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Exhibit 10.12
SUNSET CENTER AT TANASBOURNE
OFFICE LEASE AGREEMENT
Between
MARK TANASBOURNE LLC, an Oregon limited liability company
(“Landlord”)
And
MATHSTAR, a Minnesota corporation
(“Tenant”)
Dated: June 1, 2005
TABLE OF CONTENTS
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SUMMARY OF FUNDAMENTAL PROVISIONS
1. TERM:
A. Estimated Commencement Date: July 1, 2005 (see Section 1.3).
B. Estimated Expiration Date: December 31, 2010 (see Section 1.3).
C. Length of Term: Sixty-six (66) months
2. BUILDING: 19075 NW Tanasbourne Drive, Hillsboro, Oregon 97124.
3. PROJECT: Sunset Center at Tanasbourne.
4. PREMISES: 6,473 rentable square feet on the second (2nd) floor(s) of the Building (see Exhibit ”A”).
5. BASE RENT:
6. SECURITY DEPOSIT: $12,751.81 (see Section 5).
7. TENANT’S PROPORTIONATE SHARE OF OPERATING EXPENSES AND OF TAXES: 9.3 percent (see Section 3 and Section 4).
8. BASE YEAR: 2005
9. USE OF PREMISES: Office Use.
10. PARKING SPACES: 1 space for every 250 rentable square feet of leased Premises.
11. NOTICE ADDRESSES:
12. LANDLORD’S BROKER: M. James Mark , Melvin Mark Brokerage Company
13. TENANT’S BROKER: Gordon King, Colliers International
OFFICE LEASE AGREEMENT
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, upon the terms and conditions set forth in this Lease, the Premises described in Section 1.2 in the Building described in the Summary of Fundamental Provisions (the “Building”). The Building is located upon the land described on the attached Exhibit B (the “Land”). The Land, the Building, and all other improvements on the Land whether now in existence or constructed during the term of this Lease are part of Sunset Center at Tanasbourne (the “Project”).
The Premises (the “Premises”) leased to Tenant are identified by the outlining on the floor plan(s) attached as Exhibit A and are described in the Summary of Fundamental Provisions.
1.3 Commencement and Expiration Dates
The term of this Lease shall commence on the earlier of (a) the date on which Tenant takes possession of the Premises or (b) the date on which Landlord’s work, if any, in the Premises as described in the Work Agreement attached as Exhibit C to the Lease (“Landlord’s Work”) is substantially completed. If Landlord is unable to give possession of the Premises on the estimated commencement date set forth in the Summary of Fundamental Provisions, Landlord shall not be subject to any liability, and the validity of this Lease shall not be impaired under such circumstances, but Base Rent and Additional Rent shall be abated (provided Tenant is not responsible for the delay) until Landlord has given notice to Tenant that the Premises are ready for Tenant’s possession. If Landlord has given Tenant permission to take possession of the Premises prior to the date on which Landlord’s Work is substantially completed, such possession shall be deemed to be upon all the terms, covenants, conditions and provisions of this Lease, including, without limitation, the payment of Base Rent and the Additional Rent. The term of this Lease shall expire, unless sooner terminated pursuant to the provisions of this Lease, sixty-six (66) months after the Commencement Date (the “Expiration Date”).
Tenant agrees to pay to Landlord rent consisting of Base Rent and Additional Rent described in Section 3 of this Lease (which may, along with all other sums which become payable to Landlord by Tenant, be referred to in this Lease as “Rents”). All Rents shall be paid in advance on the first day of each month unless otherwise expressly provided in this Lease. All Rents shall be paid in lawful money of the United States to Landlord at its office set forth in the Summary of Fundamental Provisions, or such other place as Landlord shall designate by written notice to Tenant. Tenant shall pay all Rents promptly when due without notice or demand therefor and without any abatement, deduction or setoff, for any reason whatsoever, except as may be expressly provided in this Lease. If the Commencement Date occurs on a day other than the first day of a calendar month, the Rents for that partial calendar month shall be prorated based on the number of days in such month.
