IN THE
EVENT AND TO THE EXTENT THAT SUCH CHARGES ARE DETERMINED BY AN AWARD OF
ARBITRATORS, OR BY THE JUDGMENT OF A COURT OF COMPETENT JURISDICTION, TO BE
REASONABLE AND PROPER.
Tenant's pro-rata share shall be determined using a fraction, the numerator of
which is the gross square feet of the Demised Premises (100,000 sq. ft. -
subject to the remeasure described above) and the denominator of which is the
total gross square feet in the Project.
32.
RIGHT OF FIRST REFUSAL.
TENANT SHALL HAVE
THE FIRST RIGHT TO LEASE ANY ADDITIONAL WAREHOUSE SPACE CONTAINED WITHIN THE
BUILDING ON THE SAME TERMS AS OFFERED BY LANDLORD TO A PROSPECTIVE TENANT.
LANDLORD SHALL GIVE TENANT WRITTEN NOTICE OF LANDLORD'S DESIRE TO RENT
ADDITIONAL SPACE IN THE BUILDING IN WHICH THE DEMISED PREMISES ARE LOCATED.
IF
TENANT DOES NOT PROVIDE WRITTEN NOTICE TO LANDLORD OF TENANT'S ELECTION TO RENT
ALL OF SUCH WAREHOUSE SPACE SO OFFERED BY LANDLORD WITHIN TEN (10) DAYS FROM THE
DATE TENANT RECEIVES LANDLORD'S NOTICE, OR IF LANDLORD AND TENANT ARE UNABLE TO
AGREE ON THE TERMS OF AN ADDENDUM TO THIS LEASE TO ADD SUCH ADDITIONAL WAREHOUSE
SPACE TO THIS LEASE WITHIN SUCH TEN (10) DAYS FROM THE DATE TENANT RECEIVES
LANDLORD'S NOTICE, TENANT SHALL BE DEEMED TO HAVE WAIVED ITS RIGHT OF FIRST
REFUSAL AS TO SUCH ADDITIONAL WAREHOUSE SPACE.
IF TENANT FAILS TO PROVIDE THE
REQUIRED WRITTEN NOTICE OF ITS DESIRE TO RENT SUCH ADDITIONAL SPACE OR THE
PARTIES FAIL TO AGREE ON THE TERMS FOR THE RENTAL OF SUCH ADDITIONAL SPACE AS
HEREIN REQUIRED, LANDLORD SHALL BE PERMITTED TO LEASE SUCH ADDITIONAL SPACE TO
ANY TENANT OR NEW TENANT.
33.
TENANT'S ENVIRONMENTAL REPRESENTATIONS &
INDEMNIFICATION:
A.
TENANT HEREBY AGREES THAT ITS USE AND
ALTERATIONS OF THE DEMISED PREMISES SHALL COMPLY WITH ALL APPLICABLE LAWS,
RULES, ORDINANCES, AND REGULATIONS, INCLUDING PERMITS, DURING ITS POSSESSION;
AND TENANT WILL NOT STORE, RELEASE, OR DISPOSE (OR KNOWINGLY PERMIT THE STORAGE,
RELEASE, OR DISPOSAL OF) A HAZARDOUS SUBSTANCE (AS SUCH IS DEFINED IN
SUBSECTION B. BELOW) IN THE DEMISED PREMISES, EXCEPT FOR CLEANING SUPPLIES KEPT
AND USED IN THE NORMAL COURSE OF BUSINESS AND IN COMPLIANCE WITH ALL APPLICABLE
ENVIRONMENTAL LAW AND REGULATIONS.
TENANT DOES
16
HEREBY AGREE TO INDEMNIFY AND HOLD LANDLORD HARMLESS OF, FROM, AND AGAINST, ALL
CLAIMS, ACTIONS, LIENS, DEMANDS, COSTS, EXPENSES, FINES AND JUDGMENTS (INCLUDING
REASONABLE LEGAL FEES AND COSTS) RESULTING FROM, OR ARISING OUT OF, TENANT'S
VIOLATION OF THIS PROVISION.
B.
DEFINITION OF HAZARDOUS SUBSTANCE:
THE
PARTIES ACKNOWLEDGE AND AGREE THAT FOR PURPOSES OF THIS PROVISION AND THE LEASE,
(A) THE TERM "HAZARDOUS SUBSTANCE(S)" SHALL MEAN AND INCLUDE ANY SUBSTANCE WHICH
IS OR CONTAINS: (I) ANY "HAZARDOUS SUBSTANCE" AS NOW OR HEREAFTER DEFINED IN THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980,
AS NOW OR HEREAFTER AMENDED (42 U.S.C. SECTION 9601 ET SEQ.) ("CERCLA") OR ANY
REGULATIONS NOW OR HEREAFTER PROMULGATED UNDER CERCLA; (II) ANY "HAZARDOUS
WASTE" AS NOW OR HEREAFTER DEFINED IN THE RESOURCE CONSERVATION AND RECOVERY ACT
OF