Sample Business Contracts
Iowa-Cedar Rapids-5250 North River Boulevard NE Sublease - Westinghouse Air Brake Technologies Inc. and SiRF Technology Inc.
Lease Forms
- Start a state-specific lease for the rental of commercial property. Specify the term and rent due, as well as whether the landlord or tenant is responsible for property taxes, insurance, and maintenance and repairs.
- When a tenant vacates commercial property before the lease term has expired, it may be able to rent the premises to a third party. The tenant would be the sublessor and the third party would be the sublessee. Besides preparing a sublease, both parties will want to review the provisions for assignment or subletting in the original lease agreement between the landlord and the sublessor.
- Tenants of residential property should prepare a sublease agreement if they are seeking to sublease a room or the entire apartment or house to a third party. All parties should review the original lease agreement to see if there are any restrictions on subletting or assigning the premises.
- Triple net leases are a type of commercial leases where the tenant has to pay for property taxes, insurance, utilities, and maintenance, in addition to the monthly rent.
- When renting an office space, tenants should understand the amount of the rent and duration of the lease. Other important terms include whether the space can be subleased, which parties are responsible for maintenance, and whether any furniture and furnishings will be provided.
Final Version
Submitted: 5/10/02
SUBLEASE
THIS SUBLEASE AGREEMENT made and entered into on this 1st day of July 2002, by and between Westinghouse Air Brake Technologies, Inc. a Delaware corporation (“Sub Landlord”), and SiRF Technology, Inc., a Delaware corporation, with its principal office at 148 East Brokaw Road, San Jose, California 95112 (“Subtenant”);
WITNESSETH
WHEREAS, Sub landlord leases certain premises located at 5250 N. River Blvd. NE, Cedar Rapids, IA 52411, consisting of 2,260 square feet (the “Exclusive Space”) plus 271 square feet of common area (12% of actual space, consisting of the lobby, restrooms, and common aisles and hallways, referred to herein as the “Common Area”) for a total of 2531 square feet (collectively, the Exclusive Space and the Common Area is referred to herein as the “Sublet Premises”) from McBride Investments (“Landlord”), under the terms of a Lease Agreement dated December 1998, a copy of which is attached hereto as Exhibit “A” and incorporated herein by this reference. The Sublet Premises are more particularly depicted on Exhibit “A-1” hereto, and are part of a larger premises leased by Sub landlord from Landlord, consisting in the aggregate of approximately 36,568 square feet (the “Premises”); and
WHEREAS, Sub landlord and Subtenant have reached an agreement whereby Subtenant will sublease the Sublet Premises from Sub landlord under the terms of this Sublease as more fully described below;
NOW, THEREFORE, for and in consideration of the mutual promises and undertakings hereinafter set forth, the parties hereto mutually covenant and agree as follows.
1. Sublet Premises. Commencing June 1, 2002 (but subject to Section 2.1 below), Sub landlord hereby leases to Subtenant and Subtenant hereby leases from Sub landlord the Sublet Premises, upon the terms and conditions set forth below.
2. Terms and Conditions of Sublease.
2.1. Section 16 of the Lease provides that Sub landlord may not sublet the Sublet Premises without the prior written consent of Landlord. This Sublease and the obligations of the parties hereto are expressly conditioned upon the receipt of the signed, written consent of Landlord in the form attached hereto as Exhibit ”B” (the “Landlord Consent”). Sub landlord shall use reasonable efforts to obtain Landlord’s consent, but Sub landlord shall not be liable to Subtenant for any delay in delivering the Sublet Premises to Subtenant as a result of the delay or failure in obtaining such consent. The parties acknowledge that Landlord, by its execution of the Landlord Consent, consents to Sublandlord’s subleasing the Sublet Premises to Subtenant pursuant to the terms of the Sublease. The parties further acknowledge that the terms and conditions of the Lease are in no way modified by the execution of this Sublease and Sub landlord shall remain obligated to the Landlord for the performance of all obligations of the “Lessee” under the Lease. In the event of conflict between the Lease and this Sublease, the terms
and Lease. In the event of conflict between the Lease and this Sublease, the terms and conditions of the Lease shall at all times govern and control.
2.2. Notwithstanding anything contained in this Sublease to the contrary, this Sublease is in all respects subject to and ‘subordinate to the terms and conditions of the Lease and any subordination or similar agreement executed by Sub landlord in connection with the Lease. In the event of any termination of the Lease for any reason, including without limitation, any termination by Sub landlord arising out of a condemnation of or casualty to any part of the Premises, or a material default by Landlord under the Lease, this Sublease shall automatically terminate and neither party shall have any further liability hereunder except as may be specifically set forth herein. So long as Subtenant is not in default of its obligations under this Sublease beyond any applicable cure period, Sub landlord shall perform all of the obligations of Sub landlord, as “Tenant” under the Lease, as the same pertains to the Sublet Premises, including without limitation pursuant to paragraph 14 of the Lease, and Subtenant hereby grants access to Sub landlord to the Sublet Premises, in accordance with Section 10 of this Sublease, to the extent necessary for Sub landlord to perform such obligations. Sub landlord shall use its reasonable efforts to cause the Landlord to perform its obligations under the Lease but shall not be liable to Subtenant for any failure of Landlord to perform such obligations. Notwithstanding the foregoing or anything to the contrary herein, so long as Subtenant is not in default of its obligations under this Sublease beyond any applicable cure period, Sub landlord agrees not to enter into any agreement with Landlord to terminate the Lease during the term of this Sublease.
2.3. Subtenant shall not commit or permit to be committed any act or omission which shall violate any term or condition of the Lease. Subtenant shall comply with all applicable laws, ordinances, rules and regulations affecting the Sublet Premises.
2.4. Notwithstanding the foregoing or anything to the contrary herein, (a) Subtenant shall have no obligation hereunder to perform Sub landlord’s obligations pursuant to paragraphs 2, 4 through 7, 9 and 10 of the Lease, and (b) the provisions of paragraph 35 of the Lease shall have no application to this Sublease.
2.5. Sub landlord hereby represents to Subtenant that (a) no notices of default have been given under the Lease which remain uncured, (b) to the best of Sub landlord’s knowledge, Sub landlord is not in default under any of the provisions of the Lease and to the best of Sub landlord’s actual knowledge, Landlord is not in default under any of the provisions of the Lease, (c) attached hereto as Exhibit “A” which is a true and complete copy of the Lease.
2.6. Upon payment by Subtenant of the rents herein provided, and upon the observance and performance of all the covenants, terms and conditions on Subtenant’s part to be observed and performed, Subtenant shall peaceably, and quietly hold and enjoy the Sublet Premises for the Sublease term without hindrance or interruption by Sub landlord or any other person or persons lawfully or equitably claiming by, through or under Sub landlord, subject, nevertheless, to the terms and conditions of this Sublease, the Lease, and any mortgage and/or deed of trust to which this Sublease is subordinate.
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3. Rental. Subtenant shall pay to Sub landlord as rent, without deduction, setoff, prior notice or demand, the following monthly installments of Four Thousand Nine Hundred Thirty Dollars Ninety-Seven Cents ($4,930.97), payable on or before the first of each and every month (subject to Section 3.1 below). In the event that the commencement of this Sublease is other than the first day of the month, rent for such partial month shall be prorated based on the number of days in such month that are included in the term of this Sublease. The Sub landlord will leave the network room where it is on the condition that if this space is ever need by Wabtec Railway Electronics, SiRF Technology, Inc. will pay for its movement to an office selected by Wabtec Railway Electronics. (Estimated Cost of $2,500)
3.1. Upon acceptance of this Sublease by Landlord, Subtenant shall pay the first and last months rent in the aggregate amount of Nine Thousand Eight Hundred Sixty One Dollars Ninety-Four Cents ($9,861.94).
