AGREEMENT OF LEASE

Lease Agreement

You are currently viewing:

This Lease Agreement involves

SONICWALL, INC | TMC-3011 S 52ND ST, LLC

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.

Title: AGREEMENT OF LEASE
Date: 11/7/2007
Industry: Communications Equipment Sector: Technology

AGREEMENT OF LEASE

AGREEMENT OF LEASE (the “ Lease ”) made as of the 25 day of September, 2007 between TMC-3011 S 52 ^ND ST, LLC , an Arizona limited liability company (the “ Landlord ”), and SONICWALL, INC. , a California corporation (the “ Tenant ”).

1. Reference Data and Definitions . The following sets forth some of the basic lease information and definitions used in this Lease:

1.1 “ Additional Rent ” shall mean Tenant’s Proportionate Share of Real Estate Taxes and Operating Expenses, and all other sums (exclusive of Base Rent) payable by Tenant to Landlord under this Lease.

1.2 “ Base Rent ” shall mean the base rent for respective periods set forth below:

Period (months)	Annual Base Rent	Monthly Installment of Annual Base Rent
1-12	$499,200.00	$41,600.00
13-24	$514,176.00	$42,848.00
25-36	$529,601.28	$44,133.44
37-48	$545,489.32	$45,457.44
49-60	$561,854.00	$46,821.17
61-72	$578,709.62	$48,225.80
73-84	$596,070.91	$49,672.58
85-90	$613,953.03	$51,162.75

Base Rent escalates annually by three percent (3%) as described above.

1.3 “ Broker ” shall mean Grubb & Ellis and Commercial Properties, Incorporated.

1.4 “ Building ” shall mean 3011 South 52 ^nd Street, Tempe, Arizona containing 79,183 square feet.

1.5 “ Common Areas ” shall mean the roadways, parking areas and landscaped areas on the Property, and the entrances, accessways and other areas located on the Property intended for the common use of all tenants of the Property and their invitees.

1.6 “ Commencement Date ” shall mean September 25, 2007.

1.7 “ Concession Costs ” shall mean leasing commissions and costs such as construction allowances, rent concessions, moving expenses, takeover obligations and other similar inducements, incurred in leasing, subleasing or assigning a lease or this Lease.

1.8 “ Excess Assignment Consideration ” shall mean an amount, if any, equal to: (A) the consideration whenever paid by any assignee for the assignment, less (B) Concession Costs, reasonably incurred by Tenant in connection with such assignment.

1.9 “ Excess Sublease Rent ” shall mean an amount, if any, equal to: (A) (i) all rent or other consideration paid to Tenant by any subtenant, for and during each month less (ii) the portion applicable to such month (when amortized from the date such subtenant commences to pay rent over the remaining term of the sublease, exclusive of any renewals or extensions) of Tenant’s Concession Costs reasonably incurred by Tenant in connection with such subletting, less (B) (i) the Monthly installment of Base Rent for such month plus (ii) such other rent or consideration attributable to such month, which would otherwise be required to be paid by Tenant to Landlord. In determining the amount of Excess Sublease Rent with respect to a sublease for less than all of the Premises, the amount of the Monthly installment of Base Rent to be deducted pursuant to clause (B)(i) of this Section 1.9 shall be determined by multiplying the then applicable square foot rate of the Monthly installment of Base Rent by the area of the portion of the Premises which has been sublet.

1.10 “ Improvements ” shall mean the build out work and other improvements to be performed by Landlord, at Landlord’s cost, to the Premises that are described in the Plans and Specifications.

1.11 “ Land ” shall mean the land legally described or depicted on Exhibit A attached hereto.

1.12 “ Landlord ” shall mean the Landlord named on page 1 of this Lease or any subsequent owner of such Landlord’s interest in the Property.

1.13 “ Landlord’s Address ”:

c/o Stewart Property Advisors LLC

15540 North 71 ^st Street

Suite 119

Scottsdale, AZ 85254

Attn: Tony Muscatello

1.14 “ Lease Interest Rate ” shall mean the lesser of (A) 300 basis points in excess of the Prime Rate in effect from time to time or (B) the maximum amount or rate that lawfully may be charged in the circumstances, if such a maximum exists.

