlord shall be entitled to
receive the entire price or award from any such Taking without any payment
to Tenant, and Tenant hereby assigns to Landlord Tenant's interest, if any,
in such award. Tenant shall have the right, to the extent that same shall not
diminish Landlord's award, to make a separate claim against the condemning
authority (but not Landlord) for such compensation as may be separately
awarded or recoverable by Tenant for moving expenses and damage to Tenant's
Trade Fixtures, if a separate award for such items is made to Tenant.
17. ASSIGNMENT AND SUBLETTING. Without Landlord's prior written
consent, Tenant shall not assign this Lease or sublease the Premises or any
part thereof or mortgage, pledge, or hypothecate its leasehold interest or
grant any concession or license within the Premises and any attempt to do any
of the foregoing shall be void and of no effect. For purposes of this
paragraph, a transfer of the ownership interests controlling Tenant shall be
deemed an assignment of this Lease unless such ownership interests are
publicly traded. Notwithstanding the above, Tenant may assign or sublet the
Premises, or any part thereof, to any entity controlling Tenant, controlled
by Tenant or under common control with Tenant (a "Tenant Affiliate"), without
the prior written consent of Landlord. Tenant shall reimburse Landlord for
all of Landlord's reasonable out-of-pocket expenses in connection with any
assignment or sublease. Upon Landlord's receipt of Tenant's written notice of
a desire to assign or sublet the Premises, or any part thereof (other than to
a Tenant Affiliate), Landlord may, by giving written notice to Tenant within
30 days after receipt of Tenant's notice, terminate this Lease with respect
to the space described in Tenant's notice, as of the date specified in
Tenant's notice for the commencement of the proposed assignment or sublease.
Notwithstanding any assignment or subletting, Tenant and any
guarantor or surety of Tenant's obligations under this Lease shall at all
times remain fully responsible and liable for the payment of the rent and for
compliance with all of Tenant's other obligations under this Lease
(regardless of whether Landlord's approval has been obtained for any such
assignments or sublettings). In the event that the rent due and payable by a
sublessee or assignee (or a combination of the rental payable under such
sublease or assignment plus any bonus or other consideration therefor or
incident thereto) exceeds the rental payable under this Lease, then Tenant
shall be bound and obligated to pay Landlord as additional rent hereunder all
such excess rental and other excess consideration within 10 days following
receipt thereof by Tenant.
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If this Lease be assigned or if the Premises be subleased
(whether in whole or in part) or in the event of the mortgage, pledge, or
hypothecation of Tenant's leasehold interest or grant of any concession or
license within the Premises or if the Premises be occupied in whole or in
part by anyone other than Tenant, then upon a default by Tenant hereunder
Landlord may collect rent from the assignee, sublessee, mortgagee, pledgee,
party to whom the leasehold interest was hypothecated, concessionee or
licensee or other occupant and, except to the extent set forth in the
preceding paragraph, apply the amount collected to the next rent payable
hereunder; and all such rentals collected by Tenant shall be held in trust
for Landlord and immediately forwarded to Landlord. No such transaction or
collection of rent or application thereof by Landlord, however, shall be
deemed a waiver of these provisions or a release of Tenant from the further
performance by Tenant of its covenants, duties, or obligations hereunder.
18. INDEMNIFICATION. Except for the negligence of Landlord, its
agents, employees or contractors, and to the extent permitted by law, Tenant
agrees to indemnify, defend and hold harmless Landlord, and Landlord's
agents, employees and contractors, from and against any and all losses,
liabilities, damages, costs and expenses (including attorneys' fees)
resulting from claims by third parties for injuries to any person and damage
to or theft or misappropriation or loss of property occurring in or about the
Project and arising from the use and occupancy of the Premises or from any
activity, work, or thing done, permitted or suffered by Tenant in or about
the Premises or due to any other act or omission of Tenant, its subtenants,
assignees, invitees, employees, contractors and agents. The furnishing of
insurance required hereunder shall not be deemed to limit Tenant's
obligations under this Paragraph.
19. INSPECTION AND ACCESS. Landlord and its agents,
representatives, and contractors may enter the Premises at any reasonable
time to inspect the Premises and to make such repairs as may be required or
permitted pursuant to this Lease and for any other business purpose. Landlord
and Landlord's representatives may enter the Premises during business hours
for the purpose of showing the Premises to prospective purchasers and, during
the last year of the Lease Term, to prospective tenants. Landlord may erect a
suitable sign on the Premises stating the Premises are available to let or
that the Project is available for sale. Landlord may grant easements, make
public dedications, designate common areas and create restrictions on or
about the Premises, provided that no such easement, dedication, designation
or restriction materially interferes with Tenant's use or occupancy of the
Premises. At Landlord's request, Tenant shall execute such instruments as may
be necessary for such easements, dedications or restrictions.
20. QUIET ENJOYMENT. If Tenant shall perform all of the covenants
and agreements herein required to be performed by Tenant, Tenant shall,
subject to the terms of this Lease, at all times during the Lease Term, have
peaceful and quiet enjoyment of the Premises against any person claiming by,
through or under Landlord.