3.2. If Sub landlord is entitled to any abatement of rent relating to the Premises and attributable to any part of the Sublease term (“Sub landlord’s Premises Rental”), the rent payable hereunder shall be abated by the same proportion that the abatement to which Sub landlord is entitled is to Sub landlord’s Premises Rental.
4. Term. The term of this Sublease shall commence with respect to the Sublet Premises on June 1, 2002 and continue for a period of twenty-four months. Tenant has no right to renew nor extend the term of this Sublease beyond such twenty-four month period.
The conditions of termination are as follows:
4.1. Wabtec Railway Electronics reserves the right to give SiRF Technology, Inc. a 60-day notice of evacuation of the space in the event that another group is interested in the larger area surrounding the leased area by SiRF Technology, Inc. If Wabtec Railway Electronics determines the space is require for its own business expansion, a 90 day notice of evacuation will be presented. In either such event, this Sublease shall terminate as of the sixtieth or ninetieth day following such notice, as applicable.
4.2. In the event that Wabtec Railway Electronics or SiRF Technology, Inc. determine that a more secure, separated area is required, a demising wall or other structure, reasonably satisfactory to both parties, will be placed between the two areas as to separate the two companies. The cost of such wall or structure will be the responsibility of Subtenant. (Estimated Cost of $10,500). Any modifications to the Sublet Premises under this Section 4.2 will be subject to the requirements of Section 12.
4.4. Termination for Damage or Condemnation. Notwithstanding the foregoing or anything to the contrary in this Sublease, Subtenant shall have the right to terminate this Sublease by written notice upon the occurrence of any damage to the Sublet Premises or to the parking areas serving the same which cannot be repaired within
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thirty (30) days after the occurrence thereof, or in the event any eminent domain or taking occurs which interferes with Subtenant’s ability to operate its business in the Sublet Premises.
4.5. Default. Sub landlord shall have the right to terminate this Sublease upon Subtenant’ s violation (i.e., failure to perform after expiration of any time period specified herein for performance by Subtenant) of any of the terms and conditions hereof, provided that Subtenant shall have the right to cure any such violation within 10 days, in the case of a default in payment, and 25 days in all other cases, subject to extension for force majored, after receiving written notice thereof. In the event that any of Subtenant’s employees, agents, or contractors shall commit any acts of vandalism or other criminal activities on or about the Sublet Premises, Sub landlord may terminate this Sublease immediately.
5. Indemnity. In addition to any other obligations Subtenant may have hereunder, Subtenant shall indemnify and hold harmless Sub landlord from and against any and all claims, losses, liabilities, or damages, including claims for injury to person, loss of life, and damage to property, arising from Subtenant’ s use of the Sublet Premises, or from the conduct of Subtenant’ s business on the Sublet Premises, or from any activity, work, or thing on or about the Sublet Premises or affecting the Sublet Premises that is under the direction or control of Subtenant, or from any breach or default in the performance of any obligation on Subtenant’ s part to be performed under the terms of this Sublease. Said indemnification shall include any and all reasonable costs, damages, expenses, and attorney’s fees incurred or sustained by Sub landlord by reason of such claims. Subtenant’s indemnity obligations hereunder shall survive the expiration or termination of this Sublease.
6. Assignments and Subletting. Subtenant shall not have the right to assign this Sublease (by operation of law or otherwise) or to sublease the Sublet Premises to any third party. In no event shall Subtenant pledge, mortgage or otherwise encumber the Premises, or to allow any portion of the Premises to be used by any third party, except as provided herein.
7. Insurance.
7.1. During the term hereof, Subtenant shall maintain a policy or policies of worker’s compensation and Comprehensive General Liability Insurance, including personal injury, blanket contractual liability and broad form property damage and containing an owner-lesser endorsement naming Landlord and Sub landlord as additional insured, with minimum limits as follows: Two Million Dollars ($2,000,000.00) combined single limit coverage for bodily injury each person, bodily injury each accident, and Two Million Eight Hundred Six Thousand Four Hundred Fifty-one Dollars ($2,806,451.00) for property damage. Subtenant shall also maintain and keep in force policies of property insurance against loss to the contents on or in the Sublet Premises, including but not limited to Subtenant’s property, as a result of fire, theft or other insurable casualties and occurrences, in adequate amounts.
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7.2. Insurance required hereunder must be written by a company authorized to do business in Iowa, subject to the approval of Sub landlord and Landlord, which approval shall not be unreasonably withheld. Each policy of insurance will be endorsed to provide that Sub landlord will receive at least thirty (30) days’ prior written notice of any cancellation of, or material change in, said policy. Subtenant shall not cause any insurance to be cancelled nor permit any insurance to lapse without thirty (30) days’ prior, written notice to Sub landlord. A certificate evidencing liability insurance required to be maintained by Subtenant hereunder naming Sub landlord and Landlord as additional insureds shall be delivered to Sub landlord and Landlord upon the execution of this Sublease.
7.3. Sub landlord and Subtenant each hereby waives any and all rights of recovery against the other, and against any other tenant or occupant of the Premises and against the officers, employees, agents, representatives, customers and business visitors of such other party and of each such other tenant or occupant of the Premises, for loss of or damage to such waiving party or its property or the property of others under its control, arising from any cause insured against or required to be insured against under any policy of property insurance required to be carried by such waiving party pursuant to the provisions of this Sublease (or any other policy of property insurance carried by such waiving party in lieu thereof) at the time of such loss or damage. The foregoing waiver shall be effective whether or not a waiving party actually obtains and maintains such insurance which such waiving party is required to obtain and maintain pursuant to this Sublease (or any substitute therefore). Sub landlord and Subtenant shall, upon obtaining the policies of insurance, which they are required to maintain hereunder, give notice to their respective insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this Sublease.
8. Use of Sublet Premises.
8.1. Subtenant shall use and occupy the Sublet Premises only for office and engineering purposes together with related laboratories, and the Sublet Premises shall be used for no other purpose by Subtenant or any other person or entity. To Sub landlord’s best knowledge, the use of the Sublet Premises contemplated hereby does not violate the Restrictive Covenants currently in effect referred to in the Lease.
8.2. Subtenant and Sub landlord acknowledge and agree that they each have the right to use the Common Area, and that each shall exercise such rights without unreasonably interfering with the rights of the other with respect thereto and/or in such other party’s premises.
8.3. In-addition, Subtenant shall comply with all Environmental laws (as hereinafter defined) in its use of the Sublet Premises, including, without limitation, the obligation to obtain and maintain in effect and comply with all requisite permits and reporting and notification requirements. Subtenant hereby agrees that (i) no activity will be conducted on the Sublet Premises by Subtenant or any party acting on behalf of Subtenant that will produce or cause the release of any Hazardous Substance (as
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hereinafter defined); (ii) the Sublet Premises will not be used by Subtenant or any party acting on behalf of Subtenant in any manner for the storage of any Hazardous Substances except for the temporary storage of de minimis quantities of such materials that are used or produced in the ordinary course of Subtenant’s business conducted on the Premises (the “Permitted Materials”), provided such Permitted Materials are properly stored in a manner and location and are properly disposed of in a manner meeting all Environmental Laws and approved in advance in writing by Sub landlord and Landlord; (iii) upon Sublandlord’s request, Subtenant shall provide Sub landlord with evidence satisfactory to Sub landlord that Subtenant is complying with all Environmental Laws regarding the storage, use, and disposal of Permitted Materials; and (iv) Subtenant will not by its operations or by the operations of any party acting on behalf of Subtenant permit any Hazardous Substances to be brought onto the Premises (except for the Permitted Materials), and if so brought or found located thereon to the extent resulting from the operations of Subtenant or any party acting on behalf of Subtenant, the same shall be immediately removed, all required cleanup and disposal procedures shall be diligently undertaken in accordance with all Environmental Laws, and Subtenant shall provide Sub landlord with evidence satisfactory to Sub landlord of Subtenant’s compliance with all Environmental Laws. If at any time during or after the term of this Sublease, the Sublet Premises are found to be contaminated with Hazardous Substances resulting from Subtenant’s use thereof or Subtenant’s use of the Sublet Premises results in a violation of any Environmental Law, Subtenant agrees to indemnify, hold harmless, protect, and (at Sub landlord’s or Landlord’s election) defend Sub landlord and Landlord from all claims, demands, actions, liabilities, costs, expenses, damages, and obligations of any nature (including, without limitation, attorney’s fees, expert consultant’s fees, and costs of government required investigations and actions) arising from or as a result of the use of the Sublet Premises by Subtenant, but only to the extent caused by Subtenant’s violation of any such Environmental Law or by Subtenant’s use or occupancy of the Sublet Premises. The foregoing indemnification shall survive the termination or expiration of this Sublease. The term “Hazardous Substances” as used in this Sublease shall mean pollutants, petroleum, contaminants, infectious waste, asbestos, radioactive materials, polychlorinated biphenyls (PCBs), toxic or hazardous wastes, or any other substances the removal of which is required or the use of which is restricted, prohibited, or penalized by any “Environmental Law”, which term shall mean any federal, state, or local law, rule, regulation, or ordinance relating to pollution or protection of the environment.
