AGREEMENT OF LEASE
Single Tenant Building
THIS AGREEMENT OF LEASE by and between Liberty Property Limited
Partnership, a limited partnership organized and existing under the laws of
Pennsylvania (herein called "Landlord") and Iomega Corporation organized and
existing under the laws of Delaware (herein called "Tenant.")
WITNESSETH:
1. Premises. Landlord does hereby demise and let unto Tenant and Tenant
does hereby lease and take from Landlord for the term and upon the terms1
covenants, conditions and provisions set forth herein all that tract of land
located at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000 (herein called
the "Lot") which is outlined in red on Exhibit "A" hereto, together with the
building (herein called the "Building") and improvements (the Lot, the Building
and any other improvements thereon being herein collectively called the
"Premises").
*located thereon
4. Use of Premises. Tenant shall occupy the Premises throughout the term
and shall use the same for and only for a light assembly, warehousing and
distribution of computer storage devices with appurtenant offices.
5. Rent.
(a) Minimum Annual Rent. Tenant shall pay a minimum annual rent of
Four Hundred Ninety-One Thousand One Hundred Eight-Four and No/100 Dollars
($491,184.00), without notice or demand, and without setoff, in equal
monthly installments of Forty Thousand Nine Hundred Thirty-Two and No/100
Dollars ($40,932.00) in advance, on the first day of each calendar month
during the term of this lese. Provided, however, that rent for the first
full month shall be paid upon the signing of this lease. If the
Commencement Date shall fall on a day other than the first day of a
calendar month, the rent shall be apportioned pro rata on a per diem basis
for the period between the Commencement Date and the first day of the
following calendar month and such apportioned sum shall be paid on such
Commencement Date. In addition, Tenant shall pay Landlord without setoff
the additional rent as hereinafter set forth. Unless otherwise specifically
provided, all sums shall be paid to Landlord at the address given in
Article 30 hereof.
6. Taxes and Other Impositions.
(a) Payment. As additional rent hereunder, at least thirty (30) days
before any fine, penalty, interest or cost may be added thereto for the
non-payment thereof (or sooner if elsewhere herein required). Tenant shall
pay throughout the term or this lease all levies, taxes, assessments, water
and sewer rents and charges, liens, license and permit fees, charges for
public utilities and all other charges, imposts or burdens of whatsoever
kind and nature, general or special, foreseen or unforeseen, whether or no
particularized by name, ordinary or extraordinary, which are applicable to
the term of this lease, and which are created, levied, assessed, confirmed,
adjudged, imposed or charged by any federal, state or municipal government
or public authority, or under any law, ordinance or regulation thereof, or
pursuant to any recorded covenants or agreements (alt of which are
hereinafter referred to as "Impositions") upon or with respect to the
Premises, the Lot or any improvements made thereto, any part of the
foregoing, any appurtenances thereto. or directly upon this lease or the
rent payable hereunder or amounts payable by any subtenants or other
occupants or the Premises, or upon this transaction or any related
documents to which Tenant is a party or successor in interest, or against
Landlord because or Landlord's estate or interest herein. If Tenant is
permitted by the assessing and collecting authorities and by all mortgagees
and elects to pay any Imposition in installments, Tenant shall nevertheless
pay all unpaid installments thereof prior to the expiration or sooner
termination of the term or this lease, whether or not such installments are
then due or payable. Tenant shall pay each Imposition at Landlord's
election to Landlord or directly to the government or other public
authority charged with the collection of such Imposition; and in the latter
event, Tenant shall furnish Landlord, not later than ten (10) days prior to
the last day upon which they may be paid without any fine, penalty,
interest or cost, receipts or other evidence satisfactory to Landlord of
the payment of all such Impositions.
(b) New Methods of Taxation. Nothing herein contained shall be
interpreted as requiring Tenant to pay any income, excess profits,
corporate capital stock, or franchise tax imposed or assessed upon
Landlord, unless such tax or any similar tax is levied or assessed in lieu
of all or any part of any Imposition or an increase in any Imposition. If
under the requirements of any state or local law with respect to such new
method of taxation, Tenant is prohibited from paying such new tax, Landlord
may, at its election, terminate this lease by giving written notice thereof
to Tenant.
(c) Monthly Deposits. Notwithstanding the foregoing provisions of this
Article 6, Landlord shall have the right, at its option, to require Tenant
to pay to Landlord or to any mortgagee, at the time when the monthly
installment of minimum rent is payable, an amount equal to one-twelfth
(1/12th) of the annual Impositions as estimated by Landlord. If Landlord
elects to have Tenant make such payments, Tenant also shall pay to Landlord
or to such mortgagee, as the case may be, at least thirty (30) days before
any fine, penalty, interest or cost may be added thereto for the
non-payment thereof, the amount by which the impositions becoming due
exceed the monthly payments on account thereof previously made by Tenant.
The amounts paid by Tenant pursuant to this Paragraph (c) shall be used to
pay the Impositions, but such amounts shall not be deemed to be trust funds
and no interest shall be payable thereon.
(d) Contest by Landlord. Landlord may bring proceedings to contest the
validity or amount of any Imposition or to recover payments therefor.
Tenant shall cooperate with Landlord with respect to such proceedings to
the extent reasonably necessary and shall pay to Landlord all reasonable
costs, tees and expenses Incurred in connection with such proceedings as
additional rent promptly upon being billed therefor.
(e) Contest by Tenant. Tenant, without postponement of payment, may
bring proceedings to contest the validity or amount of any Imposition or to
recover payments therefor. Tenant shall save Landlord harmless from all
costs and expenses in connection with such proceedings. Landlord shall
cooperate with Tenant with respect to such proceedings to the extent
reasonably necessary, but all costs, fees and expenses Incurred in
connection with such proceedings shall be borne by Tenant. Tenant shall
give Landlord advance written notice of Tenant's intention to take any such
action.