21. SURRENDER. Upon termination of the Lease Term or earlier
termination of Tenant's right of possession, Tenant shall surrender the
Premises to Landlord in the same condition as received, broom clean, ordinary
wear and tear and casualty loss and condemnation covered by Paragraphs 15 and
16 excepted. Any Trade Fixtures, Tenant-Made Alterations and property not so
removed by Tenant as permitted or required herein shall be deemed abandoned
and may be stored, removed, and disposed of by Landlord at Tenant's expense,
and Tenant waives all claims against Landlord for any damages resulting from
Landlord's retention and
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disposition of such property. All obligations of Tenant hereunder not fully
performed as of the termination of the Lease Term shall survive the
termination of the Lease Term, including without limitation, indemnity
obligations, payment obligations with respect to Operating Expenses and
obligations concerning the condition and repair of the Premises.
22. HOLDING OVER. If Tenant retains possession of the Premises
after the termination of the Lease Term, unless otherwise agreed in writing,
such possession shall be subject to immediate termination by Landlord at any
time, and all of the other terms and provisions of this Lease (excluding any
expansion or renewal option or other similar right or option) shall be
applicable during such holdover period, except that Tenant shall pay Landlord
from time to time, upon demand, as Base Rent for the holdover period, an
amount equal to 150% of the Base Rent in effect on the termination date,
computed on a monthly basis for each month or part thereof during such
holding over. All other payments shall continue under the terms of this
Lease. In addition, Tenant shall be liable for all damages incurred by
Landlord as a result of such holding over. No holding over by Tenant, whether
with or without consent of Landlord, shall operate to extend this Lease
except as otherwise expressly provided, and this Paragraph 22 shall not be
construed as consent for Tenant to retain possession of the Premises.
23. EVENTS OF DEFAULT. Each of the following events shall be an
event of default ("Event of Default") by Tenant under this Lease:
(i) Tenant shall fail to pay any installment of Base Rent
or any other payment required herein when due, and such failure
shall continue for a period of 5 days from the date such payment
was due.
(ii) Tenant or any guarantor or surety of Tenant's
obligations hereunder shall (A) make a general assignment for the
benefit of creditors; (B) commence any case, proceeding or other
action seeking to have an order for relief entered on its behalf as
a debtor or to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution
or composition of it or its debts or seeking appointment of a
receiver, trustee, custodian or other similar official for it or
for all or of any substantial part of its property (collectively a
"proceeding for relief"); (C) become the subject of any proceeding
for relief which is not dismissed within 60 days of its filing or
entry; or (D) die or suffer a legal disability (if Tenant,
guarantor, or surety is an individual) or be dissolved or otherwise
fail to maintain its legal existence (if Tenant, guarantor or
surety is a corporation, partnership or other entity).
(iii) Any insurance required to be maintained by Tenant
pursuant to this Lease shall be cancelled or terminated or shall
expire or shall be reduced or materially changed, except, in each
case, as permitted in this Lease.
(iv) Tenant shall not occupy or shall vacate the Premises
or shall fail to continuously operate its business at the Premises
for the permitted use set forth herein, whether or not Tenant is in
monetary or other default under this Lease.
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(v) Tenant shall attempt or there shall occur any
assignment, subleasing or other transfer of Tenant's interest in or
with respect to this Lease except as otherwise permitted in this
Lease.
(vi) Tenant shall fail to discharge any lien placed upon
the Premises in violation of this Lease within 30 days after any
such lien or encumbrance is filed against the Premises.
(vii) Tenant shall fail to comply with any provision of this
Lease other than those specifically referred to in this Paragraph
23, and except as otherwise expressly provided herein, such default
shall continue for more than 30 days after Landlord shall have
given Tenant written notice of such default.
24. LANDLORD'S REMEDIES. Upon each occurrence of an Event of
Default and so long as such Event of Default shall be continuing, Landlord
may at any time thereafter at its election: terminate this Lease or Tenant's
right of possession, (but Tenant shall remain liable as hereinafter provided)
and/or pursue any other remedies at law or in equity. Upon the termination of
this Lease or termination of Tenant's right of possession, it shall be lawful
for Landlord, without formal demand or notice of any kind, to re-enter the
Premises by summary dispossession proceedings or any other action or
proceeding authorized by law and to remove Tenant and all persons and
property therefrom. If Landlord re-enters the Premises, Landlord shall have
the right to keep in place and use, or remove and store, all of the
furniture, fixtures and equipment at the Premises.
If Landlord terminates this Lease, Landlord may recover from
Tenant the sum of: all Base Rent and all other amounts accrued hereunder to
the date of such termination; the cost of reletting the whole or any part of
the Premises, including without limitation brokerage fees and/or leasing
commissions incurred by Landlord, and costs of removing and storing Tenant's
or any other occupant's property, repairing, altering, remodeling, or
otherwise putting the Premises into condition acceptable to a new tenant or
tenants, and all reasonable expenses incurred by Landlord in pursuing its
remedies, including reasonable attorneys' fees and court costs; and the
excess of the then present value of the Base Rent and other amounts payable
by Tenant under this Lease as would otherwise have been required to be paid
by Tenant to Landlord during the period following the termination of this
Lease measured from the date of such termination to the expiration date
stated in this Lease, over the present value of any net amounts which Tenant
establishes Landlord can reasonably expect to recover by reletting the
Premises for such period, taking into consideration the availability of
acceptable tenants and other market conditions affecting leasing. Such
present values shall be calculated at a discount rate equal to the 90-day
U.S. Treasury bill rate at the date of such termination.
