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EXHIBIT
10.35
LEASE
AGREEMENT
(MULTI
TENANT FOR
INDUSTRIAL/WAREHOUSE)
BY AND
BETWEEN
SBP LIMITED PARTNERSHIP
("Landlord")
and
AFFYMETRIX, INC.
("Tenant")
DATED AS
OF THE 10th DAY
OF August, 2008
(MULTI-
TENANT FOR INDUSTRIAL WAREHOUSE)
TABLE
OF CONTENTS
ARTICLE
I PREMISES
Section
1.1 Leased
Premises
Section
1.2 The
Building
Section
1.3 Common
Areas
Section
1.4 Parking
Section
1.5 Construction
and Condition of Premises
II TERM
Section
2.1 Term
of Lease
Section
2.2 Delayed
Occupancy
Section
2.3 Early
Occupancy
Section
2.4 Quiet
Enjoyment
Section
2.5 Surrender
of Possession.
Section
2.6 Holding
Over
III RENT
Section
3.1 Base
Rent and Additional Rent
Section
3.2 Additional
Rent Based Upon Operating Expenses
Section
3.3 Additional
Rent Based Upon Late Charges (Graduated)
Section
3.4 Additional
Rent Based Upon Taxes and Assessments
Section
3.5 Additional
Rent Based Upon Insurance Costs
Section
3.6 Additional
Rent Based Upon Taxes on Rent
Section
3.7 Security
Deposit
Section
3.8 Survival
IV UTILITIES
Section
4.1 Utilities
Section
4.2 Interruption
of Services
V USE
OF PREMISES/COMPLIANCE
Section
5.1 Permitted
Use
Section
5.2 Covenants
Regarding Use
Section
5.3 Access
to and Inspection of the Premises
Section
5.4 Compliance
with Laws
Section
5.5 Compliance
with Building Rules and Regulations
Section
5.6 Environmental
Matters
VI MAINTENANCE,
REPAIRS AND ALTERATIONS
Section
6.1 Landlord's
Obligations
Section
6.2 Tenant's
Obligations
Section
6.3 Landlord's
Right of Entry
Section
6.4 Alterations,
Additions or Improvements
Section
6.5 Trade
Fixtures
Section
6.6 Liens
II LIABILITY,
INSURANCE AND INDEMNITY
Section
7.1 Liability
and Insurance
Section
7.2 Waiver
of Subrogation
Section
7.3 Loss
or Damage to Property
Section
7.4 Indemnity
VIII DESTRUCTION
Section
8.1 Casualty
Damage and Restoration
IX DEFAULTS;
REMEDIES
Section
9.1 Defaults
Section
9.2 Remedies
Section
9.3 Repeated
Default
Section
9.4 Remedies
Cumulative
Section
9.5 Rent
Demand/Accord and Satisfaction
Section
9.6 Mitigation
of Damages
X ASSIGNMENT
AND SUBLETTING
Section
10.1 Assignment and Subletting
XI NOTICE
AND PLACE OF PAYMENT
Section
11.1 Notices
Section
11.2 Place of Payment
XII SUBORDINATION,
ATTORNMENT AND ESTOPPEL
Section
12.1 Subordination
Section
12.2 Attornment
Section
12.3 Estoppel Certificate
Section
13.1 Signage
XIV
FINANCING
Section
14.1 Landlord Financing
Section
14.2 Annual Financial Statements
XV
RELOCATION
Section
15.1 Relocation
XVI
WAIVERS
Section 16.1 No Waiver By Landlord
Section 16.2 Waiver of Jury
XVII
EMINENT DOMAIN/CONDEMNATION
Section
17.1 Eminent Domain/Condemnation
XVIII
MISCELLANEOUS
Section
18.1 Entire Agreement/Exhibits
Section
18.2 Memorandum of Lease
Section
18.3 Successors and Assigns
Section
18.4 Severability of Invalid Provisions
Section
18.5 Choice of Law
Section
18.6 Duplicates
Section
18.7 Brokers/Leasing Fees
Section
18.8 Guarantee
Section
18.9 Authority of Tenant
Section
18.10 Certain Words, Gender and Headings
Section
18.11 Landlord Liability
Section
18.12 Attorneys' Fees
Section
18.13 Force Majeure
Section
18.14 Exhibiting the Premises
Section
18.15 Examination of Lease
Section
18.16 Net Lease
Section
18.17 Survival of Obligations
Section
18.18 No Presumption Against Drafter
EXHIBITS
A LEASE/TENANT
DATA
B LAYOUT
OF PREMISES
C IMPROVEMENTS
TO BE COMPLETED
D RIDER
E RULES
AND REGULATIONS
ARTICLE I
PREMISES
SECTION 1.1 LEASED
PREMISES
For and
in consideration of the rents and covenants herein contained, Landlord does
hereby demise and lease to Tenant, and Tenant does hereby lease
and hire from Landlord, upon the terms and conditions hereinafter set forth, a
certain portion of the Building (as hereinafter defined), situated at the
property commonly known and designated as 26309 Miles Road, Warrensville Heights,
OH 44128 (the "Property"), which portion of the Building is more particularly
described in Section 2 of
Exhibit A attached hereto and the description attached as Exhibit B hereto
(which portion of the Building is hereinafter referred to as the
"Premises").
SECTION 1.2 THE
BUILDING
The building(s) and any improvements
affixed to the building on the Property shall hereinafter be referred to as
the "Building" and the Premises shall be considered for purposes of this
Lease to be a portion of the Building.
SECTION 1.3 THE COMMON
AREAS
The term "Common Areas", as used in
this Lease refers to the portions of the Building and the Property (or the
areas designated as such
on Exhibit "A" or Exhibit "B"), which are designated for use in common by all
tenants of the Building
and the Property and their respective agents, employees, guests, customers,
licensees, invitees and others, and which includes, without limitation,
sidewalks, driveways, parking areas and landscaped areas.
During
the Term (as hereinafter defined), Tenant and Tenant's agents, employees guests,
customers, licensees, invitees
and others shall have the non-exclusive right, to the extent applicable, to use
the Common Areas in common with others in
the Building or at the Property, as the case may be, subject to applicable Rules
and Regulations (as hereinafter defined).
Landlord shall have the right, in
Landlord's sole and absolute discretion, to modify, add to, diminish or
reconfigure the Common Areas; provided the foregoing does not impair
ingress or egress to or from the Building or the Premises in a material
respect.
SECTION 1.4 PARKING
Tenant
and Tenant's Representatives (as hereinafter defined) shall have the
non-exclusive right to use, in common
with others, existing vehicle parking areas serving the Property. The same
privilege has been or will be given to other
tenants in the Building and to their respective employees, agents, customers and
invitees, and neither Tenant hereunder
or any other tenant is entitled to any particular assigned spaces in said
parking areas. Landlord shall have no responsibility
or liability for the parking areas including, without limitation, for the
security or patrolling of such parking areas, or
for the unauthorized use of such parking spaces by other persons, nor for any
damage to or loss of any vehicle while
parked on the Property.
SECTION 1.5 CONSTRUCTION AND CONDITION
OF PREMISES
Landlord
shall make no improvements to the Premises except as expressly set forth in
Exhibit C, attached hereto.
Tenant acknowledges that neither Landlord nor any broker, agent, employee,
officer, director or representative of Landlord
has made any representation, warranty or promise with respect to the Premises or
the Building or the Property except as
herein expressly set forth, and no right, privilege, easement or license is
acquired by Tenant except as herein expressly
set forth. Tenant, by taking possession of the Premises, hereby accepts the
Premises as defined and described in
Section 2 of Exhibit A and further accepts the Premises and the Building in
their "as is, where is condition" and such taking of
possession shall be conclusive evidence that the Premises and the Building: (i)
are as described in Section 2 of Exhibit
A; and (ii) are in good and satisfactory condition at the time of such taking of
possession. Landlord shall deliver the
Premises complete and ready for construction of Tenant's Improvements. Landlord
shall construct, equip and furnish the
Tenant Improvements set forth in Exhibit C ("Tenant Improvements"). All Tenant
Improvements shall be and remain the
property of Landlord. In the event Tenant employs someone other than Landlord to
complete any construction work, Tenant
shall first obtain Landlord's prior written consent to the contractor selected
by Tenant, which response to Tenant's request
for consent shall not unreasonably delayed, and Tenant shall pay to Landlord,
Landlord's cost to review all construction
plans and work performed by Tenant or its agents, contractor or subcontractors.
Landlord shall not manage the
construction undertaken by the Tenant. All such fees and costs shall be payable
to Landlord as Additional Rent (as hereinafter
defined), with the Base Rent (as hereinafter defined) payment.
ARTICLE II
TERM
SECTION 2.1 TERM OF
LEASE
Except as
hereinafter provided, the "Term", "Commencement Date" and "Expiration Date" of
this Lease shall be as set forth in Section 4 of Exhibit A.
SECTION 2.2 DELAYED
OCCUPANCY
If
Landlord is unable to deliver possession of the Premises on the Commencement
Date by reason of the holding over of
any tenant or occupant, or for any other reason beyond the reasonable control of
Landlord, and further provided such
delay is not the fault of Tenant, then the Rents reserved and any other charges
payable hereunder by Tenant shall abate until the Premises is available
for occupancy by Tenant. No such failure to deliver possession on the Commencement
Date shall affect the validity of this Lease or Tenant's obligations hereunder,
nor shall Landlord be liable to Tenant
for any resulting damage or loss. Tenant hereby agrees to accept such abatement
as liquidated damages, in full satisfaction
of and to the exclusion of any other claim, right or remedy Tenant may have by
reason of such delay.
SECTION 2.3 EARLY
OCCUPANCY
If, at Tenant's request, Landlord shall
make the Premises available to Tenant prior to the Commencement Date
for the purpose of
installing fixtures and equipment or moving inventory into the Premises, then
all of the terms and conditions of this Lease, except for
the obligation to pay Base Rent, shall be in full force and effect from and
after the date that Tenant shall first occupy said Premises or any part
thereof.
SECTION 2.4 QUIET
ENJOYMENT
If and so
long as Tenant pays all Rent (as hereinafter defined) required pursuant to this
Lease and performs or observes
all of the terms, conditions, covenants and obligations of this Lease required
to be performed or observed by Tenant
hereunder, Tenant shall, at all times during the Term hereof, have the peaceable
quiet enjoyment and possession of the
Premises without any interference from Landlord or any person or persons
claiming the Premises by, through or under
Landlord.
SECTION 2.5 SURRENDER OF
POSSESSION
Upon the
expiration of the Term or earlier termination of this Lease, Tenant shall
surrender and deliver possession
of the Premises to Landlord together with all additions, alterations,
improvements and replacements thereto (whether
made by Tenant or Landlord and without any compensation or credit to Tenant) in
broom clean condition and in good
condition and repair, excepting only ordinary wear and tear and loss by insured
casualty. If any of Tenant's fixtures, equipment
or other personal property kept in or about the Premises shall not have been
removed therefrom prior to the surrender
of the Premises hereunder, such fixtures, equipment and other personal property,
at the option of Landlord, shall be
deemed abandoned by Tenant and title thereto shall pass to Landlord without
payment, notice or credit by Landlord
to Tenant, and Landlord may store and/or dispose of same as it deems fit without
any liability to Tenant or any other
person.
SECTION 2.6 HOLDING
OVER
If Tenant
shall remain in possession of all or any part of the Premises after the
expiration of the Term, Tenant shall be
deemed a tenant of the Premises from month to month, at a monthly rental equal
to twice the monthly rental then being
paid by Tenant and subject to all the other terms and conditions of the within
Lease which are not inconsistent with such
month to month tenancy. Nothing herein contained shall be deemed a consent to or
approval of, or to excuse, any holding
over by Tenant without Landlord's prior written consent or without a new written
agreement between the parties. Negotiations
between the parties shall not be construed as an agreement by Landlord to renew
this Lease or enter into a new lease agreement. In addition to the foregoing,
Tenant's occupancy shall be extended under this Section 2.6 for the period, if
any, during which environmental remediation pursuant to Section 5.6 hereof is
taking place.
ARTICLE III
RENT
SECTION 3.1 BASE RENT AND ADDITIONAL
RENT
Tenant shall pay, as base rent for the
Premises, the sum specified in Section 5(a) of Exhibit A (the "Base Rent").
Tenant shall pay, as additional rent, the sums designated as "Additional
Rent" under this Lease and all other sums, charges and fees as provided for in
this Lease or in any other agreement or writings between the parties
(collectively, the "Additional Rent"). Tenant shall pay Base Rent and Additional
Rent in equal consecutive monthly installments, unless Landlord bills the sums
otherwise. Base Rent and Additional Rent are sometimes collectively referred to
hereinafter as "Rent" or "Rents". Landlord shall not be required to accept any
Rent paid if Tenant is in default hereunder. The monthly installments of Base
Rent and Additional Rent are payable in advance, without demand, deduction,
abatement, counterclaim, recoupment or offset of any kind or amount for any
reason whatsoever, on or before the first day of each and every calendar month
during the Term. Any Rent payable with respect to a period of time beginning
prior to the Commencement Date or ending after the expiration of the Term shall
be prorated.
SECTION 3.2 ADDITIONAL RENT
BASED ON OPERATING EXPENSES
(a) For
purposes of this Lease, the term "Operating Expenses" shall include, without
limitation, all costs and
expenses incurred by Landlord in operating, maintaining, managing, equipping,
repairing and replacing the Property and/or
keeping the Property in compliance with all Laws (as hereinafter defined), and
further including, without limitation,
exterior building maintenance, snow removal, landscaping, water and any other
utilities attributable to the Common
Areas; insurance costs not otherwise provided for in the Lease; supplies,
sundries, management fees, sales or use tax
on supplies or services; costs of wages and salaries of all persons engaged in
performing any of the
foregoing
(including
so-called fringe benefits, social security taxes, unemployment insurance taxes,
costs for providing coverage for disability
benefits, costs of any pensions, hospitalization, welfare or retirement plans or
any other similar or like expenses incurred
under the provisions of any collective bargaining agreement, or any other
reasonable cost which Landlord pays or incurs
to provide benefits for employees directly engaged in performing any of the
foregoing activities); and legal and accounting
expenses. There shall not be included in Operating Expenses,
depreciation, interest on amortization of any mortgage
affecting the Property, leasehold improvements made for any tenant at the
Property, brokerage commissions and
financing costs. Operating Expenses shall include all capital improvements
required, as a result of Tenant's use andoccupancy to keep the Property
in compliance with Laws, but shall not include any other capital improvements.
For purposes
of this Lease, "capital improvements" shall be determined using Generally
Accepted Accounting Principles ("GAAP").