7. Insurance.
(a) Types. Tenant, at Tenant's sole cost and expense, shall maintain
and keep in effect throughout the term with policies from an Insurer and in
form and substance all satisfactory to Landlord:
(i) insurance against loss or damage to the Building and all
other improvements now or hereafter located on the Premises by fire
and such other casualties as may be Included in the broadest form of
all-risk insurance from time to time available, in an amount equal to
the full Insurable replacement value of the Building and improvements,
the policy to have attached thereto replacement cost, agreed amount
and rental coverage endorsements or comparable forms of coverage:
(ii)Insurance against liability for bodily injury (including
death) or property damage in or about the Premises, under a policy of
comprehensive general public liability insurance, with such limits as
to each as may reasonably be required by Landlord from time to time
but not less than $500,000 for each person and $1,000,000 for each
occurrence of bodily injury (including death) and $500,000 for
property damage:
(iii) boiler insurance, plate glass insurance, war risk insurance
(when available), and such other forms of insurance as may be
specified from time to time by Landlord; all such insurance shall be
in such reasonable amounts as may be specified from time to time by
Landlord or by any mortgagee; and
(iv) any other reasonable insurance coverage that may be required
from time to time by any mortgagee or that may be required generally
by Institutional mortgagees.
(b) Insured Parties. The policies of Insurance described in Paragraphs
(a)(i), (iii) and (iv) of this Article 7 shall name Landlord as the insured
party, and in addition shall contain a standard mortgagee endorsement In
favor of all mortgagees or, at the election of any such mortgagee, any
reasonable variation of such endorsement, The policies of insurance
described in Paragraph (a)(ii) of this Article 7 shall name both Landlord
and Tenant as the Insured parties.
(c) Policies. Each policy of Insurance required by Paragraph (a) of
this Article 7 shall provide that it shall not be cancelled without at
least thirty (30) days prior written notice to Landlord and to any
mortgagee named in any endorsement thereto. Each policy shall have an
executive notice endorsement or comparable form of coverage attached
thereto to the effect that no act or omission of Tenant shall affect the
obligation of the insurer to pay the full amount of any loss sustained.
(d) Evidence of Coverage. At least thirty (30) days prior to the
commencement Date, the Original and a signed duplicate of each policy shall
be delivered to Landlord by Tenant. Tenant may carry any insurance required
by this Article 7 under a blanket policy, applicable to the Premises, In
which event Tenant shall deliver the Insurer's certificates thereof and two
certified copies of the underlying policy in lieu of the original, showing
all of the terms of such coverage applicable to the Premises and showing
the insured parties as aforesaid. If Tenant shall fail, refuse or neglect
to obtain or to maintain any insurance that it is required to provide, or
to furnish Landlord with satisfactory evidence of coverage within the time
required, Landlord shall have the right to purchase such insurance. All
payments for such Insurance made by Landlord shall be recoverable by
Landlord from Tenant, together with interest thereon, as additional rent
promptly upon being billed therefor.
(e) Waiver of Subrogation. Each of the parties hereto hereby releases
the other, to the extent of the releasing party's insurance coverage, from
any and all liability for any loss or damage covered by such insurance
which may be inflicted upon the property of such party even if such loss or
dam age shall be brought about by the fault or negligence of the other
party, its agents or employees; provided, however, that this release shall
be effective only with respect to loss or damage occurring during such time
as the appropriate policy of insurance shall contain a clause to the effect
that this release shall not affect said policy or the right of the insured
to recover thereunder. If any policy does not permit such a waiver, and if
the party to benefit therefrom requests that such a waiver be obtained. the
other party agrees to obtain an endorsement to its insurance policies
permitting such waiver of subrogation If It is available, If an additional
premium is charged for such waiver, the party benefiting therefrom agrees
to pay the amount of such additional premium promptly upon being billed
therefor.
8. Repairs and Maintenance.
(a) Except as specifically otherwise provided in Paragraph (b) of this
Article, Tenant, at its sole cost and expense and throughout the term of
this lease, shall keep and maintain in good order and condition the
Building and the other improvements now or hereafter located upon the
Premises. and any sidewalks, parking areas, curbs and access ways upon or
adjoining the Premises, and shall promptly make all repairs necessary to
keep and maintain such good order and condition, whether such repairs are
interior or exterior, ordinary or extraordinary, foreseen or unforeseen.
Tenant shall not use or permit the use of any portion or the Premises for
outdoor storage. When used in this Article 8, the term "repairs" shall
include replacements and renewals when necessary. All repairs made by
Tenant shall utilize materials and equipment which are at least equal in
quality and usefulness to those originally used in constructing the
Building and the Premises. Tenant shall maintain all HVAC systems
appurtenant to the Building using a service firm[s] acceptable to Landlord
which shall provide service and maintenance in accordance with the
manufacturer's recommendations and shall provide a copy of the contract to
Landlord.
(c) Tenant shall keep and maintain all portions of the Premises and
any sidewalks, parking areas, curbs and access ways adjoining the Premises
in a clean and orderly condition, free of accumulation of dirt, rubbish,
snow and ice and shall keep and maintain all open areas of the Premises not
built upon or paved as landscaped areas in a neat and orderly condition by
performing all necessary tasks, including, but not limited to, grass
cutting, seeding, watering, weeding and replacing any dead or diseased
planting.
9. Utility Charges. Tenant shall be solely responsible for and shall pay
promptly all rents, costs and charges for water service, sewer service, gas.
electricity, light, heat, stew', power. telephone and other communication
services, and any and all other utilities or services rendered or supplied upon
or in connection with the Premises.
10. Net lease. Except for the obligations of Landlord expressly set forth
herein, this lease is a "net lease" and Landlord shall receive the minimum
annual rent as hereinabove provided as net income from the Premises, not
diminished by any Imposition or any expenses or charges required to be paid to
maintain and carry the Premises or to continue the ownership of Landlord other
than payments under any mortgages now existing or hereafter created by Landlord,
and Landlord is not and shall not be required to render any services of any kind
to Tenant.