If Landlord terminates Tenant's right of possession (but not
this Lease), Landlord may, but shall be under no obligation to, relet the
Premises for the account of Tenant for such rent and upon such terms as shall
be satisfactory to Landlord without thereby releasing Tenant from any
liability hereunder and without demand or notice of any kind to Tenant. For
the purpose of such reletting Landlord is authorized to make any repairs,
changes, alterations, or additions in or to the Premises as Landlord deems
reasonably necessary or desirable. If the Premises are not relet, then Tenant
shall pay to Landlord as damages a sum equal to the amount
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of the rental reserved in this Lease for such period or periods, plus the
cost of recovering possession of the Premises (including attorneys' fees and
costs of suit), the unpaid Base Rent and other amounts accrued hereunder at
the time of repossession, and the costs incurred in any attempt by Landlord
to relet the Premises. If the Premises are relet and a sufficient sum shall
not be realized from such reletting [after first deducting therefrom, for
retention by Landlord, the unpaid Base Rent and other amounts accrued
hereunder at the time of reletting, the cost of recovering possession
(including attorneys' fees and costs of suit), all of the costs and expense
of repairs, changes, alterations, and additions, the expense of such
reletting (including without limitation brokerage fees and leasing
commissions) and the cost of collection of the rent accruing therefrom] to
satisfy the rent provided for in this Lease to be paid, then Tenant shall
immediately satisfy and pay any such deficiency. Any such payments due
Landlord shall be made upon demand therefor from time to time and Tenant
agrees that Landlord may file suit to recover any sums falling due from time
to time. Notwithstanding any such reletting without termination, Landlord may
at any time thereafter elect in writing to terminate this Lease for such
previous breach.
Exercise by Landlord of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Premises and/or a termination of this Lease by Landlord,
whether by agreement or by operation of law, it being understood that such
surrender and/or termination can be effected only by the written agreement of
Landlord and Tenant. Any law, usage, or custom to the contrary
notwithstanding, Landlord shall have the right at all times to enforce the
provisions of this Lease in strict accordance with the terms hereof; and the
failure of Landlord at any time to enforce its rights under this Lease
strictly in accordance with same shall not be construed as having created a
custom in any way or manner contrary to the specific terms, provisions, and
covenants of this Lease or as having modified the same. Tenant and Landlord
further agree that forbearance or waiver by Landlord to enforce its rights
pursuant to this Lease or at law or in equity, shall not be a waiver of
Landlord's right to enforce one or more of its rights in connection with any
subsequent default. A receipt by Landlord of rent or other payment with
knowledge of the breach of any covenant hereof shall not be deemed a waiver
of such breach, and no waiver by Landlord of any provision of this Lease
shall be deemed to have been made unless expressed in writing and signed by
Landlord. To the greatest extent permitted by law, Tenant waives the service
of notice of Landlord's intention to re-enter as provided for in any statute,
or to institute legal proceedings to that end, and also waives all right of
redemption in case Tenant shall be dispossessed by a judgment or by warrant
of any court or judge. The terms "enter," "re-enter," "entry" or "re-entry,"
as used in this Lease, are not restricted to their technical legal meanings.
Any reletting of the Premises shall be on such terms and conditions as
Landlord in its sole discretion may determine (including without limitation a
term different than the remaining Lease Term, rental concessions, alterations
and repair of the Premises, lease of less than the entire Premises to any
tenant and leasing any or all other portions of the Project before reletting
the Premises). Landlord shall not be liable, nor shall Tenant's obligations
hereunder be diminished because of, Landlord's failure to relet the Premises
or collect rent due in respect of such reletting.
25. TENANT'S REMEDIES/LIMITATION OF LIABILITY. Landlord shall not
be in default hereunder unless Landlord fails to perform any of its
obligations hereunder within 30 days after written notice from Tenant
specifying such failure (unless such performance will, due to the nature of
the obligation, require a period of time in excess of 30 days, then after
such period of
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time as is reasonably necessary). All obligations of Landlord hereunder shall
be construed as covenants, not conditions; and, except as may be otherwise
expressly provided in this Lease, Tenant may not terminate this Lease for
breach of Landlord's obligations hereunder. All obligations of Landlord under
this Lease will be binding upon Landlord only during the period of its
ownership of the Premises and not thereafter. The term "Landlord" in this
Lease shall mean only the owner, for the time being of the Premises, and in
the event of the transfer by such owner of its interest in the Premises, such
owner shall thereupon be released and discharged from all obligations of
Landlord thereafter accruing, but such obligations shall be binding during
the Lease Term upon each new owner for the duration of such owner's
ownership. Any liability of Landlord under this Lease shall be limited solely
to its interest in the Project, and in no event shall any personal liability
be asserted against Landlord in connection with this Lease nor shall any
recourse be had to any other property or assets of Landlord.
26. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY RIGHT TO
TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING
OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
27. SUBORDINATION. This Lease and Tenant's interest and rights
hereunder are and shall be subject and subordinate at all times to the lien
of any first mortgage, now existing or hereafter created on or against the
Project or the Premises, and all amendments, restatements, renewals,
modifications, consolidations, refinancing, assignments and extensions
thereof, without the necessity of any further instrument or act on the part
of Tenant. Tenant agrees, at the election of the holder of any such mortgage,
to attorn to any such holder. Tenant agrees upon demand to execute,
acknowledge and deliver such instruments, confirming such subordination and
such instruments of attornment as shall be requested by any such holder.