The cap on any increase in expenses is set forth on Exhibit A, which is
incorporated herein by reference.
(b) For
purposes of this Lease, the term "Tenant's Proportionate Share" shall mean that
percentage specified
in Section 2(c) of Exhibit "A".
(c) Tenant
shall pay Landlord, as Additional Rent, in the manner stated below, Tenant's
Proportionate Share of
the Operating Expenses, incurred during the Term.
(d) Tenant
shall pay to Landlord, on the first day of each month in advance, the sum equal
to 1/12`s of the annual
estimated Operating Expenses. After each calendar year, Landlord shall deliver a
statement to Tenant setting forth that sum equal to Tenant's Proportionate Share
of the actual Operating Expenses for the Property and that sum equal to the
total monthly installments paid by Tenant pursuant to this Section for that
calendar year. If the amount actually due from Tenant shall be more than the
payments made by Tenant, Tenant shall pay Landlord, as Additional Rent, that sum
equal to the difference, within thirty (30) days of Tenant's receipt of
Landlord's statement. If the amount actually due from Tenant shall be less
than the payments made by Tenant, Landlord shall have the right, in Landlord's
sole and absolute
discretion, to either refund the overpayment to Tenant or credit the overpayment
against Tenant's next due monthly installments pursuant to this
Section.
(e) Within
forty-five (45) days after receipt of the statement for the period for which
these items are billed, Tenant or
its authorized agent shall have the right, at Tenant's sole cost and expense, to
inspect and audit Landlord's records
with respect to Tenant's pro rata share of Operating Expenses, Real Estate Taxes
and Insurance Costs, which audit
shall be at the office of Landlord's Property Manager, upon ten (10) days prior
written notice, during said Property Manager's
normal business hours. There shall be one (1) statement per year. Except as
aforesaid, Landlord shall not be obligated
to provide Tenant with detailed summaries or receipts for any expenses incurred
by the Property; but Landlord shall
provide Tenant with a statement setting forth such expenses, categorized by
class and amount. Upon written request, Landlord
will provide Tenant with reasonable documentation in support of any particular
expense. Unless Tenant asserts
specific errors within sixty (60) days after receipt of each statement, said
statement shall be deemed to be correct. If Tenant
identifies errors during the inspection and audit process, Tenant shall advise
Landlord of the same within the sixty
(60) day period, and Landlord shall negotiate in good faith with the Tenant to
resolve any such errors.
SECTION 3.3 ADDITIONAL RENT
BASED UPON LATE CHARGES (GRADUATED)
All Rent
and other charges payable under this Lease, which are not paid when due, shall
be subject to a five percent
(5%) late payment fee per month, commencing the second day of the month and
continuing through the fifth day, ten
percent (10%) commencing on the sixth day of the month and continuing through
the tenth day and fifteen percent (15%)
commencing on the eleventh day of the month and thereinafter, until paid in
full, computed upon the amount which is
in default (all of which shall be deemed to be Additional Rent); not, however,
to the exclusion of any other remedy
for breach or default available to Landlord under this Lease, at law, in equity
or otherwise. In the event Landlord is
required to process a check from Tenant which has been returned by the bank due
to any act or omission of Tenant, Landlord
shall be entitled to immediate payment of a handling charge of One Hundred and
no/ 100 Dollars ($100.00), in addition
to any such late payment charges and arrearages. Tenant acknowledges and agrees
that the late charges are provided
to ensure Tenant's prompt payment of all Rent when due so as to enable the
timely payment by Landlord of the expenses
of the Premises, to avoid the possibility of forfeiture, interest charges or
penalties, lender charges or penalties, additional
management expenses and avoid the impairment of Landlord's creditworthiness.
Tenant further acknowledges and
agrees that such late charges are not a penalty.
SECTION 3.4 ADDITIONAL RENT
BASED UPON TAXES AND ASSESSMENTS
Tenant shall pay to Landlord, as
Additional Rent, during each calendar year of the Term, Tenant's Proportionate
Share of the cost of any and all real estate taxes, charges and
assessments (general and special), levied or assessed against the Property (the
"Real Estate Taxes"). Tenant shall pay such Proportionate Share of the Real
Estate Taxes to Landlord monthly, in advance, without interest accruing thereon,
in an amount representing one twelfth (1/12`s) of Tenant's Proportionate Share
of the annual Real Estate Taxes as estimated from time to time by Landlord.
Annually, Landlord shall deliver
a statement to Tenant setting forth that sum equal to Tenant's Proportionate
Share of the actual amount of Real Estate Taxes paid by Landlord. If the
amount actually due from Tenant for Real Estate Taxes shall be more than the
payments made by Tenant for Real Estate Taxes, Tenant shall pay Landlord, as
Additional Rent, that sum equal to the difference, within five (5) days of
Tenant's receipt of Landlord's statement. Conversely, if the amount actually due
from Tenant for Real Estate Taxes shall be less than the payments made by Tenant
for Real Estate Taxes, Landlord shall refund the overpayment to Tenant unless
Tenant's account is in arrears, in which case Landlord shall apply the
overpayment to the arrearage.. Landlord shall equitably apportion Real Estate
Taxes applicable to periods prior or subsequent to the first and final year of
the Term. If Landlord successfully appeals a Real Estate Tax assessment, Tenant
shall pay to Landlord its proportionate share of the legal costs
incurred.
SECTION 3.5 ADDITIONAL RENT BASED UPON
INSURANCE COSTS
Tenant
shall pay to Landlord, as Additional Rent, during each calendar year of the
Term, Tenant's Proportionate Share of
the cost of any and all insurance maintained by Landlord with respect to the
Premises (including, without limitation,
commercial general liability insurance and commercial property insurance) all in
amounts and with coverages and
deductibles as determined in Landlord's reasonable discretion (the "Insurance
Costs"). Tenant shall pay
Tenant's Proportionate
Share of such Insurance Costs to Landlord monthly, in advance, without interest
accruing thereon, in an amount
representing one twelfth (1/ 12`s) of Tenant's Proportionate Share of the annual
Insurance Costs as estimated from time to time by Landlord. Annually,
Landlord shall deliver a statement to Tenant setting forth that sum equal to
Tenant's Proportionate
Share of Insurance Costs actually paid by Landlord. If the amount actually due
from Tenant for Insurance Costs
shall be more than the payments made by Tenant for Insurance Costs, Tenant shall
pay Landlord, as Additional Rent,
that sum equal to the difference, within five (5) days of tenant's receipt of
Landlord's statement. Conversely, if the amount
actually due from Tenant for Insurance Costs shall be less than the payments
made by Tenant for Insurance Costs,
Landlord shall have the right, in Landlord's sole and absolute discretion, to
either refund the overpayment to Tenant or
credit said overpayment against Tenant's next due monthly installments pursuant
to this Section. Insurance Costs
applicable to periods prior or subsequent to the first and final year of the
Term shall be equitably apportioned by Landlord.SECTION 3.6 ADDITIONAL RENT
BASED UPON TAXES ON RENT
If at any
time during the Term, a tax or charge shall be imposed by any governmental
authority having jurisdiction over the Premises or the Property, which tax or
charge shall be based on any Rent due or paid by Tenant to Landlord, then Tenant shall pay
Landlord, as Additional Rent, such tax or charge. The foregoing shall not
require payment by Tenant of any income taxes assessed against Landlord
or any capital levy, franchise, estate, succession, inheritance or transfer tax
due from Landlord.
SECTION 3.7 SECURITY
DEPOSIT
Concurrently
with Tenant's execution of this Lease, Tenant shall deposit with Landlord the
sum set forth in Section 6
of Exhibit A, which sum shall be held by Landlord as a "Security Deposit" for
the performance by Tenant of Tenant's
covenants and obligations under this Lease, it being expressly understood that
the deposit shall not be considered
an advance payment of Rent or a measure of Landlord's damage in case of default
by Tenant. If Tenant fully and
faithfully performs its obligations under this Lease, and delivers possession of
the Premises to Landlord, in accordance
with this Lease, the Security Deposit, or balance thereof then held by Landlord,
shall be returned to Tenant at the
expiration of the Term and after Tenant has delivered and surrendered to
Landlord possession of the entire Premises and
further provided that no default by Tenant under the Lease shall have occurred
and be continuing without cure at such
time. Landlord may, but shall not be obligated to, use or apply all or any part
of the Security Deposit, as necessary, to cure
any default of Tenant under this Lease. In the event all or any portion of the
Security Deposit is applied by Landlord
to cure any default or pay for any cost, expense, damage or loss pursuant to
this Lease, Tenant shall, within five (5) days
of Landlord's demand, deposit with Landlord such sums as may be necessary to
restore the Security Deposit to its
original amount. The failure of Tenant to restore the Security Deposit to its
full amount shall entitle Landlord to all of the same
rights and remedies Landlord has for non-payment of Rent by Tenant. Landlord
shall be free to commingle the Security
Deposit with Landlord's own funds. In the event of a transfer by Landlord of
Landlord's interest in the Premises, Landlord
may deliver the Security Deposit to the transferee of Landlord and Landlord
shall thereupon be discharged from any
further liability to Tenant with respect to such Security Deposit, provided such
transferee assumes Landlord's obligations
with respect to such Security Deposit. In the event of an assignment of this
Lease by Tenant, the Security Deposit
shall be deemed to be held by Landlord as a deposit made by the assignee, and
Landlord shall have no further responsibility
for the return of such Security Deposit to the assignor. Tenant shall not assign
or otherwise encumber or pledge
the Security Deposit.
SECTION 3.8 SURVIVAL
The
provisions of this Article III shall survive the expiration or earlier
termination of this Lease.
ARTICLE IV
UTILITIES
SECTION 4.1 UTILITIES
Tenant
shall promptly pay for all of the costs for all utilities and any taxes thereon
(whether separately metered or submetered) furnished to the Premises from the
Commencement Date and continuing throughout the Term and any extension or
holdover thereof, including, without limitation, electric, gas, water and sewer
charges. In the event a submeter fails for any period, Tenant shall pay the cost
of the utility services proposed by Landlord, which shall be an estimate based
on Tenant's usage prior to the time of such failure. In addition to Landlord's
other rights pursuant to this Lease or at law, in equity or otherwise, Landlord
shall have the right to discontinue any utility service furnished to Tenant by
Landlord, on 10 days prior written notice to Tenant, whenever and during such
period of time that any utility charges remain unpaid beyond any applicable cure
period.
SECTION 4.2 INTERRUPTION OF
SERVICES
Tenant
understands and acknowledges that any one or more utilities or other Building or
Property services may be
interrupted by reason of accident, failure of equipment, emergency or other
causes, or may be interrupted, discontinued or diminished temporarily
by Landlord or other persons until certain repairs, alterations or improvements
can be made; that Landlord
does not represent or warrant the uninterrupted availability of such utilities
or Building or Property services and that any such interruption shall not
be deemed an eviction or a disturbance of Tenant's right to possession, occupancy and use of the
Premises or any part thereof, or render Landlord liable to Tenant for damages by
abatement of Rent or otherwise, or relieve Tenant from its obligation to
perform under this Lease, or constitute a termination of this Lease or an
eviction of Tenant, constructive or otherwise.
ARTICLE V USE OF
PREMISES/COMPLIANCE WITH LAWS
SECTION 5.1 PERMITTED
USE
Tenant represents, warrants and
covenants that the Premises shall be used solely for the purposes specified in
Section 3 of Exhibit A in
the normal course of business in Tenant's trade or industry and in accordance
with the terms, conditions, covenants and obligations set forth in this
Lease and the reasonable recommendations of Landlord's insurance underwriters, and for no other purpose
or use whatsoever, without the prior written consent of Landlord, which consent
may be withheld, in
Landlord's sole and absolute discretion. Tenant shall not use or occupy, or
permit the use or occupancy of the Premises, in any
manner that may constitute a nuisance; or violate the terms, conditions,
covenants and obligations
of this Lease or any one or more applicable Laws or any certificate of occupancy
applicable to the Premises; or for any purpose or in any manner liable to
cause damage to the Premises.
SECTION 5.2 COVENANTS REGARDING
USE
In
connection with its use of the Premises, Tenant agrees to the
following:
(a) Tenant
shall not use the Premises, the Building or the Property or allow the Premises,
the Building or the
Property to be used in any manner deemed hazardous because of fire risk or
otherwise. No Hazardous Material (as hereinafter
defined), or equipment which does not bear the Underwriter's Laboratory
approval, shall be brought or kept on the
Premises, the Building or the Property, or adjacent areas, or stored or used
therein, without the prior written consent
of Landlord which consent may be withheld in Landlord's sole and absolute
discretion. If any of Tenant's operations
produce gases, vapors, odors, smoke, residuary material or noise disturbing to
Landlord or the neighbors to the
Premises, the Building or the Property or creates a private or public nuisance,
Tenant will, on Landlord's written request,
immediately cease such operation or immediately install ventilating or other
apparatus necessary to eliminate such
disturbances or nuisance, at Tenant's sole cost and expense. If Tenant installs
equipment which unbalances or overloads electrical equipment or
wiring in or about the Premises, the Building or the Property it shall
immediately correct such unbalanced or overloaded condition and replace
any equipment or wiring thereby damaged, at its sole cost and expense. Further, Tenant shall not
deposit oil, grease, solvents or other substances in sewers or drains serving
the Premises, the Building or the Property. In the event of a spill, discharge
or release of the foregoing, Tenant shall have such sewers and drains
cleaned at its sole cost and expense.
(b) Tenant
shall not use the Premises, the Building or the Property or allow the Premises,
the Building or the
Property to be used, for any purpose or in any manner which would void any
policy of insurance now or hereinafter carried
on the Premises, the Building or the Property; render the Premises, the Building
or the Property uninsurable; or increase
the rate of premiums payable on any such insurance policy. Tenant, at its sole
cost and expense, shall comply with any
and all requirements of any insurance organization or company necessary for the
maintenance of "all risks" insurance,
including, without limitation, fire and other casualty and general public
liability insurance covering the Premises,
the Building and the Property. Should Tenant fail to comply with this covenant,
Landlord may, at its option, require
Tenant to stop engaging in such activity or to reimburse Landlord, as Additional
Rent, for any increase in premiums
charged during the Term on the insurance carried by Landlord on the Premises,
the Building or the Property and
attributable to the use being made of the Premises, the Building or the Property
by Tenant. If Tenant stores pallets or other
materials outside the Premises in a manner that fails to comply with local
governmental regulations and, as a result thereof,
Landlord incurs a casualty loss, Tenant agrees to pay the amount of Landlord's
deductible.