9. Mechanics’s Liens. Subtenant shall (A) within thirty (30) days after it is filed or claimed, have released (by bonding or otherwise) any mechanics’, materialmen’s, or other lien filed or claimed against any or all of the Sublet Premises, by reason of labor or materials provided for Subtenant or any of its contractors or subcontractors (other than labor or materials provided by Sub landlord pursuant to the provisions of this Sublease, including without limitation for the Sublease Improvements), or otherwise arising out of Subtenant’s use or occupancy of the Premises; and (B) defend, indemnify, and hold harmless Sub landlord against and from any and all liability, claim of liability, or expense (including, by way of example rather than of limitation, that of reasonable attorney’s fees) incurred by Sub landlord on account of any such lien or claim.
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10. Access to Premises.
10.1 Upon at least twenty-four (24) hours verbal notice to Subtenant (except in cases of emergency and as specifically provided in Paragraph 13 of the Lease), Sub landlord and/or Landlord shall have the right, without abatement of rent, to enter the Sublet Premises at any reasonable hour during normal business hours (except in the cases of emergency) to examine the same, or to make such repairs and alterations as Sub landlord and/or Landlord shall deem necessary for the safety and preservation of the Sublet Premises, and also to exhibit the Sublet Premises for let.
10.2 Tenant shall have access to the Building 24 hours per day, 7 days per week, 52 weeks per year; provided that Landlord may install access control systems as it deems advisable for the Building. Such systems may, but need not, include full or part-time lobby supervision, the use of a sign-in sign-out log, a card identification access system, building parking and access pass system, closing hours procedures, access control stations, fire stairwell exit door alarm system, electronic guard system, mobile paging system, elevator control system or any other access controls.
11. Vacation of Premises. Subtenant shall vacate the Sublet Premises at the end of the term of this Sublease or any extension or renewal thereof. If Subtenant fails to vacate at such time, Subtenant shall be deemed a tenant at sufferance and there shall be payable to Sub landlord as basic monthly rent hereunder an amount equal to two hundred percent of the monthly rent stated herein, for each month or part of a month that Subtenant holds over and the payment and acceptance of such payments shall not constitute an extension or renewal of this Sublease. In event of any such holdover, Sub landlord shall also be entitled to all remedies provided by law for the speedy eviction of tenants, and to the payment of all attorney’s fees and expenses incurred in connection therewith. Subtenant shall return the Sublet Premises to Sub landlord at the expiration or termination of this Sublease in the same condition as at the commencement of this Sublease, ordinary wear and tear, casualty damage and any express obligations of Subtenant under this Sublease excepted.
12. Condition of Sublet Premises. THE SUBLET PREMISES WILL BE TURNED OVER TO SUBTENANT IN ITS CURRENT “AS-IS” CONDITION, WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Subtenant shall be responsible for ordinary maintenance and repairs to the Exclusive Space (except for such maintenance and repairs for which Landlord is responsible under the Lease). Subtenant shall also, at its sole expense and subject to Landlord’s and Sublandlord’s written approval of Subtenant’s construction documents, perform such alterations and improvements as are necessary for Subtenant’s particular use of the Sublet Premises. If directed in writing to do so by Sub landlord at the time Sub landlord approves the same, upon vacating the Sublet Premises, Subtenant shall remove any such alterations and improvements and restore the Sublet Premises to its original condition as of the date of this Sublease.
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13. Parking. Subtenant shall have a nonexclusive right to use its proportionate share (at least 10 spaces) of any and all parking spaces which Sub landlord is entitled to use under and pursuant to the applicable provisions of the Lease. Subtenant’s right to use said parking spaces shall be at no additional cost. Such parking spaces shall be available on a first-come, first-served basis, and no spaces shall ‘be deemed to be specifically reserved for Subtenant.
14. Roof Rights. Subtenant shall have the right, at its sole cost and expense and subject to Sub landlord’s and Landlord’s approval, to place satellite dish(es) and antenna(e) together with all wiring or other connections therefore (collectively, the “Roof Items”), on the roof of the Premises. In the event that any such ‘ installation interferes with the operations or installations of Sub landlord, Subtenant shall, at its sole cost and expense, at Sub landlord’s request, relocate or modify its installation to eliminate any such interference. In the event Sub landlord installs or permits installation by any person of a similar system on the roof of the Premises, Sub landlord shall cause the same not to interfere with the Roof Items. Landlord and Sub landlord shall, at Subtenant’s cost, cooperate with Subtenant in the procurement of necessary permits or zoning variances for the Roof Items and execute all documents required to obtain necessary permits or zoning variances. In the event Landlord or Sub landlord contemplates roof repair or requires access which requires temporary removal or relocation of the Roof Items, or which may result in an interruption in Subtenant’s telecommunication services, Sub landlord shall, if practicable, notify Subtenant at least thirty (30) days prior to such contemplated work in order to allow Subtenant to make other arrangements for such services. The cost or removal and re-installation of any Roof Items affected thereby shall be borne by Subtenant. Subtenant or its agents or representatives shall, at all times during business hours and with a representative of Landlord present, be permitted use of and access to the roof for purposes of examination and repair of the Roof Items. Upon termination of the Sublease, Subtenant shall disconnect and remove such Roof Items, and fully repair and restore the roof to the same condition than prior to installation of the Roof Items, normal wear and tear excepted. Subtenant’s obligations with respect to the Roof Items are identical to Subtenant’s obligations with respect to the Subleased Premises pursuant to the Sublease, including without limitation maintenance, insurance and indemnification.
15. Miscellaneous.
15.1. All notices, requests, demands and other communications hereunder shall be in writing, and shall be deemed to have been delivered upon receipt or upon refusal of receipt after being sent by nationally recognized overnight delivery service or by United States Mail, postage prepaid, certified, return receipt requested, addressed to the parties at the respective addresses set forth below:
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(1) To Sub landlord at | Wabtec Railway Electronics | |||
| 5250 N. River Blvd. NE | ||||
| Cedar Rapids, IA 52411 | ||||
| Attn: Facilities Manager | ||||
| Fax No. 319-247-6980 |
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With a required copy to | Wabtec Railway Electronics | |||
| 21200 Dorsey Mill Road | ||||
| Germantown, MD 20876 | ||||
| Attn: Director, Administration | ||||
| Fax No. 301-515-2138 | ||||
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(2) To Subtenant at | SiRF Technology, Inc. | |||
| 148 E. Brokaw Road | ||||
| San Jose, CA 95112 | ||||
| Attn: Director of Facilities | ||||
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(3) To Landlord at | McBride Investments | |||
| Attn: Dick McBride | ||||
| 2000 Diamond Ridge, SE | ||||
| Cedar Rapids, IA 52403 | ||||
| Fax No. | ||||
Or to the respective parties at such other address for notice as may be specified by notice given pursuant hereto.