Notwithstanding the foregoing, any such holder may at any time subordinate
its mortgage to this Lease, without Tenant's consent, by notice in writing to
Tenant, and thereupon this Lease shall be deemed prior to such mortgage
without regard to their respective dates of execution, delivery or recording
and in that event such holder shall have the same rights with respect to this
Lease as though this Lease had been executed prior to the execution, delivery
and recording of such mortgage and had been assigned to such holder. The term
"mortgage" whenever used in this Lease shall be deemed to include deeds of
trust, security assignments and any other encumbrances, and any reference to
the "holder" of a mortgage shall be deemed to include the beneficiary under a
deed of trust.
28. MECHANIC'S LIENS. Tenant has no express or implied authority
to create or place any lien or encumbrance of any kind upon, or in any manner
to bind the interest of Landlord or Tenant in, the Premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work performed
on the Premises and that it will save and hold Landlord harmless from all
loss, cost or expense based on or arising out of asserted claims or liens
against the leasehold estate or against the interest of Landlord in the
Premises or under this Lease. Tenant shall give Landlord immediate written
notice of the placing of any lien or encumbrance
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against the Premises and cause such lien or encumbrance to be discharged
within 30 days of the filing or recording thereof; provided, however, Tenant
may contest such liens or encumbrances as long as such contest prevents
foreclosure of the lien or encumbrance and Tenant causes such lien or
encumbrance to be bonded or insured over in a manner satisfactory to Landlord
within such 30 day period.
29. ESTOPPEL CERTIFICATES. Tenant agrees, from time to time,
within 10 days after request of Landlord, to execute and deliver to Landlord,
or Landlord's designee, any estoppel certificate requested by Landlord,
stating that this Lease is in full force and effect, the date to which rent
has been paid, that Landlord is not in default hereunder (or specifying in
detail the nature of Landlord's default), the termination date of this Lease
and such other matters pertaining to this Lease as may be requested by
Landlord. Tenant's obligation to furnish each estoppel certificate in a
timely fashion is a material inducement for Landlord's execution of this
Lease. No cure or grace period provided in this Lease shall apply to Tenant's
obligations to timely deliver an estoppel certificate. Tenant hereby
irrevocably appoints Landlord as its attorney in fact to execute on its
behalf and in its name any such estoppel certificate if Tenant fails to
execute and deliver the estoppel certificate within 10 days after Landlord's
written request thereof.
30. ENVIRONMENTAL REQUIREMENTS. Except for Hazardous Material
contained in products used by Tenant in de minimis quantities for ordinary
cleaning and office purposes, Tenant shall not permit or cause any party to
bring any Hazardous Material upon the Premises or transport, store, use,
generate, manufacture or release any Hazardous Material in or about the
Premises without Landlord's prior written consent. Tenant, at its sole cost
and expense, shall operate its business in the Premises in strict compliance
with all Environmental Requirements and shall remediate in a manner
satisfactory to Landlord any Hazardous Materials released on or from the
Project by Tenant, its agents, employees, contractors, subtenants or
invitees. Tenant shall complete and certify to disclosure statements as
requested by Landlord from time to time relating to Tenant's transportation,
storage, use, generation, manufacture or release of Hazardous Materials on
the Premises. The term "Environmental Requirements" means all applicable
present and future statutes, regulations, ordinances, rules, codes,
judgments, orders or other similar enactments of any governmental authority
or agency regulating or relating to health, safety, or environmental
conditions on, under, or about the Premises or the environment, including
without limitation, the following: the Comprehensive Environmental Response,
Compensation and Liability Act; the Resource Conservation and Recovery Act;
and all state and local counterparts thereto, and any regulations or policies
promulgated or issued thereunder. The term "Hazardous Materials" means and
includes any substance, material, waste, pollutant, or contaminant listed or
defined as hazardous or toxic, under any Environmental Requirements, asbestos
and petroleum, including crude oil or any fraction thereof, natural gas
liquids, liquified natural gas, or synthetic gas usable for fuel (or mixtures
of natural gas and such synthetic gas). As defined in Environmental
Requirements, Tenant is and shall be deemed to be the "operator" of Tenant's
"facility" and the "owner" of all Hazardous Materials brought on the Premises
by Tenant, its agents, employees, contractors or invitees, and the wastes,
by-products, or residues generated, resulting, or produced therefrom.
Tenant shall indemnify, defend, and hold Landlord harmless
from and against any and all losses (including, without limitation,
diminution in value of the Premises or the Project
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and loss of rental income from the Project), claims, demands, actions, suits,
damages (including, without limitation, punitive damages), expenses
(including, without limitation, remediation, removal, repair, corrective
action, or cleanup expenses), and costs (including, without limitation,
actual attorneys' fees, consultant fees or expert fees and including, without
limitation, removal or management of any asbestos brought into the property
or disturbed in breach of the requirements of this Paragraph 30, regardless
of whether such removal or management is required by law) which are brought
or recoverable against, or suffered or incurred by Landlord as a result of
any release of Hazardous Materials for which Tenant is obligated to remediate
as provided above or any other breach of the requirements under this
Paragraph 30 by Tenant, its agents, employees, contractors, subtenants,
assignees or invitees, regardless of whether Tenant had knowledge of such
noncompliance. The obligations of Tenant under this Paragraph 30 shall
survive any termination of this Lease.