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The Base Rent shall be as set forth in the Summary of Fundamental Provisions.
Tenant agrees to pay its Proportionate Share of all increases in Operating Expenses in excess of those incurred by Landlord during the Base Year. Tenant’s Proportionate Share of Operating Expenses is set forth in the Summary of Fundamental Provisions and is determined by dividing the number of rentable square feet in the Premises by the number of rentable square feet in the Building. The term “Operating Expenses” shall mean all costs, fees, and expenses paid or incurred by Landlord or on Landlord’s behalf as determined by Landlord to be necessary or appropriate for the efficient operation, maintenance, repair, replacement, management, administration and insurance of the Project and the curbs, sidewalks, common areas, parking garage, and plazas adjoining the Project, except for Taxes which shall be paid in accordance with Sections 3.3 and 4 below. Operating Expenses include, without limitation, the following:
3.1.1 Salaries, wages, medical, insurance, union and general welfare benefits, pension payments, payroll taxes, worker’s compensation insurance, uniforms and related expenses and benefits of persons engaged in the repair, operation, maintenance, management, administration, engineering and security of the Project;
3.1.2 All expenses incurred for gas, electricity, heat, ventilation, air-conditioning, water, sewer, garbage and waste disposal, recycling, elevator service and other services or utilities furnished to the Project, together with any taxes thereon;
3.1.3 All maintenance, repair, and replacement costs relating to the Project including, but not limited to, the public and service areas of the Project including, but not limited to, sidewalks, landscaping, parking, service areas, mechanical rooms and improvement exteriors;
3.1.4 The cost of all insurance charges, including but not limited to rent loss insurance, casualty, liability, fire with extended coverage endorsement, and other insurance covering the Project;
3.1.5 The cost or rental of all supplies, including without limitation, cleaning supplies, light bulbs, tubes and ballasts, materials and equipment, and all taxes thereon;
3.1.6 The cost of hand tools and other moveable equipment used in the repair, maintenance or operation of the Project;
3.1.7 The cost of all charges for window and other cleaning, janitorial and security services;
3.1.8 Charges of independent contractors performing repairs or services to the Project not otherwise charged to a specific tenant;
3.1.9 Repairs, replacements and general maintenance made by Landlord or on Landlord’s behalf;
3.1.10 Alterations and improvements to the Project made by reason of the laws and requirements of any public authorities or the requirements of insurance bodies;
3.1.11 Management fees paid to a third party, or, if no managing agent is employed by Landlord, Landlord shall be entitled to charge a management fee which is not in excess of the then-prevailing rates for management fees of other first-class office projects in the Portland, Oregon metropolitan area;
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3.1.12 The costs of any capital improvements or repairs to the Project and/or of any machinery or equipment installed in the Project amortized over the useful life of the improvements, machinery and/or equipment as estimated by Landlord, which is made or becomes operational, as the case may be, after the completion of the initial construction of the Building;
3.1.13 The rental costs or rental value of the management offices serving the Project;
3.1.14 Legal, accounting and other professional fees incurred in connection with operation, maintenance and management of the Project; and
3.1.15 All other charges properly allocable to the operation of the Project in accordance with standard real estate accounting practices in the Portland, Oregon metropolitan area.
3.2 Operating Expense Exclusions
The following expenses shall be excluded from Operating Expenses: (a) depreciation or amortization on the initial construction of the Project; (b) debt service (including without limitation, interest, principal and any impound payments) required to be made on any mortgage or deed of trust recorded with respect to the Project; (c) rent on any ground lease; (d) the cost of leasehold improvements made for Tenant or any tenants of the Project; (e) leasing commissions, attorneys’ fees, costs and disbursements and other expenses (including advertising) incurred in connection with leasing, renovating, or improving space for tenants or other occupants of the Project; (f) repairs, replacements, alterations and general maintenance paid for by insurance proceeds or by Tenant or third parties; and (g) specific costs incurred for the account of, or separately billed to and paid by, specific tenants of the Project.