(c) Tenant
acknowledges that nothing set forth in this Section 5.2 shall be deemed to give
Tenant any right to use
the Premises, the Building or the Property, other than as expressly set forth in
this Lease.
SECTION 5.3 ACCESS TO AND INSPECTION OF
THE PREMISES
Landlord
reserves the right (but not the obligation), for itself, its agents, employees,
contractors and subcontractors,
to enter the Premises or any part thereof, at any time in the event of an
emergency, and otherwise at reasonable
times after reasonable notice, to take any and all measures, including, without
limitation, inspections, repairs, alterations,
additions and improvements to the Premises, as may be necessary or desirable for
the safety, protection or preservation
of the Premises or Landlord's interests, or as may be necessary in order to
comply with all Laws, or for the purpose
of exhibiting same to prospective tenants, purchasers, lenders, or existing
mortgagees. In the event of any spill, release,
discharge, or placement of Hazardous Material in, on about or beneath the
Premises or migrating or threatening to
migrate to or from the Premises, Landlord shall have the right (but not the
obligation), and without limiting Landlord's other
rights and remedies under this Lease, at law, in equity or otherwise, to take
immediate responsive action, including, without
limitation, entering the Premises for testing purposes and implementing such
remediation as it deems necessary or
advisable, without interference from Tenant. All reasonable costs and expenses
incurred by Landlord in the exercise of any
such rights shall be payable by Tenant within five (5) days of Landlord's
demand, as Additional Rent. Nothing in this
Section creates any obligation on Landlord to make any repairs, replacements,
alterations, additions and improvements
to the Premises nor does it excuse or relieve any obligation on Tenant
hereunder.
SECTION 5.4 COMPLIANCE WITH
LAWS
Tenant
shall, at its sole cost and expense, comply with all laws, ordinances, policies,
rules, regulations, statutes, binding
determinations, directives, requirements, decrees, injunctions, orders, writs,
licenses and permits, of all federal, state,
regional, county, local, municipal and all other agencies, authorities or
bodies, now in effect or as hereinafter may be
enacted or amended, applicable to the Premises, the Building, the Property,
Tenant or Tenant's use, occupancy or operations
at the Premises (the "Laws"); provided, however, Tenant shall have no obligation
to make any alteration or improvement to the Premises which would
constitute a capital improvement, to the extent that said capital improvements
are necessitated by something other than Tenant's actions or conduct or Tenant's
use, occupancy and/or operations at the Premises. Notwithstanding the
foregoing, if the cost of any capital improvement(s) exceeds, or shall be
reasonably expected to exceed, Twenty-Five Thousand and no/100 Dollars
($25,000), Landlord shall have the right to terminate this Lease upon sixty (60) days notice to
Tenant. Tenant shall, at its sole cost and expense, secure all necessary
governmental certificates and permits for its use and occupancy of the
Premises as are required from time to time (including, without limitation, a
certificate of occupancy); provide copies of the same to Landlord upon request
or whenever a new certificate or
permit is required to be obtained; and make such repairs, replacements,
alterations, additions and improvements to the Premises as may be
required to obtain such certificates or permits.
SECTION 5.5 COMPLIANCE WITH BUILDING
RULES AND REGULATIONS
"Rules
and Regulations" governing the use and occupancy of the Building and the
Property have been adopted by Landlord
for the mutual benefit of all tenants in the Building and at the Property.
Tenant shall comply with and conform to the
Rules and Regulations currently in effect, which are set forth in Exhibit E
attached hereto. Landlord shall have the right to
amend such Rules and Regulations or to adopt new Rules and Regulations, from
time to time, in any manner that it deems
necessary or desirable in order to insure the safety, care, proper maintenance
and cleanliness of the Premises and the
preservation of order therein.
SECTION 5.6 ENVIRONMENTAL
MATTERS.
Landlord represents that, to the best
of its knowledge, without further inquiry or investigation, there currently are
no hazardous materials stored on the Premises and that is has received no
notice from any
governmental agency that the Premises is in violation or any Environmental
Laws.
5.6.1
Definitions.
5.6.1.1
Hazardous Material. "Hazardous Material" shall
mean: (1) any substance, chemical, material, organism
or waste (whether solid, liquid, gaseous or otherwise) that is corrosive,
dangerous, explosive, f l
ammable, hazardous, pathogenic, radioactive, reactive or toxic, or that is
listed, defined or regulated as such
under any one or more of the Environmental Laws (as hereinafter defined); (2)
petroleum, petroleum
derivatives, petroleum products, crude oil, distillates or fractions; (3)
polychlorinated biphenyls
(PCB's), asbestos, asbestos containing materials, urea formaldehyde, lead,
radioactive materials,
radon, "fill" or any material containing the previously mentioned substances;
(4) any substance,
chemical, material, organism or waste (whether solid, liquid, gaseous or
otherwise) defined as a
"contaminant", "pollutant", "hazardous materials", "hazardous substance",
"hazardous waste", "toxic
substance", "solid waste" or "medical waste" under any one or more of the
Environmental Laws; and (5)
any mixture of the above.
5.6.1.2
Environmental Laws. "Environmental Laws" shall
mean any and all laws, ordinances, policies, rules,
regulations, statutes, binding determinations, directives, requirements,
decrees, injunctions, orders, writs,
licenses and permits, of federal, state, regional, county, local, municipal and
all other agencies, authorities
or bodies which regulate or pertain to the environment or environmental matters
or the protection
or preservation of human health or safety, now in effect or as hereinafter may
be enacted or amended,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability
Act, 42 U.S.C.§9601 et seq.; the Resource Conservation and Recovery Act, 42
U.S.C. §6901 et seq.; the
Clean Air Act, 42 U.S.C. §7401 et seq.; the Federal Water Pollution Control Act,
33 U.S.C. § 1251 et
seq.; the Safe Drinking Water Act, 42 U.S.C.§300f and §300j et seq.; the Federal
Insecticide, Fungicide
and Rodenticide Act, 7 U.S.C. § 136 et seq.; the Toxic Substances Control Act,
15 U.S.C. §2601 et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §5101 et seq.; the
Emergency Planning
and Community Right to Know Act of 1986, 42 U.S.C. § 11001, et seq.; and the
Occupational Safety
and Health Act, 29 U.S.C. §651 et seq., all as may be amended from time to time,
and all regulations,
rules and guidelines now or hereinafter promulgated thereunder.
5.6.1.3
Environmental Damages. "Environmental Damages"
shall mean all claims, suits, administrative hearings,
judgments, damages, losses, penalties, fines, liabilities (including, without
limitation, strict liability),
encumbrances, liens, costs and expenses of investigation and defense of any suit
or claim, costs to
satisfy any settlement or judgment, and costs of environmental investigation,
remediation, removal, response
or monitoring, of whatever kind or nature, contingent or otherwise, matured or
unmatured, foreseeable
or unforeseeable, including, without limitation, reasonable attorneys,
consultants and witness fees and
disbursements, any or all of which are incurred at any time as a result of the
existence of Hazardous
Material in, on, about, or beneath the Premises or migrating or threatening to
migrate to or from the
Premises, or the existence of a violation of any one or more of the
Environmental Laws pertaining
to the Premises, including without limitation, diminution of the value of the
Property and damages
for the loss of business and restriction on the use of or adverse impact on the
marketing of rent-able or
usable space at the Property or any amenity to the
Property.
5.6.2
a) Tenant's
Obligation to Indemnify Concerning Environmental Matters. Tenant and its
respective successors
and assigns shall indemnify, defend and hold Landlord and Landlord's
shareholders, partners, members, owners, affiliates, officers, director,
employees, agents and representatives (collectively "Landlord's Environmental
Indemnitees") and the successors and assigns of Landlord and Landlord's
Environmental Indemnitees harmless from and against any and all claims, demands,
causes of
action, actions, administrative proceedings (formal or informal), losses, costs,
damages, expenses (including,
without limitation, sums paid in settlement and reasonable fees for attorneys,
consultants, experts
and accountants [including, without limitation, any fees and expenses incurred
in enforcing this indemnity]),
injuries, judgments, liabilities, obligations, penalties, fines or claims of any
other kind or nature
(including, without limitation, all governmental claims and all third party
claims), foreseen or unforeseen
(including, without limitation, injury to or death of any person or damage to
person or property
in or about the Premises, the Building, the Property and/or their environs)
which may be imposed
upon, incurred by or asserted against Landlord or any one or more of Landlord's
Environmental
Indemnitees for Environmental Damages, to the extent the foregoing was directly
or indirectly
caused by, arose or resulted from, or was connected with: (a) any act or
omission of Tenant or any
Tenant Representative; (b) Tenant's use and occupancy of the Premises, the
Building, the Property
and/or their environs; (c) the conduct of Tenant's business; or (d) any default
by Tenant in the
performance of Tenant's obligations under this Section 5.6.
b)
Landlord's Obligation to Indemnify Concerning Environmental Matters. Landlord and its
respective
successors and assigns shall indemnify, defend and hold Tenant and Tenant's
shareholders, partners,
members, owners, affiliates, officers, directors, employees, agents and
representatives (collectively
"Tenant's Environmental Indemnitees") and the successors and assigns of Tenant
and Tenant's
Environmental Indemnitees harmless from and against any and all claims, demands,
causes of action,
actions, administrative proceedings (formal or informal), losses, costs,
damages, expenses (including,
without limitation, sums paid in settlement and reasonable fees for attorneys,
consultants, experts
and accountants [including, without limitation, any fees and expenses incurred
in enforcing this indemnity]),
injuries, judgments, liabilities, obligations, penalties, fines or claims of any
other kind or nature
(including, without limitation, all governmental claims and all third party
claims), foreseen or unforeseen
(including, without limitation, injury to or death of any person or damage to
person or property
in or about the Premises, the Building, the Property and/or their environs)
which may be imposed
upon, incurred by or asserted against Tenant or any one or more of Tenant's
Environmental Indemnitees
for Environmental Damages, to the extent the foregoing was directly or
indirectly caused by, arose
or resulted from, or was connected with: (a) any act or omission of Landlord or
any Landlord Representative;
(b) Landlord's use of the Property and/or their environs; or (c) any default by
Landlord in the
performance of Landlord's obligations under this Section 5.6.
5.6.3 Tenant's
Obligation to Investigate and Remediate. Notwithstanding the
obligation of Tenant to indemnify
Landlord pursuant to this Lease, and in addition to Tenant being in default
under this Lease, with Landlord
having all rights and remedies available to it under this Lease and at law, in
equity or otherwise as a result of
such default, Tenant shall, immediately, upon Landlord's demand, and at Tenant's
sole cost and expense,
take all actions to investigate and remediate the Premises, the Building, the
Property and/or their environs,
which investigation and remediation is necessitated by the: (1) use, spill,
discharge, release or placement
of Hazardous Material in, on, about, or beneath the Premises, the Building, the
Property and/or their environs
impacted by such Hazardous Materials or migrating or threatening to migrate to
or from the Premises, the
Building, the Property and/or its environs impacted by such Hazardous Materials
or (2) a violation of any one or more
of the Environmental Laws, either of which is caused by the actions or omissions
of Tenant, or any one or more
of Tenant's Representatives. Such actions shall include, without limitation, the
investigation of the environmental
condition of the Premises, the Building, the Property and/or the environs
impacted by such Hazardous
Materials, the preparation of any feasibility studies, reports, or remedial
plans, and the performance of any
cleanup, remediation, containment, operation, maintenance, monitoring, or
restoration work, whether on or off
the Premises. Tenant shall take all actions, continuously and diligently,
necessary to restore the Premises, the
Building, the Property and/or the environs impacted by such Hazardous Materials
to the condition existing prior to
the use, spill, discharge, release or placement of Hazardous Material in, on,
about, or beneath the Premises,
the Building, the Property and/or the environs impacted by such Hazardous
Materials, notwithstanding any
lesser standard of remediation permissible under Environmental Laws. All such
work shall be performed by one or
more contractors, selected by Tenant and approved in advance and in writing by
Landlord. Any such actions
shall be performed in compliance with all Laws and all Environmental Laws and in
a good, safe, and workmanlike
manner and shall minimize any impact on the business conducted at the Premises,
the Building, the Property
and/or the environs impacted by such Hazardous Materials. Tenant shall promptly
provide to Landlord copies of
all environmental documents, including without limitation, testing results,
plans and reports that are generated
in connection with the above activities, and copies of any correspondence with
and submissions to any governmental
entity related to such activities.
5.6.4 Landlord's
Right to Remediate. In addition to Landlord's
rights under Section 5.3, should Tenant fail to
promptly and diligently perform any of its obligations described in Paragraph
5.6.3 hereof, then Landlord shall
have the right (but not the obligation) without limiting Landlord's rights and
remedies under this Lease, or at
law, in equity or otherwise, to enter the Premises personally or through its
agents, consultants, contractors and subcontractors and perform the same
at Tenant's sole cost and expense, and all sums incurred by Landlord shall be
paid by Tenant, as Additional Rent, within five (5) days of Landlord's
demand.
5.6.5 Notification. If Tenant shall become aware
of or receive notice or other communication concerning any
actual, alleged, suspected, or threatened: (1) violation of any one or more
Environmental Laws; (2) liability of Tenant
for Environmental Damages; (3) activity of any other person that may result in
Environmental Damages;
or (4) violation of any term, condition, covenant, obligation, representation or
warranty set forth in this Section,
then Tenant shall deliver to Landlord, within three (3) days of becoming aware
of such instance or receiving
such notice or communication by Tenant, a written description of said condition,
violation, liability, activity or correct information, together with
copies of any such notice or communication. Receipt of such notice shall not be
deemed to create any obligation on the part of Landlord to defend or otherwise
respond to any such notice or communication.
5.6.6 Negative
Covenants.
5.6.6.1 No
Hazardous Material on Premises. Except in strict compliance
with all Environmental Laws,
Tenant shall not cause or permit any Hazardous Material to be brought upon,
treated, kept, stored, disposed
of, discharged, released, produced, manufactured, generated, refined, or used
in, on, about, or beneath
the Premises by Tenant or a "Tenant Representative". For purposes of this Lease,
the term "Tenant
Representative" shall mean any one or more of its agents, employees, officers,
directors, shareholders,
partners, members, owners, affiliates, contractors, subcontractors, customers,
guests, licensees,
invitees, assignees, successors or any other third person, other than Landlord
or another tenant of the
Building (sometimes individually and collectively referred to in this Lease as
the "Tenant's Representatives").
5.6.6.2
No Violations of Environmental Laws. Tenant shall not cause or permit the
existence or the commission by Tenant, or any one or
more of Tenant's Representatives, of a violation of any one or more of
the Environmental Laws in, on, about or beneath the Premises, the Building, the
Property and/or the environs impacted by such violation or any portion
thereof.