Notwithstanding anything to the contrary in the Paragraph 30,
Tenant shall have no liability of any kind to Landlord as to Hazardous
Materials on the premises caused or permitted by: (i) Landlord, its agents,
employees, contractors or invitees; or (ii) any other tenants in the Project
or their agents, employees, contractors, subtenants, assignees or invitees;
or (iii) any other person or entity located outside of the Premises or the
Project; or (iv) that which existed at the Building. Landlord or Premises
prior to occupancy by Tenant.
Landlord shall have access to, and a right to perform
inspections and tests of, the Premises to determine Tenant's compliance with
Environmental Requirements, its obligations under this Paragraph 30, or the
environmental condition of the Premises. Access shall be granted to Landlord
upon Landlord's prior notice to Tenant and at such times so as to minimize,
so far as may be reasonable under the circumstances, any disturbance to
Tenant's operations. Such inspections and tests shall be conducted at
Landlord's expense, unless such inspections or tests reveal that Tenant has
not complied with any Environmental Requirement, in which case Tenant shall
reimburse Landlord for the reasonable cost of such inspection and tests.
Landlord's receipt of or satisfaction with any environmental assessment in no
way waives any rights that Landlord holds against Tenant.
31. RULES AND REGULATIONS. Tenant shall, at all times during the
Lease Term and any extension thereof, comply with all reasonable rules and
regulations at any time or from time to time established by Landlord covering
use of the Premises and the Project. The current rules and regulations are
attached hereto. In the event of any conflict between said rules and
regulations and other provisions of this Lease, the other terms and
provisions of this Lease shall control. Landlord shall not have any liability
or obligation for the breach of any rules or regulations by other tenants in
the Project.
32. SECURITY SERVICE. Tenant acknowledges and agrees that, while
Landlord may patrol the Project, Landlord is not providing any security
services with respect to the Premises and that Landlord shall not be liable
to Tenant for, and Tenant waives any claim against Landlord with respect to,
any loss by theft or any other damage suffered or incurred by Tenant in
connection with any unauthorized entry into the Premises or any other breach
of security with respect to the Premises.
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33. FORCE MAJEURE. Landlord shall not be held responsible for
delays in the performance of its obligations hereunder when caused by
strikes, lockouts, labor disputes, acts of God, inability to obtain labor or
materials or reasonable substitutes therefor, governmental restrictions,
governmental regulations, governmental controls, delay in issuance of
permits, enemy or hostile governmental action, civil commotion, fire or other
casualty, and other causes beyond the reasonable control of Landlord ("Force
Majeure").
34. ENTIRE AGREEMENT. This Lease constitutes the complete
agreement of Landlord and Tenant with respect to the subject matter hereof.
No representations, inducements, promises or agreements, oral or written,
have been made by Landlord or Tenant, or anyone acting on behalf of Landlord
or Tenant, which are not contained herein, and any prior agreements,
promises, negotiations, or representations are superseded by this Lease. This
Lease may not be amended except by an instrument in writing signed by both
parties hereto.
35. SEVERABILITY. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws, then and in
that event, it is the intention of the parties hereto that the remainder of
this Lease shall not be affected thereby. It is also the intention of the
parties to this Lease that in lieu of each clause or provision of this Lease
that is illegal, invalid or unenforceable, there be added, as a part of this
Lease, a clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
36. BROKERS. Tenant represents and warrants that it has dealt with
no broker, agent or other person in connection with this transaction and that
no broker, agent or other person brought about this transaction, other than
the broker, if any, set forth on the first page of this Lease, and Tenant
agrees to indemnify and hold Landlord harmless from and against any claims by
any other broker, agent or other person claiming a commission or other form
of compensation by virtue of having dealt with Tenant with regard to this
leasing transaction.
37. MISCELLANEOUS. (a) Any payments or charges due from Tenant to
Landlord hereunder shall be considered rent for all purposes of this Lease.
(b) If and when included within the term "Tenant," as used in
this instrument, there is more than one person, firm or corporation, each
shall be jointly and severally liable for the obligations of Tenant.
(c) All notices required or permitted to be given under this
Lease shall be in writing and shall be sent by registered or certified mail,
return receipt requested, or by a reputable national overnight courier
service, postage prepaid, or by hand delivery addressed to the parties at
their addresses below, and with a copy sent to Landlord at 14100 EAST 35TH
PLACE, AURORA, COLORADO 80011. Either party may by notice given aforesaid
change its address for all subsequent notices. Except where otherwise
expressly provided to the contrary, notice shall be deemed given upon
delivery.
(d) Except as otherwise expressly provided in this Lease or as
otherwise required by law, Landlord retains the absolute right to withhold
any consent or approval.
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(e) At Landlord's request from time to time Tenant shall
furnish Landlord with true and complete copies of its most recent annual and
quarterly financial statements prepared by Tenant or Tenant's accountants and
any other financial information or summaries that Tenant typically provides
to its lenders or shareholders.
(f) Neither this Lease nor a memorandum of lease shall be filed
by or on behalf of Tenant in any public record. Landlord may prepare and
file, and upon request by Landlord Tenant will execute, a memorandum of lease.
(g) The normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Lease or any exhibits or amendments
hereto.
(h) The submission by Landlord to Tenant of this Lease shall
have no binding force or effect, shall not constitute an option for the
leasing of the Premises, nor confer any right or impose any obligations upon
either party until execution of this Lease by both parties.