1.15 “ Lease Taxes ” shall mean any tax, assessment, levy or other charge (other than any income, franchise, state or inheritance tax) by any federal, state or local law now or hereafter imposed directly or indirectly upon Landlord with respect to this Lease or the value thereof, or upon Tenant’s use or occupancy of the Premises, or upon the Base Rent, Additional Rent (including, but not limited to, all transaction privilege taxes) or any other similar sums payable under this Lease or upon this transaction.

1.16 “ Lease Year .” The “ First Lease Year ” shall be the period commencing on the Commencement Date and continuing to the last day of calendar year 2008. Each “ Lease Year ” after the First Lease Year shall be a consecutive twelve (12) month period commencing on the first day immediately following the preceding Lease Year.

1.17 “ Operating Expenses ” shall have the meaning set forth in Section 5.1 .

1.18 “ Permitted Use ” shall mean general office, administrative, and related business purposes.

1.19 “ Plans and Specifications ” shall mean the detailed plans and specifications describing any Improvements that are described on Exhibit B attached hereto.

1.20 “ Premises ” shall mean the approximately 32,000 square foot area contained in the Building and depicted on Exhibit A-1 attached hereto (the “ Site Plan ”), together with any parking areas and truck courts expressly reserved for the use by the Premises on the Site Plan.

1.21 “ Prime Rate ” shall mean the rate of interest announced from time to time by Wachovia Bank, N.A. or its successor as its prime rate or, if such rate is discontinued, such comparable rate as Landlord reasonably designates by notice to Tenant.

1.22 “ Property ” shall mean the Building, including, but not limited to, the Common Areas, together with Land.

1.23 “ Real Estate Taxes ” shall mean all real estate taxes and assessments, general or special, ordinary or extraordinary, foreseen or unforeseen (other than Lease Taxes) assessed or imposed upon the Property. If, due to a future change in the method of taxation, any tax shall be levied or imposed in substitution, in whole or in part, for (or in lieu of) any tax or addition to or increase in any tax which would otherwise be included within the definition of Real Estate Taxes, then such other tax shall be deemed to be included within Real Estate Taxes.

1.24 “ Rent ” shall mean Additional Rent and Base Rent, collectively.

1.25 “ Rent Commencement Date ” shall mean the later of: (i) Substantial Completion Date (or the date upon which the Substantial Completion of the Improvements would have occurred but for Tenant Delays); or (ii) January 1, 2008.

1.26 “Substantial Completion ” and “ Substantially Complete ” shall each mean, with respect to the Premises, the date when (i) the construction of the Improvements is substantially completed, excepting only “punch list items” (as that term is commonly used in the construction industry) that will not materially interfere with completion of Tenant Work and/or Tenant’s operations provided that Tenant has completed all of Tenant Work, and (ii) Landlord has obtained a temporary or permanent Certificate of Occupancy for the Premises; provided, however, that if the failure of Landlord to obtain a temporary or permanent Certificate of Occupancy is a result of the condition of the Tenant Work or the failure of Tenant to complete the Tenant Work, the delivery of a Certificate of Occupancy shall not be required for purposes of determining whether Substantial Completion has occurred.

1.27 “ Substantial Completion Date ” shall mean the date upon which Substantial Completion of the Improvements occurs.

1.28 “ Tenant ” shall mean the Tenant named on page 1 of this Lease and such person’s permitted successors and assigns, subject to the provisions of this Lease.

1.29 “ Tenant Delays ” shall mean delays in the Substantial Completion of the Improvements, resulting from: (a) the performance of the Tenant Work by or on behalf of Tenant other than in accordance with the terms and conditions of Section 3.2 below; (b) the failure by Tenant to timely approve any plans and specifications or provide information necessary to complete the design of the Improvements; or (c) any other action, negligence or omission by or on the part of Tenant or any Tenant Parties (as hereinafter defined).

1.30 “ Tenant Work ” shall mean any build out, fixturing and space preparation of any portion of the Premises to be performed by Tenant at Tenant’s sole cost.

1.31 “ Tenant’s Address ” shall mean the Premises, with copies to:

SonicWALL, Inc.

1143 Borregas Avenue

Sunny Vale, California 94089-1306

1.32 “ Tenant’s Proportionate Share ” shall be 40.41%.

1.33 “ Term ” shall mean, subject to the provisions of Section 26 hereof, the seven (7) year, six (6) month period commencing on the Rent Commencement Date and terminating on the last day of the ninetieth (90 ^th ) calendar month after the Rent Commencement Date occurs (such date, the “ Expiration Date ”).