5.6.6.3 No
Environmental or Other Liens. Notwithstanding any other
term or condition contained in this Lease, Tenant shall not create or
suffer or permit to exist with respect to the Premises, the Building, the
Property and/or the environs impacted by such lien, any lien, security interest,
or other charge or encumbrance of
any kind, to the extent that such lien arises out of the actions or omissions of
Tenant or any one or more of Tenant's Representatives.
5.6.7 Landlord's
Right to Inspect and to Audit Tenants Records. Landlord shall have the
right, in its sole and
absolute discretion, but not the obligation, to enter upon and conduct an
inspection or compliance audit of the
Premises and to inspect and audit Tenant's records concerning Hazardous
Materials, at any reasonable time,
except in the event of an emergency, to determine whether Tenant is complying
with the terms of the Lease, including,
without limitation, the compliance of the Premises and the activities thereon
with Environmental Laws and the
existence of, or potential existence of, Environmental Damages. If Landlord
believes Tenant is in default with
respect to any of the terms and conditions of this Lease related to Hazardous
Materials, Environmental Laws or
Environmental Damages, Landlord shall have the right, but not the obligation, to
retain at the sole cost and expense
of Tenant which shall be paid by Tenant to Landlord as Additional Rent, within
five (5) days of Landlord's
demand, independent professional consultants to enter the Premises to conduct
such an inspection and audit and
to inspect and audit any records or reports prepared by or for Tenant concerning
such compliance. Tenant
hereby grants to Landlord, its agents, employees, consultants, contractors and
subcontractors, the right to enter the
Premises and to perform such tests on the Premises as are necessary, in the
opinion of Landlord, to assist in
such inspections and audits. Landlord shall use reasonable efforts to minimize
interference with the business
of Tenant by such tests, inspections, and audits, but Landlord shall not be
liable for any interference caused
thereby.
5.6.8 Landlord's
Obligation.
Landlord shall be responsible for Environmental Damages to the extent
arising
from activities of Landlord, activities of other tenants or activities which
occurred prior to the Commencement
Date (and were not caused or exacerbated by Tenant or any one or more of
Tenant's Representatives) which: (1) result in the presence of Hazardous
Material in, on, about, or beneath the Premises or migrating to or from the
Premises in violation of Environmental Laws, or (2) result in the violation of
any one or more Environmental Laws pertaining to the Premises.
5.6.9 No
Storage Tanks Without Written Approval. Tenant shall not install any
aboveground storage tanks,
underground storage tanks or waste water treatment facilities or other similar
facilities in, on, about or beneath
the Premises without prior written consent of Landlord, which consent may be
withheld in Landlord's sole and
absolute
discretion. -
5.6.10 Interpretation. The obligations imposed upon
Tenant under this Section 5.6 are in addition to and are not
intended to limit, but to expand upon, the obligations imposed upon Tenant under
Section 5.4 and Section 5.5.
5.6.11 Survival
of Environmental Obligations. The obligations of Tenant as
set forth in Section 5.6 and all of
its subparagraphs shall survive termination of this Lease and the expiration of
the Term. Tenant's failure to abide by
the terms and conditions of this Section shall be restrainable or enforceable,
as the case may be, by injunction.
ARTICLE VI MAINTENANCE,
REPAIRS AND ALTERATIONS
SECTION 6.1 LANDLORD'S
OBLIGATIONS.
(a) Except
as otherwise expressly provided in this Lease, Landlord shall maintain and make
all necessary repairs
and replacements to the exterior structure of the Building (including, the
exterior walls and foundations, the roof, gutters and downspouts), to the
interior structural supports of the Building, and to the parking lot, so as to
keep same in good order, condition and repair.
(b) Except
as otherwise expressly provided in this Lease, Landlord shall maintain and make
all necessary repairs and replacements to the Common
Areas, including, without limitation, snow and ice removal of the parking lot
and lawn mowing and weed control.
(c) Any
and all loss, injury, breakage or damage to the Premises or the Building or the
Property caused, directly
or indirectly, by Tenant or any one or more of Tenant's Representatives
including, without limitation, individuals and persons making deliveries to or
from the Premises, except to the extent that the foregoing is inconsistent with
the provisions of the "Waiver of Subrogation" set forth in Section 7.2 of this
Lease, shall be repaired or replaced by Landlord at the sole cost and expense of
Tenant. Tenant shall pay Landlord, as Additional Rent, all costs and expenses
incurred by Landlord pursuant to this Section, within five (5) days of
Landlord's demand. This provision shall not be in limitation of any other rights
and remedies which Landlord has or may have in such circumstances.
SECTION 6.2 TENANT'S
OBLIGATIONS.
(a) Except
as otherwise expressly provided in this Lease, Tenant at Tenant's sole cost and
expense, shall keep the
Premises in good order, condition and repair and in a clean, safe and sanitary
condition free of waste and shall maintain
and make all necessary repairs and replacements to the interior of the Premises
(including, without limitation, all doors
(including, without limitation, overhead and sliding), windows, window frames
and glass, lights, lighting fixtures, bulbs
and/or tubes and ballasts; all fixtures, equipment and improvements therein,
including, without limitation, all plumbing,
HVAC equipment and ducts attached thereto (including, without limitation, any
such equipment which may be mounted
outside the Building and which serves the Premises); mechanical equipment
(including, without limitation, dock bumpers,
lifts and seals); electrical, gas, water, sprinkler and sewer pipes, lines and
connections; fire extinguishers; interior
wall, ceiling and floor surfaces and coverings; and all signs of Tenant erected
on the Premises. All repairs and replacements
shall be in quality equal to or better than the original equipment, materials or
work. Tenant shall at all times
maintain sufficient heat in the Premises to prevent freezing of sprinkler and
water lines. If Tenant installs or moves partitions
or walls within the Premises, Tenant shall make, at its sole cost and expense,
but subject to Landlord's prior written
approval, all additions to or changes in location of heating, plumbing,
sprinkler or electrical lines and equipment made
necessary by those installations. Tenant shall, at Tenant's sole cost and
expense, be responsible for the maintenance,
repair and replacement of, and snow and ice removal with respect to any
driveways, sidewalks, stairways, ramps and
dock areas contiguous to the Premises and over which Tenant has exclusive use
and control. Tenant shall, at Tenant's
sole cost and expense, have the HVAC system inspected by a licensed and
qualified HVAC contractor on a semi-annual
basis and shall provide a copy of such contractor's semi-annual report to
Landlord and Tenant shall, at Tenant's
sole cost and expense, make any repairs or replacements to the HVAC system
recommended by the HVAC contractor.
(b) If
Tenant installs a "sprinkler system" or the removal of the demising walls or
Tenant's use requires the
installation of a sprinkler system in the Premises, and if any governmental
authority or Landlord's fire insurance carrier
require or recommend that any changes, modifications, alterations or additional
sprinkler heads or other equipment
be made or supplied to the sprinkler system by reason of Tenant's use,
occupancy, business or operations or the
location of partitions, trade fixtures, or other contents of the Premises or for
any other reason, or if any such changes, modifications,
alterations or additional equipment become necessary to prevent the imposition
of a penalty or charge against
the full credit for a sprinkler system in Landlord's fire insurance premium or
rate, Tenant shall, at Tenant's sole cost and
expense, promptly make and supply such changes, modifications, alterations and
additional sprinkler heads or other
equipment.
SECTION 6.3 LANDLORD'S RIGHT OF
ENTRY
In
addition to Landlord's other rights of entry set forth in this Lease, if Tenant
fails to perform Tenant's obligations under this Lease, Landlord may (but shall
not be required to) enter upon the Premises, after three (3) days prior written
notice to Tenant (except for cases of emergency or imminent threat of damage or
injury to person or property where such notice will not be required) and put the
Premises in good order, condition and repair, which shall include without limitation, the right
to cause the Premises to comply with all requirements set forth in any Laws. All
costs and expenses incurred by Landlord, plus the sum of ten percent (10%) of
said costs and expenses representing overhead and supervision by
Landlord, shall be payable by Tenant as Additional Rent within five (5) days of
Landlord's demand; provided,
however, if Tenant commences to perform such obligations within such three (3)
day period and diligently pursues such performance to completion within a
reasonable time and to Landlord's reasonable satisfaction, Landlord shall not
have the right to perform such obligations.
SECTION 6.4 ALTERATIONS,
ADDITIONS OR IMPROVEMENTS
Tenant
hereby agrees not to make any alterations, additions or improvements, nor attach
or affix any equipment or
fixtures to the Premises or the Building without, in each instance, having
obtained the prior written consent of Landlord
to Tenant's plans and specifications (which response to Tenant's request for
consent shall not be unreasonably delayed)
and also having obtained, prior to the commencement of any work, any building
permit(s) and approvals which may be
required by any Governmental Authority. Tenant shall make said alterations,
additions or improvements in accordance
with all applicable Laws and insurance regulations, in a good and workmanlike
manner and in quality equal to or
better than the original construction of the Premises and shall comply with such
requirements as Landlord considers reasonably
necessary or desirable, including, without limitation, requirements as to the
manner in which and the times at which
such work shall be done and the contractor or subcontractors to be selected to
perform such work. No material modifications,
additions or deletions to any previously approved plans and specifications shall
be made without Landlord's
prior written consent, which response to Tenant's request for consent shall not
be unreasonably delayed. Tenant
further agrees to promptly deliver to Landlord "as built" plans and
specifications subsequent to the completion of any such alterations,
additions or improvements. Nothing in this Section obligates Landlord to consent
to any alteration, addition
or improvement requested by Tenant. Tenant shall promptly pay all costs and
expenses attributable to any alterations,
additions and improvements. All alterations, additions, decorations, fixtures
and equipment (except Tenant's trade
fixtures) and improvements in or upon the Premises, shall, unless Landlord
elects to require their removal, become the
property of Landlord and shall remain upon the Premises at the expiration or
earlier termination of this Lease, without compensation,
allowance or credit to Tenant. However, if Landlord requests their removal,
Tenant shall, at its sole cost and
expense, promptly do so and restore the Premises to its original condition. If,
upon Landlord's demand, Tenant does not so
remove all such items from the Premises, then Landlord may remove or otherwise
dispose of same at Tenant's sole cost and
expense, including, without limitation, the cost of restoring the Premises to
its original condition.
SECTION 6.5 TRADE
FIXTURES
All trade fixtures and equipment,
signs, movable partitions, shelving and like property installed on the Premises
by Tenant and all inventory and other personal property of Tenant, shall
be removed by Tenant on the expiration or earlier termination of this Lease and
Tenant shall repair, at its sole cost and expense, any and all damage to the
Premises resulting from such removal. If Tenant fails to remove all such items
from the Premises, then Landlord may remove or otherwise dispose of same at
Tenant's sole cost and expense, including, without limitation, the cost of
restoring the Premises to its original condition.
SECTION 6.6 LIENS
Tenant
shall not suffer or permit to remain upon all or any part of the Premises, the
Building or the Property or Tenant's
interest in this Lease, any lien for work performed or materials supplied to or
for Tenant or to or for the Premises,
the Building or the Property, or any other lien or encumbrance thereon arising
by reason of Tenant's use and occupancy
thereof. In addition to being in default under the Lease, Tenant, at its sole
cost and expense, shall cause any such lien
or encumbrance to be removed and satisfied of record within thirty (30) days
after notice of the filing thereof. In the
event such lien cannot be released and removed through appropriate proceedings
within such thirty (30) day period,
Tenant shall cause such lien to be bonded or insured over by a reputable title
insurer or surety reasonably satisfactory
to Landlord, or provide Landlord with a letter of credit, certificate of deposit
or other comparable security in the
amount of one hundred percent (100%) of the amount of such lien. Tenant
thereinafter shall be entitled to contest such lien
or encumbrance as long as Tenant shall contest such lien or encumbrance
diligently by appropriate proceedings (provided
such contest shall not cause any sale, foreclosure or forfeiture of the
Premises, the Building or the Property by reason of
such nonpayment) and cause the same to be removed or discharged prior to entry
of any order foreclosing the same. In
the event that any such lien or encumbrance is not so released and removed,
bonded over or secured or insured against,
or in the event Tenant shall fail to contest such lien or encumbrance as herein
required, Landlord may, upon at least
five (5) days' notice to Tenant, take all action necessary to release and remove
such lien or encumbrance and avail itself of
any security provided by Tenant (without any duty to investigate the validity
thereof), and Tenant shall within five (5)
days of Landlord's demand, pay to Landlord, as Additional Rent, all costs and
expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred by Landlord in connection with
the release and removal of such lien
or encumbrance.
ARTICLE VII LIABILITY,
INSURANCE AND INDEMNITY
SECTION 7.1 LIABILITY AND
INSURANCE
To the
fullest extent permitted by law, the Tenant shall indemnify and hold harmless
the Landlord, its agents and employees
from and against all claims, damages, losses and expenses including, but not
limited to, attorneys' fees arising out of or
resulting from Tenant's use and occupancy of the Premises; provided that any
such claim, damage, loss or expense
is (i) attributable to bodily injury, sickness, disease or death, or to injury
to or destruction of tangible property including
the loss of use resulting therefrom and (ii) caused in whole or in part by any
negligent act or omission of the Tenant,
anyone directly or indirectly employed by Tenant or anyone for whose acts the
Tenant may be liable, regardless of
whether or not it is caused in part by a party indemnified hereunder. Such
obligation shall not be construed to negate, abridge
or otherwise reduce any other right or obligation of indemnity that would
otherwise exist as to any party or person
described in this Section. Tenant further covenants and agrees that at all times
during the Term, or any renewals or extensions
of the Term, it shall, at its sole cost and expense, maintain in full force and
effect insurance for the Premises of the types
and in the amounts described below:
(a) Commercial
General Liability Insurance (CGL), Business Auto Insurance and, if necessary,
Commercial
Umbrella Liability Insurance, with a limit of not less than $2,000,000 general
aggregate and with a limit of not less
than $1,000,000 each occurrence. If such CGL insurance contains a general
aggregate limit, it shall apply separately
to this location. Alternatively, if the General Aggregate does not apply
separately to this location, a general aggregate
limit of not less than $5,000,000 shall be acceptable. The CGL insurance shall
be written on ISO occurrence form CG
00 0112 04 (or a substitute form providing equivalent coverage) and shall cover
liability arising from premises, operations,
independent contractors, products-completed operations, personal injury and
advertising injury, liability assumed
under an insured contract, if such coverage is commercially reasonably
available. Landlord, Landlord's managing
agent, Landlord's mortgagee(s) shall be included as an insured under the CGL, as
their interests may appear, using ISO
additional insured endorsement CG 20 11 or a substitute providing equivalent
coverage, and under the Commercial
Umbrella, if any. This coverage shall apply as primary insurance with respect to
any other insurance or self-insurance
programs afforded to Tenant. There shall be no endorsement or modification of
the CGL to make it excess over
other available insurance; alternatively, if the CGL states that it is excess or
pro rata, the policy shall be endorsed to be
primary with respect to the additional insured. There shall be no endorsement or
modification of the CGL limiting the scope of
coverage for liability arising from pollution.