15.2. All of the terms of this Sublease shall be binding upon and inure to the benefit of, and be enforceable by, the successors and assigns of the parties.
15.3. This Sublease, and any and all attachments hereto, represents the entire agreement of the parties as to the subject matter hereof and supersedes any previous understandings, either oral or written, between the parties as to the subject matter hereof.
15.4. Sub landlord and Subtenant hereby warrant and represent to the other that they have not dealt with any broker, agent or finder in connection with this Sublease. Sub landlord and Subtenant covenant and agree to indemnify and hold the other harmless from and against any and all loss, liability, costs or expenses (including but not limited to attorney’s fees and expenses and court costs) that may be incurred by the other because of any claim for any fee, commission or similar compensation with respect to this Sublease, made by any broker, agent or finder, claiming by, through or under the indemnifying party.
15.5. Submission of this Sublease for review and examination or Subtenant’s signature does not constitute a reservation of or option to lease, and this Sublease is not effective as a sublease or otherwise until execution and &livery by both Sub landlord and Subtenant.
15.6. If any action at law or in equity, including an action for declaratory, relief, is brought by other party hereto to enforce or interpret the provisions of this Sublease, the prevailing party in such action shall be entitled to recover reasonable attorney’s fees from the non-prevailing party, which fees may be sent by the court in the trial of such action or may be enforced in a separate action for that purpose, and which
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fees shall be in addition to any other relief which may be awarded in such action.
15.7. In the event that the date upon which any of the duties or obligations hereunder to be performed shall occur upon a Saturday, Sunday or legal holiday, then, in such event, the due date for performance of any duty or obligation shall thereupon be automatically extended to the next succeeding business day.
15.8 This Sublease shall be governed by and interpreted under the laws of the State of Iowa, except for any laws of such state which would require the application of the laws of another state.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the date first above written, the corporate parties acting through their respective duly authorized officers.
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SUBLANDLORD: | ||
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ATTEST OR WITNESS: |
WESTINGHOUSE AIR BRAKE TECHNOLOGIES, INC. | |
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Name: /s/ Sandra M. Heifner |
By: /s/ Jeffrey G. Knott | |
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Title H R ADMINISTRATOR |
Name: Jeffrey G. Knott | |
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Title: Director, Train Control communications | ||
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SUBTENANT: | ||
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ATTEST OR WITNESS: |
SiRF TECHNOLOGY, INC. | |
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Name: |
By: /s/ Walter D. Amaral | |
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Title: |
Name: Walter D. Amaral | |
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Title: SR VP & CFO | ||
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Exhibit A
THE LEASE
See Attached Document.
LEASE AGREEMENT
THIS LEASE AGREEMENT, made, executed and entered into this day of , 1998, by and between RICHARD L. McBRIDE and LANA K. McBRIDE d/b/a McBride Investments (hereinafter “Landlord”), and Westinghouse Air Brake Company, a Delaware corporation, (hereinafter “Tenant”).
WITNESSETH:
In consideration of the promises, covenants and agreements of the parties contained and made herein, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the premises, property and facilities hereinafter described upon the terms and conditions hereinafter set forth.
1. LEASED PREMISES. The premises which is the subject matter of this Lease is situated in the City of Cedar Rapids, Linn’ County, Iowa, and is more particularly described as follows:
An approximately 36,568 square foot one-story office building to be constructed on an approximately 3.802 acre site on North River Boulevard, NE on the real estate described below.
Any reference hereinafter in this Lease to “leased premises” or “premises” shall mean and refer to the space being leased by Tenant. Any reference hereinafter in this Lease to “real estate” shall mean and refer to Lot 1, River Ridge North Office Park Fifth Addition to Cedar Rapids, Iowa.
2. CONSTRUCTION OF IMPROVEMENTS. Landlord shall construct upon the leased premises improvements as agreed to by Landlord and Tenant. The improvements shall be constructed in accordance with all applicable local, state or Federal laws and regulations and the Restrictive Covenants as hereinafter defined in a good and workmanlike. manner in substantial accordance with the plans and specifications as mutually agreed to by the parties. Landlord agrees during the warranty period that it shall enforce for the benefit of Tenant all warranties or other contractual benefits from manufacturers, material suppliers, subcontractors, or others to the extent such are enforceable; after the warranty period Landlord will assign to Tenant all such warranties or guarantees with reference to items that Tenant is thereafter obligated to maintain. In addition Landlord shall warrant the improvements for a period of one year from the commencement date of this Lease, including both labor and material. Tenant shall reimburse Landlord for the cost of the construction of the improvements in excess of Two Million Eight Hundred Six Thousand Four Hundred Fifty-one Dollars ($2,806,451.00), which amount shall be paid monthly and amortized over the initial lease period bearing interest at nine percent (9%) per annum, with interest accruing thereon from and after the date the improvements are completed. The first monthly payment shall be due on the first day of the month after the date on which the improvements are
completed, or, at the occupancy of Tenant, whichever first occurs. The parties agree that they will execute a Memorandum setting forth the cost of the improvements, with an amortization schedule attached showing the required payments.
3. TERM. The initial term of this Lease shall be for a period of fifteen (15) years commencing on the 1st day of May, 1999, or on such date that Tenant may use or occupy the leased premises for its intended purpose; provided Landlord agrees (i) to substantially complete the Improvements so that Tenant may occupy the same no later than July 1, 1999, and (ii) to fully complete the Improvements by not later than September 1, 1999, which final completion shall be evidenced by (a) a certificate from Landlord’s architect that all work was completed in accord with the plans and specifications and (b) delivery to Tenant of final occupancy certificates from all applicable governmental bodies.
Landlord hereby grants to Tenant the option to extend this Lease for one (1) additional five (5) year period upon the same conditions and terms which were in effect during the original term except as noted hereinafter. Written notice of the exercise of said option by Tenant must be received by Landlord no later than six (6) months prior to termination of the original term.
4. RENTAL. Tenant shall pay to Landlord as annual base rental for the premises during the first five (5) years of this Lease an annual base rent of. Two Hundred Ninety-six Thousand One Hundred Sixty Dollars ($296,160.00), payable monthly in advance at such place as may be designated by Landlord. Rent shall commence on the date Landlord delivers possession of the premises to Tenant, and if it-is a date other than the first day of the month, the first month’s rent shall be prorated.
The annual base rent shall be adjusted effective as of the first day of the sixth year of the Lease, and as of the first day of each year thereafter based upon seventy-five .percent (75%) of the increase or decrease in the cost of living in relation to the base rent. Such increase or decrease shall be determined by utilizing as the “base index” the Consumer Price Index for All Urban Consumers (CPI-U) published monthly by the Bureau of Labor Statistics of the U.S. Department of Labor for the month of May, 1999, and utilizing for determining the initial cost of living increase the CPI-U for the month of May, 2004, and the month of May for each year thereafter . If the CPI-U index is discontinued during the term of this Lease, then in order to carry out the purpose and intent of this paragraph, the parties agree to select and agree upon and conform to a price index-or standard which is most nearly like the one herein adopted, or in the event of a revision thereof providing a different base period, the formula herein adopted will be amended to conform with a conversion of said figures. Until such new index or standard is agreed upon or the conversion is standardized, as the case may be, the rental due shall be the last in force prior to discontinuance of said price index herein adopted as a basis or the revision thereof. After such new index or standard or conversion is determined, the rent shall be retroactively adjusted and any additional amounts due shall be paid with the next rental payment. Notwithstanding the fact that the
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adjustment(s) may result in a decrease, the effective Lease rate shall never be based upon a rate which is less than the original base annual rent.