11. Governmental Regulations. With regard to all or any part of the
Premises or to the use or manner of use of the Premises, or to the sidewalks,
parking areas, curbs and access ways adjoining the premises, or to the fixtures
and equipment in the Premises, throughout the term of this lease and at its sole
cost and expense, Tenant shall: (i) comply promptly with all laws, ordina9ces,
notices, orders, rules, regulations and requirements of all federal, state and
municipal governments and all departments, commissions, boards and officers
thereof, and of the National Board of Fire Underwriters or any other body now or
hereafter constituted exercising similar functions; and (ii) keep, in force at
all times all licenses. consents and permits necessary for the lawful use of the
Premises for the purposes herein provided; and (iii) comply with the
requirements of all public liability, fire, and other policies of insurance
covering the Premises whether any of the foregoing are foreseen or unforeseen,
ordinary or extraordinary. Provided, however, that Tenant shall not be required
to comply with the foregoing laws, ordinances and notices with respect to the
footings and foundations and the structural steel columns and girders forming a
part of the Premises unless the need for such compliance arises out of or is
caused by Tenant's use. manner of use or occupancy of the Premises, or by
Tenant's Installations in or upon the Premises or by any act or omission of
Tenant or any employee, agent, contractor or invitee of Tenant.
12. Signs. Except for signs which are located wholly within the interior of
the Building and which are not visible from the exterior of the Premises, no
signs shall be placed, erected, maintained or painted at any place upon the
Premises without the prior written consent of Landlord as to the size, design,
color, location, content, illumination, composition or material and mobility
thereof All. signs shall be maintained by Tenant In good condition during the
term of this lease, and Tenant shall remove all signs at the termination of this
lease and shall repair and restore any damage caused by the installation or
removal thereof.
13. Alterations, Additions and Fixtures.
(a) Subject to the provisions of Article 14 hereof, Tenant shall have
the right to install in the Building any trade fixtures from time to time
during the term of this lease; provided, however, that no such installation
or removal thereof shall affect the structural portions of the Building and
that Tenant shall repair and restore any damage or injury to the Premises
caused thereby.
(b) Tenant shall not make or permit to be made any alterations,
improvements or additions to the Premises without on each occasion first
presenting to Landlord plans and specifications therefor and obtaining
Landlord's prior written consent thereto: except that Tenant may make minor
nonstructural changes to the interior of the Building without the consent
of Landlord provided that: (i) Tenant supplies Landlord with plans and
specifications and any necessary permits therefor at least ten (10) days in
advance of commencing construction thereof; (ii) such alterations and
improvements do not impair the structural strength of the Building or any
other improvements or reduce the value of the Premises: (iii) Tenant shall
take or cause to be taken all steps that are required by Article 14 hereof
and that are required or permitted by law In order to avoid the imposition
of any mechanic's, laborer's or materialman's lien upon the Premises,
Building or Lot; and (iv) the occupants of any adjoining real estate are
not annoyed or disturbed by reason thereof. Any and all alterations,
Improvements and additions to the Premises which are constructed, Installed
or otherwise made by Tenant shall be the property of Tenant until the
expiration or sooner termination of this lease; at that time all such
alterations and additions shall remain on the Premises and become the
property of Landlord without payment therefor by Landlord; unless, upon the
termination of this lease, Landlord shall give written notice to Tenant to
remove the same; in which event Tenant will remove such alterations,
improvements and additions, and repair and restore any damage to the
Premises caused by the installation or removal thereof.
14. Mechanics' Liens. Tenant shall promptly pay any contractors and
materialmen who supply labor, work or materials to Tenant at the Premises so as
to minimize the possibility of a lien attaching to the Premises or the Lot.
Tenant shall take all steps permitted by law in order to avoid the imposition of
any mechanic's, laborer's or materialman's lien upon the Premises or the Lot.
Should any such lien or notice of lien be filed, for work performed for Tenant
other than by Landlord, Tenant shall bond against or dischar8e the same within
fifteen (15) days after the lien or claim is filed or formal notice of said lien
or claim has been issued regardless of the validity of such lien or claim.
Nothing in this lease is intended to authorize Tenant to do or cause any work or
labor to be done or any materials to be supplied for the account of Landlord,
all of the same to be solely for Tenant's account and at Tenant's risk and
expense. Throughout this lease the term "mechanic's lien" is used to include any
lien, encumbrance or charge levied or imposed upon the Premises or the Lot or
any interest therein or income therefrom on account of any mechanic's, laborer's
or materialman's lien or arisin8 cut of any debt or liability to or any claim or
demand of any contractor mechanic, supplier, materialman or laborer and shall
include without limitation any mechanic's notice of intention given to Landlord
or Tenant. any stop order given to Landlord or Tenant, any notice of refusal to
pay naming Landlord or Tenant and any injunctive or equitable action brought by
any person entitled to any mechanic's lien.
15. Landlord's Right of Entry.
(a) Tenant shall permit Landlord and the authorized representatives of
Landlord and of any mortgagee or any prospective mortgagee to enter the
Premises at all reasonable limes for the purpose of (i) inspecting them or
(ii) making any necessary repairs thereto or to the Property and performing
any work therein: During the progress of any work on the Premises Landlord
will attempt not to inconvenience Tenant, but shall not be liable for
inconvenience, annoyance, disturbance, loss of business or other damage to
Tenant by reason of making any repair or by bringing or storing materials,
supplies, tools and equipment on the Premises during the performance of any
work, and the obligations or Tenant under this lease shall not be thereby
affected in any manner whatsoever.
(b) Landlord shall have the right at all reasonable times to enter and
to exhibit the Premises for the purpose of sale or mortgage1 and, during
the last nine (9) months of the term of this lease, to enter and to exhibit
the Premises to any prospective tenant.
16. Damage by Fire or Other Casualty.
(a) If the Premises shall be damaged or destroyed by fire or other
casualty, Tenant shall promptly notify Landlord, and Landlord, subject to
any mortgagee's consent and to the conditions set forth in this Article 16,
shall repair, rebuild or replace such damage and restore the Premises to
substantially the same condition in which they were immediately prior to
such damage or destruction; provided, however, that Landlord shall only be
obligated to restore such damage which is covered by the fire and other
extended coverage insurance policies.