(b) Commercial
Property Insurance on Tenant's trade fixtures, merchandise, equipment,
improvements and all other
personal property located in or comprising a part of the Premises and either
belonging to Tenant or in the care, custody
and control of Tenant. The Commercial Property Insurance shall, at a minimum,
cover the perils insured under the ISO
special causes of loss form (CP 10 30), and shall cover the replacement cost of
the property insured.
(c) Tenant's
Contractor's Insurance. Tenant shall require any contractor or subcontractor of
Tenant performing
work on the Premises to carry and maintain, at no cost or expense to
Landlord:
(i) Commercial
General Liability Insurance, including contractor's liability coverage,
completed operations
coverage, and contractor's protective liability coverage with a limit of not
less than $1,000,000 each occurrence,
and
(ii) Workers
Compensation Insurance or similar insurance in form and amounts required by law.
Tenant
shall also obtain Employers Liability Insurance with limits not less than
$1,000,000 each accident for bodily injury by accident or $1,000,000 each
employee for bodily injury by disease. Landlord,
Landlord's managing agent, Landlord's mortgagee(s) and such other person or
entity as shall be required
by Landlord shall be included as an additional insured under the insurance set
forth in subparagraph (c) (i).
(d) Pollution
Legal Liability Insurance (PLL) with a limit of not less than $1,000,000 per
loss, with an annual
aggregate of not less than $1,000,000. The PLL insurance shall be applicable to
bodily injury; property damage, including, without limitation, loss of
use of damaged property or of property that has not been physically injured or
destroyed; cleanup costs; and defense, including, without limitation,
costs and expenses incurred in the investigation, defense or settlement of claims; all in
connection with any loss arising from the insured facility. Coverage shall apply
to sudden and non-sudden pollution conditions resulting from the escape
or release of smoke, vapors, fumes, or Hazardous Materials. If coverage is
written on a claims-made basis, Tenant warrants that any retroactive date
applicable to coverage under the policy precedes the effective date of this
Lease; and that continuous coverage will be maintained or an extended discovery
period will be exercised for a period of five (5) years beginning from the time
that the Lease expires or earlier terminates. Landlord, Landlord's
managing agent, Landlord's mortgagee(s) and such other person or entity as shall
be required by Landlord shall be included as an additional insured under
the PLL.
(e) Tenant's
insurance will be written by companies having an A.M. Best rating of A - VII or
better and having
authority to do business in the State of Ohio.
(f) Prior
to taking occupancy, Tenant shall furnish Landlord with a certificate(s) of
insurance, executed by a duly
authorized representative of each insurer, showing compliance with the insurance
requirements set forth above. All certificates shall provide thirty (30) days
written notice to Landlord prior to cancellation or material change of any
insurance referred to therein. Failure of Landlord to demand such certificate or
other evidence of full compliance with these insurance requirements or failure
of Landlord to identify a deficiency from evidence that is provided shall not be
construed as a waiver of Tenant's obligation to maintain such insurance.
Failure to maintain the required insurance may result in termination of this
Lease at Landlord's option.
(g) Tenant
shall provide certified copies of all insurance policies required above within
thirty (30) days of Landlord's
written request for said copies. By
requiring insurance herein, Landlord does not represent that coverage and limits
will necessarily be adequate to protect
Tenant and such coverage and limits shall not be deemed as a limitation on
Tenant's liability under the indemnities granted to Landlord in this
Lease.
SECTION 7.2 WAIVER OF
SUBROGATION
Landlord
and Tenant hereby waive all causes of action and rights of recovery which either
has or may have or which may
hereinafter arise, and on behalf of any person or entity claiming through or
under them by way of subrogation or
otherwise, for any loss or damage to the Building, or any portion thereof,
property or operations therein, by reason of any peril
insured against by their respective Commercial Property Insurance policies,
regardless of cause or origin, including,
without limitation, any act of negligence by either party, but only to the
extent of any recovery under such policy
then in effect, and only if such waiver shall not invalidate or impair the
coverage on any such policy of insurance. Each
party to this Lease shall give to its respective Commercial Property Insurance
company notice of the terms of the mutual
releases contained in this Section 7.2 and have such policies endorsed, if
necessary, to prevent the invalidation of such
insurance by reason of the provisions of this Section 7.2. Landlord and Tenant
hereby agree to indemnify the other against
any loss or expense, including reasonable attorneys' fees, resulting from the
failure to obtain such waiver.
SECTION 7.3 LOSS OR DAMAGE TO
PROPERTY
Tenant
hereby agrees that all personal property of every kind or description which may
at any time be kept in or about the
Premises including, without limitation trade fixtures, merchandise, equipment,
improvements and motor vehicles,
shall be there at the sole risk of Tenant, or at the risk of those claiming
under Tenant, and Landlord shall not be liable
for the care, safety or theft of said property, nor for any damage or injury
thereto. In addition, Landlord shall have no
liability for any damage to said property or loss suffered by Tenant arising
directly or indirectly from the bursting, overflowing
or leaking of water, sewer or steam drains or pipes, heating and plumbing
fixtures, and roof leaks; electrical wiring
and equipment; heat or cold; gas or odors; any act of any other tenant or
occupant of the Building; and any other manner
whatsoever, but only to the extent not waived by the Waiver of Subrogation
contained in Section 7.2 hereof.
SECTION 7.4 INDEMNITY
Tenant
and its respective successors and assigns shall indemnify, defend and hold
Landlord and Landlord's shareholders,
partners, members, owners, affiliates, officers, directors, employees, agents
and representatives (collectively
"Landlord's Indemnitees") and the successors and assigns of Landlord and
Landlord's Indemnitees harmless from and
against any and all claims, demands, causes of action, actions, administrative
proceedings (formal or informal), losses,
costs, damages, expenses (including, without limitation, sums paid in settlement
and reasonable fees for attorneys, consultants,
experts and accountants [including, without limitation, any fees and expenses
incurred in enforcing this indemnity]),
injuries, judgments, liabilities, obligations, penalties, fines or claims of any
other kind or nature (including, without
limitation, all governmental claims and all third party claims), foreseen or
unforeseen (including, without limitation,
injury to or death of any person or damage to person or property in or about the
Premises, the Building and/or their
environs) which may be imposed upon, incurred by or asserted against Landlord or
any one or more of Landlord's Indemnitees,
to the extent the foregoing was directly or indirectly caused by, arose or
resulted from, or was connected with: (a)
any act or omission of Tenant or any Tenant Representative; (b) Tenant's use and
occupancy of the Premises, the Building
or the Property; (c) the conduct of Tenant's business; or (d) any default by
Tenant in the performance of Tenant's
obligations under this Lease.
ARTICLE VIII DAMAGE OR
DESTRUCTION
SECTION 8.1 CASUALTY DAMAGE AND
RESTORATION
If the
Premises or the Building shall be destroyed or substantially damaged by any
cause, so as to be unfit in whole or in part for occupancy by Tenant, then the
following terms and conditions shall apply:
(a) If,
in Landlord's reasonable judgment, such destruction or damage could reasonably
be repaired within one
hundred twenty (120) days from the date of said destruction or damage, then
Tenant shall not be entitled to surrender possession
of the Premises, nor shall Tenant's liability to pay rent under this Lease
cease, and Landlord shall repair the same with
all reasonable speed and shall use all reasonable efforts to complete such
repairs within one hundred-twenty (120)
days from the date of said destruction or damage. If, during such period, Tenant
shall be unable to use all or any portion
of the Premises, a proportionate allowance, as reasonably determined by
Landlord, shall be credited to Tenant against
the Rent due from Tenant based upon the time during which and the portion of the
Premises that is not usable.
(b) If,
in Landlord's reasonable judgment, such destruction or damage cannot reasonably
be repaired within one
hundred twenty (120) days from the date of said destruction or damage, Landlord
shall notify Tenant within thirty (30)
days after the date of such destruction or damage whether or not Landlord will
repair or rebuild. If Landlord elects not to
repair or rebuild, this Lease shall be terminated as of the date of such damage
or destruction. If Landlord shall elect to
repair or rebuild, Landlord shall specify the time within which such repairs or
reconstruction will be completed, and
Tenant shall have the option, within thirty (30) days after the receipt of such
notice, to elect either to terminate this Lease or
to extend the Term by a period of time equal to the time period from the date of
such destruction or damage until the
date the Premises or the Building, as the case may be, are substantially
restored to their former condition. In the event
Tenant elects to extend the Term, Landlord shall restore the Premises or the
Building, as the case may be, to their former
condition within the time specified in the notice, subject to Force Majeure (as
hereinafter defined). If, during such period,
Tenant shall be unable to use all or any portion of the Premises, a
proportionate allowance as reasonably determined
by Landlord, shall be credited to Tenant against the Rent due from Tenant, based
upon the time during which and the
portion of the Premises that is not usable.
(c) In
addition to all rights to terminate this Lease set forth in the two (2)
preceding paragraphs, if the Premises
or the Building are destroyed or damaged during the last eighteen (18) months of
the Term or any extension thereof
and the cost to repair or replace the damage or destruction shall exceed fifty
percent (50%) of the value of the Premises
or the Building, as the case may be, immediately prior to the damage or
destruction, then Landlord shall have the right
to terminate this Lease as of the date of such damage or destruction by giving
notice thereof to Tenant within thirty
(30) days after the date of said damage or destruction, in which event the Lease
shall terminate as of the date of the damage or
destruction.
(d) Notwithstanding
anything contained to the contrary in this Section, Landlord may terminate this
Lease in the
event that following any such damage or destruction, Landlord's mortgagee
requires Landlord to make advance payments upon or full payment of the
outstanding mortgage balance.
(e) No
damages, compensation or claim shall be payable to Tenant for any inconvenience
or loss of business
or profit or annoyance of Tenant arising from any repair, rebuilding or
restoration of the Premises or the Building, except for the Rent abatement
specifically set forth in subparagraph (a) and (b) above.
(f) Notwithstanding
anything to the contrary, if the damage is due to the fault or neglect of Tenant
or any one or
more of Tenant's Representatives, then there shall be no apportionment or
abatement of the Rent pursuant to subparagraphs
(a) and (b) above, and to the extent that Landlord is not reimbursed by
insurance proceeds with respect to the
repairs or replacements, within five (5) days of demand by Landlord, Tenant
shall pay Landlord, as Additional Rent, the
difference.
ARTICLE IX DEFAULTS:
REMEDIES
SECTION 9.1 DEFAULTS
The
occurrence of any one or more of the following events shall constitute a default
hereunder by Tenant:
(a) Failure
by Tenant to pay any Base Rent or Additional Rent payable by Tenant hereunder,
as and when due, and
such failure shall continue for a period of five (5) business days after written
notice thereof by Landlord to Tenant or
the storage by Tenant of pallets or other materials outside the Premises in
violation of local governmental regulations
and the failure to remove said pallets or other materials within five (5)
business days of receipt of written notice
from Landlord; or
(b) Failure
by Tenant to observe or perform any of the terms or conditions of this Lease to
be observed or performed
by Tenant, other than the payment of Base Rent or Additional Rent (which is
governed by subparagraph (a) above)
or any violation of Environmental Law (which shall be governed by subparagraph
(c) below) and such failure shall
continue for a period of forty-five (45) days after written notice thereof from
Landlord to Tenant; provided, however,
that if the nature of Tenant's default is such that more than forty-five (45)
days are reasonably required for its cure,
then Tenant shall not be deemed to be in default if Tenant has commenced such
cure within said forty-five (45) day period
and thereinafter diligently pursues such cure to completion within a period of
not more than forty-five (45) additional
days; or
(c) (i)
The making by Tenant of any general assignment for the benefit of creditors;
(ii) the filing by or against
Tenant of a petition to have Tenant adjudged a bankrupt or a petition for
reorganization under any bankruptcy, insolvency,
receivership or other Laws relating to the readjustment of indebtedness
generally; (iii) the appointment of a trustee
or receiver to take possession of substantially all of Tenant's assets located
at the Premises or of Tenant's interest in this
Lease; or (iv) the attachment, execution or other judicial seizure of all or a
portion of Tenant's assets at the Premises
or of Tenant's interest in this Lease; or (v) Tenant shall violate or fail to
comply with any one or more of the Environmental
Laws. For purposes of this subparagraph (c), "Tenant" shall include any parent
company of Tenant; or
(d) Tenant
shall vacate or abandon the Premises. Tenant's failure to occupy the Premises
for a period of thirty
(30) consecutive days shall be deemed conclusive evidence of abandonment unless
Tenant continues to pay rent; or
(e) An
assignment of this Lease or a subletting of all or any portion of the Premises
without Landlord's prior
written
consent.
SECTION 9.2 REMEDIES
In the
event of Tenant's default hereunder, Landlord, at Landlord's option, may
terminate this Lease, or without terminating
this Lease, may re-enter and re-take possession of the Premises by any means
permitted under this Lease, at law, in
equity or otherwise and in either event may dispossess Tenant therefrom and
neither Tenant nor any person claiming
under or through Tenant shall thereinafter be entitled to possession of the
Premises. If Tenant fails to remove pallets
or other materials stored outside the Premises within five (5) business days of
receipt of written notice to remove the same,
Landlord may remove said pallets or other materials from the Premises at
Tenant's expense. If Landlord elects to
terminate this Lease, or if this Lease is otherwise terminated pursuant to law
by reason of any default on the part of Tenant,
then Tenant shall pay to Landlord, as damages, and Landlord shall be entitled to
recover, the then present value of the
Rents reserved (including, without limitation, Base Rent and Additional Rent)
hereunder for the entire remainder of the Term
as if this Lease had not been terminated. No re-entry or re-taking of possession
of the Premises by Landlord shall be
deemed to be an election by Landlord to terminate this Lease, which election may
be made only by written notice thereof
given to Tenant. If Landlord elects to re-enter and re-take possession of the
Premises without terminating this Lease,
Tenant shall not be deemed released from its obligations to pay the Rents
reserved (including, without limitation, Base Rent
and Additional Rent), and other charges payable by Tenant hereunder and
otherwise to perform the provisions of this
Lease on Tenant's part to be performed hereunder, and all Rents reserved
(including, without limitation, Base Rent and
Additional Rent) for the entire remainder of the Term hereof shall, at
Landlord's option, become immediately due and
payable. In no event shall Landlord be required to postpone or delay any suit
for such damages until the date when the Term
would have expired, or until such Rents would have become payable, had not the
within Lease been so terminated.