Tenant agrees to pay its Proportionate Share of all increases in Taxes (as defined below) in excess of the Taxes payable by Landlord during the Base Year. Tenant’s Proportionate Share of Taxes shall be the same as Tenant’s Proportionate Share of Operating Expenses, as provided in Section 3.1 of this Lease. “Taxes” shall mean all taxes and assessments of all public, quasi-public, and governmental authorities and owner associations against the Project or the ownership, management, or operation of the Project, all rent taxes, local improvement districts, special and general assessments, gross receipts taxes, taxes on Landlord’s interest under this Lease, all taxes in lieu of or in addition to the foregoing, whether or not such taxes are now in effect (excluding, however, any tax based upon Landlord’s net income and any inheritance taxes), and the cost of contesting any such taxes or assessments.
SECTION 4 PAYMENT OF ADDITIONAL RENT
4.1 Written Statement of Estimate
Prior to the beginning of each calendar year during the term of this Lease after the Base Year, or as soon thereafter as practical, Landlord shall furnish Tenant with a written statement setting forth Tenant’s Proportionate Share of the increase in the estimated Operating Expenses and Taxes for the next calendar year. Failure of Landlord to deliver the statement of estimated Operating Expenses and Taxes shall not relieve Tenant of its obligation to pay Tenant’s Proportionate Share of Operating Expenses and Taxes. Tenant shall each month pay to Landlord as Additional Rent an amount equal to Tenant’s Proportionate Share as shown in Landlord’s written statement.
Within ninety (90) days after the close of each calendar year after the Base Year during the term of this Lease, or as soon thereafter as practical, Landlord shall deliver to Tenant a written statement (the “Operating Statement”) setting forth Tenant’s actual Proportionate Share of the increases, if any, in Operating Expenses and of the Taxes for the preceding calendar year over the Base Year. In the event Tenant’s share of the actual Operating Expenses is in excess of the amount actually paid by Tenant for Operating Expenses on an estimated basis for the
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year in question, Tenant shall pay the amount of such deficiency to Landlord within thirty (30) days following the date of such statement. In the event Tenant’s share of actual Operating Expenses is less than the amount actually paid by Tenant for Operating Expenses on an estimated basis for the year in question, then Landlord shall either apply the overpayment to Tenant’s next Rent payment, or promptly reimburse the excess to Tenant. In the event Tenant’s share of the actual Taxes is in excess of the amount actually paid by Tenant for Taxes on an estimated basis for the year in question, Tenant shall pay the amount of such deficiency to Landlord within thirty (30) days following the date of such statement. In the event Tenant’s share of actual Taxes is less than the amount actually paid by Tenant for Taxes on an estimated basis for the year in question, then Landlord shall either apply the overpayment to Tenant’s next Rent payment, or promptly reimburse the excess to Tenant. In no event shall Base Rent decrease pursuant to the provisions of Section 3 or Section 4 of this Lease.
4.3 Adjustment for Reduced Occupancy
If during any calendar year, less than 95 percent of the rentable area of the Building is occupied, Landlord’s estimation and determination of Operating Expenses shall be based on Landlord’s estimate of Operating Expenses as if the Building were at least 95 percent occupied. Landlord shall use sound accounting and management principles to make appropriate adjustments in occupancy-related Operating Expenses for the year in question for the purpose of avoiding distortion in the amount of Operating Expenses by reason of variation in the total occupancy of the Building. The amount so determined by Landlord shall be deemed to be the Operating Expenses for the Building for the year in question.