2. Demise of Premises . Subject to the terms of this Lease, Landlord leases to Tenant and Tenant leases from Landlord the Premises and grants to Tenant, so long as this Lease remains in effect, the non-exclusive right to use the Common Areas for their intended purposes in common with all others entitled to use them; provided, however, that Tenant shall not be entitled to use or occupy the Premises for any purposes other than the Tenant Work pursuant to Section 3.2 until the Substantial Completion Date. Tenant shall be entitled to use the Common Areas in the same manner and fashion as other tenants of the Building on a non-discriminatory basis after the Substantial Completion Date.

3. Possession; Term.

3.1 Improvement Work . Landlord shall, at Landlord’s sole cost and expense, furnish all of the design, material, labor and equipment required to construct the Improvements in accordance with the Plans and Specifications. Landlord shall construct the Improvements in a good and workmanlike manner, and in accordance with all applicable statutes, ordinances and building codes, governmental rules, regulations and orders relating to construction of the Improvements (but not matters arising because of Tenant Work or specific to the particular business Tenant seeks to engage in the Premises). Landlord shall diligently proceed with the construction of the Improvements and use good faith efforts to Substantially Complete the Improvements on or prior to three (3) months after the Commencement Date (the “ Projected Completion Date ”), which Projected Completion Date shall be extended on account of any delays in the Substantial Completion of the Improvements that result from Force Majeure Events (as hereinafter defined) or Tenant Delays; provided, however, if Landlord fails to so Substantially Complete the Improvements and deliver possession of the Premises prior to the Project Completion Date, as the same may be extended on account of Force Majeure Events or Tenant Delays, then the validity of this Lease and the obligations of Tenant under this Lease shall not be affected, and Tenant shall have no claim against Landlord (and Landlord shall have no liability) hereunder, at law or in equity, arising from Landlord’s failure to Substantially Complete the Improvements and deliver possession of the Premises by such date, except that Tenant shall not be required to pay Rent until the Rent Commencement Date has occurred..

3.2 Tenant’s Access . From and after the Commencement Date, Landlord shall provide access to the Premises to Tenant and its contractors, agents and employees for purposes of performing Tenant Work. For purposes of this Lease, the term “Schedule” shall mean a detailed description of the timing and coordination of Landlord’s construction of the Improvements and Tenant’s performance of the Tenant Work. Landlord and Tenant shall reasonably cooperate in creating a procedure for such consultation and cooperation in reviewing and revising the Schedule. Prior to commencing any Tenant Work, Tenant shall provide Landlord with: (i) copies of all plans and specifications pertaining to the Tenant Work for which such access is being requested; (ii) copies of all licenses and permits required in connection with the performance of the work for which such access is being requested; and (iii) certificates of insurance naming Landlord as additional insured/loss payee as applicable. The access to the Premises provided to Tenant pursuant to this Section 3.2 shall be subject to the conditions that all of Tenant and Tenant’s agents, contractors, workmen, mechanics, suppliers, and invitees shall work in harmony and not interfere with Landlord and its agents and contractors in doing its work in, to, or on the Improvements. If at any time such entry or occupancy shall cause or create an imminent likelihood of such disharmony or interference, Landlord, in Landlord’s reasonable discretion, shall have the right to suspend such access upon twenty-four (24) hours’ written notice to Tenant until such time as Tenant, at Tenant’s sole cost, has remedied such disharmony or interference. Tenant agrees that any such entry into and occupancy of the applicable Premises shall be deemed to be under all of the terms, covenants, conditions and provisions of the Lease, except as to the covenant to pay Rent.

3.3 Delivery of Possession, Punch List, and Acceptance Agreement . As soon as the Improvements are Substantially Completed for the Premises, Landlord and Tenant shall together walk through the Premises and inspect all Improvements so Substantially Completed, using reasonable efforts to discover all uncompleted or defective construction in the Improvements. After such inspection has been completed, each party shall sign an acceptance agreement in a reasonably agreed upon form (herein the “ Acceptance Agreement ”), which shall include, by attachment, a list of all “punch list” items which the parties agree are to be corrected by Landlord in connection with the Premises. Landlord shall use reasonable efforts to complete and/or repair such “punch list” items within thirty (30) days after executing the applicable Acceptance Agreement. Tenant’s commencement of business operations from and in any part of the Premises shall be deemed to be an acceptance by Tenant of the Improvements, except for the agreed upon punch list items. Tenant agrees that Tenant is familiar with the condition of the Premises, and Tenant hereby accepts the foregoing on an “AS-IS,” “WHERE-IS” basis except to the extent of Landlord’s repair and maintenance obligations hereunder. Tenant acknowledges that Landlord has not made any representation as to the condition of the foregoing or the suitability of the foregoing for Tenant’s intended use, except as may be herein expressly set forth. Tenant represents and warrants that Tenant has made its own inspection of the foregoing. Landlord shall not be obligated to make any repairs, replacements or improvements (whether structural or otherwise) of any kind or nature to the foregoing in connection with, or in consideration of, this Lease, except (a) as set forth herein and (b) with respect to the Improvements. Landlord agrees to make reasonable efforts to enforce, upon Tenant’s request, all manufacturer’s or contractor’s warranties, if any, issued in connection with any of the Improvements or the Premises.