If Landlord shall dispossess Tenant from the Premises as aforesaid, or if Tenant
shall abandon or vacate the Premises,
Landlord shall use commercially reasonable efforts, as set forth in Section 9.6
herein, to re-let all or any part of the
Premises for such rents (including, without limitation, any reasonable rent
concessions) and upon such other terms and
conditions as Landlord, in Landlord's sole and absolute discretion, deems
suitable and acceptable and for any use and purpose
which Landlord deems appropriate. In the event of any such re-letting without
the termination of this Lease, any rents
received by Landlord for the Premises shall be applied first to the costs and
expenses incurred by Landlord by reason of
said repossession, re-taking and re-letting, including, without limitation,
brokerage costs and reasonable attorneys'
fees and the costs and expenses of any repairs or restoration or alterations of
said Premises, and then to the amount of
Rents and other charges payable by Tenant hereunder. The failure of Landlord to
re-let or, if re-let, to collect the rent
under such re-letting, shall not release or affect Tenant's liability hereunder
for all such Rents, charges, costs and expenses.
SECTION 9.3 REPEATED
DEFAULT
Notwithstanding
anything to the contrary set forth in this Lease, if Tenant shall be in default
in the timely payment
of any Rent due Landlord pursuant to this Lease, and if any such default, after
written notice as set forth above in
Section 9.1 (a) shall occur two (2) times in any period of twelve (12)
consecutive months, then, notwithstanding that such default shall have
been cured within the period after such notice, any further default within said
twelve (12) month period shall be deemed to be a Repeated Default. In the event
of a Repeated Default, Tenant shall not have the right to cure same and
Landlord, without giving Tenant any further notice and without affording Tenant
any opportunity to cure such default, may exercise any rights or remedies
available to Landlord pursuant to Section 9.2 hereof, including, without
limitation, the right to terminate this Lease or to require Tenant to increase
its security deposit to an amount satisfactory to Landlord, in Landlord's sole
and absolute discretion.
SECTION 9.4 REMEDIES
CUMULATIVE
No right or remedy conferred upon
Landlord is considered exclusive of any other right or remedy, but shall be in
addition to every other right or remedy available to Landlord under this
Lease, at law, in equity or otherwise. Any right or remedy of Landlord may be
exercised from time to time, as often as the occasion may arise. The exercise of
any of the rights or remedies of Landlord shall not prevent the concurrent or
subsequent exercise of any other right or remedy. The granting of any right,
remedy, option or election to Landlord under this Lease shall not impose any
obligation on Landlord to exercise the right, remedy, option or
election.
SECTION 9.5 RENT DEMAND/ACCORD AND
SATISFACTION
(a) No
payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein
stipulated shall be deemed
to be other than on account of the stipulated Rent nor shall any endorsement or
statement on any check or any letter
accompanying any check or payment as Rent be deemed an accord and satisfaction.
Landlord may accept such check or
payment, including without limitation any partial payment or payments, without
prejudice to Landlord's right to recover the balance of such Rent, or
pursue any other right or remedy provided for in this Lease or available at law,
in equity or otherwise, to collect the balance of such Rent.
(b) After
the service of any notice or commencement of any suit or final judgment therein,
Landlord may receive
and collect any Rent due and such collection or receipt shall not operate as a
waiver of nor affect such notice, suit or
judgment.
SECTION 9.6 MITIGATION OF
DAMAGES
In the
event of Tenant's default, the parties hereby agree and stipulate that once
Tenant has completely vacated
the Premises and relinquished possession and control thereof to Landlord,
Landlord's efforts to mitigate its damages
pursuant to Section 9.2, need not exceed the following: (a) include availability
of space in regular broker informational
mailings; (b) contact adjoining tenants, if any; and (c) place appropriate
signage on the Property advertising availability of space.
ARTICLE X ASSIGNMENT AND
SUBLETTING
SECTION 10.1 ASSIGNMENT AND
SUBLETTING
Tenant
hereby agrees not to voluntarily or by operation of law (i) assign this Lease,
or any interest therein; (ii) sublet
the Premises, or any part thereof; (iii) permit the use or occupancy of the
Premises or any part thereof by any person or
entity other than Tenant; or (iv) permit any change to be made to the
controlling interest in the entity which is Tenant;
without first obtaining the written consent of Landlord, which consent may not
be unreasonably withheld. Any such
assignment, subletting, use, occupancy or change by Tenant without Landlord's
prior written consent shall be void and shall
constitute a default under this Lease. If Landlord consents to an assignment or
subletting, Tenant shall nevertheless
remain fully and primarily responsible and liable for the payment of Rent and
the performance of all of Tenant's
obligations under this Lease; provided, however, that in the event of a default
under this Lease, Landlord may, at its
option, collect Rent directly from the assignee or subtenant and such action
shall not be construed as a novation or release
of Tenant, nor shall the acceptance of Rent by Landlord or performance of any
other obligation under this Lease from or
by any person other than Tenant be deemed to be a waiver by Landlord of any
provision of this Lease nor shall it be deemed
to be a consent to an assignment of this Lease or the subletting of all or a
portion of the Premises. In the event of
consent by Landlord to an assignment or subletting, Tenant shall deliver to
Landlord a duplicate original of the assignment
by Tenant and assumption by Tenant's assignee of Tenant's obligations under this
Lease, or a duplicate original
of the sublease, as the case may be. In the event Landlord consents to any
assignment or subletting by Tenant, any
option to renew this Lease or right to extend the Term or any right of first
refusal to which Tenant may be entitled shall
automatically terminate unless otherwise agreed to in writing by Landlord. If
any sublease or assignment involves base rent
or additional rent which exceeds the Base Rent or Additional Rent payable
hereunder, such excess rent shall be paid to
Landlord when received by Tenant as Additional Rent hereunder. It shall be a
condition to any consent byLandlord
that Tenant shall reimburse Landlord within five (5) days of Landlord's demand
for any and all costs and expenses,
including, without limitation, reasonable attorney fees for the review and
preparation of documents, which may be
incurred by Landlord in connection with any request for consent to an
assignment, subletting or change to the controlling
interest in the business entity which is Tenant, whether or not such consent is
granted. Tenant further agrees that a
minimum fee of Two Hundred Fifty and 00/100 Dollars ($250.00) shall be payable
to Landlord for each and every request
for such consent, which fee shall be paid simultaneously with such
request.
ARTICLE XI NOTICE AND PLACE
OF PAYMENT
SECTION 11.1 NOTICES
Any
notice or demand which is or may be required by this Lease or by any applicable
Laws shall be given in writing
addressed to the party to whom it is directed and shall be deemed to have been
given if delivered in person or mailed by
Registered or Certified Mail, postage prepaid, return receipt requested, or sent
via facsimile transmission to the party who is entitled to receive such notice
at the address specified in Section 7 of Exhibit A, or at such other address as
either party may hereinafter designate by written notice to the other. Notice
given by facsimile will be deemed to be received only upon the sender's receipt
of a transmission report, generated by the sender's facsimile machine, which
confirms that the facsimile was successfully transmitted in its entirety. If
Landlord's or Tenant's telephone number where facsimile transmissions may be
received shall change from the telephone number listed in Section 7 of Exhibit
A, it shall notify the other party of the new telephone number within three (3)
days of the change.
SECTION 11.2 PLACE OF
PAYMENT
All Rent and other payments required to
be made by Tenant to Landlord shall be delivered or mailed to Landlord's property manager at the
address specified in Section 7 (e) of Exhibit A or any other address Landlord
may specify from time to time by written notice given to
Tenant.
ARTICLE XII SUBORDINATION.
ATTORNMENT AND ESTOPPEL
SECTION 12.1 SUBORDINATION
Landlord
shall have the right, at any time, and from time to time, to mortgage the
Premises, the Building or the Property and this Lease and Tenant's
interest hereunder shall be subject and subordinate, in all respects, to any and
all such mortgage(s) which may now or hereinafter affect the Premises,
the Building or the Property. The foregoing shall be self-operative and no further
instruments shall be necessary. Tenant shall, and hereby agrees to, at no charge
to Landlord, execute and deliver, within ten (10) days after written
request from Landlord, or any such mortgagee, any instrument or release so requested by Landlord, or
any such mortgagee, subordinating the within Lease in favor of any such
mortgage(s) or any
renewals, extensions, modifications or replacements thereof. If Tenant shall
fail or neglect to execute, acknowledge and deliver any such instrument
or release, Landlord may, as attorney-in-fact of Tenant, execute, acknowledge and deliver the same and
Tenant hereby irrevocably nominates and appoints Landlord as Tenant's proper
and legal attorney-in-fact for such purpose. Tenant's failure to execute,
acknowledge and deliver such instrument or release within the ten (10) day period
shall be considered a monetary default under Section 9.1 (a) of this Lease. In
addition, Landlord may assign this Lease, or the Rents reserved
hereunder, or both, in Landlord's sole and absolute discretion, as additional
security for any such mortgage or otherwise.
SECTION 12.2 ATTORNMENT
Should
any party acquire title to the Premises, the Building or the Property pursuant
to the exercise of any rights conferred by any mortgage(s) or security
interest(s), this Lease shall not be terminated or affected due to a foreclosure
or sale, or similar proceedings,
rather any such party shall be vested with the rights and obligations conferred
upon Landlord pursuant to this Lease. Tenant hereby agrees to attorn to
any such mortgagee, owner or other person or entity as its new landlord, and
this Lease shall continue in full force and effect as a direct lease between
Tenant and any new landlord, or such other person or entity, upon all terms,
conditions, covenants and obligations in this Lease.
SECTION 12.3 ESTOPPEL
CERTIFICATE
At any
time, and from time to time, upon request of Landlord, Tenant agrees to execute
and deliver to Landlord within
ten (10) days after request, a statement in writing certifying to any party
specified by Landlord (including, without limitation,
any holder or prospective holder of any mortgage on the Premises, the Building
or the Property or any purchaser
or prospective purchaser of the Premises, the Building or the Property or any
interest therein): (i) that this Lease is
unmodified and in full force and effect (or if there have been modifications, a
description thereof), (ii) the date to which
Rent has been paid, (iii) that Landlord is not in default under any provision of
this Lease (or if in default, the nature
thereof in detail), and (iv) such other matters that Landlord may reasonably
request. If Tenant shall fail or neglect to
execute and deliver any such certificate, Landlord may, as attorney-in-fact of
Tenant, execute, acknowledge and deliver
such certificate on behalf of Tenant and Tenant hereby irrevocably nominates and
appoints Landlord as Tenant's proper
and legal attorney-in-fact for such purpose. Tenant's failure to execute,
acknowledge and deliver such certificate within
the ten (10) day period shall be considered a monetary default under Section 9.1
(a) of this Lease.
ARTICLE XIII
SIGNAGE
SECTION 13.1 SIGNAGE
Tenant
may erect, at its sole cost and expense, an appropriate sign advertising
Tenant's business on the portions of the
Premises designated by Landlord for the placement of Tenant's signs. The size,
number, design and location of all signs
shall require Landlord's written approval prior to installation. Tenant shall
ensure that all signs shall comply with all Laws
and all necessary permits or licenses shall be obtained by Tenant. Tenant shall
maintain all signs in good condition
and repair at all times. Upon vacating the Premises, Tenant shall, at its sole
cost and expense, remove all signs and
repair all damages caused by such installation and removal. No signs shall be
painted on the exterior of the Building. The use
of portable or freestanding signs is strictly prohibited.
ARTICLE XIV FINANCING AND
FINANCIAL STATEMENTS
SECTION 14.1 LANDLORD
FINANCING
Landlord
shall have the right, at any time and from time to time, to obtain financing
secured in whole or in part by its
interest in the Premises, the Building or the Property or under this Lease, and
in connection therewith to mortgageor otherwise collaterally transfer its
interest in the Premises, the Building or the Property or collaterally assign
its interest under
this Lease. With respect to any financing by Landlord, Tenant shall, within ten
(10) days of Landlord's request therefor,
execute, acknowledge and deliver to Landlord such amendments or modifications of
this Lease as may be reasonably
requested by the holder of the indebtedness created or to be created, but in no
event shall any such amendment or
modification materially and adversely affect or alter the rights and obligations
of Tenant under this Lease. Tenant's failure
to comply with this Section shall be considered a monetary default under Section
9.1 (a) of this Lease.
SECTION 14.2 ANNUAL FINANCIAL
STATEMENTS
Tenant
shall furnish to Landlord annually, within ninety (90) days after the end of
each fiscal year of Tenant, copies of its most recent financial statements, in
reasonable detail, and Landlord may deliver any such financial statements to any
existing or prospective mortgagee, assignee or purchaser of the Premises and/or
the Building. Such f i
nancial statements shall
be prepared in accordance with generally accepted accounting principles
consistently applied and shall be certified to by Tenant. In addition,
Tenant hereby agrees to cooperate with Landlord's existing or potential
mortgagees and/or assignees and to comply with reasonable requests for financial
information. Tenant's failure to comply with this Section shall be considered a
monetary default under Section 9.1 (a) of this Lease.
ARTICLE XV
RELOCATION
SECTION 15.1 RELOCATION
Intentionally
omitted.
ARTICLE XVI
WAIVERS
SECTION 16.1 NO WAIVER BY
LANDLORD
The
rights, remedies, options or elections of Landlord in this Lease are cumulative.
No waiver of any of the terms,
covenants, provisions, conditions, rules and regulations required by this Lease,
and no waiver of any legal or equitable
right, relief or remedy shall be implied by the failure of Landlord to assert
any rights, or to declare any forfeiture,
or for any other reason at the time or in the future. No waiver of any of said
terms, covenants, provisions, conditions,
rules and regulations shall be valid unless it shall be in writing signed by
Landlord. No waiver by Landlord or
forgiveness of performance by Landlord with respect to Tenant may be claimed or
pleaded by Tenant to excuse a subsequent
failure of performance of any of the terms, covenants, provisions, conditions,
rules and regulations of this Lease.
SECTION 16.2 WAIVER OF
JURY
Landlord
and Tenant agree, that to the extent permitted by the Laws and by applicable
policies of insurance, each shall and hereby does waive trial by jury in any
action, proceeding or counterclaim brought by either against the other or on any
matter arising out of or in any way connected with this Lease, the relationship
of Landlord and Tenant hereunder, Tenant's use or occupancy of the Premises
and/or any claim of injury or damage.