(b) The work shall be commenced promptly and completed with due
diligence, taking into account the time required by Landlord to effect a
settlement with, and procure insurance proceeds from, the insurer, and for
delays beyond Landlord's reasonable control.
(c) The net amount or any insurance proceeds (excluding proceeds
received pursuant to a rental coverage endorsement) recovered by reason of
the damage or destruction of the Premises in excess of the cost or
adjusting the insurance claim and collecting the insurance proceeds (such
excess amount being hereinafter called the "net insurance proceeds") shall
be applied towards the reasonable cost of restoration. If In Landlord's
sole opinion the net insurance proceeds will not be adequate to complete
such restoration, Landlord shall have the right to terminate this lease and
all the unaccrued obligations of the parties hereto by sending a written
notice of such termination to Tenant, the notice to specify a termination
date no less then ten (10) days after its transmission; provided, however,
that except during the last two (2) years of the term, Tenant may require
Landlord to withdraw the notice of termination by agreeing to pay the cost
of restoration in excess of the net insurance proceeds and by giving
Landlord adequate security for such payment prior to the termination date
specified in Landlord's notice of termination. If Landlord determines that
the net insurance proceeds are not adequate and Landlord does not elect to
terminate the lease, Tenant shall pay, upon notice that Landlord shall
restore, out of funds other than such net Insurance proceeds, the amount by
which the cost of restoration estimated by Landlord will exceed the net
insurance proceeds, such sum payable by Tenant to be later readjusted to
such actual excess upon the completion of restoration. If such net
insurance proceeds are more than adequate, the amount by which such net
insurance proceeds exceed the cost of restoration will be retained by
Landlord or applied to repayment of any mortgage secured by the Premises.
(e) Tenant shall maintains rental coverage endorsement or other
comparable form of coverage as part of its fire and extended coverage or
all-risk insurance policy. Tenant will receive an abatement of its minimum
annual rent to the extent of payments received by Landlord from the carrier
providing the rental coverage endorsement.
17. Non-Abatement of Rent. Except as otherwise expressly provided as to
damage by fire or by any other casualty in Paragraph 16(e) and as to
condemnation in Paragraphs 19(a) and (b) there shall be no abatement or
reduction of tile minimum rent, additional rent or other sums payable hereunder
for any cause whatsoever, and this lease shall not terminate, and Tenant shall
not be entitled to surrender the Premises.
18. Indemnification of Landlord. Tenant will indemnify Landlord and save
landlord harmless from and against any and all claims, actions, damages,
liability and expense (including without limitation fees Of attorneys,
investigators and experts) in connection with loss or life, personal Injury or
damage to property caused to any person in or about the Premises or arising out
or the occupancy or use by Tenant of the Premises or any part thereof or
occasioned wholly or in part by any act or omission of Tenant, its agents,
contractors, employees, licensees or invitees; unless such loss, injury or
damage was caused by the negligence of Landlord, its agents, employees,
licensees or invitees. Without limiting the foregoing, Tenant will forever
release and hold Landlord harmless from all claims arising out of damage to
Tenant's property unless such damage occurs as a result of Landlord's negligent
failure to make repairs after having received written notice of the need for
such repair. In case any such claim, action or proceeding is brought against
Landlord, upon notice from Landlord and at Tenant's sole cost and expense,
Tenant shall resist or defend such claim, action or proceeding or shall cause it
to be resisted or defended by an insurer.
19. Condemnation.
(a) Termination.
(i) If all of the Premises are covered by a condemnation: or
(ii) subject to the provisions of Paragraph (b)(i) hereof, if any
of the Premises Is covered by a condemnation and, in Landlord's sole
opinion, it would be impractical or the condemnation proceeds are
insufficient to restore the remainder of the Premises: then, in any
such event, this lease shall terminate and all obligations hereunder
shall cease as of the date upon which possession is taken by the
condemnor and the rent herein reserved shall be apportioned and paid
in full by Tenant to Landlord to that date and all rent prepaid for
periods beyond that date shall forthwith be repaid by Landlord to
Tenant.
(b) Partial Condemnation.
(i) If there is a partial condemnation and Landlord decides to
terminate pursuant to Paragraph (a) hereof, except during the last two
(2) years of the term, Tenant may require Landlord to withdraw its
notice of termination by: [A] giving Landlord written notice thereof
within ten (10) days from transmission of Landlord's notice to Tenant
of Landlord's intention to terminate, [B] agreeing to pay the cost of
restoration in excess of the condemnation proceeds reduced by those
sums expended by Landlord in collecting the condemnation proceeds, and
[C] giving Landlord adequate security for such payment within such ten
(10) day period.
(ii) If there is a partial condemnation and this lease has not
been terminated pursuant to Paragraph (a) hereof Landlord shall
restore the Building and the improvements which are part or the
Premises to a condition and size as nearly comparable as reasonably
possible to the condition and size thereof immediately prior to the
date upon which possession shall have been taken by the condemnor. If
the condemnation proceeds are more than adequate to cover the cost of
restoration and Landlord's expenses in collecting the condemnation
proceeds, any excess proceeds shall be retained by Landlord or applied
to repayment of any mortgage secured by the Premises.
(iii) If there is a partial condemnation and Landlord has not
exercised its right to terminate on the date upon which the condemnor
shall have obtained possession, the obligations of Landlord and Tenant
under the lease. shall be unaffected by such condemnation except that
there shall be an equitable abatement for the balance of the term of
the minimum annual rent according to the value of the Premises before
and after the date upon which the condemnor shall have taken
possession, In the event that the parties are unable to agree upon the
amount of such abatement. either party may submit the issue to
arbitration.
(c) Award. In the event of a condemnation affecting Tenant. Tenant
shall have the right to make a claim against the condemnor for removal
expenses, business dislocation damages and moving expenses; provided and to
the extent, however, that such claims or payments do not reduce the sums
otherwise payable by the condemnor to Landlord. Except as aforesaid, Tenant
hereby waive all claims against Landlord and against the condemnor, and
Tenant hereby assigns to Landlord all claims against the condemnor
including, without limitation, all claims for leasehold damages and
diminution in value of Tenant's leasehold interest.