Any objections by Tenant to the Operating Statement shall be made in writing given to Landlord within 60 days after the Operating Statement is submitted to Tenant. If no objections are made within such time period, the Operating Statement shall be conclusive and binding on Tenant. If Tenant makes any such objection within the time period required by this Section 4.4, Tenant shall have the right to inspect, at Tenant’s sole cost and expense, Landlord’s records pertaining to the computation of Operating Expenses and Taxes, so long as the following provisions are complied with: (a) Tenant shall perform such inspection within 75 days following the receipt of the Operating Statement pertaining to the year in question, (b) Tenant shall provide to Landlord a copy of the inspection report, (c) Tenant shall keep the report confidential and shall not share the contents, results, or the fact that Tenant is investigating the Operating Expenses or the Taxes, or adjustments with any other person, except for its advisors on a need-to-know basis, and (d) Tenant shall pay to Landlord within ten (10) days following its inspection any amount determined to be owing by Tenant. Tenant’s inspection may only be conducted by Tenant’s employees, advisors or by Tenant’s certified public accountant paid on an hourly basis (and not a contingent fee basis). Landlord agrees to pay Tenant any amount determined to be owing to Tenant within ten (10) days following Landlord’s receipt of the inspection report or, if Landlord does not agree with Tenant’s inspection report, as determined by an independent certified public accountant within ten (10) days following the date on which a report by such independent certified public accountant is given to Landlord and Tenant. Such independent certified public accountant shall be selected by Landlord and approved in advance by Tenant, which approval shall not be unreasonably withheld.
Tenant has deposited with Landlord the sum shown on the Summary of Fundamental Provisions as security for the full and faithful performance by Tenant of Tenant’s obligations under this Lease. The security deposit shall not earn interest, and shall not be considered an advance payment of rent or a measure of Landlord’s damages in the event of a default by Tenant. If Tenant defaults in the performance of any of Tenant’s obligations under this Lease, including the payment of Rents, Landlord may, but shall not be obligated to, use, apply or retain all or any part of the security deposit to the extent required for the payment of any sum in default. If Landlord shall so use, apply or retain all or any part of the security deposit, Tenant shall upon demand immediately deposit with Landlord a sum equal to the amount so used, applied or retained. If Tenant shall fully and faithfully comply with all of Tenant’s obligations under this Lease, the security deposit or any balance thereof shall be paid to Tenant within thirty (30) days after the date on which this Lease shall expire or sooner terminate, and after delivery to Landlord of possession of the Premises and after all payments required to be made by Tenant in this Lease, have been paid.
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Tenant shall use and occupy the Premises continuously during the term of this Lease for general office use and for no other purpose without the prior written consent of Landlord. If any governmental license or permit shall be required for the proper and lawful conduct of Tenant’s business in the Premises, Tenant, at its expense, shall procure, maintain and comply with the terms and conditions of each such license or permit. Tenant shall, at Tenant’s expense, comply with all laws, codes, rules, statutes, regulations, orders and other requirements of public authorities (“Laws”) relating to Tenant’s use and occupancy of the Premises.
6.2 Negative Covenants as to Use
Tenant shall not, without the prior written consent of Landlord, use any apparatus, machinery or device in or about the Premises which will cause any noise, vibration, fumes or electronic interference or which will overload the floors or structure of the Premises. Tenant shall not at any time use or occupy, or suffer or permit anyone to use or occupy the Premises, or permit anything to be done in the Premises, in any manner which: (a) violates the Certificate of Occupancy for the Premises or for the Building; or (b) causes or is liable to cause injury to the Premises or the Building or any equipment, facilities or systems therein; or (c) constitutes a violation of Laws or the requirements of insurance bodies; or (d) impairs or tends to impair the character, reputation or appearance of the Building as a first-class office building; or (e) impairs or tends to impair the proper and economic maintenance, operation and repair of the Building and/or its equipment, facilities or systems; or (f) annoys or inconveniences or tends to annoy or inconvenience other tenants or occupants of the Project; or (g) generates, releases, stores, or deposits on or about the Premises any environmentally hazardous or toxic substances, materials, wastes, pollutants, oils, or contaminants, as defined by any Law.