ARTICLE XVII EMINENT
DOMAIN/CONDEMNATION
SECTION 17.1 EMINENT
DOMAIN/CONDEMNATION
In the
event that the Premises, the Building or the Property or any part thereof shall
at any time after the execution of this Lease be
taken for public or quasi public use or condemned under eminent domain or
conveyed under threat of such a taking or
condemnation (the "Condemnation"), Tenant shall not be entitled to claim, or
have paid to Tenant, any compensation
or damages whatsoever for or on account of any loss, injury, damage, taking or
conveyance of any right, interest
or estate of Tenant, and Tenant hereby relinquishes and hereby assigns to
Landlord any rights to any such compensation
or damages. Landlord shall be entitled to claim and have paid to it for the use
and benefit of Landlord all compensation
and damages for and on account of any right, title, interest or estate of Tenant
in or to said Premises, the Building
or the Property. Tenant upon request of Landlord will execute any and all
releases, transfers or other documents as shall
be required by such public or quasi-public authority to effect and give further
evidence and assurances of the foregoing.
Notwithstanding the above, Tenant shall have the right to make a claim against
the condemning authority, but not
against Landlord, on account of interruption of Tenant's business, moving and
relocation expenses and for depreciation
to and removal of Tenant's trade fixtures, provided that such claim shall not
reduce the amount of such claim by
Landlord. If such Condemnation affects all or substantially all of the Premises,
the Building or the Property, this Lease
shall be terminated as of the date of such Condemnation. If such Condemnation
does not affect all or substantially all of
the Premises, the Building or the Property, this Lease shall not be terminated,
but the Base Rent shall be reduced by a sum
which represents the amount of rentable square feet taken through any
condemnation proceeding multiplied by the appropriate
rental rate for that square footage. Notwithstanding anything contained to the
contrary in this Section, Landlord
may terminate this Lease in the event that following any such Condemnation,
Landlord's mortgagee requires Landlord
to make advance payments upon or full payment of the outstanding mortgage
balance.
ARTICLE XVIII
MISCELLANEOUS
SECTION 18.1 ENTIRE
AGREEMENT/EXHIBITS
This
Lease, including all exhibits, riders and addenda which are attached hereto and
which are hereby incorporated
herein by reference in their entirety, constitute the entire agreement between
the parties; it supersedes all
previous understandings and
agreements between the parties, if any, and no oral or implied representation or
understandings shall vary its terms; and it may not be amended, modified,
renewed or extended except by a written instrument executed by both parties
hereto.SECTION 18.2 MEMORANDUM OF
LEASE
This
Lease shall not be recorded, but, if requested by either party, a Memorandum of
Lease, setting forth a description
of the Premises, the Term and any renewal rights hereof, and such other
provisions hereof as may be required or
appropriate for such purposes, excluding any reference to the rent payable
hereunder may be recorded. The cost of preparation
and recording shall be borne by the party requesting same. In addition, if
requested by Landlord, Tenant shall
execute a Discharge of the Memorandum of Lease, which will be held in escrow
upon terms mutually acceptable to the
parties. Notwithstanding the foregoing, Tenant shall provide Landlord with an
executed and recorded Discharge of the
Memorandum of Lease upon the expiration or earlier termination of this Lease. If
Tenant fails to provide Landlord with an
executed and recorded Discharge of the Memorandum of Lease upon the expiration
or earlier termination of this Lease,
Tenant authorizes Landlord to Discharge the Memorandum of Lease at Tenant's
cost, which shall include, but not be
limited to, any attorneys' fees incurred to prepare and file the Discharge of
the Memorandum of Lease.
SECTION 18.3 SUCCESSORS AND
ASSIGNS
This
Lease and the respective rights and obligations of the parties hereto shall
inure to the benefit of and be binding upon the successors and permitted assigns
of the parties hereto; provided, however, that an assignment, sublease or transfer of an interest in the
Premises or in Tenant by Tenant in violation of the provisions of this Lease
shall not vest any right, title or interest in the assigns.
SECTION 18.4 SEVERABILITY OF INVALID
PROVISIONS
If any
provision of this Lease shall be held to be invalid, void or unenforceable by a
court of competent jurisdiction, the remaining provisions hereof shall not be
affected or impaired, and such remaining provisions shall remain in full force
and effect.
SECTION 18.5 CHOICE OF
LAW
This
Lease is governed by and shall be construed and enforced in accordance with the
laws of the State of Ohio. The
parties hereto agree that neither of them shall commence any action whatsoever,
at law, in equity or otherwise, for any matter or assert any claims
relating to or arising from this Lease or the relationship of the parties, in
any court other than those located in the County of Cuyahoga, State of Ohio. The
parties hereto hereby consent to the jurisdiction of the state and federal courts located in
Cuyahoga County, State of Ohio, for the litigation of any claims that exist or
arise between them now or in the future. The parties hereby stipulate
that venue, as well as jurisdiction, is proper only in Cuyahoga County, State of
Ohio. Notwithstanding the foregoing, any action in forcible entry and detainer
shall be filed in the Court having jurisdiction where the Premises are
located.
SECTION 18.6 DUPLICATES
This
Lease may be executed in several duplicates, all of which shall be deemed to be
but one (1) original Lease.
SECTION 18.7 BROKERS/LEASING
FEES
Tenant
represents and warrants to Landlord that no broker procured, negotiated or was
instrumental in procuring, negotiating or consummating this Lease except as set
forth in Section 8 of Exhibit A, and Tenant further represents and warrants to Landlord
that unless otherwise agreed between Landlord and the broker(s) aforesaid prior
to the date hereof, Landlord shall not be liable to any broker or other
party for any commission or fee or other compensation in respect of the renewal
of this Lease or extension of the Term. Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all claims, demands, causes of
action, actions, losses, costs, damages, expenses, liabilities and obligations,
that may be based upon or alleged to be based upon any broker's or other party's
commission or fee or other compensation in respect of this Lease, other than
aforesaid, arising out of or alleged to arise out of any act or omission of
Tenant or any one or more of Tenant's Representatives.
SECTION 18.8 GUARANTEE
Intentionally
omitted.
SECTION 18.9 AUTHORITY OF
TENANT
Tenant is
a corporation. Each individual executing this Lease on behalf of said
corporation represents and warrants that he is duly authorized to execute and
deliver this Lease on behalf of said corporation, in accordance with the
governing documents of said corporation, and that this Lease is binding upon
said corporation and that the corporation is authorized to do business in the
State of Ohio.
SECTION 18.10 CERTAIN WORDS, GENDER AND
HEADINGS
As used
in this Lease, the word "person" shall mean and include, where appropriate, an
individual, corporation, partnership,
limited liability company or other entity; the plural shall be substituted for
the singular and the singular for the
plural, where appropriate; and words of any gender shall include any other
gender. The topical headings of the several articles, sections and
paragraphs of this Lease and the Table of Contents of this Lease are inserted
only as a matter of
convenience and reference, and do not affect, define, limit or describe the
scope or intent of this Lease.
SECTION 18.11 LANDLORD
LIABILITY
It is expressly understood and agreed
by Tenant that nothing contained in this Lease shall be construed as
creating any recourse against Landlord or its shareholders, partners,
members, owners, affiliates, officers, directors, employees, agents and
representatives and their respective heirs, executors, administrators,
successors and assigns, personally, for any breach by Landlord of any term,
covenant, representation, agreement or condition, either expressed or implied,
contained in this Lease, and that so far as Landlord personally is concerned,
Tenant and every person now or hereinafter claiming any right under this Lease
shall look solely to Landlord's interest in the Building for the payment or
other satisfaction thereof in the manner provided in this Lease, but subject to
the foregoing, this shall not be construed in any way so as to affect or impair the
legal enforceability of this Lease. Landlord shall not be liable for any
consequential damages such as business interruption, moving expenses,
loss of business or the like.
SECTION 18.12 ATTORNEYS'
FEES
If either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations of this Lease, the defaulting party shall reimburse the
non-defaulting party for all reasonable attorneys' fees and expenses incurred by the non-defaulting party in
securing compliance with the Lease, terminating the Lease and/or recovering
damages as additional
rent, within five (5) days of the non-defaulting party's demand, regardless of
whether a court proceeding is commenced to enforce obligations. The
parties agree that reasonable attorneys' fees shall be an amount equal to that actually incurred by the
non-defaulting party, or if such attorney fees were on a contingency fee basis,
then the amount retained by the non-defaulting party's attorney as the
fee plus costs and expenses.
SECTION 18.13 FORCE
MAJEURE
In the
event that Landlord shall be delayed or hindered in or prevented from doing or
performing any act or thing required hereunder by reason of strike,
lockout or labor troubles; casualties, Acts of God, earthquake, explosion or the
elements; inability to procure or a general shortage of labor, supplies,
materials, transportation, equipment or energy; Laws or Environmental Laws;
civil unrest, riots, insurrection, terrorism or war; or other causes beyond the
reasonable control of Landlord, then Landlord shall not be liable or responsible
for any such delays and the doing or performing of such act or thing shall be
excused for the period of delay and the period for the performance of any such
act shall be extended for a period equivalent to the period of such
delay.
SECTION 18.14 EXHIBITING THE
PREMISES
During
the last six (6) months of the Term, or any extension thereof or while Tenant is
in default of any of its obligations
under this Lease, Landlord may enter the Premises for the purpose of exhibiting
said Premises to prospective tenants
(or at any time during the Term or any extension thereof, Landlord may enter the
Premises for the purpose of exhibiting said Premises to prospective
purchasers) and putting up the usual "For Rent" and "For Sale" notices, which
shall not be removed, obliterated or hidden by Tenant.
SECTION 18.15 EXAMINATION OF
LEASE
The
submission of this Lease for examination does not constitute a reservation of or
option for the Premises, and shall vest no right in either party. This Lease
becomes effective as a Lease only upon execution and delivery thereof by both
parties hereto.
SECTION 18.16 NET
LEASE
It is the
intention of the parties that this Lease is a "net" Lease and that Landlord
shall receive the Base Rent, Additional Rent and other sums required of Tenant
under the Lease.
SECTION 18.17 SURVIVAL OF
OBLIGATIONS
Any
obligation (including, without limitation, those in Section 7.4 of this Lease)
which shall have arisen from the
conduct of the parties pursuant to the Agreement prior to any expiration or
earlier termination of the Agreement shall survive
the expiration or earlier termination of the Agreement and shall remain in full
force and effect indefinitely until discharged,
satisfied or waived.
SECTION 18.18 NO PRESUMPTION AGAINST
DRAFTER
Landlord
and Tenant understand, agree and acknowledge that this Lease has been freely
negotiated by both parties and
that, in any controversy, dispute, or contest over the meaning, interpretation,
validity or enforceability of this Lease or any of its terms or
conditions, there shall be no inference, presumption or conclusion drawn
whatsoever against either party
by virtue of that party having drafted this Lease or any portion thereof. In
addition, unless otherwise specified in this Lease, the words "include"
and "including" and words of similar import shall be deemed to be followed by
the words "without limitation" and the word "or" shall be deemed to be
"and/or".
[THE
BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
-22-
LANDLORD AND TENANT HAVE EXECUTED THIS LEASE AS OF August 11, 2008.
SBP
LIMITED PARTNERSHIP
An Ohio
limited Partnership
By: Weston
Inc., Agent
By: /s/ Fred J.
Capretta
Fred J.
Capretta, Senior V.P.
"Landlord'
AFFYMETRIX
INC.
a
Delaware corporation
By /s/ John
Batty
John
Batty, CFO
"Tenant"
STATE OF
OHIO
SS
COUNTY OF
CUYAHOGA
BEFORE
ME, a Notary Public, in and for said county and state, personally appeared the
above named Weston Inc.,
Agent for SBP LIMITED PARTNERSHIP, by Fred J. Capretta, its Sr. V.P., who
acknowledged that he did sign the foregoing
instrument and that the same is the free act and deed of said corporation and
his free act and deed as such officer.
IN
WITNESS WHEREOF, I have hereunder set my hand and official seat at Cleveland,
Ohio, this 12th day
of August, .2008.
/s/Deborah Betx
Basil
NOTARY
PUBLIC
[Notary
Seal]
STATE OF
CALIFORNIA
COUNTY OF
SANTA CLARA
On August
11, 2008, before me, Amy T. Monbourquette, Notary Public, personally appeared
John Batty who proved to me on the basis of satisfactory evidence to be the person whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that
by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
I certify
under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS
my hand and official seal.
Signature /s/ Amy T.
Monbourquette
Signature
of Notary Public
[Notary
Seal]
EXHIBIT
A
LEASE/TENANT
DATA
1. PARTIES:
(a) Landlord: SBP
Limited Partnership
an
Ohio limited partnership
(b) Tenant: Affymetrix,
Inc.
Delaware corporation
Federal
ID# 77-0319159
(c) Guarantor(s): N/A
(d) Property
Manager: Weston Inc.
29300 Aurora Road, 2°d Fl
Solon, OH 44139
2. PREMISES:
(a) Building:: Weston
Commerce Center
Address: 26309
Miles Road, Warrensville Heights, OH 44128
Suite/Unit
No.(s): 1, 2 and 3
Floor(s): First
YES NO
(b) Leaseable Area of
Premises Office (x)
( )
Industrial (
)
(x)
14,982 square
feet
Warehouse (x)
( )
Commercial (
)
(x)
Outdoor (
)
(x)
(c) Tenant's Proportionate
Share:
53%
3. PERMITTED
USE: General
office, lab and warehousing of lab supplies.
4. TERM: Five
(5) years, six (6) months.
COMMENCEMENT DATE: The later
of September 1, 2008 or the date on which Affymetrix obtains final approval from all
appropriate boards, authorities, and commissions of committed state incentives, as set forth in the state's
commitment of assistance to Affymetrix including, but not limited to, the
Ohio Job Creation Tax Credit and the Rapid Outreach Grant.
EXPIRATION
DATE: Five
(5) years, six (6) months after the Commencement Date
5. BASE
RENT:
(a) Base
Rent/Initial Term
PERIOD
ANNUAL
RENT MONTHLY
INSTALLMENT
Commencement Date through Month
6
$
-0-/Year $ -0-/Month*
Month 7 through Month 18
1 $
52,437.00/Year $
4,369.75/Month
Month 19
through Month
30 $
53,935.20/Year $
4,494.60/Month
Month 31 through Month
42 $
54,684.00/Year $
4,557.00/Month
Month 43
through Month
66 $
55,432.08/Year $
4,619.34/Month
*Tenant
understands that it will be responsible for all Utility Costs during the free
rent period.
