BAKER TECHNOLOGY PLAZA
MULTI-TENANT
LEASE AGREEMENT
1.
Parties. This Lease,
dated, for reference purposes only, __, 2007, is made by and
between Utah State Retirement Investment Fund, an
independent agency of the State of Utah, (herein called
“Landlord”), and Wireless Ronin Technologies
Inc. , a Minnesota corporation (herein called
“Tenant”).
2. Premises,
Parking, and Common Areas.
2.1
Premises . Landlord hereby leases to Tenant and Tenant
leases from Landlord for the term, at the rental, and upon all of
the conditions set forth herein, real property situated in the City
of Minnetonka , County of Hennepin , State of
Minnesota, commonly known as Baker Technology Plaza, 5929 Baker
Road, Suite 475, Minnetonka, Minnesota, and described as
and shown cross-hatched in red on the floor plan attached hereto as
Exhibit A, comprising approximately 19,089 rentable
square feet of area, herein referred to as the
“Premises”, including rights to the Common Areas as
hereinafter specified but not including any rights to the roof of
the Premises or to any building in the Industrial Center. The
Premises are a portion of a building, herein referred to as the
“Building.” The Premises, the Building, the Common
Areas, the land upon which the same are located, along with all
other buildings and improvements thereon, are herein collectively
referred to as the “Industrial Center”, and are legally
described on the attached Exhibit A-1 entitled “Legal
Description of Industrial Center”. Landlord shall construct
the leasehold improvements as set forth in the Leasehold
Improvements Plans and Specifications and exhibits thereto, set
forth on the attached Exhibit B, on or before the commencement
of the Lease term.
2.2
Vehicle Parking. Tenant shall be entitled to employee and
customer vehicle parking, unreserved and unassigned, on those
portions of the Common Areas designated by Landlord for parking.
Common area parking shall be used only for parking by vehicles no
larger than full-size passenger automobiles or pick-up trucks,
herein called “Permitted Size Vehicles.” Vehicles other
than Permitted Size Vehicles, including semi cabs and trailers, are
herein referred to as “Oversized Vehicles.”
(a) Tenant
shall not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant’s employees, suppliers,
shippers, customers, or invitees to be loaded, unloaded, or parked
in areas other than those designated by Landlord for such
activities.
(b) Tenant
shall not permit or allow overnight parking or storage of Oversized
Vehicles anywhere within the Industrial Center.
(c) If
Tenant permits or allows any of the prohibited activities described
in paragraph 2.2 of this Lease, then Landlord shall have the right,
without notice, in addition to such other rights and remedies that
it may have, to remove or tow away the vehicle involved and charge
the cost to Tenant, which cost shall be immediately payable upon
demand by Landlord.
2.3
Common Areas — Definition. The term “Common
Areas” is defined as all areas and facilities outside the
Premises and within the exterior boundary line of the Industrial
Center that are provided and designated by Landlord from time to
time for the general non-exclusive use of Landlord, Tenant, and
other Tenants of the Industrial Center and their respective
employees, suppliers, shippers, customers, and invitees, including
parking areas, loading and unloading areas, trash areas, roadways,
sidewalks, walkways, parkways, driveways, and landscaped
areas.
2.4
Common Areas — Tenant’s Rights. Landlord hereby
grants to Tenant, for the benefit of Tenant and its employees,
suppliers, shippers, customers, and invitees, during the term of
this Lease, the non-exclusive right to use, in common with others
entitled to such use, the Common Areas as they exist from time to
time, subject to any rights, powers, and privileges reserved by
Landlord under the terms hereof or under the terms of any rules and
regulations or restrictions governing the use of the Industrial
Center. Under no circumstances shall the right herein granted to
use the Common Areas be deemed to include the right to store any
property, temporarily or permanently, in the Common Areas. Any such
storage shall be permitted only by the prior written consent of
Landlord or Landlord’s designated agent, which consent may be
revoked at any time. In the event that any unauthorized storage
occurs then Landlord shall have the right, without notice, in
addition to such other rights and remedies that it may have, to
remove the property and charge the cost to Tenant, which cost shall
be immediately paid upon demand.
2.5
Common Areas — Rules and Regulations. Landlord or such
other person(s) as Landlord may appoint shall have the exclusive
control and management of the Common Areas and shall have the
right, from time to time, to establish, modify, amend, and enforce
reasonable rules and regulations with respect thereto. Tenant
agrees to abide by and conform to all such rules and regulations,
and to cause its employees, suppliers, shippers, customers, and
invitees to so abide and conform. Landlord shall not be responsible
to Tenant for the non-compliance with said rules and regulations by
other Tenants of the Industrial Center. See Exhibit C for
current Rules and Regulations.
2.6
Common Areas — Changes .
(a)
To the extent that such changes do not materially and adversely
impair Tenant’s use of Premises , Landlord shall have the
right, in Landlord’s sole discretion, from time to time:
(i) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape, and number of
driveways, entrances, parking spaces, parking areas, loading and
unloading areas, ingress, egress, direction of traffic, landscaped
areas, and walkways; (ii) To close temporarily any of the
Common Areas for maintenance purposes so long as reasonable access
to the Premises remains available; (iii) To designate other
land outside the boundaries of the Industrial Center to be a part
of the Common Areas; (iv) To add additional buildings and
improvements to the Common Areas; (v) To use the
Common
Areas while
engaged in making additional improvements, repairs, or alterations
to the Industrial Center, or any portion thereof; (vi) To do
and perform such other acts and make such other changes in, to, or
with respect to the Common Areas and the Industrial Center as
Landlord may, in the exercise of sound business judgment, deem to
be appropriate.
3.1
Term. The term of this Lease shall be for sixty-seven
(67) months commencing on July 9, 2007
(“Commencement Date”) and ending on
January 31, 2013 , unless sooner terminated pursuant to
any provision hereof.
3.2
Delay in Possession . Notwithstanding said Commencement
Date, if for any reason Landlord cannot deliver possession of the
Premises to Tenant on said date, Landlord shall not be subject to
any liability therefor, nor shall such failure affect the validity
of this Lease or the obligations of Tenant hereunder, but in such
case, Tenant shall not be obligated to pay rent or perform any
other obligation of Tenant under the terms of this Lease, except as
may be otherwise provided in this Lease, until possession of the
Premises is tendered to Tenant; provided, however, that if Landlord
has not delivered possession of the Premises within sixty(60) days
from said Commencement Date and said delay in delivery is not due
to Tenant’s action, or the action of any governmental agency,
Tenant may, at its option, by notice in writing to Landlord within
ten (10) days thereafter, cancel this Lease, in which event
the parties shall be discharged from all obligations hereunder;
provided further, however, that if such written notice of Tenant is
not received by Landlord within said ten (10) day period,
Tenant’s right to cancel this Lease hereunder shall terminate
and be of no further force or effect. If the date of delivery of
p ossession of the Premises to Tenant is later than the
Commencement Date specified in Paragraph 3.1 above, then the
term of this Lease shall be extended by the number of days between
the Commencement Date and such delivery date, and Landlord and
Tenant shall enter into an amendment to this lease setting forth
such new expiration date.
3.3
Early Possession. If Tenant occupies the Premises prior to
said C ommencement D ate, such occupancy shall be
subject to all provisions of this Lease, such occupancy shall not
advance the termination date, and Tenant shall pay rent for such
period at the initial monthly rates set forth below.
3.4 Premises Preparation Work. In addition to Landlord’s
obligations with respect to the Leasehold Improvements as described
in Section 2 above and Exhibit B, Landlord must complete
the following work (the “Premises Preparation Work”) at
Landlord’s sole cost and expense prior to Landlord’s
performance of the Leasehold Improvements:
(a) Landlord must remove the existing adhesive residue from
the floor of the Premises and prepare the floor of the Premises for
the installation of Tenant’s flooring.
(b) Landlord must remove all Hazardous Materials, as
defined in Section 45 hereof, from the
Premises.
(c) Landlord must remove all existing cabling and wiring
installed by any prior tenant in the Premises, and which is not a
part of the Building systems, from the Premises.
(d) The Landlord will provide sufficient electrical
capacity in the Premises at standard 12/208 volts for normal office
use.
(e) Landlord must remodel the restrooms in the Premises to
conform to Landlord’s remodeling of restrooms in other
premises in the Building.
4.1
Base Rent. Tenant shall pay to Landlord, as Base Rent for
the Premises, without notice or any offset or deduction, except as
may be otherwise expressly provided in this Lease, on the first day
of each month of the term hereof, monthly payments in advance in
the amounts set forth below:
(a)
Months one (1) through twelve (12): Thirteen Thousand Six
Hundred Eighty and 45/100 Dollars ($13,680.45) per
month;
(b)
Months thirteen (13) through twenty-four (24): Fourteen
Thousand Ninety-four and 05/100 Dollars ($14,094.05) per
month;
(c) Months twenty-five (25) through thirty-six (36):
Fourteen Thousand Five Hundred Seven and 64/100 Dollars
($14,507.64) per month;
(d) Months thirty-seven (37) through forty-eight (48):
Fourteen Thousand Nine Hundred Fifty-three and 05/100 Dollars
($14,953.05) per month;
(e) Months forty-nine (49) through sixty-seven (67):
Fifteen Thousand Three Hundred Ninety-eight and 46/100 Dollars
($15,398.46) per month;
Tenant shall
pay Landlord upon execution hereof $13,680.45 as Base Rent
for February, 2008 . Rent for any period during the term
hereof which is for less than one month shall be a pro rata portion
of the Base Rent. Rent shall be
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payable in
lawful money of the United States to Landlord at the address stated
herein or to such other persons or at such other places as Landlord
may designate in writing.
Notwithstanding the above, provided Tenant is
not in default (after the expiration of any notice and cure period,
if applicable), Tenant’s obligation to pay (i) gross
rent (Base rent and Operating Expenses) payable by Tenant hereunder
shall be abated for a period of four (4) months applicable to
the first four (4) months of the Term, and (ii) net rent
(Base Rent) payable by Tenant hereunder shall be abated for a
period of three (3) months applicable to months five
(5) through seven (7) of the Term. Otherwise and
thereafter, Tenant shall pay rent to Landlord according to the
terms of this Lease.
4.2
Operating Expenses. Subject to terms of rent abatement
set forth in section 4.1 above , Tenant shall pay to
Landlord during the term hereof, in addition to the Base Rent,
Tenant’s Share, as hereinafter defined, of all Operating
Expenses, as hereinafter defined, during each calendar year of the
term of this Lease, in accordance with the following
provisions:
(a)
“Tenant’s Share” is defined, for purposes of this
Lease, as 7.51 % of the Industrial Center, and 25.40 % of the
Building. Where possible, the costs should be allocated to
individual buildings and where not possible, costs should be
allocated to the Industrial Center as a whole. Tenant’s
share is subject to periodic review and adjustment by Landlord to
accurately reflect Tenant’s pro-rata share of the
improvements then comprising the Industrial Center , such as the
inclusion of the common mechanical rooms to the calculation of
square footage of the Industrial Center and Building for purposes
of determining prorata share .
(b)
“Operating Expenses” is defined, for the purposes of
this Lease, as all costs of management, operation, maintenance, and
repair of the Building, and to, the extent allocable to the
Building pursuant to section 4.2(a) , the Common Areas and
the balance of the Industrial Center, including, without
limitation, the wages, salaries, and payroll burden of employees,
maintenance, landscaping, irrigation, parking, and other services,
power, water, and other utilities, materials and supplies,
maintenance and repairs (including repaving of the parking areas
and replacement of any roofs), insurance, the deductible portion of
any insured loss, real property and other taxes and assessments
(including any increases resulting from a sale or other change in
ownership of the Building or the Industrial Center),
amortization over the useful life on personal property, the
cost of any capital improvements designed to reduce other items of
Operating Expenses, plus interest at the rate of ten percent (10%)
per annum or such higher cost of funds incurred by Landlord to
construct such improvements, amortized over a reasonable period
determined by Landlord Landlord agrees that all repairs,
improvements, or personal property, with a useful life greater than
one year will be amortized over such useful life . The share of
Operating Expenses pertaining to the Common Areas and the balance
of the Industrial Center allocated to the Building shall be
determined in the reasonable business judgment of
Landlord.
(c) The
inclusion of the improvements, facilities, and services set forth
in paragraph 4.2(b) in the definition of Operating Expenses shall
not be deemed to impose an obligation upon Landlord either to have
said improvements or facilities or to provide those services unless
the Industrial Center already has the same.
(d) Tenant’s
Share of Operating Expenses shall be payable by Tenant within ten
(10) days after a reasonably detailed statement of actual
expenses is presented to Tenant by Landlord. At Landlord’s
option, however, an amount may be estimated by Landlord from time
to time of Tenant’s Share of annual Operating Expenses and
the same shall be payable monthly or quarterly, as Landlord shall
designate, during each twelve-month period of the Lease term, on
the same day as the Base Rent is due hereunder. In the event that
Tenant pays Landlord’s estimate of Tenant’s Share of
Operating Expenses as aforesaid, Landlord shall deliver to Tenant
as soon as practical after the expiration of each calendar year a
reasonably detailed statement showing Tenant’s Share of the
actual Operating Expenses incurred during the preceding year. If
Tenant’s payments under this paragraph 4.2(d) during said
preceding year exceed Tenant’s Share as indicated on said
statement, Tenant shall be entitled to credit the amount of such
overpayment against Tenant’s Share of Operating Expenses next
falling due. If Tenant’s payments under this paragraph during
said preceding year were less than Tenant’s Share as
indicated on said statement, Tenant shall pay to Landlord the
amount of the deficiency within ten (10) days after delivery
by Landlord to Tenant of said statement.
5.1.
Letter of Credit: This Lease Agreement is conditioned upon
Landlord’s receipt of the fully executed letter of credit
substantially in the form as set forth on Exhibit E
(“Letter of Credit”) attached hereto simultaneously
upon execution of this Lease Agreement. In the event Landlord has
not received a fully executed Letter of Credit in satisfaction with
these terms by said date, this Lease Agreement shall be null and
void at Landlord’s option. The Letter of Credit shall be
issued in the amount of $492,000.00. The amount of the Letter of
Credit shall be reduced to $328,000.00 on January 1, 2009 and
further reduced to $164,000.00 on January 1,
2010.
Landlord may
draw on the Letter of Credit upon prior notice to Tenant and upon
submission of a certificate of Landlord, certifying the following:
(i) that Tenant has defaulted under the Lease (describing with
specificity Tenant’s default under a specific provision of
this Lease), (ii) that Landlord has provided notice to Tenant
of such default as required by the Lease, (iii) that the
applicable cure period has passed, and (iv) describing
Landlord’s actual monetary damage due to said
default
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So long as
Tenant is not in default hereunder, the Letter of Credit shall be
released on the earlier of: (i) January 1, 2011; or
(ii) after the thirty-first (31
st
) month of the Term if
Tenant’s EBITDA is Four Million and no/100 Dollars
($4,000,000.00) or higher on a ten percent (10%) profit
margin.
5.2. Security Deposit . Upon release of the Letter of
Credit pursuant to section 5.1 above , Tenant shall deposit
with Landlord $13,680.00 as security for Tenant’s
faithful performance of its obligations hereunder. If Tenant fails
to pay rent or other charges due hereunder, or otherwise defaults
with respect to any provision of this Lease, Landlord may use,
apply, or retain all or any portion of said deposit for the payment
of any rent or other charge in default or for the payment of any
other sum to which Landlord may become obligated by reason of
Tenant’s default, or to compensate Landlord for any loss or
damage that Landlord may suffer thereby. If Landlord so uses or
applies all or any portion of said deposit, Tenant shall within ten
(10) days after written demand therefor deposit cash with
Landlord in an amount sufficient to restore said deposit to the
full amount then required of Tenant. Landlord shall not be required
to keep said security deposit separate from its general accounts.
If Tenant performs all of its obligations hereunder, said deposit,
or so much thereof as has not theretofore been applied by Landlord,
shall be returned, without payment of interest or other increment
for its use, to Tenant (or, at Landlord’s option, to the last
assignee, if any, of Tenant’s interest hereunder) at the
expiration of the term hereof, and after Tenant has vacated the
Premises. No trust relationship is created herein between Landlord
and Tenant with respect to said security deposit.
6.1
Use. The Premises shall be used and occupied only for the
operation of office/warehouse , provided that no such use
shall be permitted which would in any way (a) violate any
conditions, covenants, and restrictions currently applicable as
described on Exhibit D, copies of which have been provided to
Tenant , (b) violate Article 45 of this Lease ,
(c) render economically infeasible or unobtainable any
insurance required hereunder, (d) increase the amount of real
property tax or insurance premiums payable by Landlord under this
Lease, or (e) in Landlord’s reasonable judgment,
decrease the marketability of the Premises, the Building, or the
Industrial Center with respect to sale or leasing or
both.
6.2
Compliance with Law. Tenant shall, at its sole cost and
expense, comply with (a) all governmental laws, rules,
regulations, and orders, (b) all rules, regulations, and
orders of a national or local Board of Fire Underwriters or other
bodies performing a similar function, and (c) any covenants and
restrictions currently of record and described in
Exhibit D . Tenant shall take all steps necessary to
effect such compliance; Tenant’s obligation therefor shall be
unqualified, regardless of the unforeseeable, extraordinary, or
structural character of the work required for compliance. It is the
intention of the parties that Tenant shall assume the entire
responsibility for complying with all such laws, requirements,
rules, orders, ordinances, and regulations relating to the Premises
and Tenant’s use of the Premises. Tenant shall not use or
permit the use of the Premises in any manner that will tend to
create waste or a nuisance or, if there should be more than one
tenant in the Building, will tend to disturb such other
tenants.
6.3
Condition of Premises.
(a) Landlord
shall deliver the Premises in accordance with Landlord’s
obligations under Exhibit B , to Tenant clean and free of
debris on the Lease C ommencement D ate (unless
Tenant is already in possession).
(b) Except
as otherwise provided in this Lease, Tenant hereby accepts the
Premises in their condition existing as of the Lease C
ommencement D ate or the date that Tenant takes possession
of the Premises, whichever is earlier, subject to all applicable
zoning, municipal, county, and state laws, ordinances, and
regulations governing and regulating the use of the Premises, and
any covenants or restrictions of record, and accepts this Lease
subject thereto and to all matters disclosed thereby and by any
exhibits attached hereto. Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty
as to the present or future suitability of the Premises for the
conduct of Tenant’s business.
7. Maintenance,
Repairs, Alterations, and Common Area Services.
7.1
Landlord’s Obligations. Subject to the provisions of
paragraphs 4.2 (Operating Expenses), 6 (Use), 7.2 (Tenant’s
Obligations), and 9 (Damage or Destruction) and except for damage
caused by any negligent or intentional act or omission of Tenant,
Tenant’s employees, suppliers, shippers, customers, or
invitees, in which event Tenant shall repair the damage to the
extent not covered by the Landlord’s insurance ,
Landlord, at Landlord’s expense, subject to reimbursement
pursuant to paragraph 4.2, shall keep in good condition and repair
the foundations, exterior walls, structural condition of interior
bearing walls, heating, ventilating, and air conditioning
systems , and roof of the Premises, as well as the parking
lots, walkways, driveways, landscaping, fences, and utility
installations of the Common Areas and all parts thereof, as well as
providing the services for which there is an Operating Expense
pursuant to paragraph 4.2. Landlord shall not, however, be
obligated to paint the exterior or interior surface of exterior
walls, nor shall Landlord be required to maintain, repair, or
replace windows, doors, or plate glass of the Premises. Landlord
shall have no obligation to make repairs under this paragraph 7.1
until a reasonable time after receipt of written notice from Tenant
of the need for such repairs. Tenant expressly waives the benefits
of any statute now or hereafter in effect which would otherwise
afford Tenant the right to make repairs at Landlord’s expense
or to terminate this Lease because of Landlord’s failure to
keep the Premises in good order, condition, and repair. Landlord
shall not be liable for damage or loss of any kind or nature by
reason of Landlord’s failure to furnish any Common Area
services when such failure is caused by accident, breakage, repair,
strike, lockout, or other labor disturbance or dispute of any
character, or by any other cause beyond the reasonable control of
Landlord.
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7.2
Tenant’s Obligations.
(a) Subject
to the provisions of paragraphs 6 (Use), 7.1 (Landlord’s
Obligations), and 9 (Damage or Destruction), Tenant, at its
expense, shall keep in good order, condition, and repair the
Premises and every part thereof (whether or not a damaged portion
of the Premises or the means of repairing the same is reasonably or
readily accessible to Tenant), including, without limiting the
generality of the foregoing, all plumbing, electrical and lighting
facilities and equipment within the Premises, fixtures, interior
walls and interior surfaces of exterior walls, ceilings, windows,
doors, plate glass, and skylights located within the Premises, and
all loading dock areas serving the Premises including repair or
replacement of overhead doors, dock plates, dock seals and bumpers,
and dock levelers. Landlord reserves the right to procure and
maintain the ventilating and air conditioning system maintenance
contract, and if Landlord so elects, Tenant shall reimburse
Landlord, upon demand, for the cost thereof.
(b) If
Tenant fails to perform its obligations under this paragraph 7.2,
Exhibit C or under any other paragraph of this Lease, Landlord
may enter upon the Premises after forty-eight (48) hours’
prior written notice to Tenant (except in the case of emergency, in
which no notice shall be required), perform such obligations on
Tenant’s behalf, and put the Premises in good order,
condition, and repair, and the cost thereof together with interest
thereon at the maximum rate then allowable by law shall be due and
payable as additional rent to Landlord together with Tenant’s
next Base Rent installment.
(c)
Subject to Sections 7.1 and 9 hereof , on the last day
of the term hereof, or on any sooner termination, Tenant shall
surrender the Premises to Landlord in the same condition as
received, ordinary wear and tear excepted, clean and free of
debris. Any damage to or deterioration of the Premises shall not be
deemed ordinary wear and tear if the same could have been prevented
by good maintenance practices. Tenant shall repair any damage to
the Premises occasioned by the installation or removal of
Tenant’s trade fixtures, alterations, furnishings, and
equipment. Notwithstanding anything to the contrary otherwise
stated in this Lease, Tenant shall leave the air lines, power
panels, electrical distribution systems, lighting fixtures, space
heaters, air conditioning, plumbing, and fencing on the Premises in
good operating condition.
7.3
Alterations and Additions.
(a) Tenant
shall not, without Landlord’s prior written consent, make any
alterations, improvements, additions, or Utility Installations in,
on, or about the Premises, or the Industrial Center, except for
nonstructural alterations to the Premises not exceeding $
25,000 in cumulative costs during the term of this Lease. In
any event, whether or not in excess of $ 25,000 in
cumulative cost, Tenant shall make no change or alteration to the
exterior of the Premises nor the exterior of the Building nor the
Industrial Center nor which may affect, involve or impact any
Building systems without Landlord’s prior written
consent. As used in this paragraph 7.3 the term “Utility
Installation” shall mean carpeting, window coverings, air
lines, power panels, electrical distribution systems, lighting
fixtures, space heaters, air conditioning, plumbing, and fencing.
Landlord may require that Tenant remove any or all of said
alterations, improvements, additions, or Utility Installations at
the expiration of the term hereof, and restore the Premises and the
Industrial Center to their prior condition. Landlord may require
Tenant to provide Landlord, at Tenant’s sole cost and
expense, a lien and completion bond in an amount equal to one and
one-half times the estimated cost of such improvements, to insure
Landlord against any liability for mechanics and
materialmen’s liens, and to insure completion of the work.
Should Tenant make any alterations, improvements, additions, or
Utility Installations without the prior approval of Landlord,
Landlord may, at any time during the term of this Lease, require
that Tenant remove any or all of the same.
(b) Any
alterations, improvements, additions, or Utility Installations in
or about the Premises or the Industrial Center that Tenant desires
to make and that require the consent of Landlord shall be presented
to Landlord in written form, with proposed detailed plans. If
Landlord gives its consent thereto, the consent shall be deemed
conditioned upon Tenant’s acquiring a permit to do so from
appropriate governmental agencies, the furnishing of a copy thereof
to Landlord prior to the commencement of the work, and the
compliance by Tenant with all conditions of said permit in a prompt
and expeditious manner.
(c)
Subject to the Allowance as defined in Exhibit B ,
Tenant shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or
for use in the Premises, which claims are or may be secured by any
mechanics or materialmen’s lien against the Premises, or the
Industrial Center, or any interest therein. Tenant shall give
Landlord not less than ten (10) days’ notice prior to
the commencement of any work in the Premises, and Landlord shall
have the right to post notices of non-responsibility in or on the
Premises or the Building as provided by law. If Tenant, in good
faith, contests the validity of any such lien, claim, or demand,
then Tenant shall, at its sole expense, defend itself and Landlord
against the same and shall pay and satisfy any adverse judgment
that may be rendered thereon before the enforcement thereof against
the Landlord or the Premises or the Industrial Center, upon the
condition that if Landlord shall so require, Tenant shall furnish
to Landlord a surety bond satisfactory to Landlord in an amount
equal to such contested lien claim or demand, indemnifying Landlord
against liability for the same and holding the Premises and the
Industrial Center free from the effect of such lien or claim. In
addition, Landlord may require Tenant to pay Landlord’s
attorney fees and costs participating in such action if Landlord
decides it is in Landlord’s best interest to do
so.
(d) All
alterations, improvements, additions, and Utility Installations
(whether or not such Utility Installations constitute trade
fixtures of Tenant) that may be made on the Premises shall be the
property of Landlord and shall remain upon and be surrendered with
the Premises at the expiration of the Lease term, unless Landlord
requires their removal pursuant to paragraph 7.3(a). Landlord
shall, upon request from Tenant, advise Tenant if
Landlord
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will require
the removal of a proposed improvement upon the expiration of the
term . Notwithstanding
the provisions of this paragraph 7.3(d), Tenant’s machinery
and equipment, other than that which is affixed to the Premises so
that it cannot be removed without damage, which Tenant can not
reasonably repair , to the Premises, and other than Utility
Installations, shall remain the property of Tenant and may be
removed by Tenant subject to the provisions of paragraph
7.2.
7.4
Utility Additions. Landlord reserves the right to install
new or additional utility facilities throughout the Building and
the Common Areas for the benefit of Landlord or Tenant, or any
other tenant of the Industrial Center, including, but not by way of
limitation, such utilities as plumbing, electrical systems,
security systems, communication systems, and fire protection and
detection systems, so long as such installations do not
unreasonably interfere with Tenant’s use of the
Premises.
7.5
Alterations Required by Law. Tenant shall pay to Landlord as
additional rent the cost of any structural or nonstructural
alteration, addition, or change to the Building and/or at
Landlord’s election, shall promptly make, at Tenant’s
sole expense and in accordance with the provisions of paragraph 7.1
above, any structural or nonstructural alteration, addition, or
change to the Premises required to comply with laws, regulations,
ordinances, or orders of any public agencies, whether now existing
or hereafter promulgated, where such alterations, additions, or
changes are required by reason of: Tenant’s or Tenant’s
agents’ direct or indirect acts; Tenant’s
specific use or change of use of the Premises; alterations
or improvements to the Premises made by or for Tenant;
Tenant’s application for any permit or governmental approval;
or as a result of new amendments to the Americans with
Disabilities Act, 42 U.S.C. §§ 12101-12213, as amended
(including administrative, judicial, and legislative
interpretations, rulings, and clarifications relating
thereto).
8.1
Liability Insurance — Tenant. Tenant shall, at its
expense, obtain and keep in force during the term of this Lease a
policy of Combined Single Limit Bodily Injury and Property Damage
insurance insuring Tenant and Landlord against any liability
arising out of Tenant’s use, occupancy, or maintenance
of the Premises and the Industrial Center. Such insurance shall be
in an amount not less than $2,000,000.00 per occurrence. The policy
shall insure performance by Tenant of the indemnity provisions of
this paragraph 8. The limits of said insurance shall not, however,
limit the liability of Tenant hereunder. In addition to such
liability insurance policy, Tenant shall at all times maintain in
force on all of its fixtures, equipment and tenant improvements in
the Premises a policy or policies of insurance covering losses or
damage in an amount equal to the full replacement value of such
property, as the same may exist from time to time, providing
protection against all perils included within the classification of
fire, extended coverage, vandalism, malicious mischief, flood,
special extended perils, “all risk”, plate glass
insurance, and such other insurance as Landlord may reasonably
request.
8.2
Liability Insurance — Landlord. Landlord shall obtain
and keep in force during the term of this Lease a policy of
Combined Single Limit Bodily Injury and Property Damage Insurance,
insuring Landlord, but not Tenant, against any liability arising
out of the ownership, use, occupancy, or maintenance of the
Industrial Center, in an amount not less than $1,000,000.00 per
occurrence.
8.3
Property Insurance. Landlord shall obtain and keep in force
during the term of this Lease a policy or policies of insurance
covering loss or damage to the Industrial Center improvements, but
not Tenant’s personal property fixtures, equipment, or tenant
improvements, in an amount not to exceed the full replacement value
thereof, as the same may exist from time to time, providing
protection against all perils included within the classification of
fire, extended coverage, vandalism, malicious mischief, flood (in
the event the same is required by a lender having a lien on the
Premises), special extended perils (“all risk”, as such
term is used in the insurance industry), plate glass insurance, and
such other insurance as Landlord deems advisable. In addition,
Landlord shall obtain and keep in force, during the term of this
Lease, a policy of rental value insurance covering a period of not
less than one year, with loss payable to Landlord, which insurance
shall also cover all Operating Expenses for said period. In the
event that the Premises suffer an insured loss as defined in
paragraph 9.1(g) hereof, the deductible amounts under the casualty
insurance policies relating to the Premises shall be paid by
Tenant.
8.4
Payment of Premium Increase.
(a) After
the term of this Lease has commenced, Tenant shall not be
responsible for paying Tenant’s share of any increase in the
property insurance premium for the Industrial Center specified by
Landlord’s insurance carrier as being caused by the use,
acts, or omissions of any other Tenant of the Industrial Center, or
by the nature of such other Tenant’s occupancy that creates
an extraordinary or unusual risk.
(b) Tenant,
however, shall pay the entirety of any increase in the property
insurance premium for the Industrial Center over what it was
immediately prior to the commencement of the term of this Lease if
the increase is specified by Landlord’s insurance carrier as
being caused by the nature of Tenant’s occupancy or any act
or omission of Tenant.
8.5
Insurance Policies. Insurance required hereunder shall be
with companies holding a “General Policyholders Rating”
of at least A, or such other rating as may be required by a lender
having a lien on the Premises, as set forth in the most current
issue of “Best’s Insurance Guide.” Tenant shall
not do or permit to be done anything that invalidates the insurance
policies carried by Landlord. Tenant shall deliver to Landlord
copies of liability insurance policies required under paragraph 8.1
or certificates evidencing the existence and amounts of such
insurance, within
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seven
(7) days after the commencement date of this Lease. No such
policy shall be cancelable or subject to reduction of coverage or
other modification except after thirty (30) days’ prior
written notice to Landlord. Tenant shall, at least thirty
(30) days prior to the expiration of such policies, furnish
Landlord with renewals or “binders” thereof.
8.6
Waiver of Subrogation. Tenant and Landlord each hereby
release and relieve the other with respect to, and waive their
entire right of recovery against the other for, loss or damage
arising out of or incident to the perils insured against which
perils occur in, on, or about the Premises or Industrial
Center , whether due to the negligence of Landlord or Tenant or
their agents, employees, contractors, and/or invitees. Tenant and
Landlord shall, upon obtaining the policies of insurance required,
give notice to the insurance carrier or carriers that the foregoing
mutual waiver of subrogation is contained in this Lease.
8.7
Indemnity. Tenant shall indemnify, defend, and hold harmless
Landlord from and against any and all claims arising from
Tenant’s use of the Industrial Center, or from the conduct of
Tenant’s business at the Industrial Center or from any
activity, work, or thing done, permitted, or suffered by Tenant
and occurring in or about the Premises or the Industrial
Center and shall further indemnify, defend, and hold harmless
Landlord from and against any and all claims arising from any
breach or default in the performance of any obligation on
Tenant’s part to be performed under the terms of this Lease,
or arising from any act or omission of Tenant, or any of
Tenant’s agents, contractors, or employees, and from and
against all costs, attorney’s fees, expenses, and liabilities
incurred in the defense of any such claim or any action or
proceedings brought thereon; and in case any action or proceedings
be brought against Landlord by reason of any such claim, Tenant
upon notice from Landlord shall defend the same at Tenant’s
expense by counsel reasonably satisfactory to Landlord, and
Landlord shall cooperate with Tenant in such defense. The
indemnification obligations set forth in this paragraph 8.7 shall
survive the termination or expiration of this Lease.
Notwithstanding the foregoing, Tenant shall not be obligated to
indemnify Landlord against or hold Landlord harmless from any
judgment entered against Landlord based on Landlord’s
negligence or willful misconduct .
8.8
Exemption of Landlord from Liability. Tenant hereby agrees
that Landlord shall not be liable for injury to Tenant’s
business or any loss of income therefrom or for damage to the
goods, wares, merchandise, or other property of Tenant,
Tenant’s employees, invitees, customers, or any other person
in or about the Premises or the Industrial Center, nor shall
Landlord be liable for injury to the person of Tenant,
Tenant’s employees, agents, or contractors, whether such
damage or injury is caused by or results from fire, steam,
electricity, gas, water, or rain, or from the breakage, leakage,
obstruction, or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning, or lighting fixtures, or
from any other cause, whether said damage or injury results from
conditions arising upon the Premises or upon other portions of the
Industrial Center, or from other sources or places and regardless
of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Tenant. Landlord shall not be
liable for any damages arising from any act or neglect of any other
Tenant, occupant, or user of the Industrial Center, nor from the
failure of Landlord to enforce the provisions of any other lease of
the Industrial Center. The foregoing exemption of Landlord from
liability shall not extend to any liability of Landlord arising out
of the gross negligence or willful misconduct of Landlord or
Landlord’s employees or agents.
8.9
Increased Coverage. Not more frequently than once every
year, Tenant shall increase the amounts of insurance as follows:
(a) as reasonably recommended by Landlord’s
insurance broker, provided that the amount of insurance recommended
by such broker shall not exceed the amount customarily required of
tenants in comparable projects located within the general area of
the Industrial Center, or (b) as reasonably required by
Landlord’s lender.
9. Damage or
Destruction.
(a)
“Premises Partial Damage” shall mean if the Premises
are damaged or destroyed to the extent that the cost of repair is
less than fifty percent of the then replacement cost of the
Premises.
(b)
“Premises Total Destruction” shall mean if the Premises
are damaged or destroyed to the extent that the cost of repair is
fifty percent or more of the then replacement cost of the
Premises.
(c)
“Premises Building Partial Damage” shall mean if the
Building of which the Premises are a part is damaged or destroyed
to the extent that the cost to repair is less than fifty percent of
the then replacement cost of the Building.
(d)
“Premises Building Total Destruction” shall mean if the
Building of which the Premises are a part is damaged or destroyed
to the extent that the cost to repair is fifty percent or more of
the then replacement cost of the Building.
(e)
“Industrial Center Buildings” shall mean all of the
buildings on the Industrial Center site.
(f)
“Industrial Center Buildings Total Destruction” shall
mean if the Industrial Center Buildings are damaged or destroyed to
the extent that the cost of repair is fifty percent or more of the
then replacement cost of the Industrial Center
Buildings.
(g)
“Insured Loss” shall mean damage or destruction that
was caused by an event required to be covered by the insurance
described in paragraph 8. The fact that an Insured Loss has a
deductible amount shall not make the loss an uninsured
loss.
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(h)
“Replacement Cost” shall mean the amount of money
necessary to be spent in order to repair or rebuild the damaged
area to the condition that existed immediately prior to the damage
occurring, excluding all improvements made by Tenants.
9.2
Premises Partial Damage; Premises Building Partial
Damage.
(a) Insured
Loss: Subject to the provisions of paragraphs 9.4 and 9.5, if at
any time during the term of this Lease there is damage which is an
Insured Loss and which falls into the classification of either
Premises Partial Damage or Premises Building Partial Damage, then
Landlord shall, at Landlord’s expense, repair such damage to
the Premises within ninety (90) days ( provided if the time
required to repair such damage exceeds ninety (90) days, so
long as Landlord is diligently pursuing such repair, Landlord shall
have all the time necessary to complete such repair) but not
Tenant’s fixtures, equipment or tenant improvements, as soon
as reasonably possible and this Lease shall continue in full force
and effect.
(b) Uninsured
Loss: Subject to the provisions of paragraphs 9.4 and 9.5, if at
any time during the term of this Lease there is damage that is not
an Insured Loss and that falls within the classification of
Premises Partial Damage or Premises Building Partial Damage, unless
caused by a negligent or willful act of Tenant (in which event
Tenant shall make the repairs at its expense), which damage
prevents Tenant from using the Premises, Landlord may at
Landlord’s option either (i) repair such damage as soon as
reasonably possible but in any event, within ninety
(90) days (provided if the time required to repair such damage
exceeds ninety (90) days, so long as Landlord is diligently
pursuing such repair, Landlord shall have all the time necessary to
complete such repair), at Landlord’s expense, in which
event this Lease shall continue in full force and effect, or
(ii) give written notice to Tenant within thirty
(30) days after the date of the occurrence of such damage of
Landlord’s intention to cancel and terminate this Lease as of
the date of the occurrence of such damage. In the event Landlord
elects to give such notice of Landlord’s intention to cancel
and terminate this Lease, Tenant shall have the right within ten
(10) days after the receipt of such notice to give written
notice to Landlord of Tenant’s intention to repair such
damage at Tenant’s expense, without reimbursement from
Landlord, in which event this Lease shall continue in full force
and effect, and Tenant shall proceed to make such repairs as soon
as reasonably possible. If Tenant does not give such notice within
such ten (10) day period, this Lease shall be cancelled and
terminated as of the date of the occurrence of such
damage.
9.3
Premises Total Destruction; Premises Building Total Destruction;
Industrial Center Buildings Total Destruction. Subject to the
provisions of paragraphs 9.4 and 9.5, if at any time during the
term of this Lease there is damage, whether or not it is an Insured
Loss, and such damage falls into the classification of
(a) Premises Total Destruction, or (b) Premises Building
Total Destruction, or (c) Industrial Center Buildings Total
Destruction, then Landlord may at its option either (y) repair
such damage within ninety (90) days (provided if the time
required to repair such damage exceeds ninety (90) days, so
long as Landlord is diligently pursuing such repair, Landlord shall
have all the time necessary to complete such repair), but not
Tenant’s fixtures, equipment, or tenant improvements, as soon
as reasonably possible at Landlord’s expense, and this Lease
shall continue in full force and effect, or (z) give written
notice to Tenant within thirty (30) days after the date of
occurrence of such damage, of Landlord’s intention to cancel
and terminate this Lease, in which case this Lease shall be
cancelled and terminated as of the date of the occurrence of such
damage.
9.4
Damage near End of Term.
(a) Subject
to paragraph 9.4(b), if at any time during the last six months of
the term of this Lease there is substantial damage, whether or not
an Insured Loss, and such damage falls within the classification of
Premises Partial Damage, Landlord or Tenant may at its
option cancel and terminate this Lease as of the date of occurrence
of such damage by giving written notice to the other party
of the terminating party’s election to terminate
this lease within thirty (30) days after the date of
occurrence of such damage.
(b) Notwithstanding
paragraph 9.4(a), in the event that Tenant has an option to extend
or renew this Lease, and the time within which said option may be
exercised has not yet expired, Tenant shall exercise such option,
if it is to be exercised at all, no later than twenty
(20) days after the occurrence of an Insured Loss falling
within the classification of Premises Partial Damage during the
last six months of the term of this Lease. If Tenant duly exercises
such option during said twenty (20) day period, Landlord
shall, at its expense, repair such damage, but not Tenant’s
fixtures, equipment, or tenant improvements, as soon as reasonably
possible, and this Lease shall continue in full force and effect.
If Tenant fails to exercise such option during said twenty
(20) day period, then Landlord may at its option terminate and
cancel this Lease as of the expiration of said twenty (20) day
period by giving written notice to Tenant of Landlord’s
election to do so within ten (10) days after the expiration of
said twenty (20) day period, notwithstanding any term or
provision in the grant of option to the contrary.
9.5
Abatement of Rent; Tenant’s Remedies.
(a) In
the event of damage to the Premises, the rent and
Operating Expenses payable hereunder for the period from the
date of damage to the date of termination or repair sufficient for
Tenant’s full use and enjoyment of the Premises shall be
abated in proportion to the degree to which Tenant’s use of
the Premises is impaired. Except for abatement of rent, if any,
Tenant shall have no claim against Landlord for any damage suffered
by reason of any such damage, destruction, repair, or
restoration.
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(b) If
Landlord is obligated to repair or restore the Premises under the
provisions of this paragraph 9 and does not complete such
repair or restoration within two hundred forty (240 ) days
after such obligation accrues, Tenant may at its option cancel and
terminate this Lease by giving Landlord written notice of
Tenant’s election to do so at any time prior to the
commencement of such repair or restoration. In such event this
Lease shall terminate as of the date of such notice.
9.6
Termination — Advance Payments . Upon termination of
this Lease pursuant to this paragraph 9, an equitable adjustment
shall be made concerning advance rent and any advance payments made
by Tenant to Landlord. Landlord shall, in addition, return to
Tenant so much of Tenant’s security deposit as has not
theretofore been applied by Landlord and, if necessary, cancel
and return the Letter of Credit to Tenant except any portion
thereof which has been or needs to be drawn upon by Landlord for a
pre-termination default .
9.7
Waiver. Landlord and Tenant waive the provisions of any
statute that relate to termination of leases when leased property
is destroyed, and agree that any such event shall be governed by
the terms of this Lease.
10.1
Payment of Taxes. Landlord shall pay the real property tax,
as defined in paragraph 10.3, applicable to the Industrial Center,
subject to reimbursement by Tenant of Tenant’s Share of such
tax in accordance with the provisions of paragraph 4.2.
10.2
Definition of “Real Property Tax.” As used
herein, the term “real property tax” shall include any
form of real estate tax or assessment, general, special, ordinary,
or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy, or tax (other than inheritance,
personal income, or estate taxes) imposed on the Industrial Center
or any portion thereof by any authority having the direct or
indirect power to tax, including any city, county, state, or
federal government, or any school, agricultural, sanitary, fire,
street, drainage, or other improvement district thereof,
levied against any legal or equitable interest of Landlord
in the Industrial Center or in any portion thereof, as against
Landlord’s right to rent or other income therefrom, and
against Landlord’s business of leasing the Industrial Center.
The term “real property tax” shall also include any
tax, fee, levy, assessment, or charge (a) in substitution of,
partially or totally, any tax, fee, levy, assessment, or charge
hereinabove included within the definition of “real property
tax,” or (b) the nature of which was hereinbefore
included within the definition of “real property tax,”
or (c) which is imposed as a result of a transfer, either
partial or total, of Landlord’s interest in the Industrial
Center or which is added to a tax or charge hereinbefore included
within the definition of “real property tax” by reason
of such transfer , provided, in no event shall such tax include
inheritance, personal income or estate taxes or any state deed
tax.
10.3
Joint Assessment. If the Industrial Center is not separately
assessed, Tenant’s Share of the real property tax liability
shall be an equitable proportion of the real property taxes for all
of the land and improvements included within the tax parcel
assessed, such proportion to be determined by Landlord from the
respective valuations assigned in the assessor’s work sheets
or such other information as may be reasonably available.
Landlord’s reasonable determination thereof, in good faith,
shall be conclusive.
10.4
Personal Property Taxes.
(a) Tenant
shall pay prior to delinquency all taxes assessed against and
levied upon trade fixtures, furnishings, equipment, and all other
personal property of Tenant contained in the Premises or elsewhere.
When possible, Tenant shall cause said trade fixtures, furnishings,
equipment, and all other personal property to be assessed and
billed separately from the real property of Landlord.
(b) If
any of Tenant’s said personal property is assessed with
Landlord’s real property, Tenant shall pay to Landlord the
taxes attributable to Tenant within ten (10) days after
receipt of a written statement setting forth the taxes applicable
to Tenant’s property.