This Lease, and all rights of Tenants hereunder, are and shall be subject and subordinate to any ground leases or master leases (“Master Leases”) covering the Land and/or the Building now or hereafter existing, and to all mortgages, trust deeds and other financing and security instruments (“Mortgages”), which may now or hereafter affect the Land and/or the Building, and to all renewals, modifications, replacements and extensions of such Master Leases and Mortgages. This Section shall be self-operative, and no further instrument of subordination shall be required. In confirmation of such subordination, Tenant shall execute, acknowledge and deliver to Landlord any instrument that Landlord may reasonably request to evidence such subordination within ten days after a request therefor. If the interest of Landlord under this Lease is transferred, whether through possession, foreclosure or delivery of a new lease or deed, then Tenant shall recognize the party succeeding to Landlord’s rights and obligations (the “Successor Landlord”) as the Landlord under this Lease and shall promptly execute and deliver any instrument that such Successor Landlord may reasonably request to evidence such attornment. Upon such attornment, Tenant’s rights hereunder shall continue in full force and effect as a direct Lease between the Successor Landlord and Tenant upon all of the terms, conditions and covenants as set forth in this Lease so long as Tenant is not in default. Landlord shall use commercially reasonable effort to obtain customary nondisturbance agreements from holders of encumbrances in the building.
Tenant shall not assign this Lease or any interest therein, or sublet the Premises or any part thereof, or mortgage, encumber or otherwise transfer or dispose of Tenant’s interest in the Premises, either voluntarily or involuntarily, without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed . If Tenant requests consent to a proposed transfer, Tenant shall pay for Landlord’s reasonable legal and administrative expenses incurred in reviewing the request for consent to transfer. Consent to one such transfer shall not imply any future consent, and all subsequent transfers shall be made only upon obtaining prior written consent of Landlord. Assignees shall become directly liable to Landlord for all obligations of Tenant
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hereunder, but Tenant shall remain liable for all obligations under this Lease. Tenant agrees that the instrument by which any transfer consented to by Landlord is accomplished shall expressly provide that the transferee will perform and observe all the agreements, covenants, conditions and provisions to be performed and observed by Tenant under this Lease and that Landlord will have the right to enforce such agreements, covenants and conditions directly against such transferee. It shall be the responsibility of Tenant to provide Landlord, in a manner reasonably acceptable to Landlord, with such information as Landlord determines is necessary for Landlord to grant or withhold its consent. Landlord may withhold its consent if the proposed transferee fails to satisfy the criteria then generally (but not necessarily uniformly) used by Landlord in selecting new tenants, which criteria may include, without limitation, financial capability, business reputation, business experience, existing and future space requirements of other tenants, existing and future space requirements of the proposed transferee, the intended use, and the anticipated demand for services by the transferee., and the transferee’s anticipated contribution to the prestige of the Project. Landlord shall not be obligated to approve a transfer to an existing Project tenant or another party with whom Landlord has been negotiating to lease space in the Project. If Tenant is a corporation or other entity, then any merger, consolidation, liquidation, change in the ownership or power to vote the majority of voting stock or equity interests of tenant shall constitute a transfer for the purposes of this Section 8.
8.2 Landlord’s Option to Recapture Premises
Tenant shall, together with any request for Landlord’s consent to assign this Lease or to sublet the Premises, or any part thereof, offer to Landlord the right to recapture all or any part of the Premises which Tenant desires to assign or sublet. Landlord shall have fifteen (15) thirty (30) days following receipt of Tenant’s notice to make an election to recapture under this Section 8.2. Landlord may require Tenant to assign or sublease to Landlord all or any portion of the Premises Tenant desires to assign or sublease. In the event Landlord shall elect to recapture all or any portion of the Premises, Base Rent shall be reduced by a fraction the numerator of which is the Net Rentable area of that portion of the Premises being recaptured by Landlord and the denominator of which is the total Net Rentable area of the Premises.
8.3 Landlord’s Option to Increase Rent
In the event Landlord consents to Tenant’s proposed transfer, Landlord, at its option, may require Tenant to pay, when paid by the transferee to Tenant, the following sums which shall be added to and included in Base Rent: all of any rents, additional charges or other consideration payable pursuant to the transfer to Tenant (including all sums payable for the sale or rental of Tenant’s leasehold improvements or fixtures but reduced by any marketing expenses paid to third parties incurred in connection with reletting the Premises or any portion thereof) by the transferee which are in excess of the Base Rent and Additional Rent payable by Tenant with respect to the space in question pursuant to the terms of this Lease. The sums payable under Section 8.3 shall be paid to Landlord as and when paid by the transferee to Tenant.