3.4 Commencement Date . The term of this Lease shall commence on the Commencement Date and expire on the Expiration Date. Notwithstanding the foregoing, Tenant shall not be entitled to use or occupy the Premises for any purpose other than Tenant Work until the Improvements have been Substantially Completed.

3.5 Rent Commencement . Tenant’s obligation to pay Base Rent shall commence on the Rent Commencement Date.

4. Base Rent .

4.1 Payment . From and after the Rent Commencement Date, Base Rent shall be payable by Tenant in equal monthly installments on or before the first day of each calendar month, in advance; provided, however, that if the Rent Commencement Date is other than on the first day of a month . Base Rent, shall be prorated on the basis of the actual number of days during such month that Base Rent is payable. All payments of Base Rent and Additional Rent shall be made without prior demand and, except as otherwise expressly provided in this Lease, without offset, deduction or counterclaim of any kind, in lawful money of the United States of America. Such payments shall be made at Landlord’s Address or at such other place as Landlord shall designate from time to time. Tenant’s agreements to lease the Premises and pay Base Rent, Additional Rent and all other sums payable under this Lease are independent of any other covenant, agreement or term of this Lease. Tenant shall pay any and all Lease Taxes simultaneously with its payment of Base Rent and shall be solely responsible for all such Lease Taxes regardless of against whom the same are assessed.

4.2 Late Charges . Late Charges . Any Rent payable by Tenant to Landlord under this Lease which is not paid within five (5) days after written notice that the same is due will be automatically subject to a late payment charge, as Additional Rent, of five percent (5%) of the delinquent amount, in each instance, to cover Landlord's additional administrative costs. In addition to the late charge set forth above, Tenant shall also be required to pay interest on all such unpaid sums (including any late charge(s)), at a flat rate of 3% of all such outstanding charges of Rent without further notice or demand therefore by Landlord. Such late charges and interest will be due and payable as set forth herein and will accrue from the date that such Rent (including late charges and interest) sums are payable under the provisions of this Lease until actually paid by Tenant.

4.3 Net Lease . This Lease shall be deemed and construed to be a “net lease.”

5. Additional Rent for Operating Expenses and Real Estate Taxes .

5.1 Definitions . “ Operating Expenses ” shall mean the costs and expenses paid or incurred by Landlord in connection with the management, operation, maintenance and repair of the Property and the Common Areas including, without limitation:

(a)

the cost of fire, extended coverage, boiler, sprinkler, apparatus, public liability, property damage, rent, earthquake and other insurance as Landlord carries with respect to the Property, including the amounts of any deductible payment for such insurance incurred by Landlord in connection with any claim thereunder;

(b)	an annual management fee payable on the Rent;

(c)

the cost of any capital improvements made to the Property after the date of this Lease designed to reduce Operating Expenses (amortized in accordance with generally accepted accounting principles), together with interest on the unamortized balance(s) at the rate of ten percent (10%) per annum or such other market rate as may actually be payable by Landlord on funds borrowed for the purpose of constructing such capital improvements;

(d)

the cost of any capital improvements made to the Property after the date of this Lease that are required under any governmental law or regulation that was not applicable to the Property at the date of this Lease (amortized in accordance with generally accepted accounting principles), together with interest on the unamortized balance(s) at the rate of ten percent (10%) per annum or such other market rate as may actually be payable by Landlord on funds borrowed for the purpose of constructing such capital improvements;

(e)	the cost of supplies, materials and equipment used in the management, operation, maintenance and repair of the Property and the Common Areas, including, without limitation, any rental fees;

(f)	fees, costs and disbursements incurred in connection with proceedings to contest or reduce Operating Expenses or Real Estate Taxes to the extent of any savings realized;