(i) Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall
be held to include the plural, unless the context otherwise requires. The
captions inserted in this Lease are for convenience only and in no way
define, limit or otherwise describe the scope or intent of this Lease, or any
provision hereof, or in any way affect the interpretation of this Lease.
(j) Any amount not paid by Tenant within 5 days after its due
date in accordance with the terms of this Lease shall bear interest from such
due date until paid in full at the lesser of the highest rate permitted by
applicable law or 10 percent per year. It is expressly the intent of Landlord
and Tenant at all times to comply with applicable law governing the maximum
rate or amount of any interest payable on or in connection with this Lease.
If applicable law is ever judicially interpreted so as to render usurious any
interest called for under this Lease, or contracted for, charged, taken,
reserved, or received with respect to this Lease, then it is Landlord's and
Tenant's express intent that all excess amounts theretofore collected by
Landlord be credited on the applicable obligation (or, if the obligation has
been or would thereby be paid in full, refunded to Tenant), and the
provisions of this Lease immediately shall be deemed reformed and the amounts
thereafter collectible hereunder reduced, without the necessity of the
execution of any new document, so as to comply with the applicable law, but
so as to permit the recovery of the fullest amount otherwise called for
hereunder.
(k) Construction and interpretation of this Lease shall be
governed by the laws of the state in which the Project is located, excluding
any principles of conflicts of laws.
(l) Time is of the essence as to the performance of Tenant's
obligations under this Lease.
(m) All exhibits and addenda attached hereto are hereby
incorporated into this Lease and made a part hereof. In the event of any
conflict between such exhibits or addenda and the terms of this Lease, such
exhibits or addenda shall control.
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38. LANDLORD'S LIEN/SECURITY INTEREST.
[TEXT INTENTIONALLY DELETED]
39. LIMITATION OF LIABILITY OF TRUSTEES, SHAREHOLDERS, AND
OFFICERS OF PROLOGIS TRUST. Any obligation or liability whatsoever of
ProLogis Trust, a Maryland real estate investment trust, which may arise at
any time under this Lease or any obligation or liability which may be
incurred by it pursuant to any other instrument, transaction, or undertaking
contemplated hereby shall not be personally binding upon, nor shall resort
for the enforcement thereof be had to the property of, its trustees,
directors, shareholders, officers, employees or agents, regardless of whether
such obligation or liability is in the nature of contract, tort, or otherwise.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as
of the day and year first above written.
TENANT: LANDLORD:
BURKE INDUSTRIES, INC. PROLOGIS TRUST
By: /s/ Hisham Alameddine By: /s/ Steven K. Meyer
----------------------------- --------------------------
Name: HISHAM ALAMEDDINE Name: STEVEN K. MEYER
Title: VICE PRESIDENT, OPERATIONS Title: MANAGING DIRECTOR
Address Address
2250 SOUTH TENTH STREET 2310 LBJ FREEWAY
SUITE 200
SAN JOSE, CA 95112 DALLAS, TX 75234
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RULES AND REGULATIONS
1. The sidewalk, entries, and driveways of the Project shall not
be obstructed by Tenant, or its agents, or used by them for any purpose other
than ingress and egress to and from the Premises.
2. Tenant shall not place any objects, including antennas,
outdoor furniture, etc., in the parking areas, landscaped areas or other
areas outside of its Premises, or on the roof of the Project.
3. Except for seeing-eye dogs, no animals shall be allowed in the
offices, halls, or corridors in the Project.
4. Tenant shall not disturb the occupants of the Project or
adjoining buildings by the use of any radio or musical instrument or by the
making of loud or improper noises.
5. If Tenant desires telegraphic, telephonic or other electric
connections in the Premises, Landlord or its agent will direct the
electrician as to where and how the wires may be introduced; and, without
such direction, no boring or cutting of wires will be permitted. Any such
installation or connection shall be made at Tenant's expense.
6. Tenant shall not install or operate any steam or gas engine or
boiler, or other mechanical apparatus in the Premises, except as specifically
approved in the Lease. The use of oil, gas or inflammable liquids for
heating, lighting or any other purpose is expressly prohibited. Explosives or
other articles deemed extra hazardous shall not be brought into the Project.
7. Parking any type of recreational vehicles is specifically
prohibited on or about the Project. Except for the overnight parking of
operative vehicles, no vehicle of any type shall be stored in the parking
areas at any time. In the event that a vehicle is disabled, it shall be
removed within 48 hours. There shall be no "For Sale" or other advertising
signs on or about any parked vehicle. All vehicles shall be parked in the
designated parking areas in conformity with all signs and other markings. All
parking will be open parking, and no reserved parking, numbering or lettering
of individual spaces will be permitted except as specified by Landlord.
8. Tenant shall maintain the Premises free from rodents, insects
and other pests.
9. Landlord reserves the right to exclude or expel from the
Project any person who, in the judgment of Landlord, is intoxicated or under
the influence of liquor or drugs or who shall in any manner do any act in
violation of the Rules and Regulations of the Project.
10. Tenant shall not cause any unnecessary labor by reason of
Tenant's carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant for any loss of
property on the Premises, however occurring, or for any damage done to the
effects of Tenant by the janitors or any other employee or person.
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11. Tenant shall give Landlord prompt notice of any defects in the
water, lawn sprinkler, sewage, gas pipes, electrical lights and fixtures,
heating apparatus, or any other service equipment affecting the Premises.