In those years in which the interest rate on Landlord’s mortgage encumbering the real estate is adjusted, the base annual rent shall be adjusted based upon 100% of the increase or decrease of the mortgage interest rate (as and when the mortgage interest rate adjustment occurs) as well as the CPI index adjustment set forth hereinabove, provided there shall be no adjustment in the interest rate on Landlord’s mortgage during the initial five (5) lease years.
5. NET RENTAL. It is the intention of the parties hereto that this Lease is a “triple net Lease” and that the rentals payable to Landlord shall, except for those specifically identified obligations of Landlord set forth in paragraph 14 below, be a net rental and Tenant, as hereinafter more particularly set forth, shall pay any and all taxes, costs and expenses arising from the use and occupancy of the leased premises. If a sales tax or other similar tax . is imposed against Landlord on the rentals due pursuant to this Lease Agreement during the term of this Lease or any extension thereof, Tenant shall pay as additional rent such tax as may be imposed. In no event, however, shall Tenant be required to pay any income tax based on the receipt of the rentals by Landlord.
6. TAXES. Tenant shall have the responsibility of paying, as additional rent, all real estate taxes, special assessments or similar charges levied against the leased premises and the improvements thereon by virtue of any present or future law of the United States of America, the State of Iowa, any county or municipality, or any political subdivision of any of the aforesaid. On the first day of each month, Tenant shall pay to Landlord, as additional rent, one twelfth (1/12) of the estimated real estate taxes, special assessments, or other charges to become due during the following twelve (12) month period, which funds shall be applied by Landlord to payment of said taxes as the same become due and payable. Landlord will maintain such payments in a non-interest bearing account. Estimated tax payments will be made on the best information currently available. As of the end of each fiscal tax year, any overpayments will be credited and any underpayment will be added in computing the estimated taxes to be paid for the following fiscal tax year. As a new millage rate becomes known or a new assessed value becomes known, the same adjustments will be made as outlined above. Tenant shall have the responsibility of paying any increase in the real estate taxes caused by any other improvements constructed by or at the direction of Tenant. In the event Landlord pays any taxes, assessments, or charges from the funds in its possession, it will furnish Tenant with receipts showing the payments made. In the event Landlord fails to properly apply any funds in its possession to the payment of taxes, Tenant may pay the same and deduct the amount thereof, together with interest thereon at the rate of twelve percent (12%) per annum until fully repaid, from the rentals payable hereunder. Taxes payable under the provisions of this paragraph shall be prorated as of the date tills Lease commences. Taxes payable for the year the Lease terminates shall be prorated as of the date the Lease expires and Tenant’s share of those taxes shall be due and payable with the final month’s rent
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payment. In the event any special assessments are made against the premises payable in annual installments at the option of the taxpayer, Tenant will only be obligated to pay such installments, together with interest or other carrying charge, as shall become due and payable during the Lease term.
Tenant shall have the right to contest or review by legal proceedings or in such other manner as may be legal (which, if instituted, shall be conducted promptly at Tenant’s own expense) any tax or assessment.
7. FIRE AND CASUALTY INSURANCE. Tenant shall have the responsibility of obtaining and paying the expense of keeping all buildings and improvements affixed to said premises and all furnishings, fixtures and equipment located thereon insured at all times against loss by fire, windstorm, lightning, tornado and other hazards and casualties to Full Replacement Cost. Said policy shall provide that full replacement value (without deduction for depreciation), which amount for the initial term of this Lease shall be Two Million Eight. Hundred Six Thousand Four Hundred Fifty-one Dollars ($2,806,451.00), shall also apply if the building or improvements must be rebuilt at a different location due to the then applicable laws, statutes or ordinances. In the event of the destruction of or damage to the leased premises by fire or other casualty, the proceeds from said insurance. will be used to replace, restore and repair the leased premises.
8. DESTRUCTION OF PREMISES. Tenant shall give immediate written notice to Landlord of any damage caused to the premises by fire or any other casualty. In the event of a partial destruction or damage of the leased premises, which is a business interference, that is, which prevents the conducting of a normal business operation and which damage is reasonable repairable within ninety (90) days after its occurrence, this Lease shall not terminate but the rent for the leased premises shall abate during the time of such business interference. In the event of partial destruction, Landlord shall repair such damages within ninety (90) days of its occurrence unless and only to the extent prevented from so doing by acts of God, the elements, the public enemy, strikes, riots, insurrection, government regulations, city ordinances, labor, material or transportation shortages, or other causes beyond Landlord’s reasonable control.
In the event of a total destruction or damage of the leased premise so that Tenant is not able to conduct its business on the premises or the then current legal use for which the premises are being used and which damages cannot be repaired within ninety (90) days, this Lease may be terminated at the option of either Landlord or Tenant. Such termination in such event shall be effected by written notice of one party to the other, within forty-five (45) days after such destruction. Tenant shall surrender possession within ten (10) days after such notice issues, and each party shall be released from all future obligations hereunder, Tenant paying rental pro rata only to the date of such destruction. In the event of such termination of this Lease, Landlord at its option, may rebuild or not, according to its own
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wishes and needs. If this Lease is not so terminated, Landlord shall promptly commence such repairs, restoration or rebuilding and shall diligently prosecute the same to completion.
In the event of a total destruction or damage of the leased premise as described hereinabove, and not withstanding existence of default hereunder, Tenant shall have the right to exercise the “Purchase Option” set forth in paragraph 40 hereinafter, not withstanding any limitations on the timing to exercise such option otherwise set forth in paragraph 40. If this option is exercised after the 30th month of this Lease, the purchase price shall be determined as set forth in the second paragraph of paragraph 40 hereinafter (otherwise it will be determined in accordance with the first paragraph of paragraph 40) with the Closing as set forth in the third paragraph of paragraph 40 hereinafter to be held within 90 days after written notice. If Tenant exercises the option hereunder all insurance proceeds shall be paid to Tenant (or the rights thereto assigned to Tenant).
9. LIABILITY INSURANCE. Tenant shall, at its expense, maintain . comprehensive general public liability insurance. Such insurance shall have limits of not less than One Million Dollars ($1,000,000.00) for personal injury sustained by any one (1) person, Two Million Dollars ($2,000,000.00) for personal injury sustained in any one (1) accident; and Two Hundred Thousand Dollars ($200,000.00) for property damage in any one (1) accident. Landlord shall name Tenant as an additional insured on Landlord’s standard liability policy and will deliver a copy of same within ten (10) days of execution of this Lease and will not reduce the amount thereof without Tenant’s written consent, which consent will not be unreasonably withheld.
10. GENERAL INSURANCE PROVISIONS. All insurance required to be maintained by Tenant under the terms of this Lease shall name Landlord as an insured party and shall be in such companies and in such form as shall be acceptable to Landlord. Such policies shall contain an agreement by the insurance company that such policy or policies shall not be canceled without at least ten (10) days prior written notice to Landlord. Tenant shall deliver to Landlord copies of insurance policies in force or appropriate certificates of insurance and shall furnish Landlord with proof that such policies have been renewed at least ten (10) days prior to their expiration date.
11. USE OF PREMISES. Tenant may use and occupy the subject premises for office and engineering purposes together with related laboratories, and storage of materials and related maintenance purposes and for any other legal purpose that does not violate the Restrictive Covenants which affect the real estate. Tenant shall not use or knowingly permit any part of such premises, property or facilities to be used or occupied for any unlawful purpose. Tenant shall, at Tenant’s own cost and expense, procure each and every permit, license, certificate or other authorization required in connection with the lawful and proper use
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of the leased premises or required in connection with any building or improvements now or hereafter erected on the leased premises other than the occupancy certificate which is to be provided by Landlord. Landlord shall cooperate with Tenant and join in the execution of necessary applications and other documents.