(d) Temporary Taking. If the condemnor should take only the right to
possession (or a fixed period or lime or (or that duration of an emergency
or other temporary condition, then, notwithstanding anything hereinabove
provided, this lease shall continue in full force and effect without any
abatement of rent, but the amounts payable by the condemnor with respect to
any period of time prior to the expiration or sooner termination of this
lease shall be paid by the condemnor to Landlord and the condemnor shall be
considered a subtenant of Tenant. Landlord shall apply the amount received
from the condemnor applicable to the rent due hereunder net of costs IC'
Landlord for the collection thereof, or as much thereof as may be necessary
for the purpose, toward the amount due from Tenant as rent for that period;
and, Tenant shall pay to Landlord any deficiency between the amount thus
paid by the condemnor and the amount of the rent, or Landlord shall pay to
Tenant any excess of the amount of the award over the amount of the rent.
20. Quiet Enforcement. Tenant, upon paying the minimum rent, additional
rent and other charges herein provided for, and observing and keeping all
covenants, agreements and conditions of this lease on its part to be kept, shall
quietly have and enjoy the Premises during the term of this lease without
hindrance or molestation by anyone claiming by or through Landlord, subject,
however, to the exceptions, reservations and conditions of this lease.
21. Assignment and Subletting.
(a) Restricted Assignment. Tenant shall not assign, mortgage, pledge
or encumber this lease, or sublet the whole or any part or the Premises,
without the prior written consent of Landlord which consent shall not be
unreasonably withheld. This prohibition against assigning or subletting
shall be construed to include a prohibition against any assignment or
subletting by operation of law, and/or a transfer by any person or persons
controlling Tenant on the date of the lease of such control to a person or
persons not controlling Tenant on the date of the lease. In the event of
any assignment of this lease made with or without Landlord's consent,
Tenant nevertheless shall remain liable for the performance of all of the
terms, conditions and covenants of this lease and shall require any
assignee to execute and deliver to Landlord an assumption of liability
agreement in form satisfactory to Landlord, Including an assumption by the
assignee of all of the obligations of Tenant and the assignee's
ratification of and agreement to be bound by all the provisions of this
lease. Landlord shall be entitled to, and Tenant shall promptly remit to
Landlord, any profit which may' inure to the benefit of Tenant as a result
of any subletting of the Premises or assignment of this lease, whether or
not consented to by Landlord.
(b) Percentage Agreements. It is agreed that Tenant shall not enter
into any assignment, sublease, license, concession or other agreement for
use, occupancy or utilization of the whole or any part of the Premises with
or without Landlord's consent, which provides for rental or other payment
for such use, occupancy or utilization based, in whole or in part on the
net income or profits derived y any person or entity from the space leased,
used, occupied or utilized (other than an amount based on a fixed
percentage or percentages of receipts or sales), and any such purported
assignment, sublease, license, concession or other agreement shall be
absolutely void and ineffective as a conveyance of any right or Interest in
the possession, use, occupancy or utilization of any part of the Premises.
22. Subordination. This lease and Tenant's rights hereunder shall be
subject and subordinate at all times in lien and priority to any first mortgage
or other primary encumbrance now or hereafter placed upon or affecting the
Premises, and to any second mortgage or encumbrance with the consent of the
first mortgagee, and to all renewals, modifications, consolidations and
extensions thereof, without the necessity of any further instrument or act on
the part of Tenant. Tenant shall execute and deliver upon demand any further
instrument or instruments confirming the subordination of this lease to the lien
of any such first mortgage or to the lien of any other mortgage if requested to
do so by Landlord with the consent of the first mortgagee, and any further
instrument or instruments of attornment that may be desired by any such
mortgagee or Landlord. Notwithstanding the foregoing, any mortgagee may at any
time subordinate its mortgage to this lease, without Tenant's consent, by giving
notice in writing to Tenant, and thereupon this lease shall be deemed prior to
such mortgage without regard to their respective dates of execution and
delivery, and in that event such mortgagee shall have the same rights with
respect to this lease as though this lease had been executed prior to the
execution and delivery of the mortgage and had been assigned to such mortgagee.
23. Memorandum of Lease; Tenant's Certificate.
(a) Tenant, at any time and from time to time and within five (5) days
after Landlord's written request, shall execute, acknowledge and deliver to
Landlord a short form or memorandum of this lease for recording purposes.
(b) Tenant, at any time and from time to time and within five (5) days
after Landlord's written request, so long as there are no material and
substantial defects in the Premises which Landlord is obligated to remedy
and which Landlord is not proceeding to remedy, and so long as Landlord is
not otherwise in default of this lease, shall execute, acknowledge and
deliver to Landlord a written instrument in recordable form certifying that
this lease is unmodified and In full force and effect (or, if there have
been modifications, that it is in full force and effect as modified and
stating the modifications); stating that the improvements required by
Article 2 hereof have been completed; certifying that Tenant has accepted
possession of the Premises; stating the date on which the term of the lease
commenced and the dates to which minimum rent, additional rent and other
charges have been paid in advance, if any; stating that to the best
knowledge of the signer of such instrument Landlord Is not in default of
this lease; stating any other fact or certifying any other condition
reasonably requested by Landlord or required by any mortgagee or
prospective mortgagee or purchaser of the Premises or any Interest therein;
and stating that it is understood that such instrument may be relied upon
by any mortgagee or prospective mortgagee or purchaser of the Premises or
any interest therein or by any assignee of Landlord's interest in this
lease or by any assignee of any mortgagee. The foregoing instrument shall
be addressed to Landlord and to any mortgagee, prospective mortgagee,
purchaser or other party specified by Landlord.