SECTION 9 LIABILITY AND INSURANCE
Tenant and Landlord shall each secure appropriate clauses in, or endorsements upon, each insurance policy obtained by them which cover or are applicable to the Premises or the personal property, fixtures and equipment located therein, pursuant to which the insurance companies waive subrogation or permit the insureds, prior to any loss, to agree with a third party to waive any claim they might have against said third party without invalidating the coverage under the insurance policies. Tenant’s waiver of subrogation or permission for waiver of any claim shall extend to Landlord and its agents and employees. Landlord’s waiver of subrogation or permission of waiver of any claim shall extend to Tenant and its agents and employees. Tenant and Landlord hereby release each other and their respective agents and employees in respect of any claim which they might otherwise have against each other or their respective agents or employees for loss, damage or other casualty occurring during the term of this Lease and covered under a fire insurance policy with extended coverage endorsement in the form normally used in respect of similar property in the Portland, Oregon, metropolitan area.
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Tenant, at its expense, shall procure and maintain at all times during the term of this Lease, commercial general liability insurance in respect of the Premises and the conduct or operation of business therein, with Landlord and its managing agent, if any, and any party to a Master Lease or any Mortgagee whose name and address shall previously have been furnished to Tenant, as additional named insureds, with limits of not less than $2,000,000 for bodily injury or death to any one person and $3,000,000 for bodily injury or death to any number of persons in any one occurrence, and $2,000,000 for property damage. All such insurance shall insure the performance by Tenant of the indemnity agreement as to liability for injury to, illness of, or death of persons and damage to property set forth in this Lease. Tenant shall maintain at Tenant’s expense, insurance with extended coverage endorsement covering Tenant’s Property as defined in Section 11.2 of this Lease.
9.3 Delivery of Policies; Cancellation
Tenant shall deliver to Landlord and any additional named insureds evidence of the policies or certificates of insurance required by Section 9.2 in a form reasonably satisfactory to Landlord issued by an insurance company authorized to issue insurance in the State of Oregon, at least ten (10) days before the Commencement Date. Tenant shall procure and pay for renewals of such insurance prior to the time for the expiration of such policies, and Tenant shall deliver to Landlord and any additional named insureds evidence of such renewal policies at least thirty (30) days before the expiration of any existing policy. All such policies shall contain a provision whereby the policies cannot be canceled or modified unless Landlord and any additional named insureds are given at least thirty (30) days prior written notice of such cancellation or modification.
Except for any initial improvements which Landlord has expressly agreed to provide pursuant to the attached Exhibit C, Tenant is leasing the Premises “AS IS” on the date of this Lease. Tenant shall make no changes, additions, alterations or improvements to the Premises, or attach any fixtures or equipment (the “Alterations”) without the prior written consent of Landlord. Before proceeding with any Alterations, Tenant shall submit to Landlord for Landlord’s approval, plans and specifications for the proposed work to be done. Tenant shall not proceed with such work until Tenant obtains Landlord’s approval. Tenant shall pay to Landlord upon demand the cost and expense incurred by Landlord in reviewing or having reviewed, said plans and specifications, and inspecting the Alterations to determine whether the same are being performed in accordance with the approved plans and specifications and all Laws including, without limitation, the reasonable fees of any architect or engineer employed by Landlord for such purpose.
Before proceeding with any approved Alterations, at Landlord’s request, Tenant shall obtain and deliver to Landlord a performance bond and labor and materials payment bond (issued by a corporate surety licensed to do business in the State of Oregon), each in an amount equal to the estimated cost of the Alterations and in form satisfactory to Landlord.