(b) Utilities Billing
Method
Comments
(x)
Gas
(x) metered ( ) sub
metered ( ) pro rata
(x)
Electric
(x) metered ( ) sub metered ( ) pro
rata
(x) Water &
Sewer
( ) metered ( ) sub metered (x) pro
rata
( ) Common
Gas ( ) pro
rata (x)
No
( ) Common
Electric
( ) pro
rata (x)
No
( )
Common
Water (
) pro
rata (x)
No
( ) Common
Janitorial
( ) pro
rata (x) No
( )
Security
Service
( ) pro
rata (x) No
( ) Fire
Alarm
Service (
) pro
rata (x) No
( )
Janitorial
Service
( ) pro
rata (x) No
(
) Meter Reading
Serv. (
) pro
rata
(x) No(x) Grounds
Maint. (x) pro
rata
( ) No
(x)
Parking Lot
Maint. (x) pro
rata
( ) No
(x) Ext.
Building
Maint.
(x) pro
rata (
) No
(x) Real
Estate
Taxes
(x) pro
rata (
) No
(x)
Insurance (x)
pro
rata (
) No
(x)
Management
Fees (x)
pro
rata (
) No
( )
Other (
) pro
rata (x)
No
*Operating
Costs are estimated at $1.65 per square foot for the calendar year 2007
($2,060.00/month). Increases in
Operating Costs, excluding taxes and insurance, shall be capped at five percent
(5%) per year on a roll forward basis.
(d) Snow
Removal and Ground Maintenance to be performed by:
(x)
Landlord
(
) Tenant
6. SECURITY
DEPOSIT: $
4,369.75
7. ADDRESS
FOR NOTICES:
(a) Landlord:
SBP
Limited Partnership
29300
Aurora Road, 2nd Fl Solon, OH 44139
Attn:
General Counsel
(b) Copy to Management Office:
Weston
Inc.
29300
Aurora Road, 2nd Fl
Solon, OH
44139
Attn:
Property Manager
Fax No.:
(440) 349 9001
-25-
(c) Tenant:
Affymetrix,
Inc.
26309
Miles Road, Unit 1
Warrensville
Heights, OH 44128
Attn.:
General Manager
Fax
No.:
With a
copy to:
General
Counsel
Affymetrix,
Inc.
3420
Central Expy
Santa
Clara, CA 95051
And
Director
Facilities and Real Estate Affymetrix, Inc.
3420
Central Expressway
Santa
Clara, CA 95051
Same as
(c)
(e) Remittance
Address:
Weston
Inc.
29300
Aurora Road, 2nd Fl Solon, OH 44139
Attn.:
Accounts Receivable
8. BROKER:
N/A
9. TENANT'S INSURANCE: Please note that, pursuant to Section 7.1 (a) of this Lease, Tenant is required to maintain Commercial General Liability Insurance in an amount not less than Two Million Dollars ($2,000,000.00) and Property Damage Insurance in an amount not less than One Million Dollars (($1,000,000.00) per occurrence. Weston Inc., as agent for the Landlord, also must be named on the insurance certificate as an Additional Insured for the Premises at the address listed in Section 2 (a) of this Exhibit.
EXHIBIT
B
LAYOUT OF
PREMISES
[Building
Diagram]
EXHIBIT
C
IMPROVEMENTS
TO BE COMPLETED
BY
LANDLORD:
Remove:
a)
Demising walls between Units 1-2 and 2-3
b)
Existing offices and restrooms in Units 1, 2 and 3
BY
TENANT:
Tenant
shall be responsible for the build out of the interior space at its own cost and
expense. Landlord and Tenant agree to negotiate in good faith a work letter for
the improvements to be made by the Tenant.
EXHIBIT
D
RIDER
1. If
Landlord determines that Tenant is using more than it's pro rata share of water
in the Building, Landlord
reserves the right to sub meter the water service to the space and Tenant agrees
to pay to Landlord the amount shown on the monthly bill for sub metered
water.
2. Provided
it is not in default of the Lease beyond any applicable grace period from the
time of notice through
and including the effective date of said notice, Tenant shall have two (2)
options to renew this Lease for additional three (3) year Terms, at the fair
market rental rate for comparable properties in the area, upon six (6) months
advance written notice to Landlord; provided, however, the fair market rental
rate shall be no less than the rate Tenant was paying at the end of the Original
Term or the First Renewal
Term and shall be the fair market rental rate in effect at the time of notice.
The "Notice Date" shall be the date the Landlord actually receives the
notice.
3. Tenant
understands that, upon vacating the Premises, it must restore the space to the
condition in which it
existed prior to demolition including, but not limited to, the reconstruction of
three (3) suites with demising walls, demised utilities and separate HVAC
systems in each suite, re-installation of a ladies' and a men's restroom in each
suite and restoration of office area with an office to warehouse ratio of 25/75
for each suite or otherwise to the reasonable satisfaction of
Landlord.
4. The
parties acknowledge that the terms and conditions of this Lease are subject to
and, therefore, remain
un-enforceable until Affymetrix obtains final approval from all appropriate
boards, authorities, and
commissions of committed state incentives, as set forth in the state's
commitment of assistance to Affymetrix including, but not limited to, the Ohio
Job Creation Tax Credit and the Rapid Outreach Grant. If
Affymetrix does not obtain said approvals on or before October 31, 2008,
Landlord may elect to rescind this Lease upon two (2) business days advance
written notice unless Affymetrix notifies Landlord
that it will proceed without said approvals.
EXHIBIT
E
RULES
AND REGULATIONS
(1) OBSTRUCTIONS: The
sidewalks, driveways, parking areas, entrances, vestibules, hallways,
stairways, loading docks, and passages
shall not be obstructed by Tenant or used for storage of materials or
equipment (temporary or otherwise), display of merchandise, or any
purpose other than unimpeded access to and from the Premises.
(2) WINDOWS AND
PROJECTIONS: Nothing shall be affixed to or projected beyond the outside
of the Building by Tenant without the prior
written consent of Landlord, including, without limitation, awnings and air
conditioning units, and no
curtains, blinds, shades or screens shall be used in connection with any window
of the Premises without the prior written consent of
Landlord.
(3) ADVERTISING: Tenant
shall not in any manner use the name of the Premises or the Building for any
purpose
other than that of the business address of Tenant, or use any picture or
likeness of the Premises or the Building
in any letterheads, envelopes, circulars, notices, advertisements, containers or
similar items without Landlord's
prior written consent. No advertisements, signs, banners, etc. shall be painted,
exhibited or affixed on the
outside of the Building without the prior written consent of Landlord. In the
event of the violation of the foregoing,
Landlord may remove same, without notice or liability to Tenant and at the sole
cost and expense of Tenant.
(4) BICYCLES AND ANIMALS:
Unless expressly permitted by Landlord, no bicycle or other vehicle and no
animals or birds shall be brought or permitted to be in the Premises or Building
or any part thereof.
(5) LOCKS: Unless
expressly permitted by Landlord, no additional locks or similar devices shall be
attached
to any door or window and no keys other than those provided by Landlord shall be
made for any door. If more than two keys for one lock are desired by Tenant,
Landlord may provide the same upon payment by Tenant. Upon termination of this
Lease or of Tenant's possession, Tenant shall surrender all keys of the Premises
to Landlord and shall provide Landlord with the then current combination for any
combination locks on safes, cabinets and vaults situated on the
Premises.
(6) NOISES AND OTHER
NUISANCES: Tenant shall not make or permit any unnecessary or disturbing
noises or allow loud music or odors
that are objectionable to Landlord or to other tenants of the Building or the
Property to emanate from the Building or the Premises, and shall not
create or maintain a nuisance therein, and shall not disturb, solicit or canvass
any occupant of the Building and shall not do any act tending to injure the
reputation of the Property.
(7) LEDGES AND WINDOWS:
Tenant shall not place or permit to be placed any article of any kind on
the
window ledges or elsewhere on the exterior walls, and shall not throw or drop or
permit to be thrown or dropped any article from any window of the
Building.
(8) COMMUNICATION
EOUIPMENT: No electric wires, telephone lines, antennae, satellite dish,
aerial wires or other electrical equipment or
apparatus shall be installed inside or outside the Building without the prior
written consent of Landlord, which consent Landlord shall have the right
to withhold, in its sole and absolute discretion.
(9) ENTRY TO BUILDING AND/OR
PREMISES: Landlord shall retain the right to control and prevent
access to
or eject from the Building or the Premises all persons whose presence in the
reasonable judgment of Landlord
shall be prejudicial to the safety, character, reputation and interests of the
Building and its tenants or the Premises including, without limitation,
any and all solicitors, canvassers or peddlers and persons conducting themselves
in such manner as to constitute an annoyance to any of the tenants of the
Building or the Property, provided, however, that nothing contained herein shall
be construed to prevent access to persons with whom Tenant deals within the
normal course of Tenant's business unless such persons are engaged in activities
which are illegal, constitute a nuisance or otherwise violate this
Lease.
(10) LODGING: The Premises
shall not be used for lodging or sleeping purposes.
(11) ELECTRICAL EOUIPMENT:
If Tenant desires signal, communication, alarm or other utility or similar service connections installed
or changed, Tenant shall not install or change the same without the prior
written consent of Landlord, and then only under Landlord's direction, at
Tenant's sole cost and expense and otherwise in accordance with the terms of
this Lease. Tenant shall not install in the Premises any equipment which requires more electric current than
Landlord is required to provide under this Lease, without Landlord's prior
consent, and Tenant shall ascertain from Landlord the maximum amount of
load or demand for or use of electrical current which can safely be permitted in
the Premises, taking into account the capacity of electric wiring in the
Building and the Premises and the needs of other tenants of the Building or the
Property, and shall not in any event connect a greater load than such safe
capacity.
(12) REST ROOM USE: The
toilet rooms, urinals, wash bowls and other such apparatus shall not be used
for any
purpose other than that for which they were constructed and no foreign substance
of any kind whatsoever shall be thrown therein and the expense of any breakage,
stoppage or damage resulting from the violation of this rule shall be borne by
Tenant who, or whose Tenant Representatives, shall have caused it.
(13) USE OF CLOSETS: The
janitorial closets, utility closets, telephone closets, broom closets,
electrical closets,
storage closets, and other such closets, rooms and areas shall be used only for
the purposes and in the manner designated by Landlord, and may
not be used by Tenant or Tenant's Representatives or other parties
without Landlord's prior written consent.
(14) SAFETY PROGRAMS:
Tenant shall cooperate and comply with any reasonable safety or security
programs,
including, without limitation, fire drills and the appointment of "fire wardens"
developed by Landlord for the
Building.
(15) DEFACEMENT: Tenant
shall not drive nails or screws into the woodwork or walls, or paint, mark or
in any
way deface the Building or any part thereof. Any damage or injury resulting from
a violation of this rule shall be
remedied at the sole cost and expense of Tenant.
(16) STORAGE OF MATERIALS:
Tenant shall not stack or store materials, inventory, equipment, pallets
and
similar items inside the Premises or the Building in a manner which obstructs
access to fire exit signs, fire exits, utility
meters, unit heaters, gas and water lines and air conditioning equipment nor
shall Tenant store such pallets or other materials outside the Premises or the
Building except in compliance with local governmental regulations. If Landlord
incurs any casualty loss as a result of Tenant's violation of this Paragraph,
Tenant shall be liable to Landlord for the payment of Landlord's
deductible.
(17) PARKING: Except for
short term loading and unloading, all vehicles are to be parked in areas
designed
for vehicle parking. Tenant shall not use the designated parking areas in any
manner for storage of materials,
parts, supplies, trailers, equipment, or machinery, without the prior written
consent of Landlord in each instance,
which Landlord shall have the right to grant or withhold in Landlord's sole and
absolute discretion, nor shall
Tenant use the parking areas in any manner which could obstruct or interfere
with the rights and safety of other
tenants of the Building or the Property or any other persons. Landlord reserves
the right to designate or assign
all parking, including, without limitation, the right to designate or assign
parking spaces for the exclusive use by other
tenants of the Building or the Property. Tenant shall not permit its employees
to park in areas designated as
"Visitor Parking".
(18) SALES ON PREMISES:
The Tenant shall not exhibit, sell or offer for sale on the Premises or in the
Building
any article or thing except those articles and things essentially connected with
the stated use of the Premises
by Tenant, without the prior written consent of Landlord which consent Landlord
shall have the right to withhold, in its sole and absolute discretion.
(19) WASTE MANAGEMENT: All
rubbish, trash or debris generated by Tenant shall be contained within
the
Premises, in containers reasonably approved by Landlord, until removed from the
Premises. No such waste material
or refuse shall at any time be stored or kept outside the Premises without the
prior consent of Landlord which
consent Landlord shall have the right to withhold, in its sole and absolute
discretion, and further provided (a) such
storage complies with all applicable Laws, (b) all containers are kept covered
at all times, and (c) such storage does not
interfere with the access or use of the Premises by Landlord or other tenants of
the Building or the Property.
Tenant shall dispose of its own rubbish and not permit the accumulation thereof
in and around the Premises,
and, in the event Tenant fails to remove any accumulation of rubbish within
three (3) days after notice to remove
the same, Landlord shall have the right to remove same, in which event the cost
and expense thereof shall be paid
by Tenant to Landlord as Additional Rent within five (5) days of Landlord's
demand.
(20) HAND TRUCKS: Hand
trucks may not be used in the Building or the Premises unless they are
equipped
with rubber tires and bumper guards.
(21) VIOLATION OF RULES BY OTHER
TENANTS. Landlord shall not be responsible to Tenant for the
non-observance or violation of any of these Rules and Regulations by any other
tenants of the Building or the Property,
their agents, employees or invitees and nothing contained herein shall be
construed to impose upon Landlord
any duty or obligation to enforce the rules and regulations in any other Lease
or upon any other tenant of the Building or the Property, or its agents,
employees or invitees.
(22) WAIVER. Landlord may
waive any one or more of these Rules and Regulations for the benefit of any
particular
tenant or tenants of the Building or the Property, but such waiver by Landlord
shall not be construed as a waiver of
such Rules and Regulations in favor of any other tenant or tenants of the
Building or the Property, nor prevent
Landlord from thereinafter enforcing any such Rules and Regulations against any
or all of the tenants of the Building
or the Property.
(23) CONSTRUCTION OF RULES AND
REGULATIONS: These rules and regulations are in addition to, and shall
not be construed to in any way modify, alter or amend, in whole or in part, the
terms, covenants, agreements
and conditions of the Lease by and between the parties hereto.
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