(g)	the cost of electricity, gas, water, sewer service, and other systems and utilities serving the Common Areas or not separately metered, and the cost of supplies and equipment and maintenance and service contracts in connection therewith;

(h)	the cost of repairs, replacements, maintenance and cleaning the Property and the Common Areas, including, without limitation, the cost of janitorial and other service agreements and trash removal with respect to the Property;

(i)	the cost of all repairs and maintenance associated with the landscaped areas, surface parking areas and truck courts of the Property and the Common Areas, including, without limitation, roof maintenance in connection with the Property and the Common Areas;

(j)	any association fees, assessments, special assessments or other fees payable by Landlord under any Declaration of Protective Covenants or comparable instrument binding upon the Property; and

(k)	the fee for a bi-annual roof inspection contract.

“Operating Expenses” shall not include:

(a)

leasing commissions, accountants’ or attorneys’ fees, costs and disbursements and other expenses incurred in connection with proposals, negotiations, or disputes with prospective tenants or associated with the enforcement of any leases or the defense of Landlord’s title to or interest in the Property or any part thereof;

(b)	except as specifically provided in this Lease with regard to amortization of capital improvement costs, interest on debt or amortization payments on any mortgages or deeds of trust or any other borrowings of Landlord;

(c)	except as provided in this Lease with regard to capital expenditures, any other expense that under generally accepted accounting principles and practices would not be considered a maintenance or operating expense;

(d)

salaries, benefits or other compensation paid to leasing agents, promotional directors, officers, directors and executives of Landlord above the rank of Building managers, or not involved in the day-to-day operations or management of the Property (except for out-of-pocket expenses of such persons related to the Property);

(e)	all contributions to any organizations, whether political or charitable;

(f)	interest or penalties for late payments;

(g)	costs reimbursed by insurance;

(h)	ground lease rental;

(i)	depreciation;

(j)	expenses in connection with services or other benefits of a type which are not provided to Tenant but are provided to another tenant or occupant; and

(k)	costs incurred by Landlord to comply with its obligations under Section 6.4 (Hazardous Materials) and under its indemnity.

5.2 Payment of Real Estate Taxes . Commencing on the Rent Commencement Date, Tenant shall pay to Landlord as Additional Rent one twelfth (1/12th) of Tenant’s Proportionate Share of Real Estate Taxes on or before the first day of each month during each Lease Year, in advance, in an amount reasonably estimated by Landlord in good faith and billed by Landlord to Tenant. Landlord shall have the right to reasonably revise such estimate from time to time. Within one hundred twenty (120) days after the expiration of each fiscal year for Real Estate Taxes, Landlord shall furnish Tenant with a statement (“ Landlord’s Tax Statement ”) setting forth in reasonable detail the actual amount of Tenant’s Proportionate Share of Real Estate Taxes for such year. If the actual amount of Tenant’s Proportionate Share of Real Estate Taxes due for such year differs from the estimated amount of Tenant’s Proportionate Share of Real Estate Taxes paid by Tenant for such year, then, if Tenant owes any amounts to Landlord, such amounts shall be paid by Tenant (whether or not this Lease has terminated) within thirty (30) days after receipt of Landlord’s Tax Statement, and if Landlord owes any amounts to Tenant, such amounts shall be credited against the next installments of Base Rent and Additional Rent due from Tenant (or if the Lease has terminated for any reason other than Tenant’s default, paid to Tenant within thirty (30) days after delivery of Landlord’s Tax Statement). Tenant’s obligation to pay Tenant’s Proportionate Share of Real Estate Taxes shall commence as of the Rent Commencement Date.

5.3 Payment of Operating Expenses . Commencing on the Rent Commencement Date, Tenant shall pay to Landlord as Additional Rent one twelfth (1/12th) of Tenant’s Proportionate Share of Operating Expenses for the Property for each calendar year on or before the first day of each month during such year, in advance, in an amount reasonably estimated by Landlord in good faith and billed by Landlord to Tenant. Landlord shall have the right to reasonably revise such estimate once during each calendar year. Within one hundred twenty (120) days after the expiration of each calendar year, Landlord shall furnish Tenant with a statement (“ Landlord’s Operating Expense Statement ”), setting forth in reasonable detail the actual amount of Tenant’s Proportionate Share of Operating Expenses for such year. If the actual amount of Tenant’s Proportionate Share of Operating Expenses due for such year differs from the estimated amount of Tenant’s Proportionate Share of Operating Expenses paid by Tenant for such year, then, if Tenant owes any amounts to Landlord, such amounts shall be paid by Tenant (whether or not this Lease has terminated) within thirty (30) days after receipt of Landlord’s Operating Expense Statement, and if Landlord owes any amounts to Tenant, such amounts shall be credited against the next installments of Base Rent and Additional Rent due from Tenant (or if the Lease has terminated for any reason other than Tenant’s default, paid to Tenant within thirty (30) days after delivery of Landlord’s Operating Expense Statement).