Except to the extent resulting from breach or default by Landlord, Tenant shall make all repairs, alterations, additions or replacements to the leased premises, whether interior or exterior, structural or nonstructural, required by any law or ordinance or any order or regulation of any public authority necessary because of Tenant’s use of the leased premises and to keep the leased premix :s equipped with all safety appliances so required because of such use or occupancy.
12. UTILITIES. Tenant shall, at its own expense, pay for all utilities serving the leased premises.
13. ACCEPTANCE AND CONDITION OF PREMISES. Landlord shall give Tenant written notice of the date on which the Landlord’s construction will be completed. Within.. thirty (30) days after receipt of said completion notice Tenant shall inspect .the condition of the leased premises and give Landlord written notice of either accepting the leased premises or notifying Landlord in writing of any patent changes Tenant deems necessary and agreed upon by the Landlord and Tenant; nothing herein shall release Landlord for its failure to complete construction in accordance with the approved plans and specifications and in accordance with all laws and regulations.
14. CARE AND MAINTENANCE OF PREMISES AND REAL ESTATE.
(a) LANDLORD’S DUTY OF CARE AND MAINTENANCE. Landlord will keep the roof, structural part of the floor, structural part of the exterior walls and other structural supporting parts of the building in good repair, excepting only for damage caused by Tenant’s negligence. Landlord shall also be responsible for any repairs of damage caused by the negligence or wrongful acts or omissions of Landlord, its agents, employees or contractors.
(b) TENANT’S DUTY OF CARE AND MAINTENANCE. Tenant shall, after taking possession of said premises and until the termination of this Lease and the actual removal from the premises, at its own expense, care for and maintain said premises in a reasonably safe and serviceable condition, except for(a) Landlord’s obligations as set forth in paragraph 14(a) hereinabove, (b) latent defects, (c) matters arising during Landlord’s warranty period, or (d) as otherwise provided herein. Tenant will furnish its own interior and exterior decorating. Tenant will not permit or allow said premises to be damaged or depreciated in value by any wrongful act or negligence of Tenant, its agents or employees. Without limiting the generally of the foregoing, Tenant will make necessary repairs and replacements to the sewer, the plumbing, the water pipes, HVAC systems, electrical wiring, fire sprinkler system,
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and lawn sprinkler system and Tenant agrees to keep faucets closed so as to prevent waste of water and flooding of premises; to promptly take care of any leakage or stoppage in any of the water, gas or waste pipes. Subject to force majeure Tenant agrees to maintain adequate heat to prevent freezing of pipes. Tenant at its own expense may install replacement floor covering and will maintain such floor covering in good condition. Tenant will be responsible for the plate glass in the windows of the leased premises and for maintaining the parking area, driveways, sidewalks, and other common areas on and abutting the real estate, including snow removal and lawn and landscape maintenance (including lawn sprinkler system). Tenant shall make all necessary repairs and replacements at its own expense. Tenant shall not make any material structural alterations to the leased premises without first obtaining the written consent of Landlord which consent shall not be unreasonably withheld. In making any repairs, replacements or material alterations to the premises, Tenant agrees to use materials and workmanship of a quality and class at least equal to the original construction. Tenant agrees that at termination of the Lease, the property herein leased shall be returned in a state of good and reasonable repair, ordinary wear, tear and casualty excepted provided, however, that in any event all heating, air conditioning and other mechanical equipment shall be in good working order.
15. MECHANICS LIENS. In the event any mechanic’s lien shall arise or. be claimed upon the subject premises against either Tenant or Landlord on account of material furnished or labor or work performed by either under the rights and obligations of either under this Lease Agreement,, and a mechanic’s lien be filed or an action be brought for the foreclosure of any such lien against either Tenant or Landlord, or both, then Tenant and Landlord each agree to either pay and cause such lien to be released or to post with the other an indemnification bond to secure and protect the other’s interest in the subject premises, in an amount and with sureties to be approved by the other, which approval shall not be unreasonably withheld.
16. TRANSFER OF LEASEHOLD INTEREST. Tenant shall not assign, transfer, mortgage or pledge this Lease Agreement or any renewal or extension thereof, or any part thereof, without the written consent of Landlord. for each such instance, which consent will not unreasonably be withheld except that, without such consent, Tenant may assign its rights under this Lease to any corporation affiliated with Tenant or to any entity which succeeds to the ownership of the capital stock or assets of Tenant, or into which Tenant is merged, but any such assignment shall not relieve Tenant of any of its obligations under this Lease and any surviving entity shall continue to operate the business of Tenant as a going concern. No written consent by Landlord to any assignment, transfer, mortgage, pledge or subletting shall release Tenant from the liability for the full performance of all of Tenant’s agreements hereunder, unless otherwise expressly provided in such written consent. Tenant further agrees not to suffer or permit the transfer or assignment of this Lease or any part thereof or interest therein by operation of law.
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17. INSPECTION OF PREMISES. Landlord, its agents and employees, shall have the right to enter upon the premises at reasonable times for the purpose of inspecting the same or to make such repairs, additions or betterments as Landlord may see fit to make for the safety, improvement or preservation thereof or any other reasonable purpose. Landlord agrees that these inspections and any resulting necessary repairs shall be coordinated with Tenant to have a minimal impact on Tenant’s operation and in the absence of an emergency require not less than three (3) business days’ advance written notice to Tenant.
18. SUBORDINATION. Tenant will, upon request by Landlord, subject and subordinate this Lease to any and all mortgages and deeds of trust now existing or hereafter placed on the Land; provided, however, that such subordination shall be upon the express condition that this Lease shall be recognized by the mortgagee or trustee under the mortgage or deed of trust and that the rights of Tenant hereunder shall remain in full force and effect during the Term of this Lease so long as Tenant is not in default under this Lease beyond the expiration of any applicable cure period. Subject to receipt of such recognition and agreement not to disturb Tenant, Tenant agrees that this Lease shall remain in full force and effect notwithstanding any default or foreclosure under any such mortgage or deed of trust. Tenant will, upon request by Landlord, execute and deliver to Landlord instrument(s) in recordable form reasonably required to give effect to the provisions of this Section. Landlord will, upon request by Tenant, cause to be executed and delivered to Tenant instrument(s) in recordable form reasonably required to effect the recognition of Tenant’s rights hereunder by the holders of all such mortgages and deeds of trust whether or not Tenant has been requested to subordinate this Lease to such mortgages or deeds of trust.
19. RIGHT TO CURE DEFAULTS. In the event Tenant, after ten (10) days written notice in case of a default involving the payment of money or thirty (30) days written notice in other cases of default, but subject to extension in the event of force majeure, shall fail to pay taxes, special, assessments or other charges, fail to keep required insurance in full force and effect, or fail to effect necessary repairs and/or replacements, or become in default in any other manner, Landlord may, but need not, pay such taxes, assessments, charges, insurance premiums or make such necessary repairs and/or replacements as provided for in paragraph 14 or otherwise cure any existing default, and all sums paid or expenses incurred by Landlord shall be deemed additional rent and shall be added to*the next subsequent monthly installments of rent due and payable under this Lease. Nothing in this paragraph shall limit or modify Landlord’s rights or Tenant’s responsibilities under paragraph 14. .
20. INTEREST AND OTHER CHARGES. Any sums owed by Tenant under the terms of this Lease, if not paid when the same shall become due and payable, shall bear interest at the rate of twelve percent (12%) per annum, from the due date thereof. Landlord agrees to provide Tenant with written notice within sixty (60) days of any interest owing on account of any rental sum paid -hereunder after its due date. In the event any action is commenced in any Court for the collection of rent or to enforce any of the other provisions of this Lease, Tenant shall pay and have taxed as part of the costs, reasonable attorneys fees in
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favor of Landlord. Tenant agrees that in the event any payment due hereunder has not been made within ten (10) days after due, it shall remit to Landlord a late charge equal to two percent (2%) of the amount due.