24. Curing Tenant's Defaults. If Tenant shall be in default in the
performance of any of its obligations hereunder, Landlord, without any
obligation to do so, in addition to any other rights it may have in law or
equity, may elect to cure such default on behalf of Tenant after written notice
(except In the case of emergency) to Tenant. Tenant shall reimburse Landlord
upon demand for any sums paid or costs incurred by Landlord in curing such
default, including interest thereon from the respective dates of Landlord's
making the payments and incurring such costs, which stems and costs together
with interest thereon shall be deemed additional rent payable promptly upon
being billed therefor,
25. Surrender.
(a) Subject to the terms of Paragraphs 13 (b) and 16 (a) and (c)
hereof at the expiration or earlier termination of the term hereof, Tenant
shall promptly yield up, clean and neat, and in the same condition, order
and repair in which they ate required to be kept throughout the term
hereof, the Premises and all improvements, alterations and additions
thereto, and all fixtures and equipment servicing the Building, ordinary
wear and tear excepted.
(b) If Tenant, or any person claiming through Tenant, shall continue
to occupy the Premises after the expiration or earlier termination of the
term or any renewal thereof, such occupancy shall be deemed to be under a
month-to-month tenancy under !he same terms and conditions set forth in
this lease: except, however, that the minimum annual rent during such
continued occupancy shall be double the amount set forth in Paragraphs 5
(a) and (b) hereof. Anything to the contrary notwithstanding. any holding
over by Tenant without Landlord's prior written consent shall constitute a
default hereunder and shall be subject to all the remedies set forth in
Article 26 hereof.
26. Defaults - Remedies.
(a) Defaults. It shall be an event of default:
(i) If Tenant does not pay in full when due and without demand
any and all installment, of minimum rent or additional rent or any
other charges or payments whether or not herein included as rent; or
(ii) If Tenant violates or fail, to perform or otherwise breaches
any agreement, term, covenant or condition herein contained; or
(iii) If Tenant abandons the Premises or removes or attempts to
remove Tenant's goods or property therefrom other than in the ordinary
course or business without having first paid to Landlord in full all
minimum rent, additional rent and other charges that may have become
due as well as all which will become due thereafter; or
(iv) If Tenant becomes insolvent or bankrupt in any sense or
makes an assignment for the benefit of creditors or offers a
composition or settlement to creditors, or if a petition in bankruptcy
or for reorganization or for an arrangement with creditors under any
federal or state law is flied by or against Tenant, or a xxxx in
equity or other proceeding for the appointment of a receiver, trustee,
liquidator, custodian, conservator or similar official for any of
Tenant's assets is commenced, or if any of the real or personal
property of Tenant shall be levied upon by any sheriff, marshal or
constable; provided, however, that any proceeding brought by anyone
other than the panics to this lease under any bankruptcy,
reorganization arrangement. insolvency, readjustment, receivership or
similar law shall not constitute a default until such proceeding,
decree, judgement or order has continued unstayed for more than sixty
(60) consecutive days; or
(v) If any of the events enumerated In Paragraph (a) (iv) of this
Article shall happen to any guarantor of this lease;
(b) Remedies. Then, and in any such event, Landlord shall have the
following rights:
(i) To charge a late payment penalty of five (5%) percent of any
amount owed to Landlord pursuant to this lease which is not paid
within five (5) days of the date which is set forth in the lease if a
date Is specified, or. if a date is not specified, within thirty (30)
days of the mailing of a xxxx therefor by Landlord, If Landlord incurs
a penalty in connection with any payment which Tenant has failed to
make within the times required in this lease, Tenant shall pay
Landlord, in addition to such sums, the full amount of such penalty
incurred by Landlord.
(ii) To accelerate the whole or any part of the rent for the
entire unexpired balance of the term of this 'lease, as well as all
other charges, payments, costs and expenses herein agreed to be paid
by Tenant, and any rent or other charges, payments, costs and expenses
if so accelerated shall, in addition to any and all installments of
rent already due and payable and in arrears, and any other charge or
payment herein reserved, included or agreed to be treated or collected
as rent and any other charge, expense or cost herein agreed to be paid
by Tenant which may be due and payable and in arrears, be deemed due
and payable as if, by the terms and provisions of this lease, such
accelerated rent and other charges, payments, costs and expenses were
on that date payable in advance.
(iii) To enter the Premises and without further demand or notice
proceed to distress and sale of the goods, chattel, and personal
property there round and to levy the rent and other charges herein
payable as rent, and Tenant shall pay all costs and officers'
commissions which are permitted by law, including watchmen's wages and
sums chargeable to Landlord, and further including commission(s)
charged by the constable or other person ma king the levy and in such
case all costs, officers' commissions and other charges shall
immediately attach and become part of the claim of Landlord for rent.
and any tender of rent without said costs, commissions and charges
made after the issuance of a warrant of distress, shall not be
sufficient to satisfy the. claim of Landlord.
(iv) To re-enter the Premises, together with all additions,
alterations and Improvements, and, at the option of Landlord, remove
all persons and all or any property therefrom, either by summary
dispossess proceedings or by any suitable action or proceeding at law
or by force or otherwise, without being liable for prosecution or
damages therefor, and repossess and enjoy the Premises. Upon
recovering possession of the Premises as a result of a default on the
part of Tenant, Landlord may, at Landlord's option, either terminate
this lease or make such alterations and repairs as may be necessary in
order to relet the Premises and relet the Premises or any part or pans
thereof, either in Landlord's name or otherwise, for a term or terms
which may, at Landlord's option, be less than or exceed the period
which would other-wise have constituted the balance of the term of
this lease and at such rent or rents and upon such other terms and
conditions as in Landlord's sole discretion may seem advisable and to
such person or persons as may In Landlord's discretion seem best: upon
each such reletting all rents received by Landlord from such reletting
shall be applied: first, to the payment of any costs and expenses of
such reletting, including brokerage fees and attorney's fees and all
costs of such alterations and repairs; second, to the payment of any
Indebtedness other than rent due hereunder from Tenant to Landlord;
third, to the payment of rent due and unpaid hereunder; and the
residue, if any, shall be held by Landlord and applied in payment of
future rent as It may become due and payable hereunder. If such
rentals received from such reletting during any month shall be less
than that to he paid during that month by Tenant, Tenant shall pay any
such deficiency to Landlord, Such deficiency shall be calculated and
paid monthly. No such re-entry or taking possession of the Premises or
the making of alterations or improvements thereto or the reletting
thereof shall be construed as an election on the pan of Landlord to
terminate this lease unless written notice of such intention be given
to Tenant. Landlord shall in no event be liable in any way whatsoever
for failure to relet the Premises or, in the event that the Premises
or any p art or pans thereof are relet, for failure to collect the
rent under such reletting. Tenant, for Tenant and Tenant's successors
and assigns, hereby irrevocably constitutes and appoints Landlord
Tenant's and their agent to collect the rents due and to become due
under all sublease, of the Premises or any parts thereof without in
any way affecting Tenant's obligation to pay any unpaid balance of
rent due or to become due hereunder. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter
elect to terminate this lease for such previous breach.