5.4 Tenant’s Audit Rights . Landlord shall keep reasonably detailed records of all Operating Expenses and Real Estate Taxes for a period of at least three (3) years. Not more frequently than once in every 12-month period and after at least twenty (20) days’ prior written notice to Landlord, Tenant shall be permitted to audit the records of the Operating Expenses and Real Estate Taxes. If Tenant exercises its audit rights as provided above, Tenant shall conduct any inspection at a reasonable time and in a manner so as not to unduly disrupt the conduct of Landlord’s business. Any such inspection by Tenant shall be for the sole purpose of verifying the Tenant’s Proportionate Share of Operating Expenses and/or Real Estate Taxes. Tenant shall hold any information obtained during any the inspection in confidence, except that Tenant shall be permitted to disclose such information to its attorneys and advisors, provided Tenant informs such parties of the confidential nature of such information and uses good faith and diligent efforts to cause such parties to maintain such information as confidential. Any shortfall or excess revealed and verified by Tenant’s audit shall be paid to the applicable party within thirty (30) days after that party is notified of the shortfall or excess to the extent such overage or shortfall has not previously been adjusted pursuant to this Lease. If Tenant’s inspection of the records for any given Lease Year or partial Lease Year reveals that Tenant was overcharged for Tenant’s Proportionate Share of Operating Expenses or Real Estate Taxes by an amount of greater than five percent (5%), Tenant paid such overage and such overage was not otherwise adjusted pursuant to the terms of this Lease, Landlord shall reimburse Tenant for its reasonable, third party costs of the audit, up to an amount not to exceed $1,000.

6. Use; Compliance With Law .

6.1 Permitted Use; Signage . The Premises shall be used only for the Permitted Use and for no other purpose. Tenant shall not install any signs on the Premises or the Property without the prior written consent of Landlord. Any such signage shall be removed by Tenant upon the expiration or sooner termination of this Lease and Tenant shall repair any damage resulting from its removal.

6.2 No Nuisance . Tenant shall not allow, suffer or permit the Premises or any use thereof to constitute a nuisance.

6.3 Compliance with Laws . Tenant, at Tenant’s expense, shall comply with and cause all of Tenant’s contractors, agents, servants, employees, invitees and licensees (the “ Tenant Parties ”) to comply with all applicable laws, ordinances, rules and regulations of governmental authorities applicable to the Premises or the use or occupancy thereof. Without limiting the generality of the foregoing, Tenant shall comply with the requirements of (a) the Occupational Safety and Health Act (and all regulations promulgated thereunder), and (b) the Americans with Disabilities Act (and all regulations promulgated thereunder), as the same may be amended from time to time. The foregoing obligation of Tenant shall not however permit Tenant to make, without Landlord’s prior written approval, any alterations to the Premises which otherwise would require Landlord’s approval under this Lease, and Tenant shall comply with all of the requirements of this Lease in making any such alterations.

6.4 Hazardous Materials .

6.4.1 Definitions . “ Hazardous Substance ” shall mean any hazardous or toxic substance, material or waste which is or becomes regulated by any local, state or federal governmental authority having jurisdiction. The term “Hazardous Substance” includes, without limitation, any material or substance which is (i) designated as a “hazardous substance” pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. Section 1317), (ii) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), (iii) defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601), (iv) petroleum or (vi) asbestos or asbestos-containing materials.