Tenant, at its expense, shall obtain all necessary governmental permits and certificates for the commencement and prosecution of the Alterations and for final approval thereof upon completion, and shall cause the Alterations to be performed in compliance with all such permits and certificates, applicable Laws and all applicable requirements of insurance.
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The Alterations shall, at Landlord’s option, be performed by Landlord or by contractors designated or first approved by Landlord, which approval shall not be unreasonably withheld. Tenant shall pay any construction supervision fees charged by Landlord or its construction supervision to supervise any such work. The Alterations shall be performed in such manner as not to interfere with or delay, and as not to impose any additional expense upon, Landlord in the construction, maintenance, repair or operation of the Project; and if any such additional expense shall be incurred by Landlord as a result of Tenant’s performance of the Alterations, Tenant shall pay such additional expense upon demand. In performing the Alterations, Tenant shall fully and promptly comply with and observe the Rules and Regulations of Landlord then in force with respect to the making of the Alterations.
10.5 Indemnification of Landlord
Tenant, at its expense, shall procure the cancellation or discharge of all notices of violation and/or liens arising from or otherwise connected with the Alterations, or any other work, labor, services or materials done for or supplied to Tenant, or any other person claiming through or under Tenant. Tenant shall defend, indemnify and save harmless Landlord and any Master Lessor and Mortgagee from and against any and all mechanics and other liens and encumbrances filed in connection with the Alterations, or any other work, labor, services or materials done for or supplied to Tenant, or any person claiming through or under Tenant. Tenant, at its expense, shall procure the satisfaction or discharge of record of all such liens and encumbrances of record within fifteen (15) days after the filing thereof.
SECTION 11 LANDLORD’S AND TENANT’S PROPERTY
All fixtures, equipment, improvements, wires, cables, conduits and appurtenances attached to or built into the Premises, whether or not by or at the expense of Tenant, shall be and remain a part of the Premises, shall be deemed the property of Landlord and shall not be removed by Tenant, except as provided in Section 11.2; and except that, at Landlord’s written request, Tenant shall, at its sole expense upon termination of the Lease, remove those items specified by Landlord, which are deemed herein the property of Landlord, except for Building Standard office improvements which are installed as part of Landlord’s Work which Tenant shall not be required to remove.
All unattached business and trade fixtures, machinery and equipment, communications equipment and office equipment which are installed in the Premises by or for the account of Tenant without expense to Landlord and which can be removed without structural damage to the Building and all furniture, furnishings (excluding window coverings) and other articles of movable personal property owned by Tenant and located in the Premises (“Tenant’s Property”) shall be and remain the property of Tenant, may be removed by Tenant at any time during the term of this Lease, and shall be removed prior to the Expiration Date, or earlier termination date, of this Lease; provided, that if any of Tenant’s Property is removed, Tenant shall repair or pay the cost of repairing any damage to the Premises or to the Project resulting from the installation and/or removal thereof.
Any items of Tenant’s Property which shall remain in the Premises after the Expiration Date of this Lease, or any earlier termination of this Lease, at the option of Landlord, may be deemed to have been abandoned, and in such case such items may be retained by Landlord, and Landlord may deal with Tenant’s Property in such manner as Landlord shall determine, at Tenant’s expense.
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SECTION 12 REPAIRS AND MAINTENANCE
Landlord shall cause to be made all structural repairs to the roof, walls, subflooring, and foundations of the Building as and when needed in or about the Premises and the cost thereof shall be an item of Operating Expenses, except for those repairs for which Tenant is responsible pursuant to any of the provisions of this Lease.
Tenant shall, at its expense, throughout the term of this Lease, take good care of the Premises, the fixtures and appurtenances therein and Tenant’s Property. Tenant, at its expense, shall promptly replace all scratched, damaged or broken doors and glass ( except for exterior window glass ) in and about the Premises and shall be responsible for all repairs, maintenance and replacement of wall and floor coverings in the Premises and for the repair and maintenance of all sanitary and electrical fixtures and equipment therein reasonable wear and tear excepted . Tenant shall be responsible for all repairs, interior and exterior, structural and non-structural, ordinary and extraordinary, in and to the Premises and the Building and the facilities systems thereof, the need for which arises out of the performance or existence of Tenant’s Alterations; the installation, use or operation of Tenant’s Property in the Premises; the moving of Tenant’s Property in or out of the Building; or the act, omission, misuse or neglect of Tenant or any of its subtenants or its or their employees, agents, contractors or invitees.