21. DEFAULT. In the event of any breach by Tenant of any of the covenants, agreements and conditions of this Lease or if Tenant shall abandon or vacate the leased premises before the end of the term of the Lease, or if Tenant shall become insolvent, or shall be adjudicated bankrupt, or if Tenant’s property located on the leased premises shall be levied upon on execution which levy is not discharged or bonded over in sixty (60) days, or if any lien against Tenant’s property located upon the leased premises shall not be released within sixty (60) days, then and in any of said events, all of the indebtedness of Tenant to Landlord under this Lease, upon ten (10) days written notice in case of a default involving the payment of money or thirty (30) days written notice in other cases of default (but subject to extension in the event of force majeure), shall become immediately due and payable, and Landlord thereupon:
| a. | shall have the right to enforce the payment of said indebtedness by foreclosure of the liens securing the same, and/or |
| b. | shall have the right, without further notice, to declare a forfeiture and termination of this Lease and of all rights of Tenant hereunder, and shall the right to remove Tenant from said premises, and/or |
| c. | shall have the right, without further notice and without declaring forfeiture and termination of this Lease, to take possession of said premises and relet the same in Landlord’s name for such rent and upon such terms as Landlord may determine and to apply said rent upon the amount owing by Tenant hereunder. Tenant shall remain liable for any deficiency in the total rentals received by Landlord. |
The aforesaid rights of Landlord shall not be exclusive of each other nor of any other rights and remedies which Landlord may have at any time under the laws of the State of Iowa or this Lease Agreement, but shall be cumulative.
22. EMINENT DOMAIN. If any or part of the leased premises shall be taken for any public or quasi-public use under any statute, or by right of eminent domain, or by private purchase in lieu thereof, this Lease shall terminate as to such portion so taken and Landlord and Tenant shall pursue their respective rights against the acquiring authority independently of each other but no such claim by Tenant shall diminish or otherwise adversely -affect ‘Landlord’s award. Tenant shall have no right or claim to any portion of Landlord’s award for the taking of its right, title or interest in the leased premises nor shall Landlord have any right or claim to any portion of Tenant’s award for the taking of its property, its leasehold
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improvements or for the value of its leasehold interest taken In the event of a partial taking, Tenant shall continue to utilize said premises for the operation of their business to the extent that it may be practicable to do so from the standpoint of good business, and in such event rentals shall abate from the time of such taking until the remainder of the premises have been restored, except to the extent that Tenant continues or resumes doing business from part of the promises, in which case the rent will be equitably reduced. In the event the taking is of such extent that Tenant cannot operate its business on the premises Tenant may terminate this Lease.
In the event the taking is of such extent that Tenant cannot operate its business on the leased premises, and not withstanding existence of default hereunder, Tenant shat: have the right to exercise the “Purchase Option” set forth in paragraph 40 hereinafter not withstanding any limitations on timing to exercise such options otherwise set forth in paragraph 40. If this option is exercised after the 30th month of this Lease, the purchase price shall be determined as set forth in the second paragraph of paragraph 40 hereinafter (otherwise it will be determined in accordance with first paragraph of paragraph 40) with the Closing as set forth in the third paragraph of paragraph 40 hereinafter to be held within ninety (90) days after written notice. If Tenant exercises the option hereunder all condemnation proceeds shall be paid to Tenant or the rights thereto assigned to Tenant.
23. TERMINATION DAMAGES. Upon termination of this Lease or any extension thereof,. if Tenant is not then in default, Tenant may remove its furniture, furnishings, fixtures, equipment and other property located upon and installed in the subject premises at Tenant’s expense, except as hereinbefore and otherwise provided. Tenant shall repair any damage to the subject premises occasioned by such removal and restore said premises to the condition prior to its tenancy, reasonable wear and tear and casualty damage excepted.
24. SIGNS. Tenant may, at its own cost and expense, attach or attach to the exterior of the building signs or insignia which shall be in compliance with the rules, regulations, ordinances and statutes of the City of Cedar Rapids, the State of Iowa and any applicable restrictive covenants. All signs to be affixed to the building or otherwise located upon the leased premises shall be subject to the approval of Landlord, which approval will not be unreasonably withheld.
25. ENVIRONMENTAL. Tenant will not, during the term of this Lease and in connection with the use of the leased premises, engage in the business of generating, transporting, storing, treating or disposing of any material or substance designated or classified as a hazardous substance, waste or contaminant by any federal, state or local statute or ordinance or by any rule or regulation promulgated or adopted, pursuant thereto, including but not limited to, petroleum, asbestos, “PCB”s and radioactive materials or waste (“Hazardous Materials”) on the property. Tenant shall not permit the leased premises to be used for the storing or disposal of waste or for storing or disposal of Hazardous Materials and will not
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permit the leased premises nor any of its various components to emit any Hazardous Materials, provided that the foregoing shall not prohibit lawful storage and use of material incidental to Tenant’s business. Tenant shall indemnify and hold Landlord harmless from any damages or claims arising from a breach of this provision. Landlord shall indemnify and hold Tenant harmless from any and all damages or claims arising from conditions relating to the storage, handling or disposal of hazardous substances or materials which existed on the property prior to the initial lease term or otherwise caused by Landlord, its agents, employees or contractors.
26. REPRESENTATIONS. Landlord and its agent have not made any representations with respect to the subject premises, property and facilities, the land upon which the same are located, by implication or otherwise, except as expressly set forth herein and in the other provisions of this Lease Agreement.
Landlord hereby represents, warrants and covenants that:
(i) Landlord shall complete the improvements and other work to be constructed by Landlord in accordance with the terms hereof;
(ii) Landlord has received all consents and permits under the Restrictive Covenants to construct the improvements and such improvements, when constructed, will not violate the Restrictive Covenants;
(iii) The use by Tenant of the Leased Premises for office and engineering purposes, together with related laboratories and storage and maintenance will not violate the Restrictive Covenants nor any zoning laws or applicable governmental regulation;
(iv) Landlord will not grant any easements or rights with reference thereto after the date hereof without the consent of Tenant, which consent shall not be unreasonably withheld;
(v) Within ten (10) days after delivery of possession of the Leased Premises to Tenant, Landlord will provide to Tenant as-built drawings of the real estate and Leased Premises;
(vi) Landlord has no knowledge of the existence of any hazardous substance or other violations of any environmental law at, in or under the real estate or the Leased Premises.
27. ENTIRE AGREEMENT AND CHANGES. This Lease Agreement in itself contains the entire agreement between Landlord and Tenant and can only be changed and modified in writing between them.
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28. LAW APPLICABLE AND INVALIDITY. This Lease Agreement shall be deemed to have been made in the State of Iowa and shall be construed according to the laws of said State. If any provisions of this Lease Agreement shall. for any reason be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof, and said Lease Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
29. NOTICES. Any notice required to be given under this Lease Agreement or which may be given, though not required, shall be in writing and shall be deemed duly served if mailed by certified mail, in case of notice to Tenant, to the address of the leased premises, and in case of notice to Landlord, to the place at which the rent is then being paid. Either party may change the address to which notices shall be sent by giving written notice of such change to the other. Personal service of any such notice may be made in lieu of service by mail, provided that such personal service is made upon an officer or designated agent of Landlord or is made upon an officer or designated agent of Tenant.
30. QUIET ENJOYMENT. Landlord covenants that it has full authority to execute this Lease Agreement and that Tenant, upon paying the rentals herein provided and performing its obligations under this Lease Agreement, shall quietly have, hold and enjoy the leased premises during -the term hereof, subject to the provisions herein contained.
Landlord shall have the right to mortgage all of its right, title and interest in and to the real estate, including the leased premises, at any time without notice, subject to this Lease.