6.4.2 Compliance with Law . Tenant shall conduct, and cause to be conducted, all operations and activity at the Premises in compliance with, and shall in all other respects applicable to the Premises comply with, all applicable present and future federal, state, municipal and other governmental statutes, ordinances, regulations, orders, directives and other requirements, and all present and future requirements of common law, concerning the protection of public health, safety or the environment (collectively “ Environmental Statutes ”). Tenant, in a timely manner, shall, to the extent required due to Tenant’s use of the Premises or arising out of Tenant’s actions at the Property, obtain and maintain in full force and effect all permits, licenses and approvals, and shall make and file all notifications and registrations as required by Environmental Statutes. Tenant shall at all times comply with the terms and conditions of any such permits, licenses, approvals, notifications and registrations. Tenant shall provide to Landlord copies of the following pertaining to the Premises, the Property or Tenant’s use thereof, promptly after each shall have been submitted, prepared or received by Tenant: (A) all applications and associated materials submitted to any governmental agency relating to any Environmental Statute; (B) all notifications, registrations, reports and other documents, and supporting information, prepared, submitted or maintained in connection with any Environmental Statute or otherwise relating to environmental conditions; (C) all permits, licenses, approvals, and amendments or modifications thereof, obtained under any Environmental Statute; and (D) any correspondence, notice of violation, summons, order, complaint, or other document received by Tenant pertaining to compliance with or liability under any Environmental Statute.

6.4.3 Operations . Tenant shall not cause or suffer or permit to occur in, on or under the Premises any generation, use, manufacturing, refining, transportation, emission, release, treatment, storage, disposal, presence or handling of Hazardous Substances, except that limited quantities of Hazardous Substances may be used, handled or stored on the Premises, provided such is incident to and reasonably necessary for the maintenance of the Premises and Tenant’s operations for the Permitted Use and is in compliance with all Environmental Statutes and all other applicable governmental requirements. Should a release of any Hazardous Substance occur at the Premises or the Property as the result of the acts or omissions of Tenant and/or any of the Tenant Parties, Tenant shall immediately contain, remove and dispose of, off the Premises or the Property, such Hazardous Substances and any material that was contaminated by the release, and remedy and mitigate all threats to human health or the environment relating to such release. When conducting any such measures Tenant shall comply with all Environmental Statutes. Tenant shall not install or cause the installation of any above ground or underground storage tank at the Premises.

6.4.4 Inspection . Upon not less than twenty-four (24) hours’ prior telephonic or written notice (except in case of an emergency in which event Landlord shall provide such telephonic or written notice as Landlord is able to under the circumstances), Tenant agrees to permit Landlord and its authorized representatives to enter, inspect and assess the Premises at reasonable times for the purpose of determining Tenant’s compliance with the provisions of this Section. Such inspections and assessments may include obtaining samples and performing tests of soil, surface water, groundwater or other media.

6.4.5 Indemnification . Notwithstanding any other provision in this Lease to the contrary, Tenant hereby agrees to indemnify and to hold harmless Landlord and its officers, directors, shareholders, partners and principals of, from and against any and all expense, loss, cost, claim, damage, penalty, fine, or liability of any kind or nature suffered by Landlord by reason of the presence or release of Hazardous Substances at or from the Premises or the Property to the extent caused by the acts or omissions of Tenant or the Tenant Parties or Tenant’s breach of any of the provisions of this Section 6 , including without limitation: (A) any and all expenses that Landlord may incur in complying with any Environmental Statutes, (B) any and all costs that Landlord may incur in studying, assessing, containing, removing, remedying, mitigating, or otherwise responding to, the presence or release of any Hazardous Substance at or from the Premises or the Property, (C) any and all costs for which Landlord may be liable to any governmental agency for studying, assessing, containing, removing, remedying, mitigating, or otherwise responding to, the presence or release of any Hazardous Substance at or from the Premises or the Property, (D) any and all fines or penalties assessed, or threatened to be assessed, upon Landlord by reason of a failure of Tenant to comply with any obligations, covenants or conditions set forth in this Section, and (E) any and all reasonable legal fees and costs incurred by Landlord in connection with any of the foregoing. Tenant’s obligations under this Section shall survive the expiration or earlier termination of the Term of this Lease. Notwithstanding anything to the contrary in this Section 6.4 , Tenant shall have no liability to Landlord with respect to Hazardous Substances present at the Property due to the acts or omissions of any party other than Tenant and the Tenant Parties.

6.5 Common Areas .

6.5.1 Use . Tenant shall have the non-exclusive right to use the Common Areas in common with other persons approved by Landlord during the Term, subject to reasonable rules and regulations uniformly established by Landlord and the provisions of this Lease.