12. Tenant shall not permit storage outside the Premises,
including without limitation, outside storage of trucks and other vehicles,
or dumping of waste or refuse or permit any harmful materials to be placed in
any drainage system or sanitary system in or about the Premises.
13. All moveable trash receptacles provided by the trash disposal
firm for the Premises must be kept in the trash enclosure areas, if any,
provided for that purpose.
14. No auction, public or private, will be permitted on the
Premises or the Project.
15. No awnings shall be placed over the windows in the Premises
except with the prior written consent of Landlord.
16. The Premises shall not be used for lodging, sleeping or
cooking or for any immoral or illegal purposes or for any purpose other than
that specified in the Lease. No gaming devices shall be operated in the
Premises.
17. Tenant shall ascertain from Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into
account the capacity of the electrical wiring in the Project and the Premises
and the needs of other tenants, and shall not use more than such safe
capacity. Landlord's consent to the installation of electric equipment shall
not relieve Tenant from the obligation not to use more electricity than such
safe capacity.
18. Tenant assumes full responsibility for protecting the Premises
from theft, robbery and pilferage.
19. Tenant shall not install or operate on the Premises any
machinery or mechanical devices of a nature not directly related to Tenant's
ordinary use of the Premises and shall keep all such machinery free of
vibration, noise and air waves which may be transmitted beyond the Premises.
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ADDENDUM 1
ONE RENEWAL OPTION AT MARKET
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED JUNE 22, 1999, BETWEEN
PROLOGIS TRUST
and
BURKE INDUSTRIES, INC.
(a) Provided that as of the time of the giving of the Extension
Notice and the Commencement Date of the Extension Term, (x) Tenant is the
Tenant originally named herein, (y) Tenant actually occupies all of the
Premises initially demised under this Lease and any space added to the
Premises, and (z) no Event of Default exists or would exist but for the
passage of time or the giving of notice, or both; then Tenant shall have the
right to extend the Lease Term for an additional term of 5 years (such
additional term is hereinafter called the "EXTENSION TERM") commencing on the
day following the expiration of the Lease Term (hereinafter referred to as
the "COMMENCEMENT DATE OF THE EXTENSION TERM"). Tenant shall give Landlord
notice (hereinafter called the "EXTENSION NOTICE") of its election to extend
the term of the Lease Term at least 6 months, but not more than 9 months,
prior to the scheduled expiration date of the Lease Term.
(b) The Base Rent payable by Tenant to Landlord during the
Extension Term shall be the greater of (i) the Base Rent applicable to the
last year of the initial Lease term and (ii) the then prevailing market rate
for comparable space in the Project and comparable buildings in the vicinity
of the Project, taking into account the size of the Lease, the length of the
renewal term, market escalations and the credit of Tenant. The Base Rent
shall not be reduced by reason of any costs or expenses saved by Landlord by
reason of Landlord's not having to find a new tenant for such premises
(including, without limitation, brokerage commissions, costs of improvements,
rent concessions or lost rental income during any vacancy period). In the
event Landlord and Tenant fail to reach an agreement on such rental rate and
execute the Amendment (defined below) at least 3 months prior to the
expiration of the Lease, then Tenant's exercise of the renewal option shall
be deemed withdrawn and the Lease shall terminate on its original expiration
date.
(c) The determination of Base Rent does not reduce the Tenant's
obligation to pay or reimburse Landlord for Operating Expenses and other
reimbursable items as set forth in the Lease, and Tenant shall reimburse and
pay Landlord as set forth in the Lease with respect to such Operating
Expenses and other items with respect to the Premises during the Extension
Term without regard to any cap on such expenses set forth in the Lease.
(d) Except for the Base Rent as determined above, Tenant's
occupancy of the Premises during the Extension Term shall be on the same
terms and conditions as are in effect immediately prior to the expiration of
the initial Lease Term; provided, however, Tenant shall have no further right
to any allowances, credits or abatements or any options to expand, contract,
renew or extend the Lease.
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(e) If Tenant does not give the Extension Notice within the period
set forth in paragraph (a) above, Tenant's right to extend the Lease Term
shall automatically terminate. Time is of the essence as to the giving of the
Extension Notice.
(f) Landlord shall have no obligation to refurbish or otherwise
improve the Premises for the Extension Term. The Premises shall be tendered
on the Commencement Date of the Extension Term in "as-is" condition.
(g) If the Lease is extended for the Extension Term, then Landlord
shall prepare and Tenant shall execute an amendment to the Lease confirming
the extension of the Lease Term and the other provisions applicable thereto
(the "Amendment").
(h) If Tenant exercises its right to extend the term of the Lease
for the Extension Term pursuant to this Addendum, the term "Lease Term" as
used in the Lease, shall be construed to include, when practicable, the
Extension Term except as provided in (d) above.
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ADDENDUM 2
CONSTRUCTION
(TURNKEY)
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED JUNE 22, 1999, BETWEEN
PROLOGIS TRUST
and
BURKE INDUSTRIES, INC.
(a) Landlord agrees to furnish or perform at Landlord's sole cost
and expense those items of construction and those improvements ("Tenant
Improvements") specified below:
LANDLORD AGGRESS TO INSTALL A CLASS IV WET SPRINKLER IN THE
PREMISES.