Tenant shall promptly make, at Tenant’s expense, all repairs in or to the Premises for which Tenant is responsible, and any such repairs required to be made by Tenant to the mechanical, electrical, sanitary, heating, ventilating, air-conditioning or other systems of the Building. Such work shall be performed only by contractor(s) designated or approved in writing by Landlord. Any other repairs in or to the Building and the facilities and systems thereof for which Tenant is responsible may be performed by Landlord at Tenant’s expense; but Landlord may, at its option, before commencing any such work or at any time thereafter, require Tenant to furnish to Landlord such security, bond or surety in a form and amount as Landlord shall deem necessary to assure the payment for such work by Tenant.
In each case, time being of the essence, Landlord shall have no liability to Tenant, nor shall Tenant’s covenants and obligations under this Lease be reduced or abated in any manner whatsoever, by reason of any inconvenience, annoyance, interruption of or injury to Tenant’s business arising from Landlord’s making any repairs or changes which Landlord is required or permitted by this Lease or required by law to make in or to any portion of the Project, or in or to the fixtures, equipment or appurtenances of the Project.
Tenant shall not, without the prior written consent of Landlord, which consent will not be unreasonably withheld, use any equipment, machine, apparatus or device within the Premises which individually uses electric current in excess of 110 volts.
13.2 Cost of Increasing Capacity
Should Landlord consent to installation of equipment or a design load for the Premises in excess of that existing upon the Commencement Date, the additional equipment required to increase the capacity for Tenant’s excess equipment or design load shall be provided by Landlord. Tenant shall, upon installation, pay to Landlord the cost to purchase, install, service and maintain such additional equipment. The cost of the electric
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energy used in excess of the original design load for the Premises as determined by Landlord and its engineers and consultants shall not be an Operating Expense of the Building but shall be paid for by Tenant on a monthly basis with the Base Rent commencing on the date the additional electric energy is made available to Tenant.
Landlord shall maintain and operate the heating, ventilating and air-conditioning systems serving the Premises and shall furnish heat, ventilating and air-conditioning in the Premises, the expense of which shall be included in Operating Expenses, (except as otherwise provided in this Lease and except for any special requirements of Tenant for its particular use of the Premises) for occupancy of the Premises during Business Hours of Business Days. As used herein, “Business Hours” shall mean generally customary daytime business hours, but not before 7:00 a.m. or after 6:00 p.m. on weekdays and not before 8:00 a.m. or after 1:00 p.m. on Saturdays, and “Business Days” shall mean all days except Sundays and days observed by the Federal or the State government as legal holidays. If Tenant shall require heat or air-conditioning service at any other time, Landlord shall furnish such service upon not less than forty-eight (48) hours’ advance notice from Tenant, and Tenant shall pay to Landlord upon demand Landlord’s then-established charges therefor.
Landlord shall provide elevator service to the Premises during Business Hours of Business Days and Landlord shall have at least one elevator subject to call at all other times. The expense of providing elevator service shall be included in Operating Expenses.
The expenses for the cleaning of the Premises, including the exterior and interior of the windows of the Building, shall be included in the Operating Expenses. Landlord shall not be required to clean any portions of the Premises used for the preparation, serving or consumption of food or beverages, training rooms, data processing or reproduction operations or private lavatory or toilets. Tenant shall pay Landlord on demand the costs incurred by Landlord for extra cleaning work in the Premises required because of: (a) misuse or neglect on the part of Tenant or the Tenant Related Parties; or (b) interior glass partitions or surfaces; or (c) non-building standard materials or finishes installed by Tenant or at Tenant’s request; or (d) the us | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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