6.5.2 Alterations Landlord reserves the right, at any time and from time to time, without the consent of or liability to Tenant to (i) make alterations or additions to the Property and the Common Areas, to change, add to, eliminate or reduce the extent, size, shape, number or configuration of any aspect of the Property and Common Areas provided such alterations or additions do not materially and adversely affect the use of the Common Areas by Tenant, (ii) close to the general public all or any portion of the Premises or the Property to the extent and for the period necessary to avoid any dedication to the public, (iii) effect any repairs or further construction, (iv) change the arrangement, character, use or location of entrances or passageways, doors and doorways, corridors, elevators, stairs, landscaping, toilets, mechanical, plumbing, electrical or other operating systems or any other portions of the Common Areas or other parts of the Premises or the Property provided such alterations or additions do not materially and adversely affect the use of the Common Areas by Tenant, and (v) change the name, number or designation by which the Property is commonly known; provided, however, Landlord shall use reasonable efforts to limit any disruption of Tenant’s use of the Premises in connection with Landlord’s actions undertaken pursuant to this Section.

7. Alterations and Tenant’s Property .

7.1 Alterations Defined .

7.1.1 Tenant shall not make or suffer or allow to be made any alterations, additions or improvements in or to the Premises (collectively, “ Alterations ”) without first obtaining Landlord’s written consent based on detailed plans and specifications submitted by Tenant; provided Landlord’s consent will not be required if (a) the proposed Alterations will not affect the structure or the mechanical, electrical, HVAC, plumbing or life safety systems of the Building (collectively, “ Building Systems ”) and (b) the total cost to acquire and install the proposed Alterations will be no more than (i) $10,000.00 in any one instance and (ii) $25,000.00 in the aggregate during any calendar year. In all other instances where Landlord’s consent is so required, it may be granted or withheld by Landlord in its reasonable discretion. In all events, Tenant shall notify Landlord prior to commencing Alterations other than de minimis Alterations.

7.1.2 Tenant agrees that all such work (regardless of whether Landlord’s consent is required) shall be done at Tenant’s sole cost and expense, in accordance with the plans and specifications approved by Landlord and in a good and workmanlike manner, that the structural integrity of the Building shall not be impaired, and that no liens shall attach to all or any part of the Property by reason thereof. Tenant shall obtain, at its sole expense, all permits required for such work.

7.2 Removal of Property . All Alterations shall become the property of Landlord and shall be surrendered to Landlord upon the expiration or earlier termination of this Lease. However movable equipment, trade fixtures, personal property, furniture, or any other items paid for by Tenant that can be removed without material harm to the Improvements will remain Tenant’s property (collectively, “ Tenant Owned Property ”) shall not become the property of Landlord but shall be removed by Tenant upon the expiration or earlier termination of this Lease. All Tenant Owned Property shall be removed from the Premises at Tenant’s sole cost and expense at the expiration or sooner termination of this Lease. When granting consent for any Alterations that require Landlord’s consent, Landlord shall indicate whether it will require the removal of those Alterations at the expiration or earlier termination of the Lease. Prior to making any Alterations not requiring Landlord’s consent, Tenant may request that Landlord notify Tenant whether Landlord requires Tenant to remove that Alteration prior to expiration or earlier termination of the Lease. Tenant shall remove those Alterations that Landlord requested be removed under the prior two sentences at the expiration or earlier termination of the Lease. Tenant shall repair at its sole cost and expense all damage caused to the Premises or the Building by removal of any Alterations, its signage or Tenant Owned Property. Landlord may remove any Tenant Owned Property or Alterations that Tenant is required but fails to remove at the expiration or earlier termination of the Lease and Tenant shall pay to Landlord the reasonable cost of removal. Tenant’s obligations under this Section shall survive the expiration or earlier termination of this Lease.

8. Repairs and Other Work .

8.1 Tenant’s Obligations .

8.1.1 Subject to the terms of Section 8.1.2 , Tenant shall maintain in good, clean and sanitary order and condition the Premises and every non-structural part thereof, including without limiting the generality of the foregoing, the maintenance, repair, and replacement, as necessary, of all plumbing, refrigeration, electrical, lighting facilities and equipment within the Premises, fixtures, interior walls, the inside of exterior walls, ceilings, decking, floors, windows, doors, plate glass and skylights located within the Premises, and signs (except Landlord’s signs, if any) located on the Premises.

8.1.2 Tenant will not overload the electrical wiring serving the Premises or within the Premises, and will install at its expense, subject to the provisions of this Leas

SITE SEARCH

AGREEMENTS / CONTRACTS

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates