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Office Lease Agreement

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Date: 9/14/2006
Industry: Communications Equipment     Sector: Technology

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This Office Lease Agreement ( the "Lease" ), made and entered into on this the 5th day of June, 2006, between Edgewater Corporate Park LLC, a Delaware limited liability company (" Landlord ") and Clear One Communications a Utah Corporation (" Tenant ").


W   I   T   N   E   S   S   E   T   H :


1.   Definitions . The following are definitions of some of the defined terms used in this Lease. The definition of other defined terms are found throughout this Lease.


A.   "Building" shall mean the office building at 5225 Wiley Post Way, County of Salt Lake, State of Utah, currently known as Edgewater Corporate Park South Tower.


B.   “Base Rent” : Base Rent will be paid according to the following schedule, subject to the provisions of Section 5. hereof. For the purposes of this Section 1.B., " Lease Year " shall mean the twelve (12) month period commencing on the Commencement Date (hereinafter defined), and on each anniversary of the Commencement Date.





Annual Base Rent

Monthly Installments

of Base Rent

November 2006 - December 2006



January 2007 - October 2007



November 2007 - October 2008



November 2008 - October 2009



November 2009 - October 2010



November 2010 - October 2011



November 2011 - October 2012



November 2012 - October 2013



November 2013 - December 2013




The Base Rent due for the first month during the Lease Term (hereinafter defined) shall be paid by Tenant to Landlord contemporaneously with Tenant’s execution hereof.


C.   “Additional Rent” : shall mean Tenant’s Pro Rata Share (hereinafter defined) of Basic Costs (hereinafter defined) and any other sums (exclusive of Base Rent) that are required to be paid to Landlord by Tenant hereunder, which sums are deemed to be Additional Rent under this Lease. Additional Rent and Base Rent are sometimes collectively referred to herein as “Rent.”


D.   “Basic Costs” shall mean all direct and indirect costs and expenses incurred in connection with the Building as more fully defined in Exhibit C attached hereto.


E.   Intentionally Deleted.


F.   “Commencement Date”, “Lease Term” , “Termination Date” and “Extension Period” shall have the meanings set forth:




The “Lease Term” shall mean an initial period of 86 months commencing on the later to occur of (a) November 1, 2006 (the “Target Commencement Date” ) and (b) the date upon which Landlord’s Work in the Premises has been substantially completed as such date is determined pursuant to Section 3.A. hereof (the later to occur of such dates being defined as the “ Commencement Date ”). The “Termination Date ” shall, unless sooner terminated as provided herein, mean the last day of the Lease Term. Notwithstanding the foregoing, if the Termination Date, as determined herein, does not occur on the last day of a calendar month, the Lease Term shall be extended by the number of days necessary to cause the Termination Date to occur on the last day of the last calendar month of the Lease Term. Tenant shall pay Base Rent and Additional Rent for such additional days at the same rate payable for the portion of the last calendar month immediately preceding such extension. The Commencement Date, Lease Term (including any extension by Landlord pursuant to this subsection I.F.(2) and Termination Date shall be set forth in a Commencement Letter prepared by Landlord and executed by Tenant in accordance with the provisions of Section 3.A. hereof. Tenant shall have a one-time opportunity to cancel this Lease at the end of the 62 nd month (December 31, 2011) of the Lease Term by giving Landlord written notice at the end of the 52 nd month (February 28, 2011) and by paying Landlord a penalty payment equal to two (2) months Base Rent which is calculated to be $115,657.58.


At the end of the initial Lease Term, Tenant shall have the right to extend the Lease Term by an additional Sixty (60) months upon the same terms and conditions contained herein. Base Rent for the Extension Period shall be mutually agreed upon by Landlord and Tenant and shall be based on the then prevailing market rental rate. The Base Year for the Extension Period will be 2011.


Tenant shall be allowed to occupy the Premises prior to the Commencement Date at no charge if the Premises is substantially completed and the Premises has been issued a certificate of occupancy. While there shall not be rent charged during this period, Tenant will be insured according to the conditions of Section 15 and shall provide Landlord with a copy of the insurance certificate.


G.   "Premises" shall mean the office space located within the Building and outlined on Exhibit A to this Lease.


H.   "Approximate Rentable Area in the Premises” shall mean the area contained within the demising walls of the Premises and any other area designated for the exclusive use of Tenant plus an allocation of the Tenant's Pro Rata Share of the square footage of the "Common Areas" and the "Service Areas" (hereinafter defined). For purposes of the Lease it is agreed and stipulated by both Landlord and Tenant that the Approximate Rentable Area in the Premises is 36,279 square feet, subject, however, to adjustment pursuant to Section 1.I. hereof.


I.   The “Approximate Rentable Area in the Building” for purposes of the Lease is agreed and stipulated by both Landlord and Tenant to be 102,205 square feet. The Approximate Rentable Area in the Premises and the Approximate Rentable Area in the Building as set forth herein shall be revised if Landlord's architect determines such estimate to be inaccurate in any material degree after examination of the final drawings of the Premises and the Building.


J.   “Tenant’s Pro Rata Share” shall mean 35.50% which is the quotient (expressed as a percentage), derived by dividing the Approximate Rentable Area in the Premises by the Approximate Rentable Area in the Building.


K.   “Permitted Use” shall mean general office and electronic lab space for R&D use and no other use or purpose.


L.   “Base Year” shall mean 2007.


M.   Intentionally Deleted.





N.   “Broker” shall mean NAI Utah Commercial Real Estate Inc.


O.   “Building Manager” shall mean NAI Utah Commercial Real Estate Inc. or such other company as Landlord shall designate from time to time.


P.   "Building Standard", shall mean the type, brand, quality and/or quantity of materials Landlord reasonably designates from time-to-time to be the minimum quality and/or quantity to be used in the Building or the exclusive type, grade, quality and/or quantity of material to be used in the Building.


Q.   "Business Day(s)" shall mean Mondays through Fridays exclusive of the normal business holidays of New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day ( “Holidays”) . Landlord, from time to time during the Lease Term, shall have the right to designate additional Holidays, provided such additional Holidays are commonly recognized by other office buildings in the area where the Building is located.


R.   "Common Areas" shall mean those areas located within the Building or on the Property used for corridors, elevator foyers, mail rooms, restrooms, mechanical rooms, elevator mechanical rooms, property management office, janitorial closets, electrical and telephone closets, vending areas, and lobby areas (whether at ground level or otherwise), entrances, exits, sidewalks, skywalks, tunnels, driveways, parking areas and parking garages and landscaped areas and other similar facilities provided for the common use or benefit of tenants generally and/or the public.


S.   “Default Rate” shall mean the Prime Rate plus six percent (6%), but in no event shall the Default Rate be greater than twelve percent (12%).


T.   "Normal Business Hours" for the Building shall mean 8:00 a.m. to 9:00 p.m. Mondays through Fridays.


U.   "Prime Rate" shall mean the per annum interest rate announced by and quoted in the Wall Street Journal from time-to-time as the prime or base rate.


V.   “Property” shall mean the Building and the parcel(s) of land on which it is located, other improvements located on such land, adjacent parcels of land that Landlord operates jointly with the Building, and other buildings and improvements located on such adjacent parcels of land.


W.   "Service Areas" shall mean those areas within the Building used for stairs, elevator shafts, flues, vents, stacks, pipe shafts and other vertical penetrations (but shall not include any such areas for the exclusive use of a particular tenant).


X.   “Notice Addresses” shall mean the following addresses for Tenant and Landlord, respectively:




Clear One Communications

5225 Wiley Post Way, Suite 500

Salt Lake City, UT 84116

Attn: Werner Pekarek




Edgewater Corporate Park, LLC

990 Highland Drive, Suite 204

Solana Beach, CA 92075

Attn: Bob Basso






with a copy to:


NAI Utah Commercial Real Estate Inc.

343 East 500 South

Salt Lake City, UT 84111

Attn: Yvonne Olson


Payments of Rent only shall be made payable to the order of:


Edgewater Corporate Park LLC


at the following address:


c/o U.S. Bank

Department 1249

Denver, CO 80256


or such other name and address as Landlord shall, from time to time, designate.


2.   Lease Grant. Subject to and upon the terms herein set forth, Landlord leases to Tenant and Tenant leases from Landlord the Premises together with the right, in common with others, to use the Common Areas.


3.   Adjustment of Commencement Date/Possession.


A.   If the Lease Term, Commencement Date and Termination Date are to be determined in accordance with Section I.F above, the Lease Term shall not commence until the later to occur of the Target Commencement Date and the date that Landlord has substantially completed the work to be performed by Landlord as set forth in the Work Letter Agreement attached hereto as Exhibit D (“ Landlord’s Work ”); provided, however, that if Landlord shall be delayed in substantially completing the Landlord Work as a result of the occurrence of any of the following (a “Delay ”):




Tenant’s failure to furnish information in accordance with the Work Letter Agreement or to respond to any request by Landlord for any approval of information within any time period prescribed, or if no time period is prescribed, then within two (2) Business Days of such request; or




Tenant’s insistence on materials, finishes or installations that have long lead times after having first been informed by Landlord that such materials, finishes or installations will cause a Delay; or




Material changes in any plans and specifications requested by Tenant; or




The performance or nonperformance by a person or entity employed by on or behalf of Tenant in the completion of any work in the Premises (all such work and such persons or entities being subject to prior approval of Landlord); or




Any request by Tenant that Landlord delay the completion of any of the Landlord’s Work; or




Any breach or default by Tenant in the performance of Tenant’s obligations under this Lease; or




Any delay resulting from Tenant’s having taken possession of the Premises for any reason prior to substantial completion of the Landlord’s Work; or




Any other delay reasonably chargeable to Tenant, its agents, employees or independent contractors;





then, for purposes of determining the Commencement Date, the date of substantial completion shall be deemed to be the day that said Landlord’s Work would have been substantially completed absent any such Delay(s). The Landlord’s Work shall be deemed to be substantially completed on the date that Landlord’s Work has been performed (or would have been performed absent any Delay(s), other than any details of construction, mechanical adjustment or any other matter, the noncompletion of which does not materially interfere with Tenant’s use of the Premises. Promptly after the determination of the Commencement Date, Landlord and Tenant shall enter into a letter agreement (the “ Commencemen t Letter ”) on the form attached hereto as Exhibit F setting forth the Commencement Date, the Termination Date and any other dates that are affected by the adjustment of the Commencement Date. If this Lease requires Landlord to perform Landlord’s Work in the Premises, the Commencement Letter shall identify any minor incomplete items of the Landlord’s Work as reasonably determined by Landlord's architect (the " Punchlist Items "), which Punchlist Items Landlord shall promptly remedy. Tenant, within five (5) days after receipt thereof from Landlord, shall execute the Commencement Letter and return the same to Landlord. Notwithstanding anything herein to the contrary, Landlord may elect, by written notice to Tenant, not to adjust the Commencement Date as provided above if such adjustment would cause Landlord to be in violation of the existing rights granted to any other tenant of the Building. If Landlord elects not to adjust the Commencement Date, the Commencement Date shall be the Target Commencement Date, provided that Base Rent and Additional Rent shall not commence until the date that Landlord’s Work has been substantially completed (or would have been substantially completed absent any Delays). If, through no fault of Tenant, Landlord fails to complete the Landlord’s Work within 60 days after execution of this Lease, Tenant may terminate the Lease, and shall be relieved of any further liability or obligation hereunder.


B.   By taking possession of the Premises, Tenant is deemed to have accepted the Premises and agreed that the Premises is in good order and satisfactory condition, with the exception of latent defects and subject to completion by Landlord of the Punchlist Items., with no representation or warranty by Landlord as to the condition of the Premises or the Building or suitability thereof for Tenant’s use.


C.   If Tenant takes possession of the Premises prior to the Commencement Date, such possession shall be subject to all the terms and conditions of the Lease and Tenant shall not pay Base Rent and Additional Rent to Landlord for each day of occupancy prior to the Commencement Date. Notwithstanding the foregoing, if Tenant takes possession of the Premises prior to the Commencement Date for the sole purpose of performing any Landlord-approved improvements therein or installing furniture, equipment or other personal property of Tenant, such possession shall be subject to all of the terms and conditions of the Lease, except that Tenant shall not be required to pay Rent with respect to the period of time prior to the Commencement Date during which Tenant performs such work. Nothing herein shall be construed as granting Tenant the right to take possession of the Premises prior to the Commencement Date, whether for construction, fixturing or any other purpose, without the prior consent of Landlord.


4.   Use . The Premises shall be used for the Permitted Use and for no other purpose. Tenant agrees not to use or permit the use of the Premises for any purpose which is illegal, dangerous to life, limb or property or which, in Landlord's reasonable judgement, creates a nuisance or which would increase the cost of insurance coverage with respect to the Building. Tenant will conduct its business and control its agents, servants, employees, customers, licensees, and invitees in such a manner as not to interfere with, annoy or disturb other tenants or Landlord in the management of the Building and the Property. Tenant will maintain the Premises in a clean and healthful condition, and comply with all laws, ordinances, orders, rules and regulations of any governmental entity with reference to the use, condition, configuration or occupancy of the Premises. Tenant, within ten (10) days after the receipt thereof, shall provide Landlord with copies of any notices it receives with respect to a violation or alleged violation of any such laws, ordinances, orders, rules and regulations. Tenant, at its expense, will comply with the rules and regulations of the Building attached hereto as Exhibit B and such other rules and regulations adopted and altered by Landlord from time-to-time and will cause all of its agents, employees, invitees




and visitors to do so. All such changes to rules and regulations will be reasonable and shall be sent by Landlord to Tenant in writing.


5.   Base Rent .


A.   Tenant covenants and agrees to pay to Landlord during the Lease Term, without any setoff or deduction except as otherwise expressly provided herein, the full amount of all Base Rent and Additional Rent, as defined in Exhibit C, due hereunder and the full amount of all such other sums of money as shall become due under this Lease (including, without limitation, any services, goods or materials furnished by Landlord at Tenant’s request), all of which hereinafter may be collectively called “ Rent .” Any such payments shall be paid concurrently with the payments of the Rent on which the tax is based. The Base Rent and Additional Rent for each calendar year or portion thereof during the Lease Term, shall be due and payable in advance in monthly installments of the first day of each calendar month during the Lease Term and any extensions or renewals hereof, and Tenant hereby agrees to pay such Base Rent and Additional Rent to Landlord without demand or any right of set-off or deduction whatsoever. If the Lease Term commences on a day other than the first day of a month or terminates on a day other than the last day of a month, then the installments of Base Rent and Additional Rent for such month or months shall be prorated, based on the number of days in such month. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the correct installment of Rent due under this Lease shall be deemed to be other than a payment on account of the earliest Rent due hereunder, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance or pursue any other available remedy. The acceptance by Landlord of an installment of Rent on a date after the due date of such payment shall not be construed to be a waiver of Landlord's right to declare a default for any other late payment. All amounts received by Landlord from Tenant hereunder shall be applied first to the earliest accrued and unpaid Rent then outstanding. Tenant’s covenant to pay Rent shall be independent of every other covenant set forth in this Lease.


B.   To the extent allowed by law, all installments of Rent not paid within five (5) days of Rent due date shall bear interest at the Default Rate from the date due until paid. In addition, if Tenant fails to pay any installment of Base Rent and Additional Rent or any other item of Rent when due and payable hereunder, and Tenant fails to make such payment after written notice to Tenant and the right to cure, a “Late Charge” equal to five percent (5%) of such unpaid amount will be due and payable immediately by Tenant to Landlord.


C.   The Additional Rent payable hereunder shall be adjusted from time-to-time in accordance with the provisions of Exhibit C attached hereto and incorporated herein for all purposes.


6.   Intentionally Deleted.




7.   Services to be Furnished by Landlord .


A.   Landlord agrees to furnish Tenant the following services:




Water for use in the lavatories on the floor(s) on which the Premises is located and in the break room and shower in the Premises.




Central heat and air conditioning in season during Normal Business Hours, at such temperatures and in such amounts as are commercially reasonable for buildings of similar class, size, age and location, or as required by governmental authority. In the event that Tenant requires central heat, ventilation or air conditioning service at times other than Normal Business Hours, such additional service shall be furnished only upon the written request of Tenant delivered to Landlord prior to 3:00 p.m. at least one Business Day in advance of the date for which such usage is requested. Tenant shall bear the cost of additional service determined to be $45.00 per hour as Additional Rent upon presentation of a statement therefore by Landlord.


At Landlord’s option, If Tenant shall require water or electric current in excess of that usually furnished or supplied for use of the Premises as general office space, or after Normal Business Hours, Landlord may cause a water meter (or submeter) or electric current meter (or submeter) to be installed in the Premises, so as to measure the amount of water and electric current consumed by Tenant whether during Normal Business Hours or after hours. The cost of such meters and of installation, maintenance and repair thereof shall be paid for by Tenant and Tenant agrees to pay Landlord promptly upon demand by Landlord for all such water and electric current consumed as shown by said meters, at the rates charged for such services by the City in which the Building is located or the local public utility, as the case may be, furnished the same. In the event Landlord installs such meters, then an appropriate adjustment to the Base Rent shall be made since Tenant will be paying for its utilities separately.


All additional heating, ventilating and air conditioning required (if any) to accommodate Tenant’s design shall be installed at the Tenant’s expense (and may be included as part of the Tenant improvement expense referenced in Section 5) subject to Landlord’s prior written approval.




Maintenance and repair of all Common Areas in the manner and to the extent reasonably deemed by Landlord to be standard for buildings of similar class, age and location.




Janitorial and cleaning service in and about the Premises on Business Days. Tenant shall not provide or use any other janitorial or cleaning services without Landlord’s consent, and then only subject to the supervision of Landlord and at Tenant’s sole cost and responsibility and by a janitor, cleaning contractor or employees at all times reasonably satisfactory to Landlord.




Electricity to the Premises for general office use, in accordance with and subject to the terms and conditions of Section 11 of this Lease.




Fluorescent bulb replacement in the Premises necessary to maintain building standard the lighting as established by Landlord and fluorescent and incandescent bulb and ballast replacement in the Premises, Common Areas and Service Areas.




Passenger elevator service in common with Landlord and other persons and freight elevator service in common with the Landlord and other persons.




Provided Tenant and its employees will be allowed access to the Premises at all times, day or night, access control to the Building during other than Normal Business Hours shall be provided in such form as Landlord reasonably deems appropriate. Tenant shall




cooperate fully in Landlord's reasonable efforts to maintain access control to the Building and shall follow all reasonable regulations promulgated by Landlord with respect thereto. Notwithstanding anything herein to the contrary Tenant expressly acknowledges and agrees that Landlord is not warranting the efficacy of any access personnel, service, procedures or equipment and that Tenant is not relying and shall not hereafter rely on any such personnel service, procedures or equipment.


B.   If Tenant requests any other utilities or building services in addition to those identified above, or any of the above utilities or building services in frequency, scope, quality or quantities substantially greater than the standards set by Landlord for the Building, then Landlord shall use reasonable efforts to attempt to furnish Tenant with such additional utilities or building services. Landlord may impose a reasonable charge for such additional utilities or building services, which shall be paid monthly by Tenant as Additional Rent on the same day that the monthly installment of Base Rent is due.


C.   Except as otherwise expressly provided herein, the failure by Landlord to any extent to furnish, or the interruption or termination of these defined services in whole or in part, resulting from adherence to laws, regulations and administrative orders, wear, use, repairs, improvements alterations or any causes beyond the reasonable control of Landlord shall not render Landlord liable in any respect nor be construed as a constructive eviction of Tenant, nor give rise to an abatement of Rent, nor relieve Tenant from the obligation to fulfill any covenant or agreement hereof, unless such failure is caused by the negligent or intentional acts or omissions of Landlord and continues without commencement of a cure for more than forty-eight (48) hours at any time, or for more than a cumulative total of ninety-six (96) hours in any calendar year. Should any of the equipment or machinery used in the provision of such services for any cause cease to function properly, Landlord shall use reasonable diligence to repair such equipment or machinery.


8.   Leasehold Improvements/Tenant’s Property. All fixtures, equipment, improvements and appurtenances attached to, or built into, the Premises at the commencement of or during the Lease Term, whether or not by, or at the expense of, Tenant ( “Leasehold Improvements” ), shall be and remain a part of the Premises; shall be the property of Landlord; and shall not be removed by Tenant except as expressly provided herein. All unattached and moveable partitions, trade fixtures, moveable equipment or furniture located in the Premises (including the telephone KSU and related equipment located near the Premises) and acquired by or for the account of Tenant, which can be removed without structural damage to the Building or Premises, and all personalty brought into the Premises by Tenant ( “Tenant’s Property ”) shall be owned and insured by Tenant. Landlord may, nonetheless, at any time prior to, or within one (1) month after, the expiration or earlier termination of this Lease or Tenant’s right to possession, require Tenant to remove any Leasehold Improvements performed by or for the benefit of Tenant including the removal of all telephone equipment in the telephone room and all exposed electronic, phone and data cabling and other electronic, phone and data cabling which can be readily pulled and which was   installed by or for Tenant as are designated by Landlord (the “Required Removables ”) at Tenant’s sole cost. In the event that Landlord so elects, Tenant shall remove such Required Removables within ten (10) days after notice from Landlord, provided that in no event shall Tenant be required to remove such Required Removables prior to the expiration or earlier termination of this Lease or Tenant’s right to possession. In addition to Tenant’s obligation to remove the Required Removables, Tenant shall repair any damage caused by such removal and perform such other work as is reasonably necessary to restore the Premises to “broom-clean” condition.. If Tenant fails to remove any specified Required Removables or to perform any required repairs and restoration (ordinary wear and tear excepted) within the time period specified above, Landlord, at Tenant’s sole cost and expense, may remove the Required Removables (and repair any damage occasioned thereby) and dispose thereof or deliver the Required Removables to any other place of business of Tenant, or warehouse the same, and Tenant shall pay the cost of such removal, repair, delivery, or warehousing of the Required Removables within five (5) days after demand from Landlord.


9.   Signage . Landlord shall provide and install, at Landlord’s cost, all letters or numerals on the exterior of the Premises; all such letters and numerals shall be in the standard graphics for the Building and no others shall be used or permitted on the Premises without Landlord's prior written consent. In addition, Landlord will list Tenant’s name on the Building’s directory in the lobby.





Tenant is granted crown building signage on the south wall of the South Tower, subject to City and SLICCAMA sign codes and ordinances and subject to Landlord’s approval of exact location, size, color and design of sign. The cost of the sign(s) and maintenance thereof shall be the sole responsibility of Tenant. Landlord and Tenant agree to make application for crown signage approval to SLICCAMA and any other municipality within five (5) business days of lease execution.



10.   Maintenance, Repairs and Alterations .


A.   Landlord Maintenance and Repairs. Landlord shall maintain in good order, condition and repair the Building except the Premises and those other portions of the Building leased, rented or otherwise occupied by persons not affiliated with Landlord. Landlord shall supply and pay for normal janitorial and cleaning services as specified within this Lease to keep the Building in a clean, sanitary and orderly condition, the cost and expenses of which shall be included in Basic Costs. Landlord shall pay for major maintenance and repairs of the Premises as originally leased (but not including Tenant’s additions or fixtures). However, if repairs or maintenance are required by reason of the special requirements, acts, or negligence of Tenant or of the agents, employees, licensees or invitees of Tenant, then Landlord shall make the necessary repairs at the expense of Tenant, which shall be paid by Tenant to Landlord within ten (10) days of Landlord’s written demand therefore.


B.   Tenant’s Maintenance and Repair. Tenant, at Tenant’s sole cost and expense and without prior demand, shall maintain the Premises in good order, condition and repair, reasonable wear and tear expected.


C.   Alterations. Except as set forth on Exhibit A, attached hereto, Tenant shall not make or cause to be made any alterations, additions or improvements or install or cause to be installed any fixtures, signs, floor coverings, interior or exterior lighting, plumbing fixtures, or shades or awnings, or make any other changes to the Premises without first obtaining Landlord’s written approval. Such approval shall not be unreasonably withheld. Tenant shall present to Landlord plans and specifications for such work at the time approval is sought. In the event Landlord consents to the making of any alterations, additions, or improvements to the Premises by Tenant, the same shall be made by Tenant at Tenant’s sole cost and expense. All such work with respect to any alterations, additions, and changes shall be done in a first-class and workmanlike manner and diligently completed so that, expect as absolutely necessary during the course of such work, the Premises shall at all times be a complete operating unit. Any such alerations, additions, or changes shall be performed and done strictly in accordance with all laws and ordinances relating thereto. In performing the work or any such alterations, additions, or changes, Tenant shall have the same performed in such a manner as not to obstruct access to any portion of the Building. Any alterations, additions, or improvements to the Premises, including, but not limited to, wall covering, paneling, and built-in cabinet work shall at once become a part of the realty and shall be surrendered with the Premises unless Landlord otherwise elects at the end of the term hereof.


11.   Use of Electrical Services by Tenant Tenant's use of electrical services furnished by Landlord shall not exceed in voltage, rated capacity, or overall load that which is standard for the Building. In the event Tenant shall request that it be allowed to consume electrical services in excess of Building Standard, Landlord may refuse to consent to such usage or may consent upon such conditions as Landlord reasonably elects (including the installation of utility service upgrades, submeters, air handlers or cooling units), and all such additional useage (to the extent permitted by law), installation and maintenance thereof shall be paid for by Tenant as Additional Rent.


12.   Entry by Landlord . Tenant shall permit Landlord or its agents or representatives to enter into and upon any part of the Premises to inspect the same, or to show the Premises to prospective purchasers, mortgagees, tenants (during the last (12) twelve months of the Lease Term) or insurers, or to clean or make repairs, alterations, or additions thereto, including any work that Landlord deems necessary for the safety, protection or preservation of the Building or any occupants thereof, or to facilitate repairs,




alterations or additions to the Building or any other tenant’s premises. Except for any entry by Landlord in an emergency situation or to provide normal cleaning and janitorial service, Landlord shall provide Tenant with reasonable prior notice of any entry into the Premises, which notice may be given verbally. Any entry by Landlord shall be done in a manner that does not unreasonably interfere with Tenant’s use of the Premises. Provided Tenant is not deprived of reasonable access to the Premises, Landlord shall have the right to temporarily close the Premises or the Building to perform repairs, alterations or additions in the Premises or the Building, provided that Landlord shall use reasonable efforts to perform all such work on weekends and after Normal Business Hours. Entry by Landlord hereunder shall not constitute a constructive eviction or entitle Tenant to any abatement or reduction of Rent by reason thereof.


13.   Assignment and Subletting


A. Except in connection with a Permitted Transfer, Tenant shall not assign, sublease, transfer or encumber any interest in this Lease or allow any third party to use any portion of the Premises (collectively or individually, a “ Transfe r”) without the prior written consent of Landlord, which consent shall not be unreasonably withheld. In no event shall any Transfer or Permitted Transfer release or relieve Tenant from any obligation under this Lease or any liability hereunder.


B. Tenant shall pay to Landlord fifty percent (50%) of all cash and other consideration which Tenant receives as a result of a Transfer that is in excess of the rent payable to Landlord hereunder for the portion of the Premises and Term covered by the Transfer within ten (10) days following receipt thereof by Tenant, after subtracting reasonable transaction costs Tenant has incurred to effect a sublease (i.e. legal fees and brokerage fees). If Tenant is in Monetary Default (defined in Section 22. below), Landlord may require that all sublease payments be made directly to Landlord, in which case Tenant shall receive a credit against rent in the amount of any payments received (less Landlord’s share of any excess).


C. Except as provided below with respect to a Permitted Transfer, if Tenant is a corporation, limited liability company, partnership or similar entity, and the entity which owns or controls a majority of the voting shares/rights at the time changes for any reason (including but not limited to a merger, consolidation or reorganization), such change of ownership or control shall constitute a Transfer. The foregoing shall not apply so long as Tenant is an entity whose outstanding stock is listed on a nationally recognized security exchange, or if at least eighty percent (80%) of its voting stock is owned by another entity, the voting stock of which is so listed.