(b) If Tenant shall desire any changes, Tenant shall so advise
Landlord in writing and Landlord shall determine whether such changes can be
made in a reasonable and feasible manner. Any and all costs of reviewing any
requested changes, and any and all costs of making any changes to the Tenant
Improvements which Tenant may request and which Landlord may agree to shall
be at Tenant's sole cost and expense and shall be paid to Landlord upon
demand and before execution of the change order.
(c) Landlord shall proceed with and complete the construction of
the Tenant Improvements. As soon as such improvements have been Substantially
Completed, Landlord shall notify Tenant in writing of the date that the
Tenant Improvements were Substantially Completed. Such date, unless an
earlier date is specified as the Commencement Date in this Lease or otherwise
agreed to in writing between Landlord and Tenant, shall be the "Commencement
Date", unless the completion of such improvements was delayed due to any act
or omission of, or delay caused by, Tenant including, without limitation,
Tenant's failure to approve plans, complete submittals or obtain permits
within the time periods agreed to by the parties or as reasonably required by
Landlord, in which case the Commencement Date shall be the date such
improvements would have been completed but for the delays caused by Tenant.
The Tenant Improvements shall be deemed substantially completed
("Substantially Completed") when, in the opinion of the construction manager
(whether an employee or agent of Landlord or a third party construction
manager), the Premises are substantially completed except for punch list
items which do not prevent in any material way the use of the Premises for
the purposes for which they were intended. After the Commencement Date Tenant
shall, upon demand, execute and deliver to Landlord a letter of acceptance of
delivery of the Premises.
(d) The failure of Tenant to take possession of or to occupy the
Premises shall not serve to relieve Tenant of obligations arising on the
Commencement Date or delay the payment of rent by Tenant. Subject to
applicable ordinances and building codes governing Tenant's right to occupy
or perform in the Premises, Tenant shall be allowed to install its tenant
improvements, machinery, equipment, fixtures, or other property on the
Premises during the final stages of completion of construction provided that
Tenant does not thereby interfere with the completion of construction or
cause any labor dispute as a result of such installations, and provided
further
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that Tenant does hereby agree to indemnify, defend, and hold Landlord
harmless from any loss or damage to such property, and all liability, loss,
or damage arising from any injury to the Project or the property of Landlord,
its contractors, subcontractors, or materialmen, and any death or personal
injury to any person or persons arising out of such installations, whether or
not any such loss, damage, liability, death, or personal injury was caused by
Landlord's negligence. Any such occupancy or performance in the Premises
shall be in accordance with the provisions governing Tenant-Made Alterations
and Trade Fixtures in the Lease, and shall be subject to Tenant providing to
Landlord satisfactory evidence of insurance for personal injury and property
damage related to such installations and satisfactory payment arrangements
with respect to installations permitted hereunder. Delay in putting Tenant in
possession of the Premises shall not serve to extend the term of this Lease
or to make Landlord liable for any damages arising therefrom.
(e) Except for incomplete punch list items, Tenant upon the
Commencement Date shall have and hold the Premises as the same shall then be
without any liability or obligation on the part of Landlord for making any
further alterations or improvements of any kind in or about the Premises.
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ADDENDUM 3
ASSIGNMENT AND SUBLETTING
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED JUNE 22, 1999, BETWEEN
PROLOGIS TRUST
and
BURKE INDUSTRIES, INC.
(a) Landlord shall not unreasonably withhold its consent to
Tenant's request for permission to assign the Lease or sublease all or part
of the Premises. It shall be reasonable for the Landlord to withhold its
consent to any assignment or sublease in any of the following instances:
(i) The assignee or sublessee does not have a net worth
calculated according to generally accepted accounting principles at
least equal to the greater of the net worth of Tenant immediately
prior to such assignment or sublease or the net worth of the Tenant
at the time it executed the Lease;
(ii) The intended use of the Premises by the assignee or
sublessee is not reasonably satisfactory to Landlord;
(iii) The intended use of the Premises by the assignee or
sublessee would materially increase the pedestrian or vehicular
traffic to the Premises or the Project;
(iv) Occupancy of the Premises by the assignee or sublessee
would, in Landlord's opinion, violate any agreement binding upon
Landlord or the Project with regard to the identity of tenants,
usage in the Project, or similar matters;
(v) The identity or business reputation of the assignee or
sublessee will, in the good faith judgment of Landlord, tend to
damage the goodwill or reputation of the Project;
(vi) The assignment or sublet is to another tenant in the
Project and is at rates which are below those charged by Landlord
for comparable space in the Project;
(vii) In the case of a sublease, the subtenant has not
acknowledged that the Lease controls over any inconsistent
provision in the sublease; or
(viii) The proposed assignee or sublessee is a government
entity.
The foregoing criteria shall not exclude any other reasonable basis for
Landlord to refuse its consent to such assignment or sublease.
(b) Any approved assignment or sublease shall be expressly subject
to the terms and conditions of this Lease.
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(c) Tenant shall provide to Landlord all information concerning
the assignee or sublessee as Landlord may request.
(d) Landlord may revoke its consent immediately and without notice
if, as of the effective date of the assignment or sublease, there has
occurred and is continuing any default under the Lease.
(e) Landlord's agreement to not unreasonably withhold its consent
shall only apply to the first assignment or sublease under the Lease.
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EXHIBIT A
GS W INDUSTRIAL CENTER BUILDING #1
630 AVENUE K, GRAND PRAIRIE, TEXAS
[Site Map]
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