31. WAIVER OF BREACH. It is further covenanted and agreed by and between the parties that no waiver of a breach of any of the covenants of this Lease Agreement nor any payment by Landlord of any sums due and payable by Tenant nor ‘the performance by Landlord of any act which is the duty and obligation of Tenant under the terms of this Lease Agreement, shall be construed to be a waiver of any succeeding breach of the same or any*other covenant, and that the failure of Landlord to insist upon strict performance of any of the covenants or conditions or provisions of this Lease Agreement or to exercise any option herein conferred in any one or more instances; shall not be construed to be a waiver of or relinquishment for the future of any such covenants, conditions or options but the same shall remain in full force and effect. It is further covenanted and agreed that the acceptance of or collection of rent by Landlord from any subtenant, assignee or transferee of this Lease or from any successor to Tenant’s interest therein, even though with full notice thereof, shall not constitute a consent thereby by Landlord or waive any rights of Landlord arising out of any such unauthorized subletting, assignment or transfer.
32. MUTUAL INDEMNIFICATION. Landlord hereby releases and agrees to defend, indemnify and hold harmless Tenant from and against any and all claims, actions, damages, liability and expense (including reasonable attorneys’ fees) in connection with loss
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of life, personal injury and/or damage to property occasioned by any act or omission of Landlord, its agents, contractors, employees or invitees. Tenant hereby releases and agrees to defend, indemnify and hold harmless Landlord from and against any and all claims, actions, damages, liability and expense (including reasonable attorneys’ fees) in connection with loss of life, personal injury and/or damage to property occasioned by any act or omission of Tenant, its agents, contractors, employees, or invitees.
33. ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of the earliest 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, and Landlord’s right to recover the balance of such rent or pursue any other remedy in this Lease provided.
34. HOLDING OVER. In the event Tenant, with Landlord’s consent, remains in possession of the premises after the expiration or termination of the term of this Lease, and without the execution of a new Lease, Tenant shall be deemed to be occupying the premises as a Tenant from month-to-month at a rental equal to the last month of the Lease term, and otherwise subject to all conditions, provisions, and obligations of this Lease insofar as the same are applicable to a month-to-month tenancy.
35. “LANDLORD” MEANS “OWNER”. The term “Landlord”, as used in this Lease, so far as covenants or obligations on the part of Landlord are concerned, shall be limited to mean and include only the owner or owners at the time in question of the fee title to the premises and in the event of any transfer or transfers of the title to such fee to an unrelated person or entity for value, Landlord herein named (and in the case of any subsequent transfer or conveyance, the then grantor) shall be automatically freed and relieved, from and after the date of such transfer or conveyance, of all liability as respects the performance of any covenants or obligations on the part of the Landlord contained in this Lease thereafter to be performed; provided that any funds in the hands of such Landlord or the then grantor at the time of such transfer, in which Tenant has an interest, shall be turned over to the grantee, and any amount then due and payable to Tenant by Landlord, or the then grantor under any provisions of this Lease, shall be paid to Tenant, and provided further that Richard L. McBride and Lana K. McBride d/b/a McBride Investments shall not transfer or convey their interest in and to the leased premises prior to the commencement date of this Lease.
36. TENANT’S AUTHORITY TO EXECUTE THIS LEASE. Tenant warrants and represents to Landlord that:
| a. | Tenant is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, and has full right, power, and authority to enter into this Lease and consummate all of the terms and provisions thereof; |
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| b. | The execution and delivery by Tenant of this Lease will not result in any breach or violation of or default under or be in conflict with any agreement or other instrument to which Tenant is a party or by which it is bound and does not require the approval of any administrative agency or court; |
| c. | The execution and delivery of this Lease has been duly authorized and this Lease is valid and binding upon Tenant. |
37. RELATIONSHIP OF PARTIES. It is agreed that nothing contained in this Lease Agreement shall be deemed or construed as creating a partnership or joint venture between Landlord and Tenant or between Landlord and any other party, or cause Landlord to be responsible in any way for the debts or obligations of Tenant or any other party.
38. GENERAL PROVISIONS. Words and phrases herein shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to context.
39. SUCCESSORS IN INTEREST. This Lease Agreement shall be binding upon the parties hereto, their heirs, beneficiaries, legal representatives, successors and assigns.
40. PURCHASE OPTION. During the period beginning after the twelfth (12th) month from the Lease commencement date and ending on the last day of the eighteenth (18th) month of the Lease term (the first “Option Period”), Tenant shall have the option to purchase the real estate upon which the leased premises is located and all improvements thereon. The purchase price shall be Two Million Eight Hundred Six Thousand Four Hundred Fifty-one Dollars ($2,806,451.00), subject to any Increase or decrease due to construction changes requested by Tenant and accepted by Landlord.
During the period beginning after the thirtieth (30th) month from the Lease commencement date and ending on the last day of the thirty-sixth (36th) month of the Lease term and during the period beginning after the fifty-fourth (54th) month from the Lease commencement date and ending on the last day of the sixtieth (60th) month of the Lease term .(the second and third “Option Period”), Tenant shall have the option to purchase the real estate upon which the leased premises is located and all Improvements thereon. The purchase price shall be Two Million Eight Hundred Six Thousand Four Hundred Fifty-one Dollars {$2,806,451.00) (subject to any increase or decrease due to construction changes requested by Tenant and accepted by Landlord) multiplied by the greater of (1) four percent (4%) per year compounded, or (ii) seventy-five percent (75%) of the increase in the Consumer Price Index for All Urban Consumers (CPI-U) published by the Bureau of Labor Statistics of the U.S. Department of Labor from the eighteenth month of the Lease term through the month ending two (2) months prior to the month of closing.
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These options to purchase may be exercised by Tenant delivering to Landlord during the applicable Option Period a written notice of its intent to purchase at least three (3) months prior to the date of Closing, which closing date shall be on the last day of the applicable Option Period. As soon as possible after Tenant’s exercise of this purchase option Landlord shall provide Tenant an abstract of title extended to date. At Closing Landlord shall convey to Tenant good and marketable title to the premises free and clear of all liens and encumbrances, except for easements, and covenants and restrictions of record on the date hereof as set forth on Exhibit “B” attached hereto and as shown on the final plat of the real estate and specifically excluding any mortgages or monetary liens which shall be paid by Landlord at. Closing. Except as set forth below or otherwise herein, Tenant may not exercise this purchase option if at the time of such exercise Tenant is in default under the terms of this Lease, and such default is not cured within the applicable cure periods set out in this Lease. However, if Tenant defaults under the Lease during the applicable Option Period, and the default is not cured within the applicable cure period, Tenant’s option under this paragraph shall not expire if Tenant notifies Landlord, within said applicable cure period, of the exercise of its option to purchase. In such event, Tenant shall purchase the real estate within seventy-five (75) days of the date of the original written notice of default from Landlord, and the purchase price set out above shall be increased by an amount equal to all delinquent sums due under the Lease through the date of closing.
41. RESTRICTIVE COVENANTS. Tenant’s attention is called to existing “Restrictive Covenants” upon the real estate property where the improvements are to be constructed. A copy of the “Restrictive Covenants” are hereby attached to and made a part of this Lease as Exhibit “A”. Where terms and conditions of this Lease conflict with the “Restrictive Covenants”, the requirements of the “Restrictive Covenants” will prevail.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth herein.
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MCBRIDE INVESTMENTS – Landlord | ||
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By: |
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Richard L. McBride | ||
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By: |
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Lana K. McBride | ||
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WESTINGHOUSE AIR BRAKE COMPANY - Tenant | ||
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By: |
/s/ A. Garcia-Tunon | |
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A. Garcia-Tunon VP | ||
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Printed Name Title | ||
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LANDLORD
State of Iowa
ss:
County of Linn
On this day of , 19 , before me, the undersigned, a Notary public in and for said County and State, personally appeared Richard L. McBride and Lana K. McBride, to me personally known, who being by me duly sworn, did say that they are the individuals executing the within and foregoing instrument and acknowledged that they executed the same as their voluntary act and deed.
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Notary Public in and for said County and State |