14.   Mechanic's Liens. Tenant will not permit any mechanic's liens or other liens to be placed upon the Premises, the Building, or the Property and nothing in this Lease shall be deemed or construed in any way as constituting the consent or request of Landlord, express or implied, by inference or otherwise, to any person for the performance of any labor or the furnishing of any materials to the Premises, the Building, or the Property or any part thereof, nor as giving Tenant any right, power, or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to any mechanic's or other liens against the Premises, the Building, or the Property. In the event any such lien is attached to the Premises, the Building, or the Property, then, in addition to any other right or remedy of Landlord, Landlord may, but shall not be obligated to, discharge the same. Any amount paid by Landlord for any of the aforesaid purposes including, but not limited to, reasonable attorneys’ fees, shall be paid by Tenant to Landlord promptly on demand as Additional Rent. Tenant shall within ten (10) days of receiving such notice of lien or claim (a) have such lien or claim released or (b) deliver to Landlord a bond in form, content, amount and issued by surety, satisfactory to Landlord, indemnifying, protecting, defending and holding harmless the Indemnities against all costs and liabilities resulting from such lien or claim and the foreclosure or attempted foreclosure thereof. Tenant’s failure to comply with the provisions of the foregoing sentence shall be deemed an Event of Default under Section 22. hereof entitling Landlord to exercise all of its remedies therefore without the requirement of any additional notice or cure period.


15.   Insurance


A.   Coverage. Tenant shall, at all times during the term of this Lease, and at its own cost and expense procure and continue in force the following insurance coverage:







Bodily injury and Property Damage Liability insurance with a combined single limit for bodily injury and property damage of not less than $1,000,000 per occurrence/$2,000,000 annual aggregate per person.




Fire and Extended Coverage Insurance, including vandalism and malicious mischief coverage, in an amount equal to the full replacement value of all fixtures, furniture and improvements installed by or at the expense of Tenant.


B.   Insurance Policies. The aforementioned minimum limits of policies shall in no event limit the liability of Tenant hereunder. The aforesaid insurance shall name Landlord as an additional insured. Said insurance shall be with companies having a rating of not less than A-VII in "Best's Insurance Guide". Tenant shall furnish from the insurance companies or cause the insurance companies to furnish certificates of coverage. No such policy shall be cancelable or subject to reduction of coverage or other modification or cancellation except after thirty (30) days prior written notice to Landlord by the insurer. All such policies shall be written as primary policies, not contributing with and not in excess of the coverage which Landlord may carry. Tenant shall, at least twenty (20) days prior to the expiration of such policies, furnish Landlord with renewed or new certificates of coverage. Tenant agrees that if Tenant does not take out and maintain such insurance, Landlord may (but shall not be required to) procure said insurance on Tenant's behalf and charge Tenant the premiums together with a twenty-five per cent (25%) handling charge, payable upon demand. Tenant shall have the right to provide such insurance coverage pursuant to blanket policies obtained by Tenant provided such blanket policies expressly afford coverage to the Premises and to Tenant as required by this Lease.


Landlord shall at all times during the Lease have commercial general liability coverage of at least $1,000,000 on the Building and Property as well as property insurance on the Building.


C.   Waiver of Subrogation. Landlord and Tenant each hereby waive any and all rights of recovery against the other or against the officers, employees, agents and representatives of the other, on account of loss or damage occasioned to such waiving party or its property or the property of others under its control to the extent that such loss or damage is insured against under any fire and extended coverage insurance policy which either may have in force at the time of such loss or damage. Tenant shall, upon obtaining the policies of insurance required under this Lease, give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this Lease.



16.   Indemnity.  Tenant agrees to indemnify, defend and hold harmless Landlord and its officers, directors, partners and employees from and against all loss liabilities, judgments, demands, actions, expenses or claims, including reasonable attorney's fees and court costs, for injury to or death of any person, the release of any hazardous mater

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