(v) To terminate this lease and the term hereby created without
any right on the part of Tenant to waive the forfeiture by payment of
any sum due or by other performance of any condition, term or covenant
broken. Whereupon Landlord shall be entitled to recover, in addition
to any and all sums and damages for violation of Tenant's obligations
hereunder in existence at the time of such termination, damages for
Tenant's default In an amount equal to the amount of the rent reserved
for the balance of the term of this lease, as well as all other
charges, payments, costs and expenses herein agreed to be paid by
Tenant, all discounted at the rate of six percent (6%) per annum to
their then present worth, less the fair rental value of the Premises
for the remainder of said term, also discounted at the rate of six
percent (6%) per annum to its then present worth, all of which amount
shall be immediately due and payable from Tenant to Landlord.
(c) Non-Waiver. No waiver by Landlord of any breach by Tenant or any
of Tenant's obligations, agreements or covenants herein shall be a waiver
of any subsequent breach or of any obligation, agreement or covenant, nor
shall any forebearance by Landlord to seek a remedy for any breach by
Tenant be a waiver by Landlord of any rights and remedies with respect to
such or any subsequent breach.
(d) Grace Period. Notwithstanding anything hereinabove stated, except
in the case of emergency as set forth in Article 24 and except in the event
of any default enumerated in Paragraphs (a) (iii), (iv) and (v) or this
Article, neither party hereto will exercise any right or remedy provided
for in this lease or allowed by law because of any default or the other,
except those remedies contained in Paragraph (b/2) of this Article unless
such party shall have first given ten (10) days written notice thereof to
the defaulting party, and the defaulting party shall have (ailed to cure
the default within such period; provided, however, that if the default
consists of something other than the failure to pay money which cannot
reasonably be cured within ten (20) days. neither party hereto will
exercise any such right or remedy if the defaulting party begins to cure
the default within the ten (10) days and continues actively and diligently
in good faith to completely cure said default; and further provided that
Landlord shall not be required to give such ten (30) days notice more than
two (2) times during any twelve (12) month period.
(e) Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to Landlord is intended to be exclusive of any
other right or remedy provided herein or by law, but each shall be
cumulative and in addition to every other right or remedy given herein or
now or hereafter existing at law or in equity or by statute.
27. Condition of Title and of Premises.
(a) Tenant represents that the Premises. the title thereto, the zoning
thereof, the street or streets, sidewalks, parking areas, curbs and access
ways adjoining them, any surface and sub-surface conditions thereof, and
the present uses and non-uses thereof, have been examined by Tenant, and
Tenant accepts them in the condition or state in which they now are, or any
of them now is, without relying on any representation, covenant or
warranty, express or implied, in fact or in law, by Landlord and without
recourse to Landlord, as tot e title thereto, the encumbrances thereon. the
appurtenances thereto, the nature, condition or usability thereof or the
use or uses to which the Premises or any part thereof may be put, except
basic work to be performed by Landlord pursuant to Article 2 hereof.
Tenant's occupancy of the Premises shall constitute acceptance of the work
performed by Landlord pursuant to Article 2 hereof.
(b) Tenant shall not suffer or permit the Premises or any portion
thereof to be used by the public without restriction or in such manner as
might reasonably tend to impair Landlord's title to the Premises or in such
manner as might reasonably make possible a claim or claims of adverse usage
or adverse possession by the public, as such, or of implied dedication or
the Premises or any portion thereof.
28. Interpretation.
(a) Captions. The captions in this lease are for convenience only and
are not a part of this lease and do not in any way define, limit, describe
or amplify the terms and provisions of this lease or the scope or intent
thereof.
(b) Entire Agreement. This lease represents the entire agreement
between the parties hereto and there are no collateral or oral agreements
or understandings between Landlord and Tenant with respect to the Premises.
No rights, easements or licenses are acquired in the Premises or any land
adjacent to the Premises by Tenant by implication or otherwise except as
expressly set forth in the provisions of this lease. Tenant agrees to make
such changes to this lease as are required by any mortgagee, provided such
changes do not substantially affect Tenant's rights and obligations
hereunder This lease shall not be modified in any manner except by an
instrument in writing executed by the parties. The masculine (or neuter)
pronoun, singular number, shall include the masculine, feminine and neuter
genders and the singular and plural number.
(c) Exhibits. Each writing or plan referred to herein as being
attached hereto as an Exhibit or otherwise designated herein as an Exhibit
hereto is hereby made a part hereof.
(d) Covenants. The terms, covenants and obligations set forth herein
all constitute conditions and not covenants of this lease.
(e) Arbitration. Wherever arbitration is set forth herein as the
appropriate resolution ala dispute, issues shall be submitted for
arbitration to the American Arbitration Association in the city nearest to
the Premises in which offices of the American Arbitration Association are
located. Landlord and Tenant will comply with the rules then obtaining of
the American Arbitration Association and the determination of award
rendered by the arbitrator[s] shall be final, conclusive and binding upon
the parties and not subject to appeal, and judgement thereon may be entered
in any court of competent jurisdiction.
(f) Interest. Wherever interest is required to be paid hereunder, such
interest shall be at the highest rate permitted under law but not in excess
of fifteen percent (15%).