11.
Utilities. Tenant shall
pay for all water, gas, heat, light, power, telephone, and other
utilities and services supplied to the Premises, together with any
taxes thereon. If any such services are not separately metered to
the Premises, Tenant shall pay, at Landlord’s option, either
Tenant’s Share or a reasonable proportion to be determined by
Landlord of all charges jointly metered with other premises in the
Building.
12. Assignment and
Subletting.
12.1
Landlord’s Consent Required. Tenant shall not
voluntarily or by operation of law assign, transfer, mortgage,
sublet, or otherwise transfer or encumber all or any part of
Tenant’s interest in this Lease or in the Premises, without
Landlord’s prior written consent, which Landlord shall not
unreasonably withhold. Landlord shall respond to Tenant’s
request for consent hereunder in a timely manner, provided that any
attempted assignment, transfer, mortgage, encumbrance, or
subletting without such consent shall be void, and shall constitute
a breach of this Lease without the need for notice to Tenant under
paragraph 13.1.
12.2
Tenant Affiliate. Notwithstanding the provisions of
paragraph 12.1 hereof, Tenant may assign or sublet the Premises, or
any portion thereof, without Landlord’s consent, to any
entity that controls, is controlled by, or is under common
control with Tenant, or to any entity resulting from a
merger or consolidation with Tenant, or to any person or entity
that acquires all the assets of Tenant as a going concern of the
business that is being conducted on the Premises, all of which are
referred to as a “Tenant Affiliate,” provided that
before such assignment or subletting is
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effective, said
assignee or subtenant shall assume, in full, the obligations of
Tenant under this Lease. Any such assignment or subletting shall
not, in any way, affect or limit the liability of Tenant under the
terms of this Lease even if after such assignment or subletting the
terms of this Lease are materially changed or altered without the
consent of Tenant, the consent of whom shall not be
necessary.
12.3
Terms and Conditions of Assignment. Regardless of
Landlord’s consent, no assignment shall release Tenant of its
obligations hereunder or alter the primary liability of Tenant to
pay the Base Rent and Tenant’s Share of Operating Expenses,
and to perform all other obligations to be performed by Tenant
hereunder. Landlord may accept rent from any person other than
Tenant, pending approval or disapproval of such assignment. Neither
a delay in the approval or disapproval of such assignment nor the
acceptance of rent shall constitute a waiver or estoppel of
Landlord’s right to exercise its remedies for the breach of
any of the terms or conditions of this paragraph 12 or this Lease.
Consent to one assignment shall not be deemed consent to any
subsequent assignment. In the event of default by any assignee of
Tenant or any successor of Tenant, in the performance of any of the
terms hereof, Landlord may proceed directly against Tenant without
the necessity of exhausting remedies against said assignee or
successor. Landlord may consent to subsequent assignments of this
Lease or amendments or modifications to this Lease with assignees
of Tenant, without notifying Tenant, or any successor of Tenant,
and without obtaining its or their consent thereto, and such action
shall not relieve Tenant of liability under this Lease.
12.4
Terms and Conditions Applicable to Subletting. Regardless of
Landlord’s consent, the following terms and conditions shall
apply to any subletting by Tenant of all or any part of the
Premises and shall be included in subleases:
(a) Tenant
hereby assigns and transfers to Landlord all of Tenant’s
interest in all rentals and income arising from any sublease
heretofore or hereafter made by Tenant, and Landlord may collect
such rent and income and apply the same toward Tenant’s
obligations under this Lease; provided, however, that until a
default occurs in the performance of Tenant’s obligations
under this Lease, Tenant may receive, collect, and enjoy the rents
accruing under such sublease. Landlord shall not, by reason of this
or any other assignment of such sublease to Landlord nor by reason
of the collection of the rents from a subtenant, be deemed liable
to the subtenant for any failure of Tenant to perform and comply
with any of Tenant’s obligations to such subtenant under such
sublease. Tenant hereby irrevocably authorizes and directs any such
subtenant, upon receipt of a written notice from Landlord stating
that a default exists in the performance of Tenant’s
obligations under this Lease, to pay to Landlord the rents due and
to become due under the sublease. Tenant agrees that such subtenant
shall have the right to rely upon any such statement and request
from Landlord, and that such subtenant shall pay such rents to
Landlord without any obligation or right to inquire as to whether
such default exists and notwithstanding any notice from or claim
from Tenant to the contrary. Tenant shall have no right to claim
against such subtenant or Landlord for any such rents so paid by
such subtenant to Landlord.
(b) No
sublease entered into by Tenant shall be effective unless and until
it has been approved in writing by Landlord. In entering into any
sublease, Tenant shall use only such form of sublease as is
satisfactory to Landlord, and once approved by Landlord, such
sublease shall not be changed or modified without Landlord’s
prior written consent. Any subtenant shall, by reason of entering
into a sublease under this Lease, be deemed, for the benefit of
Landlord, to have assumed and agreed to conform and comply with
each and every obligation herein to be performed by Tenant other
than such obligations as are contrary to or inconsistent with
provisions contained in a sublease to which Landlord has expressly
consented in writing.
(c) If
Tenant’s obligations under this Lease have been guaranteed by
third parties, then a sublease, and Landlord’s consent
thereto, shall not be effective unless said guarantors give their
written consent to such sublease and the terms thereof.
(d) The
consent by Landlord to any subletting shall not release Tenant from
its obligations or alter the primary liability of Tenant to pay the
rent and perform and comply with all of the obligations of Tenant
to be performed under this Lease.
(e) The
consent by Landlord to any subletting shall not constitute a
consent to any subsequent subletting by Tenant or to any assignment
or subletting by the subtenant. However, Landlord may consent to
subsequent sublettings and assignments of the sublease or any
amendments or modifications thereto without notifying Tenant or
anyone else liable on this Lease or the sublease and without
obtaining their consent, and such action shall not relieve such
persons from liability.
(f) In
the event of any default under this Lease, Landlord may proceed
directly against Tenant, any guarantors, or anyone else responsible
for the performance of this Lease, including the subtenant, without
first exhausting Landlord’s remedies against any other person
or entity responsible therefor to Landlord, or any security held by
Landlord or Tenant.
(g) In
the event Tenant defaults in the performance of its obligations
under this Lease, Landlord, at its option and without any
obligation to do so, may require any subtenant to attorn to
Landlord, in which event Landlord shall undertake
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