29. Definitions.
(a) "Landlord". The word "Landlord" is used herein to include the
Landlord named above as well as its heirs, successors and assigns, each of
whom shall have the same rights, remedies, powers, authorities and
privileges as he would have had had he originally signed this lease as
Landlord. Any such person, whether or not named herein, shall have no
liability hereunder after he ceases to hold title to the Premises except
(or obligations which may have theretofore accrued. Neither Landlord nor
any principal of Landlord nor any owner or the Building or the Lot, whether
disclosed or undisclosed, shall have any personal liability with respect to
any of the provisions of this lease or the Premises and if Landlord is in
breach or default with respect to Landlord's obligations under this lease
or otherwise, tenant shall look solely to the equity or Landlord in the
Premises for the satisfaction of Tenant's claims.
(b) "Tenant". The word "Tenant" is used herein to include the Tenant
named above as well as its successors and assigns, each of which shall be
under the same obligations, liabilities and disabilities and each of which
shall have the same rights, privileges and powers as it would have
possessed had it originally signed this lease as Tenant. Each and every of
the persons named above as Tenant shall be bound formally and severally by
the terms, covenants and agreements contained herein. However, no such
rights, privileges or powers shall inure to the benefit of any assignee of
Tenant immediate or remote. unless the assignment to such assignee is
permitted or has been approved in writing by Landlord. Any notice required
or permitted by the terms of this lease may be given by or to any one of
the persons named above as Tenant, and shall have the same force and effect
as if given by or to all thereof.
(c) "Mortgage" and "Mortgagee". The word "mortgage" is used herein to
include any lien or encumbrance on the Premises or the Lot or on any part
of or interest in or appurtenance to the Premises, including without
limitation any ground rent or ground lease if Landlord's interest is or
becomes a leasehold estate. The word "mortgagee" is used herein to include
the holder of any mortgage, including any ground lessor if Landlord's
interest is or becomes a leasehold estate. Wherever any right is given to a
mortgagee, that right may be exercised on behalf of such mortgagee by any
representative or servicing agent of such mortgagee.
(d) "Person". The word "person" is used herein to include a natural
person, a partnership, a corporation, an association, and any other form or
business association or entity.
(e) "Date of this lease". The "date of this lease" shall be the date
upon which this lease has been fully executed by both parties.
(f) "Index". The word "index" is used herein to mean the U.S. City
Average Consumer Price Index for Urban Wage Earners and Clerical Workers
(revised series) 1967 = 100 issued from time to time by the Federal Bureau
of Labor Statistics or any successor agency that shall issue the index or
any other measure hereafter employed by the Federal Bureau of Labor
Statistics or any successor agency in lieu or such index. If there be any
controversy as to the measure to be substituted, then the controversy shall
be resolved by arbitration. The arbitrators shall be guided by the
intention of the parties hereto to modify the minimum annual rent to
reflect upward changes in the cost of living. The fees and expenses of the
arbitration shall be borne by Landlord and Tenant.
(g) "Lot". The metes and bounds description of the Lot is set forth in
Exhibit "D" attached hereto.
30. Notices. All notices. demands, requests, consents, certificates and
waivers required or permitted hereunder from either party to the other shall be
in writing and sent by United States certified mail, return receipt requested,
postage prepaid. Notices to Tenant shall be addressed to 0000 Xxxx Xxxxxx Xxx,
Xxx, Xxxx 00000 or, after the Commencement Date, tot he Premises. Notices to
Landlord shall be addressed to 000 XxxxxxXxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000 with a copy to any mortgagee or other party designated by
Landlord. Either party may at any time, in the manner set forth for giving
notices to the other, specify a different address to which notices to it shall
be sent.
31. Security Deposit. At the time of signing this lease Tenant shall
deposit with the Landlord the sum of Forty Thousand Nine Hundred Thirty-Two and
No/100 Dollars ($40,932.00) to be retained by Landlord as cash security for the
faithful performance and observance by Tenant of the covenants, agreements and
conditions of this Lent. Notwithstanding anything to the contrary contained in
any law or statute now existing or hereafter passed (i) Tenant shall not be
en-titled to any interest whatever on the cash security, (ii) Landlord shall not
be obligated to hold the cash security in trust or in a separate account, and
(iii) Landlord shall have the right to commingle the cash security with its
other funds. Landlord may use, apply or retain the whole or any part of the cash
security to the extent required for the payment of any minimum rent, any
additional rent or any other sums payable hereunder as to which Tenant is in
default or to the extent required for the reimbursement to Landlord of any sum
which Landlord may expend or may be required to expend by reason of Tenant's
default in respect to any of the covenants, agreements or conditions of this
lease. If Tenant shall fully and faithfully comply with all of the covenants,
agreements and conditions of this lease, the cash security shall be returned to
Tenant after the Expiration Date and surrender of the Premises to Landlord. If
the Premises are sold to a bona fide purchaser, Landlord shall have the right to
transfer the aforesaid cash security to such purchaser, by which transfer
Landlord shall be released from all liability, and Tenant shall look solely to
the new landlord for the return thereof.
32. Additional Articles. The following Additional Articles 33 through 68
attached hereto are hereby made a part hereof.
IN WITNESS WHEREOF, and in consideration of the mutual entry into this lease and
for other good and valuable consideration, and intending to be legally bound,
each party hereto has caused this agreement to be duly executed under seal.
Date signed: Landlord:
May 9, 1997 Liberty Property Limited Partnership, by its (SEAL)
sole general partner, Liberty Property Trust
By /s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx, Senior Vice President
Date signed: Tenant:
May 13, 1997 Iomega Corporation
By /s/ C. Xxxxx Xxxxxxx
Attest:Director of Corporate Facilities
[Corporate Seal]
Corporate Resolution and Authorization of Agency
It is hereby certified that a meeting of a quorum of the directors of the
corporation which is the Tenant herein was held on
________________________________, 19____ and that it was resolved to enter into
this lease and further that the officers of the Corporation, and
__________________________________________ as agent of the corporation, have
been authorized, empowered and directed in the corporate name and with the
corporate seal to execute and deliver any or all documents and to pay all fees
and charges necessary to carry out the entry into and compliance with this
lease.
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Secretary
